The State Immunity Controversy in International Law [electronic resource] : Private Suits Against Sovereign States in Domestic Courts /
Bankas, Ernest K.author.
The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal. Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile, as a prelude to determine jurisdiction. The said Italian doctrine therefore is ex facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence, arbitration and comparative dominant theory are suggested instead in the resolution of this elusive problem.
Revision of the author's thesis (doctoral)--University of Durham.
Includes text of legislation and treaties.
Includes bibliographical references (p. [517]-533) and index.
The Historical Origins of the Concept of Absolute Immunity of States -- The Development of the Doctrine of Sovereign Immunity: A Claim Against France Before American Courts and its Aftereffects -- The Rights and Immunities of States in Foreign Courts: A Study of Absolute Immunity of States -- The Changing Law of Sovereign Immunity in U.S. and U.K. Courts: A Look at the Restrictive Immunity Rule -- Private Suits Against African Countries in Foreign Courts -- The Practice of African States in the Matter of Jurisdictional Immunities of States: Is it Still Absolute Immunity or Restrictive Immunity -- A Look at the ILC Report on Jurisdictional Immunities of Foreign States and Their Property -- Sovereign States Before Foreign Courts: An Observation on Certain Unsettled or Lingering State Immunity Problems -- State Immunity and the Violation of International Law: Some Recent Developments in the Law of State Immunity -- The Acceptance of the Proposed UN Convention on Jurisdictional Immunities of States and Their Property, A Recent Development -- The Current State of the Law of Sovereign Immunity -- Conclusion: A Modest Proposal for Resolving the Sovereign Immunity Controversy.
The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal. Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile, as a prelude to determine jurisdiction. The said Italian doctrine therefore is ex facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence, arbitration and comparative dominant theory are suggested instead in the resolution of this elusive problem.
Public international law.
Public International Law .