International law, Sixth edition
particular conduct may constitute part of the definition of the act itself
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
particular conduct may constitute part of the definition of the act itself in some cases, while in others the nature or quality of the act performed might not be ascertainable without reference to the context within which it is carried out. The Court also made the point that a relevant factor was the perception held or policy adopted in each particular country as to the attributes of sovereignty itself. 76 The point that ‘unless we can inquire into the purpose of such acts, we cannot determine their nature’ was also made by the US Court of Appeals in De Sanchez v. Banco Central de Nicaragua and Others. 77 69 See e.g. Sinclair, ‘Sovereign Immunity’, pp. 210–13, and the Empire of Iran case, 45 ILR, pp. 57, 80. See also article 7 of the European Convention on State Immunity, 1972. 70 See e.g. Crawford, ‘International Law’, p. 88, and Lauterpacht, ‘Problem’, pp. 220, 224–6. 71 [1983] AC 244, 267; 64 ILR, p. 318. 72 [1983] AC 244, 272; 64 ILR, p. 323. 73 (1992) 91 DLR (4th) 449; 94 ILR, p. 264. 74 [1992] 91 DLR (4th) 463; 94 ILR, p. 278. 75 [1993] 1 VR 251; 101 ILR, p. 193. 76 [1993] 1 VR 253; 101 ILR, pp. 195–6. 77 770 F.2d 1385, 1393 (1985); 88 ILR, pp. 75, 85. 712 i n t e r nat i o na l l aw The particular issue raised in the Congreso case was whether immunity could be granted where, while the initial transaction was clearly commer- cial, the cause of the breach of the contract in question appeared to be an exercise of sovereign authority. In that case, two vessels operated by a Cuban state-owned shipping enterprise and delivering sugar to a Chilean company were ordered by the Cuban government to stay away from Chile after the Allende regime had been overthrown. The Cuban government pleaded sovereign immunity on the grounds that the breach of the con- tract was occasioned as a result of a foreign policy decision. The House of Lords did not accept this and argued that once a state had entered the trading field, it would require a high standard of proof of a sovereign act for immunity to be introduced. Lord Wilberforce emphasised that: in order to withdraw its action from the sphere of acts done jure gestionis, a state must be able to point to some act clearly done jure imperii 78 and that the appropriate test was to be expressed as follows: it is not just that the purpose or motive of the act is to serve the purposes of the state, but that the act is of its own character a governmental act, as opposed to an act which any private citizen can perform. 79 In the circumstances of the case, that test had not been satisfied. One of the two ships, the Playa Larga, had been owned at all relevant times by the Cuban government, but the second ship, the Marble Islands, was owned by a trading enterprise not entitled to immunity. When this ship was on the high seas, it was taken over by the Cuban government and ordered to proceed to North Vietnam, where its cargo was eventually donated to the people of that country. The Court was unanimous in rejecting the plea of immunity with regard to the Playa Larga, but was split over the second ship. Two members of the House of Lords, Lord Wilberforce and Lord Edmund-Davies, felt that the key element with regard to the Marble Is- lands, as distinct from the Playa Larga, where the government had acted as owner of the ship and not as governmental authority, was that the Republic of Cuba directed the disposal of the cargo in North Vietnam. This was not part of any commercial arrangement which was conducted by the demise charterer, who was thus responsible for the civil wrongs 78 [1981] 2 All ER 1064, 1075; 64 ILR, p. 320. 79 Ibid., quoting the judge at first instance, [1978] 1 All ER 1169, 1192; 64 ILR, p. 179. i m m u n i t i e s f r o m j u r i s d i c t i o n 713 committed. The acts of the government were outside this framework and accordingly purely governmental. 80 However, the majority held that the Cuban government had acted in the context of a private owner in discharging and disposing of the cargo in North Vietnam and had not regarded itself as acting in the exercise of sovereign powers. Everything had been done in purported reliance upon private law rights in that the demise charterers had sold the cargo to another Cuban state enterprise by ordinary private law sale and in purported reliance upon the bill of lading which permitted the sale in Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling