The immunities of States and international organisations

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Database of the CAHDI "The immunities of States and international organisations" - contribution of Germany - Statement of 11/11/1994

Statement during the discussions on the ILC draft Convention on Jurisdictional Immunities of States and their Property in the Sixth Committee of the United Nations General Assembly (49th Session)


Permanent Mission of Germany to the United Nations

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Points of law

The statement outlines the German position on different questions arising from the draft.

Specific provision(s) of the document

Excerpt from the statement:

- On the qualification of a transaction as commercial or non-commercial

"In the interest of legal certainty, my Government continues to maintain that only the objective nature of a transaction involving a foreign state and not its subjective purpose can determine whether the state is entitled to immunity. Legal transactions with foreign states would carry a risk impossible to calculate if the purpose of state action were to constitute a criterion.


Some of these proposals admit a reference to the purpose of a transaction if the purpose is relevant to the invocation of immunity under the national law of the respective state. In our opinion this would make it too difficult for a party involved in a transaction with a foreign state to predict whether it will be able to pursue a claim in court. Furthermore, the question of reciprocity would arise since the granting of state immunity would necessarily differ according to the applicable law.

As far as the idea of requiring a general declaration by a state to refer to the criterion of purpose is concerned this would solve none of the problems. It would not ensure a greater measure of certainty. Since such a general declaration would not be able to take into account that law and practice of a state might change, it would remain difficult for the private party to predict in which situations the contracting state could invoke immunity. A specific notification of the state about the potential relevance of the purpose criterion would be preferable to a general declaration. However, in the view of my delegation, this proposal still leaves too much uncertainty since it does not require the consent of the private party.
If in addition to nature as the primary criterion, the parties could also expressly agree that a transaction be designated as non-commercial, the granting of immunity would not be left up to the discretion of a foreign state involved in a transaction. We see merit in this proposal which in cases of doubt would make the objective nature of the transaction the decisive criterion."

- On enforcement measures

"In the opinion of my Government the problem of state immunity and enforcement measures is an essential component of the draft convention without which it would be robbed of its justification.
The provision in article 18 para. 1 (c) of the ILC draft, according to which enforcement measures would be restricted to property with some connection to the claim, constitutes a limitation of the liability of the foreign state that goes too far. It would amount to a limited exemption from financial consequences of commercial transactions engaged in by a state. In our view, the interest of a state party is already sufficiently protected by the remaining limitations contained in articles 18 and 19."

- On prejudgement measures

"With regard to prejudgment measures we hold it necessary that they be subject to the same legal regime as post judgment measures. The exclusion of measures of constraint intended to afford temporary protection could endanger the implementation of judgements against a state party in cases where it does not enjoy immunity."

- On the liability of state agencies or other legal entities connected with a state

" As far as the treatment of state agencies or other legal entities connected with a state is concerned the question is primarily whether, as compensation for the liability of such legal entities, it will be possible, in certain cases to access the property of the parent state. To exclude the possibility of recourse to the state entirely would enable states to avoid financial liability for commercial transactions by setting up independent entities."


Permanent Mission of Germany to the United Nations, 49th General Assembly, Sixth Committee, Item 143, 60, in: Deutschland 1994 (Collection by the Federal Foreign Office).

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