Title: State Immunity from Non-Judicial Measures of Constraint
Domain: Law

Question: Traditionally, discussions on state immunity have mainly focused on its application in judicial proceedings. Does the principle of state immunity against non-judicial measures of constraint exist in customary international law, and how should the normative content of this principle be defined?

Background: 1.Sanctions against Russia: After Russia's invasion of Ukraine in 2022, the European Union and multiple countries imposed extensive unilateral sanctions on Russia. In the financial sector, these sanctions not only froze the assets of numerous individuals and entities linked to the Kremlin but also "froze" the assets of the Central Bank of Russia. This freezing was unprecedented in scale, implemented through legislative and executive actions without the involvement of judicial authorities. | 2.Subsequent developments: Debates have emerged in multiple countries regarding whether to take further actions. The G7 leaders' statement pledged to continue measures including seizing and confiscating assets of individuals and entities related to Russia's aggression, and stated that Russia's sovereign assets in their jurisdictions would remain frozen until Russia compensates for the damage it caused. Countries like the United States, Canada, and the United Kingdom have pushed for legislation to seize Russian sovereign assets. Additionally, political actors have considered "temporary active management" of the Central Bank of Russia's assets or taxing the windfall profits of asset holders to support Ukraine. The EU has already imposed taxes on windfall profits of central securities depositories (CSDs) holding the Central Bank of Russia's assets, sparking discussions on the legal protection of sovereign assets. | 3.Academic controversies: The question of whether state immunity protects foreign states' property from non-judicial coercive measures by executive and legislative authorities has gained new attention in recent years due to sanctions like those against the Central Bank of Russia. The international community holds diverging views on this issue: some scholars argue that state immunity should apply to non-judicial contexts, while others believe it only applies to judicial proceedings. The core of the controversy lies in defining the scope of state immunity and balancing the principles of sovereign equality and territorial sovereignty in non-judicial measures.

Definitions: 1.State Immunity: The right of a state and its property to be immune from jurisdiction and enforcement in the judicial, administrative, or legislative proceedings of another state, fundamentally based on the principle of "sovereign equality", namely "par in parem non habet imperium" (equals have no sovereignty over each other). | 2. Non-Judicial Measures of Constraint: Measures restricting the property of a foreign state taken by executive or legislative organs (such as freezing, confiscation, taxation, etc.), distinguishing them from judicial enforcement measures following court judgments. | 3.Unilateral Sanctions: Restrictive measures unilaterally imposed by a state or group of states against another state without United Nations authorization (e.g., economic sanctions). | 4.Public Policy Exception: An exception allowing a territorial state to take coercive measures against the property of a foreign state to safeguard significant public interests (such as crime prevention or security). | 5.Immunity from Enforcement: The right of state property to be exempt from compulsory enforcement measures (such as attachment or auction), differing from immunity from jurisdiction.

Methodology: 1.Normative research method: Combing through the provisions of legal instruments such as the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), clarifying its limitations on "immunity in judicial proceedings", and exploring whether customary international law breaks through this scope. Extracting the legal principles of state immunity through precedents of the International Court of Justice (ICJ), and analyzing the applicable boundaries of these principles for non-judicial measures. | 2.Empirical research method: Analyzing the provisions on non-judicial immunity in the domestic laws of countries like France and Spain, and comparing their differences from traditional judicial immunity. Studying the administrative and judicial cases in Austria, New Zealand, etc., to examine the practical application of non-judicial immunity by administrative organs and courts. Taking measures such as the EU's "freezing" of the Central Bank of Russia's assets and "taxation on windfall profits" as samples to analyze their legal nature and impact on state immunity. | 3.Comparative research method: Contrasting the "comprehensive immunity theory" that claims immunity applies to all state powers with the "judicial limitation theory" that argues immunity is limited to judicial proceedings, and analyzing the logical foundations of both. Introducing the concept of "Inviolability" from international investment law and diplomatic law, and analogizing its protection logic with state immunity to assist in defining the content of non-judicial immunity. | 4.Case study method: Conducting a detailed analysis of typical cases of sanctions measures, such as the U.S. freezing of the Central Bank of Iran's assets and the EU's tax measures on Russian assets, to examine the legal controversies of non-judicial measures. Tracking Russia's protests against asset confiscation in the UN General Assembly and bilateral statements, and analyzing their legal basis. Dissecting the judgments on state immunity by courts such as the Federal Court of Justice of Germany and the New Zealand Court of Appeal, and exploring the immunity exceptions in non-judicial scenarios.

Answer: 1.Current debate on State immunity | The law of state immunity emerges at the intersection of two conflicting principles: the principle of territorial sovereignty and the principle of sovereign equality. The concept of sovereignty implies that states have the right to regulate property rights over assets within their territory according to their own judgment, and state immunity constitutes a "departure from the principle of territorial sovereignty". Since applicable treaties are generally absent, relevant rules derive from customary international law, meaning the existence and scope of any rule must be established through sufficiently widespread and uniform state practice, accompanied by opinio juris. | A state's sovereignty means it should not be subject to another state's sovereignty, often expressed by the legal maxim "par in parem non habet imperium" (equals have no jurisdiction over one another). Modern state jurisdiction takes three forms: prescriptive jurisdiction, adjudicative jurisdiction, and enforcement jurisdiction. In principle, foreign states are subject to prescriptive jurisdiction while enjoying immunity from adjudicative and enforcement jurisdiction. Exceptions to enforcement immunity depend on the use of property against which "measures of constraint" are taken. The dispute lies in whether a state's enforcement immunity applies to other scenarios, such as "measures of constraint" adopted in non-judicial contexts (e.g., sanctions). Sanctions regimes typically include a range of measures by executive and legislative organs against foreign state property, and the extent to which such property is protected by immunity against these measures is crucial to determining the sanctions' legality. | Two different theories exist on this issue. The first argues that state immunity law applies equally to non-judicial contexts, based on the assumption that the law serves to safeguard sovereign equality, and its purpose would be frustrated if other (non-judicial) coercive measures were excluded from its scope. The second theory contends that existing state practice and opinio juris are limited to immunity in judicial proceedings, lacking materials to suggest immunity can counter measures taken independently by executive or legislative organs. To resolve this issue, one must examine it based on customary international law rather than relying solely on the purpose of state immunity norms. The increasing use of sanctions by states against foreign state property has led to more state practice and opinio juris on this matter, providing substantial support for such immunity. | | 2.Immunity from non-judicial measures of constraint: ascertaining the existence of a norm | In terms of state practice:In the field of domestic legislation, most state immunity laws focus on immunity in judicial proceedings, with immunity from enforcement generally adopted as a basic principle. In rare cases, domestic legislation can be interpreted as addressing non-judicial restrictive measures. For example, French law generally provides protection for foreign central bank assets from seizure, and Spain's Organic Law No. 16/2015 defines "immunity from execution" broadly, though it remains practically limited to judicial contexts. In administrative and judicial cases, relevant examples include New Zealand's Controller and Auditor-General v Sir Ronald Davison, where the court denied immunity application but acknowledged the relevance of sovereign immunity in non-judicial investigations; Austria waived enforcement of administrative decisions in a diplomatic building underground construction case due to immunity. | In terms of opinio juris: Many states oppose unilateral or autonomous sanctions, and criticisms of non-judicial coercive measures against state property violating state immunity are relatively consistent. For instance, Iran opposed the U.S. freezing of its central bank assets, claiming it violated the UN Convention on State Immunity; furthermore, Russia, together with China, Iran, etc., issued statements condemning asset confiscation as violating sovereign immunity. Internationally, the Asian-African Legal Consultative Organization (AALCO) has repeatedly adopted resolutions condemning sanctions against central banks as violating state immunity; internal EU documents acknowledge the existence of immunity but argue that "proportional and temporary" measures are lawful. | | 3.Sketching the contours of the norm Evidence suggests that immunity from coercive measures in non-judicial contexts differs from that applied in judicial contexts. In fact, the sovereign interests of the territorial state may be implicated to a greater degree in non-judicial contexts, as the stakes involved may be more fundamental than merely ensuring the proper conduct of civil proceedings. The core distinction between the two is that, unlike the strict immunity in judicial proceedings, non-judicial immunity requires balancing the public policy interests of the territorial state, meaning the territorial state may take exceptional measures against foreign state property to safeguard certain vital interests. Such interests include preventing the commission of crimes, ensuring the investigation of crimes directed against the state, and averting other threats to public safety. This analysis does not rely on the traditional exception of "commercial" use of property but considers the specific purpose of the measures taken by the territorial state, rather than the purpose of the property in question. | Recognizing the existence of a public policy exception for non-judicial restrictive measures means the territorial state may adopt certain measures against foreign property through executive or legislative acts that would be unlawful in judicial contexts. Therefore, defining which specific "public policy" is sufficiently important to permit restrictive measures is crucial to prevent eroding state immunity protections. | This issue involves the determination of "measures of constraint", i.e., the minimum level of interference required for a territorial state's measures against foreign state property to be prima facie considered a violation of the principle of state immunity. In judicial contexts, the decisive factor for whether an act constitutes a measure of constraint is whether the person enjoying immunity is subjected to a "constraining act of authority", a consideration equally applicable in non-judicial contexts. If an immune individual, entity, or property is not subjected to (or threatened with) state coercion but retains freedom of action, the measure does not violate the principle of state immunity. If an executive or legislative act by the territorial state against foreign state property can be identified as a measure of constraint, it may still be lawful based on the public policy exception. For example, New Zealand courts have held that immunity may be denied exceptionally if a foreign state's conduct violates the territorial state's "fundamental principles of justice", and the International Court of Justice recognized in the Tehran Hostages case that temporary restrictions on diplomatic personnel are permissible to prevent crimes. | | 4.Conclusion | A principle of state immunity from non-judicial measures of constraint exists in customary international law, but its normative content differs fundamentally from judicial immunity. It requires upholding the core principle of sovereign equality while acknowledging the reality of the normalization of unilateral sanctions in the modern international community. It is recommended that when a territorial state adopts non-judicial coercive measures, the objectives of the measures should be directly linked to vital public interests such as "crime prevention" and "security maintenance", remain temporary, avoid permanent deprivation of ownership, and prioritize reversible measures such as taxation or temporary management.

Checklist: 1. Elaborate that current discussions on state immunity focus on judicial immunity, with two theories on non-judicial measures: full extension vs. restriction to courts.  
2. Explain that customary international law recognizes immunity from non-judicial measures, citing state practice and opinio juris criticizing such measures as violations.  
3. Clarify that immunity from non-judicial measures is not absolute: a public policy exception allows states to act against foreign property to protect vital interests.  
4. Distinguish non-judicial immunity from judicial immunity: uphold sovereign equality, ensure temporariness, prefer reversible measures, and avoid permanent deprivation.