Points of law

Comments on the Draft Articles 1-3, 5, 6, 8, 10, 11, 16, 18-22

Specific provision(s) of the document

The memorandum comments on various of the ILC Draft Articles on State immunity. Initially, it is commented that the general structure of the Draft is not all satisfactory. To establish immunity as a principal rule, to avoid the terminology of acta jure imperii and acta jure gestionis as well as to regulate a rather extensive immunity without possibilities to modify it in practice appear to almost obstruct the development.

The memorandum comments specifically on Articles 1-3, 5, 6, 8, 10, 11, 16, 18-22 of the Draft Articles. In this respect it is referred to inter alia the internal memoranda annexed to the document.

The first of the annexed memoranda (Appendix 2) was drafted at the Ministry of Justice on 5 October 1992. It comments that the Draft Articles are in need of a rather extensive revision. It is also noticed that in the Draft the question whether a State is immune is not always separated from the question whether another State has jurisdiction. Various Articles are also individually commented. As regards Article 16 it is noted that it seems to extend the immunity in several aspects compared with the Convention of Brussels from 1926 (the International Convention for the Unification of Certain Rules Concerning the Immunity of State Owned Ships).

In an Internal Memorandum of the Ministry for Foreign Affairs of 30 September 1992, attached as Appendix 3, State immunity is initially discussed from a general point of view, after which some comments regarding the ILC Draft Articles follow. The use of the expression “commercial transactions” instead of acta jure imperii and acta jure gestionis is regretted as is the method of establishing State immunity as the principal rule. It is commented that it would have been better to establish the cases when State immunity could not be claimed, and at the same time point out that the list was not exhaustive to leave room for a further development through customary international law. Furthermore, the statement regarding “state enterprises” in Article 10 is regretted as it opens up for a state to evade its responsibility through a state owned enterprise doing unfair business. Finally, it is commented that ILC's Draft contains several other problems as well.

Attached as Appendix 4 is further a memorandum of the Ministry for Foreign Affairs of 2 October 1992. It is an internal memorandum drafted, just as the one included in Appendix 3, at the Ministry for Foreign Affairs. It deals with ILC Draft Articles and immunity against enforcement (Articles 18 and 19). It is commented that according to current customary international law immunity against enforcement is probably only granted when it comes to acta jure imperii, and that in granting immunity with a few exceptions the Draft has to be regarded as a step backwards in this respect. It is further commented that the regulation of the Draft Articles is not likely to be accepted by several States. The conclusion is that unless there is a considerable improvement of the Draft, there is no meaning to conclude a global convention on State immunity and in particular not for Countries that acknowledge the principle of restrictive immunity.

Sources

Archives of the Ministry for Foreign Affairs (not published)

Additional information (explanations, notes, etc.)

Governments of Nordic Countries, Statement, 3 December 1987