The International Law Commission's Draft Convention on the Jurisdictional Immunities of States and Their Property

Burkhard Heß ¹

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I. Introduction

Jurisdictional immunity concerns the question of the extent to which States, or their organs or State enterprises, can be sued in the civil courts of other States, and how far there can be execution on property of a foreign State.² Originally in international law the prevailing theory was that of absolute immunity, according to which actions against foreign States were in general inadmissible without their consent, but restrictive immunity has since gained sway.³ Under this theory immunity is to be granted only in the case of particular types of property, notably those of a sovereign nature (acta iure imperii). The problem is clearly that of drawing a precise demarcation line between immune and non-immune State activity.

The international development of State immunity has since the 1970s been determined by a variety of national⁴ and international⁵ codes, which delimit immunity by laying down exceptions in particular groups of cases. These codes are binding particularly on the Western industrial States, and it is before their courts that almost all known actions against foreign States have been brought. Since 1977 most of these cases have been heard in the USA. Here a private plaintiff finds a system of procedural law that generates comparatively low costs, and is able to profit from the Foreign Sovereign Immunities Act which lays down far-reaching exceptions to immunity.⁶ Academic bodies have also made proposals for codifying State immunity: notably the International Law Association⁷ and the Institut de Droit International.⁸

In view of the continuing uncertainty as to the sphere of application of immunity, and a perceptible reticence on the part of many third world countries about the development of international norms which are imposed by mainly first world countries, the UN General Assembly decided in 1977 to include the topic in the work programme of the International Law Commission (ILC). Professor Sompong Sucharitkul of Thailand was appointed Rapporteur, and between 1979 and 1986 he produced eight extensive reports.⁹ Professor Sucharitkul comprehensively worked through existing case-law and codifications, but went further by decisively developing the law. The draft articles he proposed were not confined to simply reproducing the law in force. They formed the basis for a draft convention adopted by the ILC in 1986 after their first reading.¹⁰ By 1988 23 States had taken their positions on this draft.¹¹ Between 1988 and 1991 the ILC produced a final draft on second reading. The Rapporteur was Professor Motoo Ogiso of Japan, who prepared the final version in three further reports.¹² At the 43rd session of the ILC in Spring 1991 the final draft was adopted; it was submitted to the UN General Assembly in Autumn 1991.¹³

The draft contains 22 Articles which are divided into five sections: Part I (Introduction, Articles 1-4) regulates the personal,¹⁴ material¹⁵ and temporal¹⁶ sphere of application of the draft, the most important definitions being contained in Article 2. Part II (Articles 5-9) prescribes in Article 5 immunity as the rule for trial proceedings. Article 6 specifies the forum State's obligation to observe immunity. Articles 7-10 contain the generally recognized circumstances where immunity is waived.¹⁷ Part III (Articles 10-17) contains exceptions to immunity for trial proceedings associated with the property under the dispute. Part IV (Articles 18-19) concerns immunity from enforcement. Part V under the heading Miscellaneous Provisions regulates in particular procedural questions, while Article 20 concerns notification, and Article 21 the handing down of judgments in absentia. Article 22(1) bans the imposition of procedural constraints on foreign States.¹⁸

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1 Dr. jur. University of Munich.

2 From the vast literature on State immunity, only recent fundamental works are cited: see Crawford, `International Law and Foreign Sovereigns: Distinguishing Immune Transactions', 54 BYIL (1983) 74; H. Damian, Staatenimmunität und Gerichtszwang (1985); C. Schreuer, State Immunity: Some Recent Developments (1988); Sornarajah, `Problems in Applying the Restrictive Theory of Sovereign Immunity', 31 ICLQ 661 (1982); H. Steinberger, State Immunity, Encyclopedia of Public International Law Vol. 10 (1987) 433; Trooboff, `Foreign State Immunity - Emerging Consensus of Principles', 200 RdC (1986) 235.

3 This development was largely determined by the collapse of the socialist States, which had previously largely kept to the absolute theory. Today the absolute theory is represented only by the People's Republic of China and a few other third world countries; cf. Jin, Jingshen, `Immunities of States and Their Property: the Practice of the People's Republic of China', 1 Hague Yearbook of International Law (1988) 163. For a survey see B. Heß, Staatenimmunität bei Distanzdelikten (1992) 196 et seq.

4 USA, Foreign Sovereign Immunities Act; 28 USC paras. 1330, 1602-1611, 15 ILM (1976) 1398; United Kingdom, State Immunity Act, 17 ILM (1978) 1123, (with largely identically worded Acts in Pakistan (1981), South Africa (1981) and Singapore (1979)); Canada, State Immunity Act 1982, 21 ILM (1982) 798, and Australia, Foreign States Immunities Act 1985, 25 ILM (1986) 715.

5 Notably the European Convention on State Immunity of 16 May 1972, ETS 3, 28 et seq., at present ratified by 8 States.

6 See Trooboff, supra note 1; J. Dellapenna, Suing Foreign Governments and their Corporations (1988). After 15 years of court practice, essential legal questions of this Act have now been clarified.

7 Montreal Draft, 22 ILM (1983) 287. This is at present being reworked (Rapporteur Prof. Ress (Saarbrücken), see Cairo Report on State Immunity, 1992). The ILA discussed the proposals in Spring 1992.

8 See volume 64 Annuaire de l'Institut de droit international (1992) 388, special rapporteur Prof. Brownlie.

9 The reports contain the most thorough and creative treatment of State immunity to date. They can be found in the ILC Yearbooks for 1979-1986; references in ILC Report (43rd session), A/46/10, Suppl. 10, 8, para. 17.

10 Greig, `Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission's Draft Articles', 38 ICLQ (1989) 243 et seq.; Greig, `Specific Exceptions to Immunity Under the International Law Commission's Draft Articles', 38 ICLQ (1989) 560 et seq.; Morris, `The International Law Commission's Draft on the Jurisdictional Immunities of States and Their Property', 17 Denver Journal of International Law and Policy (1989) 395 et seq.; Tomuschat, `Jurisdictional Immunities of States and Their Property. The Draft Convention of the International Law Commission', Essays in Honour of I. Seidl-Hohenveldern (1988) 603 et seq.

11 The written comments and observations were reproduced in Doc. A/CN.4/410 and Add. 1-5.

12 Preliminary Report, A/CN.4/415; Second Report, A.CN.4/422 and Corr.1; Third Report, A/CN.4/431 and Corr.1 (not yet published).

13 Draft Articles on Jurisdictional Immunities of States and Their Property, 30 ILM (1991) 1554; the ILC's exhaustive comments can be found in Report of the International Commission on the work of its forty-third session, A/46/10, Suppl. 10, 8 et seq.; Cf. Kessedjian, Schreuer, `Le projet d'articles de la Commission du droit international des Nations-Unies sur les immunités des Etats', 96 RGDIP (1992) 299.

14 See infra text note 83 et seq.

15 Diplomatic and consular immunities remain unaffected (Article 3(1)). The same applies under Article 3(2) to the personal privileges of Heads of State. As far as their action in the line of duty is concerned, they are equated with the other State organs, by virtue of Article 2(1)(b)(v).

16 Article 4 excludes retroactive application of the Convention.

17 Specifically, waiver of immunity by treaty (Article 7), by accepting the proceedings (Article 8) and by relevant counter-suit (Article 9).

18 See infra text note 77 et seq.

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