State Immunity Monograph

This paper's topic is on the state immunity, and mainly discusses the definition, nature, theory basis and legal source of the state immunity. Meanwhile, the evolvement, development, status in quo and trend also have been generally analyzed and demonstrated. Several typical issues concerned of the state immunity are dissertated thoroughly in this paper and the present status and solution on some issues in China are also analyzed. Except foreword and conclusion, the paper is altogether consisted of 7 chapters.There are 4 parts in this paper: the first part is concerned with the fundamental theory of the state immunity (Chapter One); the second part is concerned with the history, status in quo and development trend; Part Three is about concrete issues, including subject of the state immunity, the renunciation of the state immunity, the exceptions to state immunity, execution of the state immunity, etc. (Chapter 3,4,5,6); Part Four is on immunity of heads of state (Chapter 7). Because immunity of heads of state is a question concerning of fundamental theory of the state immunity, the author separates it as a part to analyze. As some scholars in China have made research on this subject, the author intends to make some innovation on research subject and research method. On research subject, author audaciously presents the most controversial and sensitive question, including: the basic theory of the state immunity, the sources of the law of state immunity, the nature of state immunity and its relation with adjudicatory jurisdiction, exceptions to the state immunity, immunity of heads of the state, etc. on research method, the author uses historical and comparative research method. For example, when demonstrates history of the state immunity, instead of narrative method, the author uses comparative research method through the paper. Besides, state immunity is involved with many international fundamental theories, such as the sovereignty of the state, sources of international law, jurisdiction of the state, etc and all these issues are among questions the most controversial in international law. Thus, unanimous viewpoint is hard to reach in this case. As a result, in this paper, when demonstrates some viewpoints, the author devotedly analyzes and comments opposite ones, instead of criticizing and denouncing simply. On some issues, the author even shows her appreciation and approval to some extent. For example, when argues the rationale for state immunity, the author pours out her comprehension and approval on opposite viewpoint to some extent whiledemonstrating her viewpoint.When demonstrating the fundamental theory of the state immunity, author concludes nature of procedure, nature of identity, nature of function of the state immunity. The emphasis in this paper is the relation between the state immunity and adjudicatory jurisdiction, the basis of the state immunity and legal source of the state immunity. Concerning of the relation between the state immunity and adjudicatory jurisdiction, author holds that both viewpoints that the state immunity indicates the exception of adjudicatory jurisdiction and adjudicatory jurisdiction indicates the exception of the state immunity are reasonable partly. Whatever the argument results are, in practice, due to absence of the international treaty on jurisdiction conflicts, in criminal action and proceedings against states activity raised by person, it is proper to view the state immunity as means to distribute jurisdiction right among countries. Concerning the basis of the state immunity, starting from the definition of the state, author argues that national courts have no right to execute their decisions to foreign countries, the states is independent and equal, the states privilege jurisdiction immunity right nationalally and the states are of dignity. Although the author agrees that the state's independence and equality is basis of the state immunity, she construes opposite viewpoint thoroughly and to some extent, presents her comprehension and approval. In relation to legal source, author mainly argues the relation between the state practice, treaty practice, codifications of government and non-government organization and legal source of the state immunity. The viewpoint is that the absence of the authoritative decisionsof international justice organs and multilateral treaties results in situation that major legal sources are the state's practice concerning with national legal system. Three forms are composed of the state practice: behavior of administration organs, national legislation, decisions of national courts, of which, national legislation and decisions of national courts can be regarded as major sources.When researches origin, evolution and status in quo of the state immunity, the author puts the emphasis on the point: the restrictive doctrine of state immunity has been evolving trend of the state immunity. Before the coming forth of generally accepted international treaties, states' practices are still of attention and wether the restrictive doctrine of state immunity has been generally accepted are only theoretically meaningful.When researches subject of the state immunity, the author clings to two typical issues: the instrumentalities of the state and the legal status of state enterprise. The author discusses two new issues relating to the instrumentalities of the state, especially "Tier".Tier is not directly established by the state, all or mainly of the interests and rights of its ownership are owned by the state indirectly. Whether the entity of this form is the subject of the state immunity and should be entitled right of immunity is a new question facing all states. The author lists and comments the latest decisions of U.S, which will benefit national justice.When researching the legal status of state's enterprise, the author argues definition of the state enterprise, the relation between the state enterprise and the subject of the state immunity, the responsibility relation between the state enterprise and the state. The conclusion comes out: the state enterprise is not the subject of the state immunity. As for the relation between the state and the state enterprise, in principle, both the state and the state enterprise should undertake their own responsibility for their act.All the time, exceptions to state immunity are the most important and controversial question. On this issue, the auther focuses on the commercial exeption, the exeption for employment contracst and the exeption for personal injuries and tangible property as important research subjects. On arguing commercial exeption, the key point of argument is to define the commercial act and author comprehensively addresses differentiation of sovereignty act and non-sovereignty act and the relationships of the commercial act and the national courts. The conclusion is: although the standard of differentiation of sovereignty act and non-sovereignty act claimed by the restrictive doctrine of state immunity is with all kinds limitation and is rejected and criticized by all states, in the field of the state immunity, this differentiation is proofed necessary and feasible by a lot of states' practice. Besides, ideal effects could not be achieved with single standard. In every single case, all feasible standards deserve reconsideration. Anyhow, due to absence of common international standard at present, when differentiating commercial act and sovereignty act, the mixed standard claimed by ILC still appears reasonable. Recently, the exeption for personal injuries and tangible property has been the most controversial question theoretically and practically. The author focuses on defini tion of tort act, territory relation between the foreign state's tort act and the national court, collection, the relation between exception of tort act and the state responsibility and the cases of violations of human rights. The conclusion is: when personal injury occurred in territory of the state of the court by foreign state, whether its act's nature is in sovereign or in commercial, territorial jurisdiction of the national courts prevails on this case, and this practice is affirmed by the state practice and ILC. However, this jurisdiction is premised by strict jurisdiction connection. If regardless of the nature of this kind of act, theexecution of extraterritorial jurisdiction on similar acts shall induce interference on the foreign state's jurisdiction. The exeption for employment contract is often mixed up with commercial exeption. After comparing several models of the state practice, the author concludes: in claims related to ordinary commercial act, natonal courts usually held that it has jurisdiction. If this kind of contract is related to the exercise of sovereign authority of the state, natonal courts usually held that it has not jurisdiction.Both the immunity from execution and immunity from jurisdiction are important parts of the state immunity. Besides generally addressing the meaning and nature of the immunity from execution, the relation between the immunity from execution and immunity from jurisdiction and the evolution and trend of the immunity from execution, the author also demonstrates the meaning and classification of coercive measures, waiver of coercive measures immunity, coercive measures against the state and its representatives, and coercive measures to the state's property. The author also concludes several questions of restriction of immunity from execution. Those are coercive measures differentiation prior and after to judgement, connecting link between the property to be attached and the subject-matter of the claim or accused organ and a period of grace for voluntary compliance. The conclusion is that the range of generally accepted immunity for execution is cases regulated by international treaties and documents prescribing rights and duties among the states and property to fulfil sovereignty function of the state. However, for cases absent of international treaties' regulating, the absoluteness of execution immunity is resisted gradually. Now, the absolute immunity for execution of foreign property is no longer the principle of international law.The immunity of the heads of state is a special issue close to the state immunity, relating to the sovereignty of the state, jurisdiction and human rights, and also it is the most difficult questions in international criminal law. The author discusses it in last chapter. The author believes that the rationale of the state immunity and the immunity of heads of state should be different. The rationale of the immunity of the heads of state is the representative theory in diplomatic immunity. If we apply sovereignty equality as the rationale of the state immunity to immunity of the head of the state, limiting immunity of the heads of state under premise of the state immunity, incorrect result will occur. If differentiation of sovereignty act and non-sovereignty act is improperly applied to immunity of the heads of state, when relating to human rights cases, national court will rule on them in excuse of the heads of state executing non- sovereignty act. The author coordinates and comments on international treaties about immunity of the heads of state,...