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The law of state immunity / Hazel Fox, CMG, QC; Philippa Webb.
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Title:The law of state immunity / Hazel Fox, CMG, QC; Philippa Webb.
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Author/Creator:Fox, Hazel, author.
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Other Contributors/Collections:Webb, Philippa (Philippa Mahal), author.
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Published/Created:Oxford, United Kingdom : Oxford University Press, [2013]
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Holdings
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Location:LAW LIBRARY (level 3)Where is this?
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Call Number: KZ4012 .F69 2013
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Number of Items:2
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Status:c.1 Lost - 03-23-2016
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Location:LAW LIBRARY (level 3)Where is this?
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Library of Congress Subjects:Immunities of foreign states.
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Edition:Third edition.
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Description:xliv, 645 pages ; 26 cm
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Series:Oxford international law library.
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Summary:"Although the restrictive doctrine now permits States to be sued in national courts for their commercial transactions, the doctrine of State immunity remains controversial, particularly by reason of high-profile national and international decisions such as Pinochet and Arrest Warrant. Despite the International Court's ruling in the 2012 Jurisdictional Immunities case that the plea of State immunity is procedural and is entirely separate from questions of State responsibility and any obligation to make reparation, controversy continues. Some argue that State immunity paves the way for State violations of human rights and further bars the prosecution of State officials for such acts. Others contend that the customary source of the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, even when judgments are made in national courts against other States, the doctrine may make enforcement of these decisions virtually impossible. This fully restructured new edition provides a detailed analysis of these issues in a clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of State immunity, including a comprehensive overview of the plea of immunity, its characteristics, and the exceptions, with a comparison of the employment exception as regards the foreign State and international organisations. It includes a coherent history and justification of the plea, arguing that a third model of State immunity despite its procedural nature permits the allocation of adjudicative and enforcement jurisdictions between the foreign and the territorial States. The United Nations Convention on Jurisdictional Immunities of States and their Property is thoroughly assessed, including its implementation by ratifying States. Through a detailed examination of the sources of law and of English and US legislation and case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come"--Unedited summary from book jacket.
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Notes:Includes bibliographical references (pages 625-628) and index.
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ISBN:9780199647064 (hbk.)
0199647062 (hbk.)
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Contents:Machine generated contents note: plea as one of mixed international and municipal law
functions which State immunity serves
sources of the law of State immunity
recent development of the law of State immunity
three models on which immunity is based
Structure of the book
State immunity as a case study of the structure of international law
pt. I GENERAL CONCEPTS
1. Institution of Proceedings and the Nature of the Plea of State Immunity
institution of proceedings
Immunity as a rule of international law
role of national law
Outline of the plea of State immunity
Proceedings in court: criminal and civil
2. Three Models of the Concept of State Immunity
changing role of the independence and equality of the State
First Model, the absolute doctrine: the independence of the State
inability of the national court to enforce its judgments against a foreign State
Second Model: the restrictive doctrine
distinction into public and private law acts used as legal device in other areas of regulation
merits and faults of the distinction into public and private law acts
Third Model: immunity as a procedural exclusionary plea
From bilateralism of rights to a vertical hierarchy?
Assessment of the Third Model
3. Plea of State Immunity Distinguished from Act of State and Non-justiciability
Proceedings in national courts where a foreign State affects the court's exercise of jurisdiction
Special features of proceedings where the State is party
State Practice relating to pleas of Act of State and Non-justiciability: US law
English law
Act of a foreign State
plea of non-justiciability
Modification where `a foothold in domestic law'
Modification where a procedural right of access
Pleas of Act of State, non-justiciability and State immunity compared
4. State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
competing principle of sovereign territoriality
extraterritorial extension of the State's jurisdiction
Universal jurisdiction
relationship of immunity to jurisdiction
distinction into civil and criminal jurisdiction
Additional jurisdictional links in civil proceedings against a State
exercise of criminal jurisdiction over a foreign State
pt. II SOURCES OF THE LAW OF STATE IMMUNITY
5. Review of the Sources: Treaties and Projects for Codification
International conventions relating solely to State immunity
resolutions of international bodies
Decisions of international tribunals
Decisions of national courts
Treaty practice as a source
1926 Brussels Convention and the 1934 Protocol
1972 European Convention on State Immunity
Projects for codification by governmental and non-governmental bodies
6. Restrictive Doctrine of State Immunity: Its Recognition in State Practice
Early development
formulation of a general rule of immunity of the State
Common law jurisdictions: UK law
US law
Other common law jurisdictions
development of the restrictive doctrine in civil law countries
Russia and other East European Countries
African and Asian States
7. English Law: The UK State Immunity Act 1978
Status
General structure of the UK State Immunity Act 1978
Definition of the foreign State
Waiver
exceptions to immunity: non-immune commercial activities
English law: immunity from enforcement
Recognition and enforcement of foreign judgments given against foreign States
English law: procedure
Civil Procedure Rules
Proof of the status of a foreign State or government
Commencement of proceedings against a foreign State
Service of Process
Burden of proof
8. US Law: The Foreign Sovereign Immunities Act 1976
Immunity from adjudication
General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction
Definition of the Foreign State
Waiver
Exceptions to immunity from adjudication
Alien Tort Act 1789 and the Torture Victim Protection Act 1991
Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA
Immunity from execution of the State and its property
Amendment of the FSIA relating to execution against State property
9. 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
Legislative history: the ILC's work and its consideration in the United Nations
Status of the Convention
Interpretation of the Convention
Structure of the Convention
general rule of immunity in the Convention
Exclusions
general assessment of the Convention
Implementation by States which have ratified the Convention
pt. III CURRENT INTERNATIONAL LAW OF STATE IMMUNITY
10. Definition of the Foreign State
External attributes as an independent and sovereign State
Recognition of a State or government
Internal attributes of the State
Head of State
Constituent units and political subdivisions
State agencies
Representatives of the State: Individuals
Central banks
11. Consent of the Foreign State: Waiver and the Arbitration Exception
nature of consent of a foreign State in proceedings in national courts
Consent under the UN Convention
Consent of the State to the exercise of jurisdiction by the court of the forum State
Consent by choice of jurisdiction as constituting waiver
Counterclaims: matters covered by waiver
Waiver and the arbitration exception
UNCSI Article 17 arbitration exception: limitations
12. Concept of Commerciality
Three requirements for an exception to immunity
Acta jure imperii
Acta jure gestionis
Techniques for determination of the commerciality of the act
Evaluation of the restrictive doctrine
13. Immunity from Adjudication: the Proceedings in which Immunity Cannot be Invoked, the Commercial and Other Exceptions
exception for commercial transactions
exception for ownership, possession and use of property
taking of property in violation of international law
exception for infringement of intellectual property rights
Participation in companies or other collective bodies
exception for ships owned or operated by a State
14. Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization
(1). foreign State's immunity and the exception for employment contracts
three Models of employment contracts with a Foreign State
exception for employment contracts in UNCSI Article 11 (2)
Circumstances where the rule of immunity still prevails UNCSI Article 11(2)
(2). international organization's immunity and the exception to immunity for employment contracts
Allocation of responsibility in respect of employees of an international organization
Employment contracts of the international organization and of the foreign State compared
15. Immunity from Adjudication: The Territorial Tort Exception
pt. One UN Convention Article 12
Legislative history
Jurisdictional connection
Applicable law to determine cause of action
Types of tortious conduct
Exclusions
pt. Two impact of the Jurisdictional Immunities Judgment
Three controversial types of loss
16. State Immunity from Enforcement: General Aspects
reasons underlying no enforcement against State property
State Practice: the general rule and modifications
Immunity from enforcement in the UN Convention
State immunity from measures of constraint in connection with proceedings before a court
distinction into pre- and post-judgment
Types of coercive measures
Coercive measures against the State representative
Subject-matter of coercive measures
17. Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune
three exceptions to the General Rule of Immunity from enforcement
Consent of the State
Allocation of State property by the State
Use or intended use for commercial purposes
five categories of State property listed as immune
Diplomatic property
Military property
Central bank property
Cultural heritage of the State
State property forming part of an exhibition
Conclusions with regard to Chapters 16 and 17
pt. IV OTHER IMMUNITIES
18. Immunity of Individuals Acting on Behalf of the State
head of State
Immunities of other high-ranking officials
Special missions
Immunity ratione materiae of State Officials
19. International Organizations and Special Regimes
International organizations
Diplomats and the diplomatic mission
Consular immunity
Visiting armed forces
Other issues: private military and security companies and policing and law enforcement
pt. V CONCLUSIONS
20. Taking Stock.