Document: A/CN.4/343 Jurisdictional immunities of States and their property - Information and materials submitted by Governments Topic: Jurisdictional immunities of States and their property Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations UNITED NATIO Distr GENERAL GENERAL >jm lh April 1981 ASSEMB'.Y JjM ENGLISH %% ORIGINAL: ARABIC/ENGLISH/FRENCH/ RUSSIAN/SPANISH INTERNATIONAL LAW COMMISSION Thirty-third session h May-2k July 1981 JURISDICTIOUAL IMMUNITIES OF STATES AND THEIR PROPERTY Information and materials submitted by Governmeiits CONTENTS Page IIITRODUCTION 17 I. GOVERNMENT REPLIES TO THE QUESTIONNAIRE 22 Question 1. Are there laws and regulations in force in your State providing either specifically for jurisdiction?tl_ immunities for foreign States and their properly, or generally for non-exercise of jurisdiction over foreign States and their property -without their conseni ? If so, please attach a copy of the basic provisions of those laws and regulations 22 Brazil . , 22 Egypt 22 Germany, Federal Republic of 22 Hungary ........ 23 Kenya 23 Lebanon % . 23 Netherlands 2U Portugal 2k Sudan 2k Sweden 2k 81-10062 /... GE.8l-6l663 English Page 2 CONTENTS (continued) Page Syrian Arab Republic , 25 Togo 25 Trinidad and Tobago .".'... '26' Tunisia 26 Union of Soviet Socialist Republics ...... 26 United Kingdom of Great Britain and Northern Ireland ... 27 United States of America 28 Yugoslavia 28 Question 2. Do courts of your State accord jurisdietional iianunities to foreign States and their property? If so, pi.ease indicate whether they have based their decision;i on any provisions of internal law in force or on any principle of international lav 30 Brazil 30 Egypt ....-.'. 30 Germany, .Tederal Republic of 30 Hungary 30 Kenya 31 Lebanon ..... 31 Netherlands 31 Portugal 31 Sudan 31 Sweden 32 Syrian Arab Republic 32 Togo 32 Trinidad and Tobago 32 Tunisia 33 Union of Soviet Socialist Republics 33 United Kingdom of Great Britain and Northern Ireland ... 33 United States of America 35 Yugoslavia 35 A/CN.h/3U3 English Page 3 CONTENTS (continued) Page Question 3. What are the main trends of the judicial practice of your State in regard to jurisdietional immunities of foreign States and their property? Do the courts regari the doctrine of State immunity as "absolute", and if not, is its application subject to qualifications or limitations? 36 Brazil 36 Egypt 36 Germany, Federal Republic of 36 Hungary 37 Kenya 37 Lebanon * 37 Netherlands 38 Portugal 38 Sudan 38 Sweden 39 Syrian Arab Republic 39 Togo 39 Trinidad and Tobago . 39 Tunisia 39 Union of Soviet Socialist Republics , ^° United Kingdom of Great Britain and Northern Iruland . -lO United States of America ^1 Yugoslavia ^2 Question k. What is the role of the executive branch of the Government of your State in matters of recognit Lon of jurisdictional immunities of foreign States and their property, especially in the definition or delimitation of the extent of the application of State immunity? ... I13 Brazil , 1^3 Egypt 1*3 Germany, Federal Republic of , I13 Hungary k3 A/CR.U/3^3 English Page k CONTENTS, (continued) Page Kenya hk Lebanon • kk Netherlands kk Portugal kk Sudan k5 Sweden k$ Syrian Arab Republic U5 Togo k5 Trinidad and. Tobago k5 Tunisia , k6 Union of Soviet Socialist Republics ..... ^6 United Kingdom of Great Britain and Northern Ireland ... ^6 United States of America k"J Yugoslavia ^7 Question 5. Is the principle of reciprocity applicable in • :he matters relating to jurisdictional immunities of State:; and their property? Inter alia, would courts of your State be expected to apply the principle of reciprocity to a foreign 3tate which would deny your State immuiity in a dispute similar to the one pending before your courts9 even if the courts would normally grant immunity to other foreign States in such disputes? . U8 Brazil U8 Egypt : U8 Germany, Federal Republic of U3 Hungary U8 Keny-a .,...•.;....... U9 Lebanon . * U9 Netherlands I19 Portugal 1+9 Sudan . , , 50 Sweden 50 A/CN.U/3U3 . English Page 5 CONTENTS (continued) Page Syrian Arab Republic 50 Togo - 50 Trinidad and Tobago 50 Tunisia • 51 Union of Soviet Socialist Republics 51 United Kingdom of Great Britain and northern Ireland ... 51 United States of America 52 Yugoslavia. ., 52 Question 6. Do-the lavs and regulations referred to under qt.estion 1 or the Judicial practice referred to in questior 3? make any distinction,-as far as .jurisdictional-immunities of foreign States and their property are concerned, between "public acts" and i:non-p'ablic acts" of foreign £tates? If so, please outline the distinctions, and pro-vide examples .of their application 53 Brazil 53 Egypt 53 Germany, Federal Republic of • . • 53 Hungary 5^ Kenya , 5^ Lebanon 5^ Netherlands , 55 Portugal 55 Sudan 55 Sweden 55 Syrian Arab Republic 56 Togo 56 Trinidad and Tobago . 56 Tunisia. ->7 Union of Soviet Socialist Republics 57 United Kingdom of Great Britain and Northern Ireland ... 57 United Sta.tes of America 53 Yugoslavia 5& English Page 6 CONTENTS (continued) Page Question 7- If the answer to question 6 is :'yes": Ta) Can "jurisdietional immunities be successfully invoked before courts in your State in connexion with "iion-public acts" of foreign States? If not, please indicate the types of "non-public actsf: of foreign States no-: covered by immunities. (b) In a dispute relating to a contract of purchase of goodj, would courts of, your State be expected t;) grant immunity 'bo a foreign State which establishes that the ultimate object of the contract was for a publi': purpose or the contract was concluded in the exercise o:!~ a ^public" or ::sovereign:: function? (c) In a dispute relating to a foreign State's breach of a contract of sale, would courts of your State >e expected to grant immunity to a foreign State which establishes that its conduct was motivated by public interests? (d) In any dispute concerning a commercial transaction, is the nature of the transaction decisive of th<i_ question of State immunity, if not, how far is Uterior motive relevant to the question? 59 Egypt 59 Germany, federal Republic of 60 Hungary 60 Kenya SO Lebanon 60 Netherlands 6l Portugal 6l Sweden 6l Syrian Arab Republic 6l Togo 62 Trinidad and Tobago 62 Tunisia 63 Union of Soviet Socialist Republics 65 United Kingdom of Great Britain and Northern Ireland ... 63 United States of America 65 Yugoslavia 66 I... A/CN.U/3U3 English Page 7 CONTENTS (continued) Page Question 8. If :;non-publicH activities of a foreign State in the territory of your State are such as to be- normally susceptible? to payment of taxes, duties or other levies, T-rould the "foreign State be required to pay them or would it be exempted in all cases or on the basis of reciprocity? . 67 Brazil 61 Egypt 6l Germany, Federal Republic of 61 Hungary 68 Kenya 68 Lebanon - - 68 Netherlands • Portugal 69 Sweden 69 Syrian Arab Republic 69 Togo 69 Trinidad and Tobago 69 Tunisia . ..-..• 10 Union of Soviet Socialist Republics 70 United Kingdom of Great Britain and Northern Ireland . 70 United States of America 71 Yugoslavia 72 Question 9. iire courts of your State entitled to entertain jurisdiction over any public acts of foreign Stai,es? If so, please indicate the legal grounds on which competence is based, such as consent, or waiver of immunity, or voluntary submission, etc. If jurisdiction is exercised in such cases, does it mean that the doctrine of State immunity is still recognized by the courts? 73 Brazil 73 Egypt • 73 Germany, Federal Republic of 73 A/CK.U/3U3 English Page 8 CONTENTS (continued) Page Hungary 7*+ Kenya 7^ Lebanon 7^ Netherlands 7^ Portugal 75 Sudan 75 Sweden 75 Syrian Arab Republic 75 Togo 76 Trinidad and Tobago 76 Tunisia 76 Union of Soviet Socialist Republics 76 United Kingdom of Great Britain and Northern Ireland ... 77 United States of America 77 Yugoslavia 78 Question 10. What rules are in force in your State, if any, governing: 7~a) Waiver of jurisdictional immunities of foreign States; (b) Voluntary submission by foreign States; and (c) Counter-claims against foreign States? 79 Brazil 79 Egypt 79 Germany, Federal Republic of 79 Hungary 80 Kenya 80 Lebanon 80 Netherlands 8l Portugal 81 Sudan 8l Sweden 8l Syrian Arab Republic 8l Togo 82 A/CH.U/3^3 English Page 9 CONTENTS (continued) Trinidad and Tobago 82 Tunisia 82 Union of Soviet Socialist Republics , 83 United Kingdom of Great Britain and Northern Ireland ... 83 United States of America 83 Yugoslavia 8U Question 11. What are the exceptions or limitations, if any, provided by lavs and regulations in force or recognized ty judicial or governmental practice in your State with respect to jurisdictional immunities; of foreign States and their property? 85 Brazil 85 Egypt 85 Germany, Federal Republic of 85 Hungary 85 Kenya ,. 86 Lebanon . 86 Netherlands ........ 86 Portugal 86 Sudan 86 Sweden 86 Syrian Ara.b Republic 87 Togo 87 Trinidad ajici Tobago 87 Tunisia 88 Union of Soviet Socialist Republics 88 United Kingdom of Great Britain and Northern Ireland ... 88 United States of America . 89 Yugoslavia 90 A/CN. English Page 10 CONTEUJTS (continued) Page Question 12. What is the status, under lavs and regulations in force or in practice in your State9 of ships owned or operated by a foreign State and employed in commercial service? . 91 Brazil 91 Egypt . „ , 91 Germany, 3?edcrel Republic of 91 Hungary 92 Kenya . 92 Lebanon ; 92 Netherlands ... - 93 Portugal 93 Sudan 93 Svreden 93 Syrian Arab Republic .,• 9** Togo 9*+ Trinidad and Tobago 9^ Tunisia 9^ Union of Soviet Socialist Republics 95 United Kingdom of Great Britain and Northern Ireland ..