Immunities in the Age of Global Constitutionalism Immunities in the Age of Global Constitutionalism Edited by Anne Peters Evelyne Lagrange Stefan Oeter Christian Tomuschat LEIDEN | BOSTON Cover illustration: Gustav Klimt, Der Baum des Lebens / The Tree of Life (1909). Reproduced with kind permission of the MAK—Austrian Museum of Applied Arts / Contemporary Art, Vienna. Photo: © MAK/Georg Mayer. Library of Congress Cataloging-in-Publication Data Immunities in the age of global constitutionalism / Edited by Anne Peters, Evelyne Lagrange, Stefan Oeter and Christian Tomuschat. pages cm ISBN 978-90-04-25162-5 (hardback : alk. paper) — ISBN 978-90-04-25163-2 (e-book) 1. Immunities of foreign states. 2. Constitutional law. 3. Government liability (International law) I. Peters, Anne, 1964– editor. II. Lagrange, Evelyne, editor. III. Oeter, Stefan, editor. IV. Tomuschat, Christian, editor. 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Contents Foreword ix Alain Pellet and Daniel Thürer List of Contributors x 1 Immune against Constitutionalisation? 1 Anne Peters PART 1 State Immunity—National Practice 2 L’immunité souveraine de l’État : la pratique française 23 Pierre Boussaroque et David Lemétayer 3 Sovereign Immunities of States: A German Perspective 32 Martin Ney 4 Current Polish Practice in the Domain of State Immunity 40 Władysław Czapliński 5 The Holy See, a Former Somalian Prime Minister, and a Confiscated Pissarro Painting: Recent US Case Law on Foreign Sovereign Immunity 51 Thomas Giegerich 6 La renonciation par un État à son immunité d’exécution 70 Mathias Audit PART 2 State Immunity before the ICJ—The Case Germany v. Italy 7 The Case of Germany v. Italy before the ICJ 87 Christian Tomuschat vi Contents 8 Remedies of Victims of War Crimes and Crimes against Humanities: Some Critical Remarks on the ICJ’s Judgment on the Jurisdictional Immunity of States 99 Michael Bothe 9 L’affaire Allemagne contre Italie ou les dilemmes du droit et de la justice 116 Jerzy Kranz PART 3 Commercial Activities and State Immunity 10 Blurring Boundaries between Sovereign Acts and Commercial Activities: A Functional View on Regulatory Immunity and Immunity from Execution 131 Anne van Aaken 11 State Immunity and Sovereign Bonds 182 Jürgen Bröhmer 12 Gel des fonds des banques centrales et immunité d’exécution 209 Jean-Marc Thouvenin PART 4 Immunity and Impunity 13 Immunité et souveraineté dans l’arrêt de la Cour internationale de Justice dans l’affaire Immunités juridictionnelles de l’État 223 Andrea Gattini 14 Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges 236 Robert Uerpmann-Wittzack 15 Immunity of State Officials and the Obligation to Prosecute 244 Pierre d’Argent Contents vii 16 The Case-Law of the European Court of Human Rights on the Immunity of States 267 Theodor Schilling PART 5 Immunities of International Organisations 17 Immunités, responsabilisation des organisations internationales et protection des droits individuels 285 Laurence Boisson de Chazournes 18 Les immunités de l’Union européenne 301 Isabelle Pingel 19 Immunités des organisations internationales : développements récents à la Banque des Règlements Internationaux 316 Pierre Panchaud et Jean Abboud 20 Quelques réflexions sur les immunités des organisations internationales 333 Rémi Cèbe PART 6 Conclusions 21 The Law of Immunities as a Focal Point of the Evolution of International Law 355 Stefan Oeter Foreword This volume collects the contributions to a colloquium which is the eighth edition of a biennial event of which Professor Christian Tomuschat had taken the initiative several years ago. Moreover, it is the first time that a Swiss- German-French conference of this type took place. The colloquium was orga- nized by Professor Anne Peters from the University of Basel, seconded by Professors Evelyne Lagrange (Paris I) and Stefan Oeter (Hamburg). Bearing upon “Immunities in the Age of Global Constitutionalism” it offered an excel- lent occasion for outstanding scholars and practitioners coming from the three countries (and from elsewhere: two eminent participants were from Poland) to exchange views, to deepen reflections and to explore new tracks of this multi- faceted and virtually endless topic. It is not the purpose of this preface to reveal the rich content of this volume—and one page could not possibly give account of it, even partially. All the least so that both the regime and the very notion of immunities still spark passionate debates, and the Basel colloquium did not fail to respect the tradi- tion. Ardours from the protagonists had even been revived by the recently given ICJ Judgment in the case concerning Jurisdictional Immunities of the State between Germany and Italy, of which some participants took vigorously the defence, while others fiercely attacked it. We have no intention to take side in these skirmishes. Suffice it to remark that, like the Aesopian tongue, state immunities can be seen as the best or the worst thing. It preserves the capacity of the state to effectively fulfil its func- tions as the trustee of the public interest; it also permits it to escape its respon- sibility, even, maybe, in cases of averred abomination. This is probably the crucial question; but indeed not the only one and the readers will find in the proceedings of this most stimulating colloquium a lot of food for thought on the most “existential” questions to the most technical ones, on the most theo- retical points of view as well as on the most practical considerations. These regards croisés contribute to the richness of this volume. We have full confidence that our timely debates will inspire interesting fur- ther discussions on this very challenging subject. And we, in advance wish “bonne chance!” to the next Colloque franco-allemand which, following the remarkable “decentralized precedent” of the Basel meeting will take place in Louvain (Belgium) in 2014. Alain Pellet and Daniel Thürer List of Contributors Anne van Aaken is Professor of law and economics at the University of St. Gallen, Switzerland. Jean Abboud is a jurist at the Bank for International Settlements. Mathias Audit is Professor of law at the University Paris Ouest, Nanterre La Défense and Associate Professor at Sciences Po, France. Laurence Boisson de Chazournes is Professor of international law at the University of Geneva, Switzerland. Michael Bothe is Professor emeritus of public law at the Goethe University Frankfurt am Main, Germany. Pierre Boussaroque is the Deputy Director of the Legal Department at the French Ministry for Foreign Affairs. Jürgen Bröhmer is Dean and Professor of law at the Murdoch University in Perth, Australia. Rémi Cèbe is senior legal adviser at the Organisation for Economic Co-operation and Development (OECD) and formerly a lawyer of the Paris Bar. Władysław Czapliński is Professor of international and European law at the University of Warsaw and Director of the Institute of Legal Studies (Polish Academy of Sciences) in Warsaw, Poland. Pierre d’Argent is Professor of public international law at the University of Louvain, Belgium. List Of Contributors xi Andrea Gattini is Professor of international law at the University of Padua, Italy. Thomas Giegerich is Professor of European law, international law and public law at Saarland University, Germany. Jerzy Kranz was Ambassador of Poland and is Associate Professor at the Kozminski University, Poland. Evelyne Lagrange is Professor of public international law at the University Paris 1 Panthéon- Sorbonne, France. David Lemétayer is a legal consultant at the French Ministry for Foreign Affairs. Martin Ney is German Ambassador and General Director of the Legal Department of the German Federal Foreign Office. Stefan Oeter is Professor of public law, European Union law and public international law at the University of Hamburg, Germany. Pierre Panchaud is the principal counsel of the legal department at the Bank for International Settlements and lecturer at the University of Basel, Switzerland. Alain Pellet is Professor of law at the University Paris Ouest, Nanterre La Défense, France, Council, Associé de l’Institut de Droit International and is a former member and the former chairperson of the UN International Law Commission. Anne Peters is Director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, and adjunct professor at the Universities of Basel, Switzerland, and Heidelberg, Germany. xii List Of Contributors Isabelle Pingel is Professor of law at the University Paris 1 Panthéon-Sorbonne, France. Theodor Schilling is Professor of law at the Humboldt University in Berlin, Germany. Jean-Marc Thouvenin is Professor of law at the University Paris Ouest, Nanterre La Défense, France. Daniel Thürer is Professor emeritus of public international, European, Swiss and comparative constitutional law at the University of Zurich, Switzerland. Christian Tomuschat is Professor emeritus of public international law and European law at the Humboldt University in Berlin, Germany and a former member of the UN Human Rights Committee and the UN International Law Commission.