Sovereign Immunity Under Pressure: Norms, Values and Interests

Contents
Editors and Contributors
Editors´ Introduction: State Immunity and the Need for a Global Discussion
Part I: Sovereign Immunity from a Comparative Perspective: Weak v. Strong Immunity Regimes
	Sovereignty, Humanity, and Justice: Reflections on U.S. Law of Foreign Sovereign Immunity
		1 Introduction
		2 Sovereignty
			2.1 Foundations of State Immunity
			2.2 Adjudicating Commercial Activities
			2.3 Construing Exceptions Narrowly
		3 Humanity
			3.1 Civil Suits Against Foreign Officials
			3.2 Other Types of Domestic Proceedings
		4 Justice
			4.1 Seeking Redress Under the Territorial Tort Exception
			4.2 Terrorism-Related Exceptions to Foreign Sovereign Immunity
			4.3 Other Proposed Exceptions
		5 Conclusion
		References
	Sovereign Immunity from a Comparative Perspective: The Case of Germany
		1 Introduction
		2 Conceptual Construction and Constitutional Incorporation of Sovereign Immunity
		3 Jurisdictional Immunities of States
			3.1 Differentiation Between Acta iure imperii and Acta iure gestionis
			3.2 Territorial Tort Exception for Personal Injuries and Damage to Property
			3.3 Immunity from Enforcement
			3.4 State Enterprises
		4 Jurisdictional Immunities of State Officials
			4.1 Personal Immunity of Heads of States and Members of Government
			4.2 Functional Immunity of State Officials
		5 Concluding Remarks
		References
	Russian Approach to State Immunity: If You Want Peace, Prepare for War?
		1 Introduction
		2 Evolution of the Russian Approach to State Immunity
			2.1 State-Centrism: Values and Interests
			2.2 Russian Obligations Under International Law
			2.3 Development of the Russian Legislation and Case-Law on State Immunity Before 2015
			2.4 Development of the Doctrinal Views
			2.5 Foreign Adverse Proceedings
				2.5.1 The NOGA Case
				2.5.2 The Sedelmayer Case
				2.5.3 The Schneerson Library Case
				2.5.4 The Yukos Case
					European Court of Human Rights
					Investment Arbitration
			2.6 Assessment: Reciprocity Principle
		3 Russian 2015 Law on State Immunity: An Overview
		4 Post 2015 Developments
			4.1 Case Law Based on 2015 Law
			4.2 Russian Official Position
		5 Immunity of Foreign State Officials
		6 Conclusion
		References
	Too Hard-Won to be Wasted  Sovereignty, Immunities and Values: A (Sub-Saharan) African Perspective
		1 Introduction
		2 Renouncing Immunities While Preserving the `Prestige´ of the State in Economic Field
			2.1 Exclusion of Immunity from Jurisdiction for `Non-Sovereign Acts´
			2.2 A Desire to Preserve Immunity from Execution
				2.2.1 The `Unseizability´ of the Property of Public Entities in the OHADA Region
				2.2.2 The Fick Case: A South African Revolution for the Dignity of the Continent?
		3 The Immunities of the Sitting Officials or the African Disagreement About the Values to be Protected
			3.1 The AU´s Choice: Immunities in the Name of Equality and Peace
				3.1.1 The Attachment to Immunities for Their Social Functions: A Bulwark Against Imperialism and Instrument of Peace
				3.1.2 The Contested Objection to the Exclusion of Immunity in International Criminal Justice
			3.2 The Organisation of Resistance by National Jurisdictions: The Affirmation of the Pre-eminence of Human Rights and the Figh...
		4 Conclusion
		References
	State Immunity Regimes in Latin America: A First Approximation to a Global Analysis
		1 Introduction
		2 Relevant Treaties on State Immunity for Latin America
		3 The Attempts of Codification at the Organization of American States
		4 National Legislation in the Region Related to State Immunity
		5 The Practice of Issuing Circular Notes
		6 The Move from Absolute to Relative Immunity by National Courts in the Region
			6.1 Brazil
			6.2 Argentina
			6.3 Venezuela
			6.4 Uruguay
			6.5 Colombia
			6.6 Chile
			6.7 Paraguay
			6.8 Mexico, Central America and the Caribbean
			6.9 Peru
		7 Immunity from Execution Before National Courts
			7.1 Argentina
			7.2 Brazil
			7.3 Colombia
			7.4 Mexico
			7.5 Uruguay
			7.6 Peru
		8 Position of National Courts as Regards the UN Convention
		9 State Immunity and Human Rights
		10 State Immunity and Reciprocity
		11 Conclusion
		References
	From Diplomacy to Law: Half-Way in Institutional Transition of China´s Regime on State Immunity
		1 Introduction
		2 Chinese Position on International Law: A Context
			2.1 China and International Law
			2.2 China and International Dispute Resolution
		3 Chinese Position on the State Immunity: Overview of the Regime
			3.1 General Policy
				3.1.1 Current Positions
				3.1.2 Foundations of State Immunity and Its Exceptions
					Foundations of State Immunity
					Rationale for the Restrictions on State Immunity
			3.2 International Practices
				3.2.1 UNCSI
				3.2.2 Other Treaties
			3.3 Domestic Practices
				3.3.1 Substantive Rules
				3.3.2 Reporting Procedures
		4 Chinese Position on the State Immunity: Multifaceted Rules on Key Issues
			4.1 Commercial Activity Related Exceptions
				4.1.1 Test for Commercial Activity
				4.1.2 Scope of Commercial Exceptions to Diplomatic and Consular Immunity
				4.1.3 Legal Personality of State Owned Enterprise
			4.2 Fundamental Rights related Exceptions
			4.3 Enforcement Exceptions
			4.4 Reciprocity
				4.4.1 Reciprocity in Jurisdictional Immunity
					Reciprocity on State Immunity
					Reciprocity on Diplomatic Immunity
				4.4.2 Reciprocity in Enforcement Immunity
					Reciprocity in Enforcement Against Central Bank Asset
					Reciprocity in Enforcement of Foreign Arbitral Awards and Foreign Judgment
		5 Chinese Position on the State Immunity: Key Features
			5.1 A Diplomatic Approach to State Immunity
			5.2 The Futile but Resilient Absolute Immunity
			5.3 The Principled Position and the Pragmatic Manoeuvres
		6 From Diplomacy to Law: Half-Way in Institutional Transition
			6.1 A Profound But Slow Transition
			6.2 Challenges to the Institutional Transition
		7 Concluding Remarks
		References
	The Law of State Immunity and the Role of the International Court of Justice: Looking for the Guiding Star
		1 Introduction
		2 Preliminary Remarks
		3 The Influence Played by the ICJ on the International Law of Immunities to Date
			3.1 Selected ICJ Judgments Covering the Merits of Immunity Issues
				3.1.1 The Arrest Warrant Case
				3.1.2 The Jurisdictional Immunities Case
				3.1.3 The Immunities and Criminal Proceedings Case: Judgment on the Merits
			3.2 ICJ Judgments on Whether Immunity Is Within the Scope of the Court´s Jurisdiction
				3.2.1 The Immunities and Criminal Proceedings Case: Judgment on the Preliminary Objections
				3.2.2 The Certain Iranian Assets Case
		4 The Future of the International Law of Immunities: The Role of the ICJ and International Courts
		5 Conclusions
		References
Part II: International Customary Law of Sovereign Immunity, Human Rights and Counter-Terrorism
	Can Human Rights Overcome State Immunity? National Courts at the Crossroads
		1 Introduction
		2 US Courts Practice on State and State Officials Immunity
		3 Canadian Law and Practice: A Terrorism Exception
		4 The European Courts Practice Based on International Law
		5 The ICJ´s Rejection of the Jus Cogens Exception to State Immunity
		6 Chilling Effect of the ICJ Ruling
		7 The Judgment 238/2014 of the Italian Constitutional Court-State Immunity Versus National Constitution
			7.1 Impact on Other Courts: General Remarks
			7.2 Consequences for Internal Legal Order
			7.3 The Right to Oppose International Law Which Violates Fundamental Constitutional Principles
			7.4 Infringement of International Customary Law
			7.5 Enforcement Immunity Endangered?
		8 Final Conclusions
		References
	Shrinking of Jurisdictional Immunities and Victims´ Rights: From Separation to Synergy
		1 Introduction
		2 State Immunity and Responsibility for Breach of Fundamental Human Rights
		3 State Immunity and Victims´ Rights
		4 Compensation as a Form of Reparation vs. `Welfare Measures´
		5 Reparation as a Shared Burden?
		6 Back to the Theme: Why Shrinking Immunity?
		7 Concluding Remarks
		References
	Assessing State Jurisdictional Immunities Through the Lenses of the European Court of Human Rights: Embassy Employment Dispute...
		1 Introduction
		2 The Delicate Balance Between State Jurisdictional Immunity and Article 6 of the ECHR: The Legitimacy and Proportionality Test
		3 Cudak v. Lithuania: The UNJISP as a Parameter to Assess State Jurisdictional Immunity
		4 Towards Restrictive Immunity: The Court´s Case-Law from Cudak on
		5 The ECtHR and State Jurisdictional Immunity: Open Issues on Article 11 of the UNJISP
		6 From the ECtHR to Domestic Courts: The Ripple Effects of the Court´s Case-Law
		7 Conclusion
		References
	Terrorism Exception to State Immunity: An Emerging Customary Norm of International Law?
		1 Introduction
		2 Terrorism Exception to State Immunity in National Law of the United States and Canada
			2.1 The United States
				2.1.1 The US Legislation
				2.1.2 The US Judiciary
					Immunity from Adjudication
					Immunity from Enforcement
			2.2 Canada
				2.2.1 Canadian Legislation
				2.2.2 Canadian Jurisprudence
		3 Terrorism Exception and Customary International Law
			3.1 Territorial Tort Exception and Terrorism Exception
			3.2 The Subject-Matter and Circumstances of the Claims
			3.3 The `Last Resort´ Argument
		4 Perspectives of Terrorism Exception in International Law
		5 Conclusion
		References
	The United States Hegemony and Reshaping the Norms of State Immunity for International Crimes
		1 Introduction
		2 Methodological Approach
		3 The Historical Role of the United States in the Context of State Immunity
		4 Contextualizing the United States´ Practice
			4.1 FSIA
			4.2 The 1996 Amendment (FSIA Section 1605A)
			4.3 JASTA
		5 State Reactions to the United States´ Practice: Persistent Objection or Role-Modelling
		6 The Reciprocal Character of the Law of Immunity: Any Role Against Hegemony
		7 Conclusion
		References
		International Courts and Tribunals Decisions
		National Court Decisions
		Books
		Articles
		Electronic References
		U.N. Documents
Part III: Sovereign Immunity of States and Their Financial Obligations
	Sovereign Debt and State Immunity: Towards a Loss of Dissonance Between Public and EU Private International Law?
		1 State Immunity in Public and Private International Law: Divided But Coherent Approaches
			1.1 State Immunity and the `Commercial Exception´ Under Public International Law
			1.2 EU International Civil Procedure in `Civil Matters´ and State Immunity: Non-Applicability as a (Necessary and Indirect) Wa...
		2 Unilateral Changes of State Bonds and a Cross-Fertilization Between Public and Private International Law
			2.1 State Immunity and Unilateral Changes of State Bond Terms
			2.2 EU International Civil Procedure and Unilateral Changes of State Bond Terms
				2.2.1 The First Phase: Service of Writs of Summons
				2.2.2 Domestic Reaction to the First Phase: From Applicability of EU Law to State Immunity
				2.2.3 The Second Phase: From the Place of Performance of Bonds Under the Brussels Ibis Regulation to Acta Jure Imperii
				2.2.4 Domestic Reaction to the Second Phase: From Non-Applicability of EU Law to State Immunity
		3 The Contribution of the Non-Application of EU Law to Public International Law: Towards a New Customary Approach?
		4 Can the Brussels Ibis Regulation `Connect´ to the International Law of State Immunity?
		References
	Sovereign Debt and Immunity: The Controversy of Subsequent Liability Limitation for State Bonds
		1 Introduction
		2 Restricting and (Not) Restoring State Immunity for Bonds
			2.1 Issuance of State Bonds as Acta Jure Gestionis
			2.2 Restoring Immunity Through Acta Jure Imperii
				2.2.1 Anglo-American Rejection Under the Principle `Once a Trader, Always a Trader´
				2.2.2 Continental European Approval Under the Principle `Once a Trader, Still a Sovereign´
		3 Implications and Explanations of the Divergent Views
			3.1 Practical Implications for Private Investors
			3.2 Jurisprudential Explanation of Conceptional Differences
		4 Conclusion and Future Prospects
		References
	Foreign Central Banks and Immunity from Execution: Too Sovereign to Be Attached?
		1 Introduction
		2 Immunity from Execution of Foreign Central Banks in the Framework of General International Law on State Immunity
		3 Strengthening FCBs´ Protection
			3.1 Between a `Reinforced´
			3.2  and an Almost Absolute Immunity from Execution
		4 Divergent Approaches on Sovereign Immunity and Possible Reflections on FCBs: The Case of Bank Markazi
			4.1 The US Approach to Sovereign Immunity
				4.1.1 In General
				4.1.2 The Ad Hoc Measures Against Bank Markazi
				4.1.3  and Their Challange Before the International Court of Justice: The Certain Iranian Assets Case
			4.2 The Italian Approach to Sovereign Immunity and the `Counter-Limits´ Doctrine
		5 Conclusion
		References
	Expanding Immunity from Execution Through the Backdoor: The French Example
		1 Introduction
		2 The Questionable Addition of a Procedural Hurdle: The Prior Judicial Authorization
			2.1 A Procedural Hurdle Aimed at Filtering Abusive Requests but with Excessively Restrictive Effects
				2.1.1 A New Procedure Paved with Good Intentions
				2.1.2 A New Procedure Neutralizing Creditors´ Requests in Practice
			2.2 Assessing the Legality of the Procedure of Prior Judicial Authorization
				2.2.1 A Procedure Not Required by the UNCSI
				2.2.2 The Doubtful Legality of the Procedure with the ECHR
		3 The Questionable Standards Governing the Seizability of State Property
			3.1 The Scope of Seizable Property in the Absence of Waiver of Immunity from Execution
				3.1.1 Identification of the Seizable Entity
				3.1.2 Identification of the Seizable Property
			3.2 The Scope of Seizable Assets in Presence of a Waiver of Immunity from Execution
				3.2.1 In General
				3.2.2 For Diplomatic Property
		4 Conclusion
		References
Part IV: Conclusion
	Conclusions: State Immunity Under Pressure
		References
Correction to: The Law of State Immunity and the Role of the International Court of Justice: Looking for the Guiding Star
	Correction to: Chapter 8 in: R. Bismuth et al. (eds.), Sovereign Immunity Under Pressure, https://doi.org/10.1007/978-3-030-87...