The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts

Preface to the Second Edition
Acknowledgements
In Memoriam
Contents
Abbreviations
Part I:
Chapter 1: A General Perspective on the Historical Development of International Law
1.1 Prologue
1.2 Some Basic Principles
1.3 What Is the Meaning of International Law?
1.4 Some Issues Relating to the Nature of International Law: Is International Law Really Law?
1.5 Antiquity and Some Historical Facts of Value/International Law in the Distant Past: Ancient Egypt, Phoenicians and Ancient...
1.6 Development Out of Medieval Natural Law/Jus Gentium
1.7 The Treaty of Westphalia: 1648
1.8 A General Perspective on the Origin and the Development of International Law
1.9 Clearing the Unbeaten Path
1.10 The Division of the Development of International Law Into Three Periods
1.11 Commentary on Some Aspects of the Development of International Law: Sources of Natural Law
1.12 From the Law of Nations to the Name International Law
1.13 Private International Law and Public International Law
1.14 The Coming of Age of Modern International Law
1.14.1 A Look at the Third Period
1.14.2 Europe and the First World War
1.14.3 Some Aspects of Post-World War Two Guiding Principles of International Law
References
Chapter 2: The Origins of Absolute Immunity of States
2.1 Source Analysis and the Origins of Par in Parem non Habet Imperium
2.2 Jean Bodin´s Philosophy on Sovereignty
2.3 Thomas Hobbes
2.4 The Influence of the Philosophy of Thomas Hobbes
2.5 Claims and Counter Claims
2.6 Final Remarks
References
Chapter 3: The Development of Sovereign Immunity
3.1 France Before American Courts and Its After Effects
3.2 Justice Marshall and His Groundbreaking Rule
3.3 Analysis of Chief Justice Marshall´s Thesis
3.4 The Influence of Chief Justice Marshall´s Decision
3.5 Influence of Marshall´s Judgment on English Courts: English Courts and the Sovereign Immunity Question
3.6 Civil Law Countries and Sovereign Immunity
3.7 Russia and the Sovereign Immunity Question
3.8 Sovereign Immunity an International Custom? A Controversy
3.9 Schooner Exchange v McFaddon; Judgment Summary
References
Chapter 4: The Privileges and Immunities of States
4.1 General Observations
4.2 The Rational Foundation of State Immunity
4.2.1 Argument: The Supremacy of the Local Sovereign
4.3 Diplomatic Immunities and State Sovereignty
4.4 Comity of Nations, Reciprocity and Coexistence
4.5 Equality of States in the Sphere of International Law
4.6 Beneficiaries of State Immunities
4.6.1 Practice in the Matter of Sovereign Immunity
4.6.1.1 State Immunity-Claims in English Courts: Overview
4.6.1.2 A Survey of Early English Practice
4.6.1.3 A Look at Post-Second World War Cases
4.6.2 State Immunity in American Courts
4.6.3 State Immunity Issues and the Mixed Courts of Egypt
4.6.4 State Immunity Before South African Courts
4.6.5 State Immunity in British Commonwealth States
References
Chapter 5: Restrictive Immunity in U.S. and U.K. Courts
5.1 A Move Towards a New Rule
5.2 Background
5.3 Early Practice in Belgium and Italian Courts
5.4 A Move Toward Restrictive Immunity
5.5 Restrictive Immunity and Its Implications
5.6 The Change of Heart in American Practice
5.7 Sovereign Immunity Act of 1976: Current U.S. Law
5.8 Jurisdiction of the Federal Courts
5.9 Issues with Respect to Commencement of Action
5.10 Commercial Activity under FSIA
5.11 Contacts and Direct Effect Approach
5.12 Arbitration Clauses
5.12.1 Expropriation Claims
5.12.2 Non-Commercial Torts
5.12.3 Counterclaims
5.12.4 Attachment and Execution
5.13 The Change of Heart in British Practice
5.13.1 The State Immunity Act of the United Kingdom (1978)
5.13.2 Exceptions to Immunity Under the 1978 Act
5.13.3 Indirect Impleading
5.13.4 Waivers of Immunity and Counterclaims
5.13.5 Execution
5.13.5.1 Supplementary Provisions: Persons Entitled to Immunity
Section 14(1) provides inter alia that:
5.13.6 Miscellaneous Considerations
5.14 Difficulties in Applying Restrictive Immunity
5.14.1 Difficulties Associated with Political Acts of States
5.14.2 Thoughts on Nationalization and Restrictive Immunity
References
Chapter 6: Private Suits Against African States in Foreign Courts
6.1 Preliminary Observations
6.2 Evidence of Resistance to the Restrictive Rule: Nigeria Before English, American and German Courts
6.3 Nigeria Before English Courts
6.3.1 Trendtex Trading Corporation v Central Bank of Nigeria
6.3.2 Nigeria Before German Courts
6.3.3 Nigeria Before American Courts: Part One
6.3.4 Nigeria before American Courts: Part Two
6.4 Uganda Before English Courts
6.5 Egypt Before Indian Courts
6.6 United Arab Republic Before American Courts
6.7 Tunisia Before United States Courts
6.8 Zaire Before English Courts
6.9 Somali Democratic Republic Before American Courts
6.10 Libya Before American Courts
6.11 People´s Republic of Congo Before Canadian Courts
6.12 Arbitration, Default Judgment and Enforcement
6.12.1 Nigeria Before Switzerland and American Courts
6.12.2 Tanzania Before American Courts
6.12.3 The Republic of Guinea Before American Courts
6.12.4 Recent Developments-A Look at the DRC Before Hong Kong Courts and Other Cases: Part II
6.12.4.1 La Generale des Carrieres at Des Mines (Appellant) v F. G. Hemisphere Associates (Respondent), Before the Privy Counc...
6.12.4.2 The Republic of Ghana Before US Courts: Bawol Cabiri and Efua Cabiri, Plaintiff: Appellants v Government of the Repub...
6.12.5 The Republic of Namibia Before US Courts: USAA Casualty Insurance Company v Permanent Mission of the Republic of Namibia
6.12.6 Is Resistance by African States Legally Justified?
References
Chapter 7: African States and the Practice of State Immunity
7.1 Is It Still State Immunity or Restrictive Immunity?
7.2 Pre-Colonial Africa and Early African Dynasties
7.2.1 Some Concrete Examples of Personal Sovereigns
7.3 The Colonial Era
7.3.1 The Pattern of Balkanization of Africa According to Colonial Power Boundaries
7.4 English Sovereign Immunity Law in African States
7.5 French Sovereign Immunity Law in African States
7.6 Africa, Self-Determination and International Law
7.7 Reflections on State Practice and Its Implications
7.7.1 What Do We Mean by State Practice?
7.7.2 Municipal Courts and Legal Arguments of Defendant States
7.7.3 Summary of Rules
7.8 Custom and the Concept of Persistent Objector
7.8.1 Are African States Bound by Restrictive Immunity?
7.9 Thoughts on the Persistent Objector Rule
7.10 The Position of African States on State Immunity
7.11 Preceding Observations and Conclusions
7.12 Conclusion
References
Chapter 8: The ILC Report On Jurisdictional Immunities of States
8.1 Composition of the International Law Commission
8.2 Preliminary Observations
8.3 Specific Exceptions to Immunity of States: Commercial Elements and Jurisdictional Competence
8.4 Principles of State Immunity Under the Draft Articles
8.5 Execution Against a Foreign State
8.6 Personal Injury or Damage to Property
8.7 Effects of Draft Article 2.2 on Restrictive Immunity
8.8 Third World Influence on the ILC Deliberations
8.9 Disagreement Over the Draft Articles: The Sixth Committee and the Draft Articles on Jurisdictional Immunities of States an...
8.10 The Uncertainty of State Practice
References
Chapter 9: State Immunity and Certain Unresolved Problems
9.1 Some Lingering Problems
9.2 The Problems of Territorial Nexus or Connection
9.3 Problems of the Nature and Purpose Tests
9.4 Cuba Before the House of Lords
9.4.1 Mixed Activities of States Involving Private Traders
9.4.2 Nicaragua Before US Courts
9.5 The Continuing Problems of Arbitration
9.6 Central Banks and Certain Unsettled Problems
9.7 Some Problems Relating to the Act of State Doctrine
9.7.1 National Courts and Foreign Acts of States
9.8 The Overlap of Act of State
9.8.1 The Law of State Immunity and the Act of State Doctrine: Charges of Extraordinary Rendition False Imprisonment Against J...
9.8.2 Commentary on the Law: Act of State Doctrine and Actions of State Officials
9.8.3 Commentary on State Immunity: The Application of State Immunity and Claims Against State Officials
9.8.4 National Privileges and Immunities Law
9.8.5 The U.K. Supreme Court and the Plea for State immunity and the Act of State Doctrine: Belhaj and Another (Respondent) v ...
9.9 Final Remarks
References
Chapter 10: State Immunity and Violation of International Law
10.1 Preliminary Matters
10.2 Private Suits Against States for Violating Human Rights
10.3 The State, Recognition and Juridical Equality
10.3.1 Immunities of Heads of States and Senior State Officials
10.4 Recent Case Law on International Law Crimes
10.4.1 General Pinochet Before English Courts
10.4.2 Ex-President Habre Before the Courts of Senegal and France
10.4.3 Colonel Qadaffi Before the Courts of France
10.4.4 President Robert Mugabe Before American Courts
10.4.5 A Brief Study of Jus Cogens, Obligations Erga Omnes and Actio Popularis
10.4.6 A Brief Historical Perspective
10.4.7 A Quest to Redefine Jus Cogens by the ILC
10.4.8 Modern Character of Jus Cogens
10.4.9 Commentary on Jus Cogens, Obligations Erga Omnes and Actio Popularis
10.4.10 Some Basic Features and the Application of Jus Cogens
10.4.11 An Example of a National Court Embracing Jus Cogens
10.5 UK and Ireland Before the European Court of Human Rights
10.6 State Immunity and World War II Damage Claims
10.6.1 Germany Before Greek Courts
10.6.2 Japan Before American Courts
10.7 Some Salient Legal Issues Before the ICJ: The Legality of Use of Force Before the ICJ
10.7.1 Congo v the Kingdom of Belgium: The Immunity of a Foreign Minister in International Law
10.7.2 The Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Preliminary Objections and Merits)
10.8 Immunity, International Crimes and American Courts
10.8.1 USSR Before American Courts
10.8.2 Hugo Princz v Germany, Before American Courts
10.9 Amendments to US FSIA of 1976
10.10 Samantar Before the US Supreme Court: Is the Judgment Consistent with International Law?
10.11 Is the Judgment in Samantar Consistent with General International Law?
10.12 Final Remarks
References
Chapter 11: UN Draft Convention on State Immunity
11.1 Acceptance of the Proposed Draft Convention
11.2 The Concept of the State for Purpose of Immunity
11.3 State Enterprise and Commercial Transactions
11.4 Commercial Character of a Contract or Transaction
11.5 Contracts of Employment
11.6 Measures of Constraint Against the State
11.7 A Perspective Sketch of Possible Future Problems
11.8 Conclusion
References
Chapter 12: The Current Law of State Immunity
12.1 Some Thoughts on the Law
12.2 The Current State of the Law
12.3 The Changing Scope of Sovereign Immunity
12.4 A Look at Current State Practice
12.5 Some Evidence of European State Practice
12.6 Asian-African Legal Consultative Committee Report
12.7 Further Reflections on the State of the Law: Some Salient Issues
12.8 Embassy Bank Accounts and Foreign Reserves
12.9 Employment Contracts and Restrictive Immunity
12.9.1 Recent Developments in Employment Contracts and State Immunity in Europe: A Commentary on Benkharbouche/Janah v Sudan E...
12.9.2 A Commentary on State Immunity and Employment Claims of Ms. Benkarbouche and Ms. Janah: Did the Court Get It Right?
12.10 The Future of the Law of Sovereign Immunity
References
Chapter 13: New Horizons in the Law of State Immunity
13.1 Deciphering the Controversy and Conflicting Claims
13.2 State Immunity and Restrictive Immunity
13.2.1 Has Restrictive Immunity Attained the Status of Customary International Law?
13.2.2 State Immunity Versus Human Rights Law: Is There a Move from Absolute Immunity to Individual Criminal Accountability?
13.2.3 The Quest to Protect Human Rights Law
13.3 Is State Immunity Still Beneficial to the World? Basic Principles, Claims and Counter Claims
References
Chapter 14: State Immunity and Vulture Funds
14.1 A Perspective on the Problem of Greed and the Need for Equity and Balance
14.2 What Is the Meaning of Vulture Funds?
14.3 A Historical Overview of the Problem
14.4 The Chronicle of Vulture Funds Litigation: Can State Immunity Be an Effective Shield?
14.5 Vulture Funds and African States: A Look at Some Salient Issues
14.6 NML Capital v Argentina Before Ghanain Courts: Frigate Libertad, a Prey of Vulture Funds Rapacious Tactics
14.7 Argentina and Ghana Before the Law of the Sea Tribunal and the Quest to Have the Libertad Released: A Request for Provisi...
14.8 A Commentary on the Legal Status of War Ships and Military Property: Some Thoughts on the Dispute
14.9 Warships and Military Property: The Legal Position of the Libertad
14.10 Law of State Responsibility and the Detention of the Frigate Libertad by Ghana
14.11 Final Remarks
References
Chapter 15: Concluding Statement of Part I
15.1 A Proposal for Resolving the Controversy
Part II:
Chapter 16: The Immunity of Heads of State and Senior Government Officials Before Foreign Courts and International Tribunals
16.1 Preliminary Thoughts on the Subject and the Way Forward
16.2 Heads of State Immunity and Some Salient Issues: The Theory of Divine Right of Kings
16.3 A Note on the Position of the Sovereign, Pope and the Ambassador
16.4 Immunity of Heads of State and International Criminal Justice: Indictment and Prosecution of Heads of State and Senior Go...
16.5 The African Union v the ICC and the Immunity Issue
16.6 The Rome Statute and the Need for Treaty Interpretation
16.7 Final Remarks: Stating the Law De Lege Lata
References
Chapter 17: Invoking State Immunity Before the ICJ, International Tribunals and Foreign Courts
17.1 Legitimacy and the Profile of International Tribunals
17.2 The ICJ and the Law of State Immunity: An Outline
17.3 The Consent of States and the Law of State Immunity
17.4 Foreign Criminal Jurisdiction and the Immunity of Heads of State and Senior Government Officials
17.5 Pinochet No 3 and Immunity Ratione Materiae Revisited
17.6 Is There Usus to Support an Exception to Immunity Ratione Materiae?
17.7 Special Mission and Its Legal Implications: The Case of Khurts Bat Before English Courts
17.8 Immunity Ratione Materiae and Other Legal Issues
References
Chapter 18: The ICC and the Immunity Question
18.1 Commentary on Some Aspects of International Criminal Justice
18.2 The Indictment of President Al Bashir of Sudan by the ICC: Articles 27 and 98 and Immunity Ratione Personae
18.3 The AU´s Position on the Immunity of Sitting Heads of State
18.4 The Withdrawal of Three African States from the ICC Statute: A Blind Fury or Legally Justified?
18.5 The Non-cooperation of the Democratic Republic of Congo and the Pronouncements of Pre-trial Chamber II of the ICC
18.6 A Look at Some New Trends in Preventing Impunity, Aspects of the Law
18.7 Commentary on Some Aspects of Criminal Law and the Rome Statute of 1998
18.8 Problems in Arresting Ex-presidents and Sitting Presidents: Is There Usus to Support Such Actions?
18.8.1 General Noriega Before American Courts
18.8.2 The Indictment of President Taylor
18.8.3 The Indictment of Milosevic and Gbagbo
18.9 The Arresting Process and the Need for International Public Order
References
Chapter 19: The Normative Hierarchy Theory: Does Jus Cogens Conflict with State Immunity?
19.1 A Brief Explanation of the Normative Hierarch Theory
19.2 The Hierarchical Relationship Between International Rules: Preliminary Considerations and a Historical Background
19.3 Commentary on Voluntarist and Universalist Thinking on the Law
19.4 The Horizontal Legal Structure and Consent Based Rights of States Versus Normative Hierarchy Theory (Vertical Order)
19.5 Jus Cogens and State Immunity; Do These Legal Concepts Converge or Conflict? An Argument
References
Chapter 20: Case Study: Can a Sitting President Be Prosecuted by an International Tribunal?
20.1 Prosecutor v Charles Taylor-Case Number SCSL-2003-01-01: Background
20.2 The Preliminary Motion by the Defence on the Immunity Issue
20.3 Prosecution´s Response
20.4 The Appeal Process
20.5 Appeal Chamber´s Decision
20.6 Charles Taylor´s Immunity Before the SCSL, Holding Heads of State Accountable: Did the Court Get It Right?
20.7 Accountability of Heads of State: Is this a Trend or a Well-grounded Practice or Usus?
20.8 The Profile of Treaties and International Tribunals
20.9 Immunity Ratione Personae and the Special Sierra Leonean Court (SCSL)
20.10 The SCSL´s Unconvincing Reasoning on Personal Immunity
20.11 The Prosecutor v Charles Ghankay Taylor: Judgment and Commitment
20.12 An Outline of the Sources of International Criminal Law
20.13 A Look at Nuremberg Case Law and Recent Case Law: Is the Law in a State of Flux?
References
Chapter 21: The Overlap of Immunity Ratione Personae and Immunity Ratione Materiae
21.1 A Hypothetical Problem on the Immunity of Heads of State Before an International Tribunal
21.2 How to Defend Heads of State, Heads of Government and Senior Government Officials
21.2.1 Defending an Indicted Leader
21.2.2 Customary International Law Implications
21.2.3 Evaluating the Rules of the Court
21.2.4 Credible Collection of Evidence
21.2.5 Superior Orders Defence Strategy
21.2.6 Necessity and Duress Defences
21.2.7 Mistake of Fact/Ignorantia Facti Juris Excusant
21.2.8 The Principle of Ignorantia Juris non Excusant: Ignorance of the Law Is Not an Excuse
21.2.9 Double Jeopardy Defence
21.2.10 Credible and Expert Witnesses
21.3 Epilogue of Part II
References
Appendix
The Schooner Exchange Decision by Chief Justice Marshall
Judge Weiss´ Concept of Restrictive Immunity (1922)
The Tate Letter
European Convention on State Immunity
1972
Basle 16. V Treaty no. 74
US: Foreign Sovereign Immunities Act of 1976
28 US CODE 97 Chapter 27
UK: State Immunity Act of 1978
Chapter 33
The Singapore State Immunity Act 1979
The Pakistani State Immunity Ordinance 1981
South African Foreign States Immunities Act 1981
The ILA Montreal Draft Convention
1982
AUSTRALIAN
1985
Foreign States Immunities Act No. 196 of 1985
CANADIAN
1985
State Immunity Act, Chapter S-18
RSC 1985, C S-8
SHORT TITLE
INTERPRETATION
STATE IMMUNITY
PROCEDURE AND RELIEF
ILC Draft Articles on Jurisdictional Immunities
1986
International Law Commission
Draft Articles on Jurisdictional Immunities of States and Their Property
United Nations Convention on Jurisdictional Immunities of States and Their Property
2004
Statutes
Treaties
Sources
Table of Cases
Articles and Comments
Index