The United Nations Convention on jurisdictional immunities of states and their property

Abstract

On 2 December 2004, the UN General Assembly adopted resolution A/Res/59/38 concerning the new United Nations Convention on Jurisdictional Immunities of States and Their Property without vote. This Convention constitutes the result of 27 years of work within the ILC and the 6^th Committee of the General Assembly. It covers the immunity of foreign states and their property from the jurisdiction of the courts of a forum state. Since the evolution of the relative immunity concept in the judicial practice of states, according to which states no longer enjoy absolute, but only relative immunity for acta jure imperii, national courts have set up different criteria for determining the immunity of foreign states. The present Convention now aims at harmonizing state practice in this field and thus at enhancing legal certainty for both states and private contractors in their – mostly economic – relations. In the discussions during the elaboration of this text, the five most disputed issues regarding state immunity have turned out to be the notion of the state, the definition of the term ‘commercial transaction’, state enterprises, employment contracts as well as measures of constraint. This article presents the drafting history as well as the provisions of the Convention and makes the first attempt to discuss its main provisions. It provides the reader also with the necessary background information that will not easy to be found elsewhere.