Chatham House Paper on State Immunity

Readers interested in the law relating to state immunity will find the Chatham House briefing paper (from December 2013) State Immunity: Recent Developments and Prospects very useful indeed. The paper is written by Joanne Foakes, Associate Fellow at Chatham House and former Legal Counsellor at the UK’s Foreign and Commonwealth Office. The paper provides a really good survey of recent cases, from international and national courts, regarding state immunity. In the paper, she discusses developments regarding the exceptions to immunity in the areas of commercial transactions, human rights, employment contracts, the territorial torts (personal injury and damage to property) as well as issues relating to enforcement of foreign judgments. Throughout the paper, she seeks to identify the impact of the UN Convention on Jurisdictional Immunities of States and their Property. The “summary points” of the paper are as follows:

• Nearly nine years have elapsed since the adoption of the 2004 UN Convention on State Immunity. This paper considers whether the convention has increased legal certainty in this area or whether practice is as unpredictable and divergent as ever.
• So far the convention has had little impact on countries which traditionally accord absolute immunity to other states in their courts. It is therefore too early to say whether it can succeed in its objective of enhancing legal certainty and harmonizing practice.
• There is evidence, however, that many national and international courts such as the European Court of Human Rights are looking to the convention as a reflection of customary international law. In these circumstances there is some force in the argument that states that want to influence the way in which courts interpret the convention should become parties to it.
• Uncertainties about the scope of the convention remain, although to some extent ’ international law so as to stop the development of an exception for serious human rights violations.
• For the United Kingdom and other Western states with existing legislation on state immunity, the benefits and potential disadvantages of becoming party to the convention remain finely balanced.