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Immunity Notes

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Restraints on State Jurisdiction (1) Immunity- reciprocal nature of dipl. exchange (2) Act of State - quest. of int. boundaries, state succession or resp. are treated by national courts as int. transactions b/w states non-justiciable in nat. law (3) Non Justiciability- subject matter of the claim is governed by IL - court has no competence to assert jurisdiction (e.g. validity of constitution or legislative acts of foreign state, save where violate IL)
= Not mutually exclusive - can exist simultaneously StateImmunity: General

Rationale (i) Sovereign equality of states under IL = par in parem non habet imperium (ii) Implied waiver of absolute privilige by territorial sovereign in favour of another state rationalised by trade (iii) Practical - national court shouldn't consider merits of dispute involving foreign state in light of policy issues (iv) International comity - desire to foster int. co-op & avoid unnecessary state disputes

Objections (i) More in keeping with dignity of the sovereign to submit to rule of law than claim to be above it + his independence's better ensured by accepting decisions of courts' acknowledged impartiality than by arbitrary rejection of their jurisdiction (Denning) (ii) Need to ensure fairness to individuals affected by states

Sources (i) Customary IL (ii) Treaties
= not widely ratified - mainly crystallised customary IL (iii) Domestic Legislation
= mainly common law countries
= where no domestic legislation, states recognise & apply IL rules to that effect

Types (i) Immunity from judicial jurisdiction
= Immunity based on identity of the litigant (ratio personae)
= Non justiciability based on substance of dispute (ratio materiae) (ii) Immunity from enforcement/execution
= E.g. assets may be immune to execution State Immunity in IL

Initial: absolute immunity? no mitigation of circumstances ? dealing w/states v. risky
= Greater involvement in commercial dealings + counterproductive for countries to adhere to it b/c lost share of trade etc

Doctrine of Restrictive Immunity - state has immunity from jurisdiction of foreign courts re certain acts only (i) Actus jure imperii- acts of sovereign nature = state immune (ii) Actus jure gestionis- commercial acts = state not immune
= State to be treated as ordinary litigant when it behaves like one
= Adopted by UK, US, not Latin Am. or new Commonwealth ? provides growth + encourages trade
? Fitzmaurize - a sovereign state doesn't cease to be sovereign just b/c it performs acts which private citizen may perform
? Lauterpacht - in engaging in econ. activities, state still acts as public person for general purposes of community as a whole

Application of Distinction
? Problematic: each state may have own view ? few grounds on which distinction could be made are: (i) Purpose of the act
- Not favoured by nat.'l courts i. UK- purpose is immaterial = enough that transaction is of commercial type ii. US - unsatisfactory b/c all acts of sovereign could be said 2b for public purpose, since state itself has no 'private' needs - always acts for benefit of the country
- Incorporated into ILC Draft Articles on Jurisdictional Immunities (subsidiary role in IL) + Art 2 UN Convention (purpose relevant if it's been relevant in the past practice of state concerned)
= attempt to broker a compromise between accepting & objecting states, not greatly welcome but subsidiary role firmly established. (ii) Nature of the act

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