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The UN Convention on Jurisdictional Immunities of States and Their Property

Published online by Cambridge University Press:  27 February 2017

David P. Stewart
David P. Stewart*
Affiliation:
Litigation in the U.S. Department of State
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Extract

On December 2, 2004, the UN General Assembly adopted the UN Convention on Jurisdictional Immunities of States and Their Property. Capping more than a quarter of a century of intense international negotiation, the new treaty is the first modern multilateral instrument to articulate a comprehensive approach to issues of state or sovereign immunity from suits in foreign courts. Notably, it embraces the so-called restrictive theory of sovereign immunity, under which governments are subject to essentially the same jurisdictional rules as private entities in respect of their commercial transactions. The treaty was opened for signature on January 17, 2005 (when Austria and Morocco became the first states to sign), and will enter into force when thirty states have deposited their instruments of ratification, acceptance, approval, or accession with the UN secretary-general.

Type
Current Developments
Information
American Journal of International Law , Volume 99 , Issue 1 , January 2005 , pp. 194 - 211
Copyright
Copyright © American Society of International Law 2005

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References

1 GA Res. 59/38 (Dec. 2, 2004) (adopted without a vote). Resolutions of the General Assembly are available at <http://www.un.org/documents/resga.htm>. The convention is annexed to the resolution. The Sixth Committee’s report to the General Assembly, UN Doc. A/59/508 (Nov. 30, 2004), recommending adoption of the convention, also contains the convention’s full text as an annex. The report is available at <http://www.un.org/law/cod/sixth,59/docs.htm>. An annex to the convention, which forms an integral part of the convention, sets forth understandings with respect to certain articles. See infra note 20.

2 The International Law Commission (ILC) first took up the subject in 1977 on the recommendation of the UN General Assembly. For background, see Stephen, McCaffrey’s Articles summarizing the thirty-fourth, 77 AJIL. 323, 328–30 (1983)Google Scholar, thirty-fifth, 78 AJIL 457, 460-67 (1984) [hereinafter Thirty-Fifth ILC Session Summary-], and thirty-eighth, 81 AJIL 668,668-76 (1987) [hereinafter Thirty-Eighth ILC Session Summary], sessions of the ILC. In 1991, the ILC adopted twenty-two draft articles on second reading. See [1991] 2 Y.B Int’l L. Comm’n 8, UN Doc. A/46/10, reprinted in 30 ILM 1554 (1991) [hereinafter 1991 ILC Commentary]. The Sixth Committee of the General Assembly then established an open-ended working group to consider the draft articles; it met for two sessions. See UN Docs. A/C.6/47/L. 10(1992), A/C.6/48/L.4 (1993); see generally Morris, Virginia & Bourloyannis, M. Christiane , The Work of the Sixth Committee at the 47th Session of the UN General Assembly, 87 AJIL 306, 316–19 (1993)Google Scholar; Morris, Virginia & Christiane, Bourloyannis-Vrailas, The Work of the Sixth Committee at the 49th Session oj the UN General Assembly, 89 AJIL 607, 616–18 (1995)Google Scholar. At the General Assembly’s invitation, the ILC again took up the subject in 1999,,see Report of the International Law Commission on the Work of Its Fifty-First Session, UN GAOR, 54th Sess., Supp. No. 10, paras. 471-84, UN Doc. A/54/10 (1999); id., annex [hereinafter 1999 ILC Report] The ILC’s materials on Jurisdictional immunities of states and their property are available at <http://www.un.orglaw/ilc/guide/gfra.htm>.

3 The Ad Hoc Committee on Jurisdictional Immunities of States and Their Property was established by the UN General Assembly, GA Res. 55/150 (Dec. 12, 2000), and met for three sessions. Its final report was adopted on March 5, 2004 (see UN Doc. A/59/22), and is available at <http://www.un.org/law/jurisdictionalimmunitiesindex.html>. The Ad Hoc Committee was chaired by Gerhard Hafner of the Institut für Völkerrecht und Internationale Beziehungen in Vienna. Ambassador Chusei Yamada, an ILC member, also played a pivotal role in the negotiations.

4 European Convention on State Immunity, May 16, 1972, ETS No. 74, at <http://conventions.coe.int>, reprinted in 11 ILM 470 (1972) [hereinafter European Convention].

5 See, e.g., State Immunity Act, 1978, c. 33 (UK), reprinted in 17 ILM 1123 (1978); Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (1976), reprinted in 15 ILM 1388 (1976) (codified as amended at 28 L’.S.C. §§1330, 1391(f), 1441(d), 1602-1611) [hereinafter FSIA]. For additional statutory materials, see Dickinson, Andrew, Lindsay, Rae, & James, P. Loonam, State Immunity: Selected Materials and Commentary (2004)Google Scholar, and Materials on Jurisdictional Immunities of States and Their Property, UN Doc. ST/LEG/Ser.B/20 (1982).

6 See, e.g., Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711 (1976) (reprinting the so-called late Letter of May 19, 1952); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983); see also I Congresso del Partido, [1981] 2 All ER 1062, 64 ILR 307; Alcom Ltd. v. Republic of Columbia, [1984] 2 All ER 6, 74 ILR 179. As Lady Fox has noted, “This distinction between acta de jure imperii, acts in exercise of the public or sovereign powers of a State, and acta dejure gestionis, acts performed as a private person or trader, is crucial to the present law of State immunity.” Fox, Hazel, The Law of State Immunity 22 (2002)Google Scholar. In practice the distinction is generally made on a functional basis in a particular context.

7 As of January 21, 2005, only eight states were party to the European Convention. See <http://conventions.coe.intArreaty/Commun/ListeTraites.asp?CM=8&:CL=ENG>. Apart from the European Convention, previous efforts at codification have included The International Law Association’s 1982 “Montreal Draft,” in Report of the Sixtieth Conference (1982), reprinted in 22 ILM 287 (1983)Google Scholar, and a subsequent revision done at Buenos Aires, in Report of the Sixty-Sixth Conference (1994). Texts have also been elaborated by L’ Institut de Droit International and the Inter-American Juridical Committee. See generally DICKINSON, LINDSAY, & LOONAM, supra note 5.

8 The convention’s first preambular paragraph states that “the jurisdictional immunities of States and their property are generally accepted as a principle of customary international law.” As stated in the third preambular paragraph, the essential motivation for its adoption was the belief that it “would enhance the rule of law and legal certainty, particularly in dealings of States with natural and juridical persons, and would contribute to the codification and development of international law and the harmonization of practice in this area.”

9 Art. 1. The term “court” is defined to include “any organ of a State, however named, entitled to exercise judicial functions.” Art. 2(t)(a). For background, see the 1991 ILC Commentary, supra note 2, at 13-14.

10 Art. 2(l)(b)(i), (ii). According to the 1991 ILC Commentary, supra note 2, at 14-15, “The term ‘State’ should be understood in light of its object and purpose . . . as comprehending all types or categories of entities and individuals so identified which may benefit from the protection of State immunity.” For background on the inclusion of “constituent units of a federal State” and “political subdivisions,” see 1999 ILC Report, supra note 2, paras. 10-30.

11 Art. 2(l)(b)(iii). The terms “organs,” “agencies,” and “instrumentalities” as used in the convention thus do not have precisely the same meaning as they do under the FSIA.

12 Art. 2(1 )(b)(iv). The relevant ILC commentary confirms that abroad reading was intended because “[a]ctions against such representatives or agents of a foreign Government in respect of their official acts are essentially proceedings against the State they represent.” 1991 ILC Commentary, supra note 2, at 25.

13 A growing number of U.S. courts have held that the FSIA applies to individual officials of foreign governments to the extent their actions were performed in their official capacities. See, e.g., Chuidian v. Phil. Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990);Jungquist v. AI Nahyan, 115 F.3d 1020 (D.C. Cir. 1997); Velascov. Gov’tof Indonesia, 370 F.3d 392 (4th Cir. 2004).

14 Art. 3(1). “The article is intended to leave existing special régimes unaffected, especially with regard to persons connected with the missions listed.” 1991 ILC Commentary, supra note 2, at 35. See, for example, the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95, the Vienna Convention on Consular Relations, Apr. 24,1963,21 UST 77,596 UNTS 261, the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 UST 1418, 1 UNTS 16, the UN Convention on Special Missions, Dec. 8, 1969, 1400 UNTS 231, and the various headquarters agreements pertaining to the United Nations and its specialized agencies. Additionally, Article 26 of the present convention states that nothing in it “shall affect the rights and obligations of States Parties under existing international agreements which relate to matters dealt with in the present Convention as between the parties to those agreements.”

15 Art. 3(2). As noted in the 1991 ILC Commentary, supra note 2, at 35-36, this explicit exclusion was intended to preserve existing rules of customary international law. These rules, still respected in the U.S. and most other states, provide that heads of state are absolutely immune and that former heads of state are entitled to immunity for their official acts. See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620 (7th Cir. 2004); Abiola v. Abubakar, 267 F.Supp.2d 907 (N.D. 111. 2003); Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001), aff’d on other grounds, 386 F.3d 205 (2d Cir. 2004); cf. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ REP. 121 (Feb. 14), available at http://www.icj-cij.org. More generally, as Chair Hafner of the Ad Hoc Committee stated in his introductory remarks to the Sixth Committee on October 25, 2004 [hereinafter Hafner statement (on file with author)], the convention

does not apply where there is a special immunity regime, including immunities ratione personae (lex specialis). Sometimes this is expressly stated in the text, sometimes not. Thus, for example, the express mention of heads of state in article 3 should not be read as suggesting that the immunity ratione personae of other officials is affected by the Convention.

The convention’s final preambular paragraph states that “the rules of customary international law continue to govern matters not regulated by the provisions of the present Convention.”

16 Art. 3(3).

17 “Although the draft articles do not define the term ‘proceeding’, it should be understood that they do not cover criminal proceedings.” 1991 ILC Commentary, supra note 2, at 13; see also Hafner statement, supra note 15 (noting the committee’s recommendation that the General Assembly explicitly state that the Convention “does not cover criminal proceedings”).

18 In Resolution 59/38 (paragraph 2), the General Assembly stated that it “agrees with the general understanding reached in the Ad Hoc Committee that the United Nations Convention on Jurisdictional Immunities of States and Their Property does not cover criminal proceedings.”

19 See Hafner statement, supra note 15 (commenting on and quoting 1991 ILC Commentary, supra note 2, ,at 106):

One of the issues raised was whether military activities will be covered by this Convention. I believe that a general understanding has always prevailed that they are not. In any case, one can refer to the commentary of the ILC on draft Article 12: “Neither does it (i.e. draft article 12) affect the question of diplomatic immunities, as provided in article 3, nor does it apply to situations involving armed conflicts.” One has also to keep in mind the preamble stating that the “rules of customary international law continue to govern matters not regulated by the provisions of the present Convention”.

Where armed conflict or other military activity of a state is concerned, the question may well be governed by an applicable international agreement—for example, one concerning the law of war, a status-of-forces agreement, or another particular arrangement. See, e.g., Moore v. United Kingdom, 384F.3dl079 (9th Cir. 2004) (litigation against members of British military governed by NATO status-of-forces agreement). Otherwise, the question of immunity in relation to military activities may be governed by customary international law. See, e.g., Holland v. Lampen-Wolfe, [2000] 3 All ER 833, [2000] 1 WLR 1573 (H.L. 2000).

20 Specifically, the understandings pertain to Articles 10, 11, 13, 14, 17,and 19. Entitled “Understandings with Respect to Certain Provisions of the Convention” [hereinafter Understanding], the annex “forms an integral part of the Convention,” as stated in Article 25.

21 As Chair Hafner noted:

Generally, it must be borne in mind that this Convention will have to be read in conjunction with the commentary as prepared by the ILC, at least as far as the text has remained unchanged as submitted by the ILC. The ILC Commentary, the Reports of the Ad Hoc Committee and the UN General Assembly Resolution adopting the Convention will form an important part of the travaux preparatoires of the Convention. This common reading of the text of the convention and the commentary will certainly clarify the text if certain interpretative questions still remain.

Hafner statement, supra note 15.

22 GA Res. 59/38, preambular para. 9.

23 Article 5 provides: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” As the 1991 ILC Commentary, supra note 2, at 70, makes clear, valid jurisdiction is an essential prerequisite for invocation of immunity: “The application of jurisdictional immunities of States presupposes the existence of jurisdiction or the competence of a court in accordance with the relevant internal law of the State of the forum.” Article 6(1) provides that a state “shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.” Article 6(2) specifies that a proceeding is considered to have been instituted against another state when the latter is named as a party to the proceeding or “the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” See generally 1991 ILC Commentary, supra note 2, at 36-45.

24 Art. 7(1). Lack of consent is generally to be presumed. See 1991 ILC Commentary, supra note 2, at 47.

25 Art. 7(2); hit see Art. 17 (regarding arbitration agreements).

26 Art. 8(1). See 1991 ILC Commentary, supra note 2, at 60-67.

27 Art. 8(2), (3), (4).

28 Art. 10(2). While the opt-out provision in Article 10(2)(b) may seem unusual, it reflects the practical reality of “party autonomy” in that one party to a commercial transaction may agree, as part of the terms of the transaction, not to contest an assertion of immunity by its opposite party in respect of disputes arising from the transaction. Presumably, in a given case, it would remain open to the forum state’s courts to find such an agreement invalid for such reasons as fraud or duress.

29 See 1991 ILC Commentary, supra note 2, at 70-71. In the case of the FSIA, the “nexus” provisions for commercial transactions set forth in section 1605(a)(2) arguably provide such rules.

30 Art. 2(1 )(c).

31 See generally, 1991 ILC Commentary, supra note 2, at 27-32, 75-93; 1999 ILC Report, supra note 2, paras. 31 -60. The rules adopted do not strictly follow either the definition of “commercial activity” or the “nature not purpose” test provided in section 1605(a)(2) of the FSIA and articulated further by the U.S. Supreme Court in Republic of Argentina v. Weltover, 504 U.S. 607 (1992), and in Saudi Arabia v. Nelson, 507 U.S. 349 (1993). No adverse inference may be drawn from that fact, however, because Article 2(3) states that the “provisions of paragraphs 1 and 2 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in other international instruments or in the internal law of any State.”

32 For background on Article 10(3), see 1999 ILC Report, supra note 2, paras. 61-83. In First Nat’l City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611 (1983), the U.S. Supreme Court held that foreign agencies and instrumentalities, even those wholly owned by a foreign government, are subject to a presumption of separate judicial status, and their property will not ordinarily be subject to attachment to satisfy a judgment against a foreign state, although that presumption can be overcome where it can be shown that the “corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created.” Id. at 629.

33 For background on Article 10(3), see 1999 ILC Report, supra note 2, paras. 61-83.

34 See generally 1991 ILC Commentary, supra note 2, at 93-101; 1999 ILC Report, supra note 2, paras. 84-107.

35 Art. 11(1). This provision finds analogues in the European Convention (Article 5) and in the UK State Immunity Act (section 4), but not in the FSIA. Under Article 2(1 )(c)(iii), contracts of employment are specifically excluded from the definition of “commercial transaction.”

36 Art. ll(2)(a),(b).

37 Art. 1 l(2)(c). As noted in the 1991 ILC Commentary, supra note 2, at 97-98 (footnote omitted), this paragraph “is designed to confirm the existing practice of States in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position.”

38 Art. 1 l(2)(e). The precise wording of the exception is “unless this person has the permanent residence in the State of the forum.”

39 Art. 11(2)(d).

40 Understanding, supra note 20 (Art. 11).

41 Art. 11(2(f).

42 See, e.g., FSIA, supra note 5, § 1605(a)(5); UK State Immunity Act, supra note 5, sec. 5; European Convention, supra note 4, Art. 11.

43 Art. 12. As stated in the 1991 ILC Commentary, supra note 2, at 102, the underlying intent is to “provide relief or possibility of recourse to justice for individuals who suffer personal injury, death or physical damage to or loss of property caused by an act or omission which might be intentional, accidental or caused by negligence attributable to a foreign State.”

44 As the ILC noted:

The areas of damage envisaged in article 12 are mainly concerned with accidental death or physical injuries to persons or damage to tangible property involved in traffic accidents, such as moving vehicles, motor cycles, locomotives or speedboats. In other words, the article covers most areas of accidents involved in the transport of goods and persons by rail, road, air or waterways. Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals. In addition, the scope of article 12 is wide enough to cover also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination. 1991 ILC Commentary, supra note 2, at 103 (citing, inter alia, Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980)). In the United States, the Diplomatic Relations Act of 1978, Pub. L. 95-393, Sep. 30, 1978, 92 Stat. 808 (codified as amended at 22 U.S.C. §254(a)-(e)), requires diplomats and missions to cany liability insurance on vehicles, vessels, and aircraft. See also 22 C.F.R. pt. 151. The statute permits direct actions against insurers of individuals entitled to immunity. See 28 U.S.C. §1364. On the effect of diplomatic immunity on insurance, see Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations 233-35 (2d ed. 1998).

45 Under section 1605(a)(5)(A), immunity is preserved with respect to claims based on official conduct involving the exercise of discretionary functions (even if discretion is abused) and also for certain intentional torts. Sec generally Joseph, W. Dellapenna, Suing Foreign Governments and Their Corporations §7.25-.29 (2d ed 2003)Google Scholar; Marchisella v. Gov’t of Japan, 2004 WL 307248 (S.D.N.Y. 2004).

46 The 1991 ILC Commentary, supra note 2, at 105, states that the “basis for the assumption and exercise of jurisdiction in cases covered by this exception is territoriality.” The term “territory” is not defined in the convention proper or in its travaux, but the exception in Article 12 can most reasonably be read to apply to events occurring in the land territory or internal waters of the forum state, not to acts at sea or within a state’s maritime jurisdiction

47 See McCaffrey’s comment in the Thirty-Fifth ILC Session Summary, supra note 2, at 467: “It would appear that the [draft] article requires that the tortious act as well as the resulting injury occur in the forum state, and that the tort-feasor be present therein when the injury occurs.” Under FSIA section 1605(a)(5), the death or injury in question must occur within the United States. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989); Burnett v. Al Baraka Inv. & Dev. Corp., 292 F.2d 9 (D.D.C. 2003). Some courts have taken an even more restrictive approach, see Cabiri v. Gov’t of the Republic of Ghana, 165 F.3d 193 (2d Cir. 1999). Because of the convention’s nexus requirement, claims of abuse committed by foreign officials in their own or third countries ought not to be actionable under Article 12. See, e.g., Bouzari v. Iran, 2004 A.C.W.S.J. LEXIS 4800 (Ontario Ct. App. June 30, 2004) (Canadian State Immunity Act required dismissal of claim for torture inflicted by governmental officials in Iran); Al-Adsani v. United Kingdom, App. No. 35763/97 (Eur. Ct. H.R. Nov. 21, 2001) (Grand Chamber), at <http://www.echr.coe.int/Eng/Judgments.htm> (upholding, against a claim under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222, the immunity of states ratione personae in respect of civil claims for damages for alleged torture committed outside the forum state). The Federal Tort Claims Act, 28 U.S.C. §2680(h) (2000), bars claims against the United States based on injuries occurring in a foreign country, regardless of where the tortious act or omission occurred. See Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).

48 1991 ILC Commentary, supra note 2, at 104.

49 See supra note 19.

50 1991 ILC Commentary, supra note 2, at 105 (noting that while the “distinction has been maintained in the case law of some States involving motor accidents in the course of official or military duties,” preserving immunitv for acts jure imperii and rejecting it for acts jure gestionis, Article 12 makes no such distinction). The Comment an also states that this “exception to the rule of immunity is applicable only to cases or circumstances in which the State concerned would have been liable under the lex loci deliciti commissi.” Id. at 102. Clearly, the exception cannot be read to apply to acts simply because they are, or are alleged to be, in violation of international law—for example, acts of torture, arbitrary detention, international terrorism, or violations of humanitarian law. The convention thus does not endorse the approach adopted by the Greek courts in the recent litigation involving World War II atrocities committed in the village of Distomo, see Prefecture of Voiotia v. Federal Republic of Germany, No. 137/ 1997 (Ct. 1st Inst. Leivadia, Oct. 30, 1997), translated in Gavouneli, Maria, War Reparation and State Immunity, 50 Revue Hellénique De Droit International 595 (1997)Google Scholar, summarized in Ilias Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 92 AJIL 765 (1998). For a discussion of subsequent proceedings in this case, see Kerstin Bartch & Björn Elberling, Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al. v. Greece and Germany Decision, 4 GERMAN L.J. 477 (2003), available at <http://www.germanlawjournal.com>.

51 McElhinney v. Ireland, App. No. 31253/96 (Eur. Ct. H.R. Nov. 21, 2001) (Grand Chamber), at <http://www.echr.coe.int/eng/judgments.htm> (no violation of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms). While the Court acknowledged that “there appears to be a trend in international and comparative law towards limiting State immunity in respect of personal injury caused by an act or omission within the forum State,” it noted that the practice is “by no means universal” and

may primarily refer to ‘insurable’ personal injury, that is incidents arising out of ordinary road traffic accidents, rather than matters relating to the core area of State sovereignty such as the acts of a soldier on foreign territory which, of their very nature, may involve sensitive issues affecting diplomatic relations between States and national security. Certainly, it cannot be said that Ireland is alone in holding that immunity attaches to suits in respect of such torts committed by acta jure imperii or that, in affording this immunity, Ireland falls outside any currently accepted international standards.

Id., para. 38; see also Propend Finance Pty Ltd. v. Sing, [1997] 111 ILR 611 (C.A.) (Eng.).

52 See, for example, the recent decision of the UK Court of Appeal (Civil Division) in Jones v. Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya, [2004] EWCA Civ 1394 [2004], All ER (D) 418 (Oct. 28, 2004) (upholding the state’s immunity but finding it no longer appropriate, in light of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to accord blanket immunity ratione materiae in respect of foreign state officials alleged to have committed acts of systematic torture). It is possible that this decision, which may be thought to undermine the immunity of the state by allowing actions against its officials, will be appealed to the House of Lords. The Court of Appeal found no basis for an argument that an alleged violation of a jus cogens norm would trump immunity. By the same token, that a given international convention requires states parties to criminalize a particular act or practice, or obligates them to provide civil remedies for the victims of prohibited conduct, cannot be read of itself to constitute a waiver of state immunity; equally clearly, it cannot constitute a general rule binding on nonparties. Of course, it remains open to states to agree explicitly to such a provision.

53 The reference to “right or interest” was intended in this context to have a broad reach (commensurate with the law of the forum), but without prejudice to the privileges and immunities accorded by international law in relation to the property of diplomatic and consular missions and other representational offices in the forum state. See 1991 ILC Commentary, supra note 2, at 107-08.

54 Id. at 111. “It is also without prejudice to the extraterritorial effect of nationalization by a State of intellectual or industrial property within its territory.” Id. at 113.

55 This understanding was drawn from the 1991 ILC Commentary, supra note 2, at 112.

56 Art. 15(1). For this rule of non-immunity to apply, the body in question must have participation from the private sector and must be incorporated or constituted under the law of the forum state. See 1991 ILC Commentary, supra note 2, at 115.

57 1991 ILC Commentary, supra note 2, at 115.

58 Art. 15(2).

59 Art. 16(1), (2); see generally 1991 ILC Commentary, supra note 2, at 118-27.

60 Art. 16(3), (4).

61 Art. 16(5).

62 Art. 16(6).

63 The 1991 ILC Commentary, supra note 2, at 131, notes that

[c]onsent to arbitration is as such no waiver of immunity from the jurisdiction of a court which would otherwise be competent to decide the dispute or difference on the merits. However, consenting to a commercial arbitration necessarily implies consent to all the natural and logical consequences of the commercial arbitration contemplated. In this limited area only, it may therefore be said that consent to arbitration by a State entails consent to the supervisory jurisdiction by a court of another State, competent to supervise the implementation of the arbitration agreement.

64 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 UNTS 3, 21 UST2517.

65 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Oct. 14, 1966, 575 UNTS 159, 17 UST 1270.

66 Under the statute, the property in question, or property exchanged for that property, must either be present in the United States in connection with a commercial activity carried on in the United States by the foreign state, or be owned or operated by an agency or instrumentality that is engaged in a commercial activity in the United States and that is the defendant in the lawsuit.

67 The state in question must have been designated as a state sponsor of terrorism under section 6 0 of the Export Administration Act of 1979, 50 U.S.C. App. §2405(j) (2000), or section 620A of the Foreign Assistance Act of 1961, 22 U.S.C. §2371 (2000), and the damages must have been caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage taking, or by the provision of material support or resources for such an act, engaged in by an official, employee, or agent of the foreign state in question while acting within the scope of his or her office, employment, or agency. Moreover, if the act occurred in the foreign state against which the claim is brought, the claimant must have afforded that state “a reasonable opportunity to arbitrate the claim.” Either the claimant or the victim must have been a U.S. national at the time that the underlying conduct occurred. 22 U.S.C. §1605(a)(7).

68 U.S. courts have routinely rejected such arguments, see, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992), cert, denied, 507 U.S. 1017 (993); Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003), cert, denied, 124 S.Ct. 1835 (2004). There is scant evidence of a contrary trend in other jurisdictions. See generally Caplan, Stale Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97 AJIL 741 (2003)Google Scholar; see also 1999 ILC Report, supra note 2, app. In Jones v. Ministry of the Interior Al-Mamlaka Al- Arabiya as Sudiya, [2004] All ER (D) 418 (Oct. 28, 2004), Lord Justice Mance rejected the argument that an alleged violation of a jus cogens norm overcomes a foreign state’s immunity from civil proceedings, noting that there “is a distinction between principles of substantive international law and other issues, such as jurisdiction and immunity in civil proceedings in any particular jurisdiction.” Id., para. 17.

69 1991 ILC Commentary, supra note 2, at 43.

70 The relevant articles went through many drafts. For background, see the 1991 ILC Commentary, supra note 2, at 133-45, and the 1999 ILC Report, supra note 2, paras. 108-29.

71 Arts. 18, 19. With respect to fines, penalties, and other punitive measures, see Article 24. McCaffrey notes that “the expression ‘measures of constraint’ was considered broader than ‘execution’ or ‘enforcement.’ Thus, it would cover prejudgment attachment, protective orders and the like.” Thirty-Eighth ILC Session Summary, supra note 2, at 671 (footnote omitted).

72 Arts. 18(a), (b), 19(a), (b). Importantly, Article 20 provides that for purposes of these two articles, express consent to the exercise of jurisdiction under Article 7 does not imply consent to the taking of measures of constraint. Under FSIA section 1610(d), of course, prejudgment attachment is available against a foreign state’s assets only if that state has explicitly waived its immunity from such attachment and if the purpose is to secure satisfaction of the judgment, not to obtain jurisdiction.

73 Art. 19(c). An annexed understanding provides that the term “entity” as used in this paragraph “means the State as an independent legal personality, a constituent unit of a federal State, a subdivision of a State, an agency or instrumentality of a State or other entity, which enjoys independent legal personality.” It also provides that the words “property that has a connection with the entity” are to be understood as “broader than ownership or possession.” Finally, the understanding states that Article 19 as a whole “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.” Understanding, supra note 20 (Art. 19).

74 Art. 21(1). Article 21(2) states that paragraph 1 is “without prejudice to article 18 and article 19, subparagraphs (a) and (b).” See generally 1991 ILC Commentary, supra note 2, at 141-45. Certain of these exclusions find inexact parallels in existing U.S. law, which, for example, does not permit attachment or execution against funds held by an international organization in favor of a particular foreign state (28 U.S.C § 1611 (a)), against property of a foreign central bank or monetary authority held for its own account (28 U.S.C. § 1611 (b)( 1)), or against property used or intended for use in connection with a military activity (28 U.S.C. §1611(b)(2)).

75 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 UST 361, 658 UNTS 163, contains no special provisions relevant to suits against states or their organs, agencies, or instrumentalities. Relevant U.S. law is found in FSIA section 1608 (applicable in both federal and state courts). See also 22 C.F.R. §93.2. Unlike the FSIA, the present convention does not contain separate provisions for service on state agencies and instrumentalities; the definition of “state” in Article 2 is inclusive. See supra notes 10-13 and accompanying text.

76 Art. 22(1). According to Article 22(2), service through the diplomatic channel is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.

77 Art. 22(3).

78 Art. 22(4).

79 Art. 23(1). See generally 1991 ILC Commentary, supra note 2, at 148-50. This provision is analogous to the requirements set forth in 22 U.S.C. §1608.

80 Art. 23(2).

81 Art. 23(3).

82 U.S. law accords foreign sovereign defendants sixty days to serve its answer or other responsive pleading to a complaint. See FSIA, supra note 5, § 1608(d). Comparable provisions are found in Article 16.4 of the European Convention on State Immunity; sections 24 (7) and 28 of Australia’s Foreign States Immunities Act, 1985; section 13(2) of Pakistan’s State Immunity Ordinance, 1981; section 14(2) of Singapore’s State Immunity Act; section 13(2) of South Africa’s Foreign Sovereign Immunity Act, 1981; and section 12(2) of the United Kingdom’s State Immunity Act.

83 The United States has consistently maintained that, for service to be considered valid under customary international law, a state must be afforded a period of at least sixty days, from receipt of notice that litigation has been brought against it in foreign court, before an initial response to the court must be made.

84 One might also have hoped that the forum state’s failure to provide adequate time for an initial response would have been explicitly recognized as a ground for setting aside a default judgment, and that a state’s appearance to set aside a default judgment on this ground could not be taken as an appearance on the merits. The absence of such provisions in the convention does not, of course, prevent states from adopting such rules, nor does it preclude defendant states from relying upon customary international law and making such arguments in specific cases.

85 The fifth preambular paragraph of the convention affirms that “the rules of customary international law continue to govern matters not regulated by the provisions of the present Convention.”

86 Art. 24(1).

87 Art. 24(2).

88 The understandings contained in the annex thus fall within the general rule of treaty interpretation provided by Article 31 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.

89 Hafner Statement, supra note 15. Recourse to these sources will be appropriate under Article 32 of the Vienna Convention on the Law of Treaties. Cf. Hafner Statement, supra: “This common reading of the text of the Convention and the commentary will certainly clarify the text if certain interpretative questions still remain.”

90 Art. 30.

91 The seventh preambular paragraph of General Assembly Resolution 59/38 stresses “the importance of uniformity and clarity in the law of jurisdictional immunities of States and their property.”

92 Granted, the states parties to the convention will retain a measure of flexibility since (despite some efforts to the contrary during the negotiations) reservations are not specifically prohibited. Thus, the ordinary rule under Article 19(c) of the Vienna Convention on the Law of Treaties will obtain—that is, reservations are permitted unless incompatible with the treaty’s object and purpose. Still, given the overall context and aim of this effort at standardizing international law and practice, one would hope that states would be cautious indeed in proposing conditions on their ratifications.

93 That is likely to be the case for the United States, given the complexity of the FSIA and the wealth of interpretive judicial decisions thereunder.