5- IMMUNITY.docx - IMMUNITY UN Convention on Jurisdictional Immunities of States and Their Property 2005 Immunity is where a state has jurisdiction but

5- IMMUNITY.docx - IMMUNITY UN Convention on Jurisdictional...

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IMMUNITYUN Convention on Jurisdictional Immunities of States and Their Property 2005Immunity is where a state has jurisdiction but is not permitted to exerciseit “Procedural impairment” to exercising jurisdiction Common examples of immune figures: Diplomats Staff of international organisations Independent sovereign state cannot be sued without its consent – rationale for foreign state immunity is that an exercise of jurisdiction by courts of one sovereign state over acts of another sovereign state is incompatible with principles of sovereign equality and independence of states POWER: Arises from UN Convention on Jurisdictional Immunities of States and Their Property 2005 Different from impunity = where there is a refusal to prosecute an individual o IE. letting something go unpunished rather than there being a bar to exercising juris. 1.Sovereign/State immunityNo longer absolute state immunity – now RESTRICTIVE doctrine of immunity (Trendtex; Io Congreso; Germany v Italy) Rationale = no state should not be able to judge the actions of another which is only accountable at international level These customary law principles are reflected in Convention on Jurisdictional Immunities of States and Their Property, 2005:PRESUMPTION of state immunity (Article 5) EXCEPT for:Commercial transactions (Art 10)Employment contracts (Article 11)Civil proceedings for damages for death/injury/damage to property (Art 12)
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Linked with ‘Act of State’ doctrine (Letelier v Chile; Parlement Belge)o Domestic courts cannot scrutinise the conduct of another state(an equal)o Upheld in AUS (Hicks v Ruddock; Habib v Cth) – extreme reluctance of AUS courts to rule upon the acts of the USA in relation to these men as acts were ‘Acts of State’Waiver = state immunity may be waived by an authorised representative of a state(Aziz v Yemen; R v Madan) Claim Against the Empire of Iran (1963) FACTS: contract b/w Iran and company in Germany to repair heating sys in I’s embassy in Germany. Heating co wasn’t paid, sought damages against I govt. I argued FSI applied. Contract – what is the nature of transaction on its face? COMMERCIAL contractIran not immune from K’ual claim for payment for repairs Considered state practice and opinio juris and concluded FSI principle of CIL (for the most part uncontroversial conclusion) Trendtex Trading Corp v Central Bank of Nigeria FACTS: Bank refused to honour letter of credit to Trendtex (Swiss Co), under govt instruction, T took action, bank claimed sov immunity.
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