Points of law

Comments on Articles 2, 10 and 18 of the Draft Articles and also on a deleted article regarding fiscal matters

Specific provision(s) of the document

Initially, the memorandum briefly discusses the background of the work with the ILC Draft Articles as well as the difference between acta jure imperii and acta jure gestionis. International State practice as well as possible ways of reaching a codification of State immunity are also mentioned.

As regards the Draft Articles it is stated that the criticism of the West has among other things concerned Article 2 regarding the extent of the expression “commercial transactions”. The Article states that primarily the objective method is to be used in this respect, but it also leaves room for the subjective method, and according to the West it is not acceptable that the purpose of one of the parties with an activity can decide the classification of the activity. Moreover, the criticism concerns Article 18 regarding limitations of enforcement activities against state property. The principal rule is that such activities are prohibited even in cases when a state cannot claim immunity. Article 10 regarding activities by State owned companies is criticised, since it would be easy for a state to evade the limitations on immunity that the Article states for such companies. Finally, the memorandum mentions that an Article on “fiscal matters” has been deleted. The Article included an exception from immunity for tax debts.

Sources

Archives of the Ministry for Foreign Affairs (not published)

Additional information (explanations, notes, etc.)

Ministry for Foreign Affairs, Fax to Permanent Mission of Sweden to the UN in New York, 29 September 1992