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Status of Forces under the UN Convention on State Immunity

Published online by Cambridge University Press:  17 January 2008

Andrew Dickinson
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Extract

The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the UN General Assembly on 2 December 2004.1 The General Assembly recorded, in the first paragraph of its resolution adopting the Convention, its ‘deep appreciation to the International Law Commission and the Ad Hoc Committee on jurisdictional Immunities of States and their Property for their valuable work on the law of jurisdictional immunities of States and their property’. Whatever view one takes as to the merits of the Convention text or the prospects of its success,2 it cannot be doubted that this acknowledgment was well deserved—it is, if anything, an understatement to describe the conclusion of a detailed international instrument on state immunity, embodying the restrictive theory of immunity, as a ‘diplomatic triumph’.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 55 , Issue 2 , April 2006 , pp. 427 - 436
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 GA Res 59/38 (2 Dec 2004).

2 For what it is worth, the present writer records his doubts as to whether the Convention will succeed in promoting uniform State practice in this area, and whether ratification would be in the UK' national interest or improve existing UK law on state immunity. For the further discussion of these issues, see the transcript and summary of the proceedings of the conference held on 5 Oct 2005 at the Royal Institute of International Affairs (Chatham House) to discuss the Convention <http:/sol;www.riia.org/pdf/research/il/ILPstateimmunity.pdf>.

3 Summary record of the 13th meeting of the Sixth Committee (25 Oct 2005) UN Doc A/C.6/59/SR.13.

4 See Convention, Art 26.

5 UN Doc A/RES/59/38, final recital.

6 Lady Fox, H ‘In defence of State Immunity: why the UN Convention on State Immunity is important’ (2006) 55 ICLQ 399–406, 402.CrossRefGoogle Scholar

7 Vienna Convention on the Law of Treaties (1969) Art 31.2(b).

8 See the statement of the Norwegian representative (Mr Stømmen) to this effect in the Sixth Committee debate (UN Doc A/C.6/59/SR. 13, para 45).

9 Vienna Convention on the Law of Treaties (1969) Art 32.

10 See Gardiner, R ‘Treaties and Treaty Materials: Role, Relevance and Accessibilty’ (1997) 46 ICLQ 643, 652–3;CrossRefGoogle ScholarSinclair, IThe Vienna Convention on the Law of Treaties (2nd ednManchester University Press Manchester 1984) 130.Google Scholar

11 Not, it is to noted, the main body of the resolution, in contrast (for example) to reference to the general understanding that the Convention does not cover criminal proceedings (UN Doc A/RES/59/38, para 3).

12 Vienna Convention on the Law of Treaties (1969) Art 31.1.

13 ibid Art 32.

14 See also A AustModern Treaty Law and Practice (Cup Cambridge 2000) 197 for discussion of the potential role of travaux in determining the meaning of a treaty.

15 See the authorities cited at n 27 and 28 below; also Gattini, A ‘To What Extent are State Immunity and Non-Justiciability Major Hurdles in Individuals' Claims for War Damages’ (2003) 1 Journal of International Criminal Justice 348, 350–62;CrossRefGoogle ScholarMcNair, Lord and SirWatts, AThe Legal Effects of War (Cup Cambridge 1966) 415–16; Dow v Johnson (1879) 100 US 158 (US Supreme Court).Google Scholar Cf SirJennings, R and SirWatts, A (eds) Oppenheims' International Law (9th ednLongmans London 1922) 1157–8Google Scholar referring to ‘the possibility of immunity of the [armed] force from the local jurisdiction on grounds similar to those underlying state immunity in general’(emphasis added).

16 Recognized by the General Assembly resolution (n 11).

17 As contrasted with the treaty based regimes established by status of forces agreements, discussed below.

18 The State in question is unidentifiable from the source materials, although the Japanese representative (Ms Isomura) raised the same point in the Sixth Committee discussion at the 48th session of the General Assembly in 1993 (see UN DocsA/C.6/48/SR.29, paras 75–9 and A/48/464).

19 See Report of the International Law Commission on its 41st session (1989) (UN DocA/44/10) 274–5 referring to UN Doc A/CN.4/415 and Corr 1 and 2, 40, para 7.

20 Report of International Law Commission on its 43rd session (1991) 17 (UN Doc A/46/10) (‘ILC Commentary’), reproduced in Dickinson, A, Lindsay, R, and Loonam, JState Immunity Selected Materials and Commentary (OUP Oxford 2004) 85Google Scholar. The relevant footnote refers to the opinion of Chief Justice Marshall in The schooner Exchange 11 US (7 Cranch) 116 (1812) and to ‘various status of forces agreements and foreign visiting forces acts’.

21 ILC Commentary, 43–4; Dickinson, Lindsay and Loonam (n 20), 99.

22 Text to nn 24–8.

23 See the comments of the United States' representative (Mr Rosand) suggesting that Art 12 should be restricted to acts or omissions of a private law nature (iure gestionis) (UN Doc A/C. 6/59/SR. 13, paras 59 and 63). These comments are in conflict with ILC's commentary on the 1991 draft articles (Art 12, para (8) of ILC Commentary, 105; Dickinson, Lindsay, and Loonam (n 20) 126 and the United States' practice under the equivalent provision in the Foreign Sovereign Immunities Act 1976 (see eg, Letelier v Republic of Chile, 488 F Supp 655 (DCC 1980)).

24 Note that the meaning of the term ‘armed conflict’ in international law is much disputed (see, eg, A Aust (n 14) 198–9).

25 This proposition is supported by para (8) of the ILC's Commentary on Art 12 (ILC Commentary, 105; Dickinson, Loonam and Lindsay (n 20) 126) which refers to visiting forces agreements as examples of ‘ treaties, bilateral agreements or regional arrangements specifying or limiting extent of liabilities or compensation, or providing for a different procedure for settlement of disputes’.

26 Paras (7) and (8) of the commentary on Art 12 (ILC Commentary, 104–5); Dickinson, Loonam and Lindsay (n 2) 126.

27 See the decision of the Greek Special Supreme Court in its decision (no 67/ 2002 of 17 Sept 2002) relating to Distomo massacre, para 14. For an English translation of key paragraphs of the decision, which was reached by a narrow (6–5) majority, see Panezi, M ‘Sovereign Immunity and Violation of Ius Cogens Norms’ (2003) 56 Revue Hellenique de Droit International 199 (cf the earlier decision of the Areios Pagos in its decision no 11/2000 of 11 May 2000, notedGoogle ScholarGavouneli, M and Bantkas, I (2001) 95 AJIL 198–204). See also the decision ofthe Greman Federal Court of Justice in its 2003 decision relating to claims against Germany arising from the same massacre (BGH decision of 26 June 2003, NJW 2003, 3488–9; noted S Pittrof (2004)5 German Law Journal 15) and the German Government ' note verbale to the Greek Government in relation to earlier proceedings before the Greek courts (Grote Völkerrechtliche Praxis der Bundesrepublik Deutschland 1995, III, <http://www.mpil.de/publ/de/Prax 1995/praxb95_4.cfm>).CrossRef).>Google Scholar

28 ibid. See also McElhinney v Ireland (Application no 31253/96) Judgment of 21 Nov 2001; 123 ILR 73, esp para 38 (ECHR); European Convention on State Immunity (Basle 16 May 1972) (ETS No 74) Art 31; Singapore State Immunity Act 1978, s 16(2); Holland v Lampen-Wolfe [;2000] 1 WLR 1573 (HL); Singapore State Immunity Act (revd 1985) s 19. Account must be taken (a) in the case of peacetime military activities, of rules giving effect to the claims provisions of Status of Forces Agreements (for the UK position, see Holland (above as well as Littrell v United States of America (No 2) [;1995] 1 WLR 82 (CA)), and (b) in the case of wartime military activities of the terms of any treaty addressing the question of reparations(see A Gattini (n 15) 348–50, 356–9 and the 2003 decision of the German Federal Court of Justice referred to in the preceding footnote (NJW 2003, 3490)).

29 See text to n 20.

30 Art 4. cf Republic of Austria v Altmann 541 US 677 (2004) (US Supreme Court).

31 See text to nn 26–7.

32 See text to n 28.

33 Convention, Art 16.2

34 Agreement regarding the Status of Forces of Parties to the North Atlantic Treaty (Washington 4 April 1949) (‘ NATO SOFA’).

35 Jennings and Watts Oppenheim' International Law (n 15) 1157–8.

36 Vienna Convention on the Law of Treaties (1969) Art 31.3 (c).

37 para 5(g) concerns the enforcement of judgements given against members of a force or civilian component.

38 Lazareff, SStatus of Military Forces Under Current International Law (AW Sijthoff Leiden 1971) 318–27;Google ScholarMeron, T ‘Some Reflections on the Status of Forces Agreements in the Light of Customary International Law’ (1957) 6 ICLQ 689, 694;CrossRefGoogle ScholarWoodliffe, JThe Peacetime Uses of Foreign Military Installations under Modern International Law (Martinus Nijhoff Dordrecht 1992) 217–18.Google Scholar

39 Canada: Visiting Forces (North Atlantic Treaty) Act 1951 (as amended) s 16; France; Caisse Primaire v Agent Judicaire de Tresor (1961) 49 ILR 498 and Fortune Insurance V Éat Francais (1964) 45 ILR 462; Germany SL SL V Federal Republic of Germany (1993) 108 ILR 669; Italy; Ministry of Defence v Esposito (1976) 77 ILR 498; Luxembourg: Grand Duchy of Luxembourg v Cie Télédiffusion (1987) 91 ILR 281; United States: Moore v United Kingdom (US Court of Appeals, 9th Circuit, No 01-36146, Judgment of 23 Sept 2004).

40 See the Holland and Littrell cases (n 28), as well as the earlier High Court decision in Littrell v United States of America [1992] 3 All ER 218.

41 Cf the authorities cited at n 27 and the decision of the Italian Supreme Court in Ferrini v Federal Republic of Germany (Judgment no 5044 of 11 Mar 2004) noted Bianchi, A (2005) 99 AJIL 242.CrossRefGoogle Scholar

42 UN Doc A/C.6/59/SR.13, para 63.

43 Convention (IV) respecting the Laws and Customs of War on Land and its annex (The Hague 18 Oct 1907) Art 3.

44 Protocol Additional to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of International Armed Conflicts (8 June 1977) Art 91.

45 cf Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2005] QB 699 (CA).

46 The Jones case, cited in the previous footnote, is awaiting a hearing before the House of Lords.

47 Convention, Art 21.1 (b).

48 This course, it is submitted, is to be preferred to making of an interpretive declaration based on the Chairman's statement, for the reasons explained in parts II to IV above.

49 Vienna Convention on the Law of Treaties (1969) Art 19 (c).