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Accountability and Immunity : The United Nations Convention on Jurisdictional Immunity of States and Their Property and the Accountability of States

Published online by Cambridge University Press:  28 February 2017

Gerhard Hafner
Gerhard Hafner*
Affiliation:
University of Vienna, Austria
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Abstract

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Type
Immunity and Accountability: Is The Balance Shifting?
Information
Proceedings of the ASIL Annual Meeting , Volume 99 , 2005 , pp. 237 - 242
Copyright
© 2005 The American Society of International Law

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References

1 See James M. Hosking, The Third Party Non-Signatory's Ability to Compel International Commercial Arbitration: Doing Justice Without Destroying Consent, 4 Pepp . Disp . Resol . L. J. 469, 510-529 (2004).

2 See http://www.icann.org/dndr/udrp/policy.htm>

3 See http://www.iccwbo.org/home/e_businessACC_model_clauses_FAQs.pdf>.

4 See http://www.sweatshopwatch.org/swatch/codes/code.html>

5 See http://www.fairlabor.org/all/complaint/index.html>.

6 Allan Rosen baum, Good Governance , Accou ntability and the Public Servan t 2.

7 See, generally, H. Fox, The Law of State Immunity 24 (2004).

8 Institutde Droit international/institute of International Law, Session of Basel, September 2, 1991. Fourteenth Commission

9 See Proceedings of the 66th Conference of the ILA (1994).

10 ETS 074. However, only eight states became parties to this convention.

11 Foreign Sovereign Immunities Act (FSIA), Public Law 94-583, 28 U.S.C. §§ 1602-1611, 15 ILM 1976, 1388, modified by Public Law 100-669, 28 ILM 1989, 397

12 State Immunity Act (SIA) 1978, 17 ILM 1978, 1123; Australia: Foreign States Immunities Act 1985, 25 ILM 1986, 715

13 Year book of the International Law Commission (YBLIC )1949 , at 41 , 280 .

14 GA Res. 32/151 of 19 December 1977

15 YBILC 1991 , Vol. II, Part 2 , 13 -61 .

16 UN Doc. A/RES/59/38.

17 A more detailed description is offered by David P. Stewart, The UN Convention on Jurisdictional Immunities and Their Property, 99 AJIL 194 (2005).

18 Cf. the articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/RES/56/83 (2001).

19 This definition reads as follows: Use of terms 1. For the purposes of the present Convention:(b) “ State” means:(i) the State and its various organs of government;(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 instrumentalities 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; (iv)“ representatives of the State acting in that capacity ”.

20 Article 2¶1 (c).

21 Article 10 ¶([ 3 reads as follows:3. Where a State enterprise or other entity established by a State which has an independent legal personality and is capable of:(a) suing or being sued; and (b) acquiring, owning or possessing and disposing of property, including property which that State has authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State shall not be affected

22 According to Article 25, the annex forms an integral part of the Convention. The Understanding to Article 10 clarifies that “Article 10, paragraph 3, does not prejudge the question of 'piercing the corporate veil' questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid satisfying a claim, or other related issues”

23 Article 11.

24 Article 18 on prejudgment measures of constraint has to be read in conjunction with Article 24 regarding privileges and immunities during court proceedings.

25 Article 19 ¶ (c).

26 Article 21.

27 This limit is explicitly stated in the resolution by which the Convention was adopted by the General Assembly,A/RES/59738.

28 Article 26.

29 Articles 19 seq of the Vienna Convention on the Law of Treaties of 1969.

30 Tachiona v. United States, 386 F.3d 205, 2004 U.S. App. LEXIS 20879 (2d Cir. 2004) (Tachiona II).

31 Wei Ye v. Jiang Zemin, 383 F.3d 620, 2004 U.S. App. LEXIS 18944 (7th Cir. 2004).

32 See Andrews, Sarah U.S. Courts Rule on Absolute Immunity and Inviolability of Foreign Heads of State: The Cases against Robert Mugabe and Jiang Zemin,ASIL Insight, Nov. 2004, available at http://www.asil.org/ insights/2004/1 l/insight041122.html>..>Google Scholar

33 Cf. art. 2(1) (b)(iv), art. 6(2) of the Convention.

34 Statement of the Chairperson of the 2004 session of the Ad hoc Committee on Jurisdictional Immunities of States and their Property to the Sixth Committee, October 25, 2004, A/C.6/59/SR.13.

35 Cf. Article 31 of the Vienna Convention on the Law of Treaties of 1969.

36 See Section 221 of the Anti-Terrorism and Effective Death Penalty Act of 1996.

37 Case of Al-Adsani v. The United Kingdom (Application no. 35763/97), Judgment of November 21, 2001; http://www.worldlii.org/eu/cases/ECHR/2001/752.html.