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The Law of State Immunity

by: Fox, Hazel

The Law of State Immunity

by: Fox, Hazel

ISBN 13:
9780199270996
ISBN 10:
0199270996
Format: Paperback
Copyright: 05/20/2004
Publisher: Oxford University Press
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Summary

This book examines the controversial doctrine of state immunity which bars a national court from adjudicating or enforcing claims against foreign States. State practice, particularly as evidenced in English and US courts, the proposals of the International Law Commission and recent challenges before international tribunals are analysed to give an indepth up-to-date account of the doctrine in current international law.

Table of Cases

xliii

Introduction

(1)

The plea as one of mixed international and municipal law

(1)

The functions which State immunity serves

(1)

Three different phases of State immunity

(1)

The sources of the law of State immunity

(1)

The third postmodern phase of State immunity

(1)

Challenges to the retention of a plea of State immunity for acts in exercise of sovereign immunity

(1)

Challenges to the retention of State immunity for acts contrary to international law

(1)

Immunity from execution

(1)

State immunity as a case study of the structure of international law

(4)

PART I OVERVIEW AND GENERAL PRINCIPLES

The Institution of Proceedings and the Nature of the Plea of State Immunity

(12)

The institution of proceedings

(3)

The different responses of the English courts with regard to proceedings relating to the act of a foreign State or its agents

(2)

Outline of the plea of State immunity

(7)

The Concept of the State and the Justification for State Immunity

(17)

The concept of the State

(2)

Postmodernism and the concept of the State

(3)

The rationale for immunity

(5)

The arguments against State immunity viewed from the position of the State

(3)

Justification for the restrictive doctrine of immunity

(4)

Theories relating to State Immunity and the Concept of Jurisdiction

(27)

Theory and State immunity

(11)

The concept of jurisdiction and the doctrine of State immunity

(13)

Conclusion

(3)

PART II THE SOURCES OF THE LAW OF STATE IMMUNITY

Treaty Practice, Projects for Codification, and Municipal Law as Sources: The Development of the Restrictive Doctrine

(57)

State practice as evidence of customary international law relating to State immunity

(6)

The applicable law by which to determine State immunity

(3)

Treaty practice as a source of State immunity law

(17)

The European Convention on State Immunity 1972

(6)

National legislation and decisions of national courts as evidence of customary international law

100

(1)

The development of the restrictive doctrine of State immunity in common law countries

101

(17)

The development of the restrictive doctrine of State immunity in civil law countries

118

(6)

Current State Practice: English Law, US Law, and the ILC 1991 Draft on Jurisdictional Immunities of States and their Property

124

(133)

A survey of the current position relating to State immunity

124

(4)

UK State Immunity Act 1978

128

(55)

US law of State immunity: before and after the Foreign Sovereign Immunities Act 1976

183

(33)

The 1991 Draft of the International Law Commission on the Jurisdictional Immunities of States and their Property

216

(41)

PART III THE CURRENT INTERNATIONAL LAW

Accepted and Controversial Aspects of the Rules Relating to State Immunity and the Role of Consent of the Foreign State

257

(15)

The current international law

257

(1)

A general survey of the current international law relating to State immunity

258

(4)

Consent express and implied: waiver and the arbitration exception

262

(10)

The Exceptions to State Immunity

272

(51)

The commercial exception

272

(31)

The exception for infringement of intellectual property rights

303

(1)

The exception for employment contracts

303

(6)

The exception for personal injuries and tangible property

309

(12)

Conclusion

321

(2)

The Definition of the Foreign State

323

(45)

External attributes as an independent and sovereign State

324

(6)

Internal attributes of the State

330

(38)

Immunity from Execution

368

(53)

Overview of enforcement measures

369

(6)

English law relating to immunity from execution of the State and its property

375

(8)

US law relating to immunity from execution of the State and its property

383

(5)

The development of a restrictive doctrine of immunity from execution of property of the State

388

(13)

Problems relating to a restricted rule of immunity from execution

401

(10)

Future models

411

(10)

PART IV INTERNATIONAL IMMUNITIES OTHER THAN STATE IMMUNITY

Heads of State, Diplomats and the Diplomatic Mission, Armed Forces, and International Organizations

421

(56)

Introduction

421

(1)

Heads of State

421

(5)

Sources of law

426

(1)

The rationale for immunities of a head of State

426

(1)

The position of head of State in international law

427

(6)

Applicable law

433

(4)

Immunities of the head of State

437

(11)

Diplomats and the Diplomatic Mission

448

(13)

Armed forces

461

(6)

International organizations

467

(10)

PART V CURRENT AND FUTURE PROBLEMS

State Immunity as a Personal Plea, Distinguished from the Doctrines of Act of State and Non-justiciability

477

(26)

Status of the defendant or subject-matter of the dispute as the basis of the plea

477

(4)

Act of State

481

(8)

Non-justiciability

489

(14)

State Immunity from Criminal Jurisdiction: The Answerability of State Officials for the Commission of International Crimes

503

(14)

The classical rule

503

(2)

Criminal jurisdiction of the forum State over a foreign State

505

(4)

Position of the official: non-answerability in municipal law

509

(6)

Conclusion

515

(2)

Immunity for Acts Unlawful in International Law: The Exhaustion of Local Remedies

517

(24)

Current State practice relating to an exception to State immunity for acts contrary to international law

518

(2)

Exhaustion of local remedies

520

(3)

The concepts of jus cogens and universal jurisdiction

523

(6)

The European Court of Human Rights

529

(1)

Challenge to the doctrine of State immunity from the individual's point of view

530

(10)

Conclusion

540

(1)

Conclusions and Future Models

541

(16)

How the issues have been presented in this book

541

(2)

The relevance of the State as a source of responsibility and accountability

543

(6)

Overall assessment of the value of the plea of State immunity

549

(1)

Future models

549

(8)

Bibliography

557

(6)

Index

563

Amazon no longer offers textbook rentals. We do!

The Law of State Immunity

The Law of State Immunity

9780199270996

0199270996

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

Amazon no longer offers textbook rentals. We do!

The Law of State Immunity

The Law of State Immunity

9780199270996

0199270996

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

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