CYIL vol. 11 (2020)

YLLI DAUTAJ CYIL 11 (2020) The Convention adopts a general rule of immunity but embraces the restrictive theory. Professor Hafner eloquently synthesized the ways in which the convention limits a state from invoking immunity from adjudication. Accordingly, a state cannot invoke immunity in cases of, inter alia , cases of counterclaims (article 9); commercial transactions (article 10); personal injury and damage to property if committed in the territory of the court (Article 12); etc ( see articles 7-16)”. 21 Moreover, the Convention adopts a general rule of immunity from enforcement/ execution but similarly embraces the restrictive theory also in this respect. Notwithstanding this, the Convention make it considerably harder to attach and execute against state property than to bring a suit against a state. 22 Moreover, the convention does not apply to criminal procedures, nor to immunity for head of states. 23 At the end of the day and despite some shortcomings, the Convention is probably the best normative framework that the world of state immunity has to offer, apart perhaps from some selected jurisdictions’ liberal and pragmatic evolution. 24 The Convention has already “attracted some favorable remarks from national courts” and international courts and tribunals, including the ICJ. 25 The ICJ has made clear that parts of the Convention represent a codification of customary international law. 26 Then, being indirectly treated as a source of public international law, the bottom line of the Convention is that it codifies the restrictive theory of immunity. Corollary, adherence to the absolute theory would be a manifestation of frustrating the Convention’s main object and purpose. 27 The ICJ decision also makes clear that those states that have not signed the Convention, or adopted domestic legislation that 21 HAFNER, Gerhard, ‘Accountability and Immunity: The United Nations Convention on Jurisdictional Immunity of States and Their Property and the Accountability of States’ (2005) American Society of International Law 239. 22 See HAFNER, Gerhard and KÖHLER, Ulrike , ‘The United Nations Convention on Jurisdictional Immunities of States and Their Property’ in Netherlands Yearbook of International Law (Vol. XXXV, Cambridge University Press 2004) 3, 36 (“In state practice, immunity from execution and immunity from jurisdiction are treated separately. Whereas the restrictive immunity concept has been widely accepted concerning jurisdiction, a more cautious approach prevails with regard to the denial of immunity from execution. Evidently, enforcement measures are considered to be more likely to infringe upon the sovereign rights of at state.”). See also STEWART, David P. ‘Introductory Note on the UN Convention on Jurisdictional Immunities of States and Their Property’ (2005) 44 ILM 801 (“The Convention also sets forth exceptions to protection from pre- and post-judgment measures of constraint. The basic rule in either case is restrictive: no measures of constraint may be taken against state property unless, and to the extent that, the state in question has allocated or earmarked property for the satisfaction of the claim that is the object of the proceeding, or the state has expressly consented to such measures by international agreement, by an arbitration agreement or in a written contract, or by a declaration before the court or in a written communication after a dispute has arisen. Separate articles provide criteria for service of process on foreign states and for rendering default judgments against properly served sovereign defendants.”.). Finally, see Fox & Webb, (n 12) 1,174 (“UNCSI follows the universal State practice in treating separately immunity from adjudication in Part III and “immunity from enforcement in Part IV”.). 23 Crawford, (n 3) 490. 24 See e.g. DAUTAJ, Ylli, ‘Sovereign Immunity from Execution of Foreign Arbitral Awards: Sweden’s Liberal and Pragmatic Contribution’ Stockholm Arbitration Yearbook (forthcoming in Volume 2, 2020). 25 Yang, (n 15) 454. 26 Jurisdictional Immunities of the State, Germany v. Italy: Greece Intervening , Judgment, 2012 I.C.J. 99, 117 and 118. 27 It should be mentioned that many states have not signed the Convention but should nevertheless treat the ICJ judgment as binding. In addition, there are some states – e.g. the USA – that has not signed the Convention but has a much more liberal stance on immunity. Finally, the ICJ made clear that immunity stems from the principle of ‘equality’, and therefore the granting or withdrawal of immunity should not be based on, for example, ‘reciprocity’. This means that it matters not what theory the state invoking immunity adheres to.

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