Entities or Persons Entitled to invoke Jurisdictional Immunity of the State
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Abstract
The article analyzes one aspect of the restricted state immunity doctrine‘s application - how to establish the claimant‘s status as a State for a plea of State immunity. The criteria applicable by national courts thereto are discussed paying attention to the situation when the forum state hasn’t recognized the claimant as a State.
The author discusses the evidence national courts have used while solving the problem of establishing the claimant’ status, suggesting how Lithuanian courts could and should act in the same situation.
The State usually takes participation in legal relations not directly but through its various organs and departments. The article analyzes two categories of entities that may enjoy State immunity – namely constituent units of federal states and political subdivisions of the State. In order to define the scope of these categories national case law, legislation and international treaties are examined. The article considers the relation between these two categories, provides proposals concerning the amendment of the respective provisions UN Convention on jurisdictional immunities of States and their property.
The article contains these conslusions – municipal courts often use the criteria set by public international law deciding the question concerning the status of respondent. It is widely recognized that the respondent may be granted state status if the criteria of statehood mentioned in the 1933 Montevideo convention on the Rights and Duties of States are established. The article also draws the conclusion that municipal courts accept that constituent units of federations are entitled to state immunity but it is not universally accepted whether these units are granted immunity ratione personae or ratione materiae. The final conclusion concerning the relation between the categories “constituent units of federations” and “political subdivisions of states” is that the latter category is broader and includes the first one. In connection with it the article proposes to amend Article 2(1)(b)(ii) of the UN Convention on jurisdictional immunities of States and their property – to leave in the Article text only the category “political subdivisions of states”.
The author discusses the evidence national courts have used while solving the problem of establishing the claimant’ status, suggesting how Lithuanian courts could and should act in the same situation.
The State usually takes participation in legal relations not directly but through its various organs and departments. The article analyzes two categories of entities that may enjoy State immunity – namely constituent units of federal states and political subdivisions of the State. In order to define the scope of these categories national case law, legislation and international treaties are examined. The article considers the relation between these two categories, provides proposals concerning the amendment of the respective provisions UN Convention on jurisdictional immunities of States and their property.
The article contains these conslusions – municipal courts often use the criteria set by public international law deciding the question concerning the status of respondent. It is widely recognized that the respondent may be granted state status if the criteria of statehood mentioned in the 1933 Montevideo convention on the Rights and Duties of States are established. The article also draws the conclusion that municipal courts accept that constituent units of federations are entitled to state immunity but it is not universally accepted whether these units are granted immunity ratione personae or ratione materiae. The final conclusion concerning the relation between the categories “constituent units of federations” and “political subdivisions of states” is that the latter category is broader and includes the first one. In connection with it the article proposes to amend Article 2(1)(b)(ii) of the UN Convention on jurisdictional immunities of States and their property – to leave in the Article text only the category “political subdivisions of states”.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
