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Revised and updated to include recent developments since 2013, the
third edition of The Law of State Immunity provides a detailed
guide to the operation of the international rule of State immunity
which bars one State's national courts from exercising criminal or
civil jurisdiction over claims made against another State. Building
on the analysis of its two previous editions, it reviews relevant
material at both international and national levels with particular
attention to US and UK law; the 2004 UN Convention on
Jurisdictional Immunities of the State and its Property (not yet in
force), and also seeks to assess the significance of recent changes
in the evolution of the law. Although the restrictive doctrine of
immunity is now widely observed by which foreign States may be sued
in national courts for their commercial transactions, the immunity
rule remains controversial, not only by reason of the recognition
of a single State's right to deny a remedy for a wrong - China, a
major trading State, continues to adhere to the absolute bar - but
also by the exclusion of any reparation or relief for the
commission on the orders of a State of grave human rights
violations. The complexity and moral challenge of the issues is
illustrated by high profile cases such as Pinochet, Amerada Hess,
Saudi Arabia v Nelson and more recently NML v Argentina in national
courts; Al-Adsani v UK and Jones v UK in the European Court of
Human Rights; and Judgments of the International Court of Justice
in Arrest Warrant, Djibouti v France and most recently in the
Jurisdictional Immunities of the State, which, particularly since
the 2014 contrary ruling of the Italian Constitutional Court, has
attracted strong juristic criticism. The expanding extraterritorial
jurisdiction of national courts with regard to torture in disregard
of pleas of act of State and nonjusticiability as in Belhaj and
Rahmatullah offers a further challenge to the exclusionary nature
and continued observance of State immunity. Recent developments in
key areas are examined, including: impleading; public policy and
non-justiciability; universal civil jurisdiction for reparation for
international crimes; the application of the employment exception
to embassies and diplomats; immunity from enforcement and
procedural measures; immunity of State officials, and tensions
between national constitutional requirements and superior
international norms.
The doctrine of state immunity bars a national court from
adjudicating or enforcing claims against foreign states. This
doctrine, the foundation for high-profile national and
international decisions such as those in the Pinochet case and the
Arrest Warrant cases, has always been controversial. The reasons
for the controversy are many and varied. Some argue that state
immunity paves the way for state violations of human rights. Others
argue that the customary basis for the doctrine is not a sufficient
basis for regulation and that codification is the way forward.
Furthermore, it can be argued that even when judgments are made in
national courts against other states, the doctrine makes
enforcement of these decisions impossible. This fully restructured
new edition provides a detailed analysis of these issues in a more
clear and accessible manner. It provides a nuanced assessment of
the development of the doctrine of state immunity, including a
general comprehensive overview of the plea of immunity of a foreign
state, its characteristics, and its operation as a bar to
proceedings in national courts of another state. It includes a
coherent history and justification of the plea of state immunity,
demonstrating its development from the absolute to the restrictive
phase, arguing that state immunity can now be seen to be developing
into a third phase which uses immunity allocate adjudicative and
enforcement jurisdictions between the foreign and the territorial
states. The United Nations Convention on Jurisdictional Immunities
of states and their Property is thoroughly assessed. Through a
detailed examination of the sources of law and of English and US
case law, and a comparative analysis of other types of immunity,
the authors explore both the law as it stands, and what it could
and should be in years to come.
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