International law, Sixth edition
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International Law MALCOLM N. SHAW
party. 57 Sovereign and non-sovereign acts With the acceptance of the restrictive theory, it becomes crucial to analyse the distinction between those acts that will benefit from immunity and those that will not. In the Victory Transport case, 58 the Court declared that it would (in the absence of a State Department suggestion) 59 refuse to grant immunity, unless the activity in question fell within one of the categories of strictly political or public acts: viz. internal administrative acts, legislative acts, acts concerning the armed forces or diplomatic activity and public loans. However, the basic approach of recent legislation 60 has been to proclaim a rule of immunity and then list the exceptions, so that the onus of proof falls on the other side of the line. 61 This approach is mirrored in article 5 Draft Convention on Jurisdictional Immunity of States, 22 ILM, 1983, p. 292. Note that the large number of cases precipitated by the 1979 Iran Hostages Crisis and the US freezing of assets were argued on the basis of the restrictive theory, before being terminated: see e.g. R. Edwards, ‘Extraterritorial Application of the US Iranian Assets Control Regulations’, 75 AJIL, 1981, p. 870. See also Dames and Moore v. Regan 101 S. Ct. 1972 (1981); 72 ILR, p. 270. 57 See, for a number of examples, UN, Materials, pp. 134–50. See also M. M. Boguslavsky, ‘Foreign State Immunity: Soviet Doctrine and Practice’, 10 Netherlands YIL, 1979, p. 167. See, as to Philippines practice, US v. Ruiz and De Guzman 102 ILR, p. 122; US v. Guinto, Valencia and Others, ibid., p. 132 and The Holy See v. Starbright Sales Enterprises, ibid., p. 163. 58 336 F.2d 354 (1964); 35 ILR, p. 110. See also P. Lalive, ‘L’Immunit´e de Juridiction des ´Etats et des Organisations Internationales’, 84 HR, 1953, p. 205, and Lauterpacht, ‘Problem’, pp. 237–9. 59 Note that since the 1976 Foreign Sovereign Immunities Act, the determination of such status is a judicial, not executive, act. 60 See e.g. s. 1 of the State Immunity Act 1978; s. 1604 of the US Foreign Sovereign Immunities Act 1976 and s. 9 of the Australian Foreign States Immunities Act 1985. See also Saudi Arabia v. Nelson 123 L Ed 2d 47 (1993); 100 ILR, p. 544. 61 See also article 15 of the European Convention on State Immunity, 1972. Article II of the Revised Draft Articles for a Convention on State Immunity adopted by the International Law Association in 1994, Report of the Sixty-sixth Conference, 1994, p. 22, provides that: ‘In principle, a foreign state shall be immune from the adjudicatory jurisdiction of a forum state for acts performed by it in the exercise of its sovereign authority, i.e. jure imperii. It shall not be immune in the circumstances provided in article III.’ 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 709 of the UN Convention on Jurisdictional Immunities of States and Their Property, 2004, which notes that: 62 A state enjoys immunity in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention. In such circumstances, the way in which the ‘state’ is defined for sovereign immunity purposes becomes important. Article 2(1)b of the Convention declares that ‘state’ means: (i) the state and its various organs of govern- ment; (ii) constituent units of a federal state or political subdivisions of the state, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumen- talities of the state or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the state; and (iv) representatives of the state acting in that capacity. 63 With the adoption of the restrictive theory of immunity, the appropri- ate test becomes whether the activity in question is of itself sovereign (jure imperii) or non-sovereign (jure gestionis). In determining this, the pre- dominant approach has been to focus upon the nature of the transaction rather than its purpose. 64 However, it should be noted that article 2(2) of the Convention provides that: 62 There is extensive state practice on whether immunity should be seen as a derogation from territorial sovereignty and thus to be justified in each particular case, or as a rule of international law as such, thus not requiring substantiation in each and every case: see Yearbook of the ILC, 1980, vol. II, part 2, pp. 142 ff. 63 Note that the provision in point (iv) is somewhat confusing in the light of article 3 which states that the Convention is without prejudice to the privileges and immunities of diplo- matic and consular missions, special missions and missions to international organisations, and the immunities granted to heads of state. 64 See e.g. s. 1603(d) of the US Foreign Sovereign Immunities Act of 1976. The section-by- section analysis of the Act emphasises that ‘the fact that goods or services to be procured through a contract are to be used for a public purpose is irrelevant; it is the initially com- mercial nature of an activity or transaction that is critical’, reproduced in UN, Materials, pp. 103, 107. See also the Empire of Iran case, 45 ILR, pp. 57, 80–1; Trendtex Trading Cor- poration Ltd v. Central Bank of Nigeria [1977] 2 WLR 356; 64 ILR, p. 122; Non-resident Petitioner v. Central Bank of Nigeria 16 ILM, 1977, p. 501 (a German case); Planmount Ltd v. Republic of Zaire [1981] 1 All ER 1110; 64 ILR, p. 268 and Saudi Arabia v. Nelson 123 L Ed 2d 47 (1993); 100 ILR, p. 544 (US Supreme Court). See also article I of the Revised Draft Articles for a Convention on State Immunity adopted by the International Law Association in 1994, Report of the Sixty-sixth Conference, 1994, p. 23. 710 i n t e r nat i o na l l aw In determining whether a contract or transaction is a ‘commercial transac- tion’ . . . reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the state of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction. The reason for the modified ‘nature’ test was in order to provide an adequate safeguard and protection for developing countries, particularly as they attempt to promote national economic development. The ILC Commentary notes that a two-stage approach is posited, to be applied successively. First, reference should be made primarily to the nature of the contract or transaction and, if it is established that it is non-commercial or governmental in nature, no further enquiry would be needed. If, how- ever, the contract or transaction appeared to be commercial, then refer- ence to its purpose should be made in order to determine whether the contract or transaction was truly sovereign or not. States should be given an opportunity to maintain that in their practice a particular contract or transaction should be treated as non-commercial since its purpose is clearly public and supported by reasons of state. Examples given in- clude the procurement of medicaments to fight a spreading epidemic, and food supplies. 65 This approach, a modification of earlier drafts, 66 is not uncontroversial and some care is required. It would, for example, be unhelpful if the purpose criterion were to be adopted in a manner which would permit it to be used to effect a considerable retreat from the restrictive immunity approach. This is not to say, however, that no consid- eration whatsoever of the purpose of the transaction in question should be undertaken. Lord Wilberforce in I ◦ Congreso del Partido 67 emphasised that in con- sidering whether immunity should be recognised one had to consider the whole context in which the claim is made in order to identify the ‘relevant act’ which formed the basis of that claim. In particular, was it an act jure gestionis, or in other words ‘an act of a private law char- acter such as a private citizen might have entered into’? 68 This use of the private law/public law dichotomy, familiar to civil law systems, was Download 7.77 Mb. Do'stlaringiz bilan baham: |
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