3 Acknowledgements 4 Table of Cases 9 Table of Legislations and other Materials 17 PART

Enforcing arbitral awards against sovereign states : the validity of sovereign immunity defence in investor-state arbitration

Customary international law (CIL) is a widely accepted source of international law, but it is poorly understood and has eluded systematic empirical analysis. Existing theories model CIL rules as cooperative equilibria in repeated prisoner’s dilemmas sustained primarily by reciprocity and retaliation. We argue that several features of CIL reduce the effectiveness of such mechanisms. Instead, we propose a theory under which the potential precedential effects of defection influence the stability of CIL rules. We test the observable implications of this theory with newly collected data on the CIL rule of sovereign immunity, under which states are immune from lawsuits in other states. The data document if and when 121 states switched to restrictive immunity, which allows foreign states to be sued for their commercial activities. We find no evidence that defectors were singled out for punishment. States generally followed a single policy for all foreign states and switched only once. Our regressions find that states that exported more were less likely to switch, but that states became more likely to switch as their export destinations switched and as foreign economic activity within their borders increased. We find no consistent correlations between change and democracy, legal origins or colonial history.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=2106627

How Does Customary International Law Change? The Case of State Immunity

Customary international law (CIL) is a fundamental source of international law. But scholars lack a clear understanding of customary international law, as well as systematic statistical analyses of its workings. Existing theories posit that CIL is a cooperative equilibrium that can be sustained through reciprocity. Yet, CIL lacks institutional features that facilitate reciprocity and is commonly understood to apply universally, even to states that defect or reject a norm. Because the continued existence of CIL depends on state practice, the potential precedential effect of defection encourages cooperation as long as states value the cooperative norm. Consequentially, a state's decision to apply a CIL norm should be a function of the extent to which the norm is practiced in the community of states it interacts with rather than the past behavior of the specific state in an interaction. We test the implications with newly-collected data documenting if and when 121 states switched from absolute to restrictive foreign state immunity. We find no evidence of direct reciprocity. States that most valued absolute immunity and whose defection would most affect others were least likely to defect, but states became more likely to defect as the states whose practice most affected them defected.

/pdf/how-does-customary-international-law-change-the-case-of-4g779s4xr3.pdf

How Does Customary International Law Change? The Case of State Immunity†

u n l i m i t e d . 31 Thus the r u l e d must surrender power t o the 27 I b i d . 28 I b i d . 29 I b i d . 30 I b i d , at p. 551. 31 I b i d . 7 achieving i n t e r n a l peace. 3 2 Hobbes was also of the opinion t h a t the worse despotism be p r e f e r r e d t o anarchy since absolute power w i l l create perpetual peace. 3 3 The concept of absolute sovereignty also found favour w i t h Rousseau but he was a b i t c a r e f u l t o conclude t h a t i t belonged t o the people r a t h e r than the r u l e r . 3 4 The most a u t h o r i t a t i v e restatement of the modern concept of sovereignty may be c r e d i t e d t o John Austin (17 9 0-18 5 9) . 3 5 I n his words, " I f a determinate human su p e r i o r , not i n the habit of obedience t o a l i k e s u p e r i o r , r e c e i v e s h a b i t u a l obedience from the b ulk of a given s o c i e t y , t h a t determinate superior i s sov e r e i g n i n t h a t s o c i e t y ( i n c l u d i n g the su p e r i o r ) i s a s o c i e t y p o l i t i c a l and independent. . . . Furthermore every p o s i t i v e law or every law simply and s t r i c t l y so c a l l e d i s s e t d i r e c t l y or c i r c u i t o u s l y , by a sovereign person or body to a member or members of the independent p o l i t i c a l s o c i e t y wherein that person or body i s so v e r e i g n or supreme." 3 6 A u s t i n a l s o f o l l o w s the notion t h a t the sovereign's power i s u n l i m i t e d . 3 7 His system t h e r e f o r e accepts the precept t h a t sovereign power i s i n a l i e n a b l e and t h a t the sovereign has the a u t h o r i t y t o exact obedience from the r u l e d but his status i s such t h a t h i s a u t h o r i t y cannot be a f f e c t e d by anybody i n the

International law : state immunity and the controversy of private suits against sovereign states in domestic courts

Being created to establish a system protecting the individual for a peaceful and safe international environment, human rights often break into smithereens when it comes to individual claims. The lack of a global human rights court and defects in regional systems force many people to bring their claims to domestic courts. But after the ICJ's judgment on Germany vs. Italy of 2012 it is definitely not possible anymore to take a state to a foreign court due to a human rights violation. Still, this decision has a huge insularity towards the circumstances of the case: The ICJ had to deal with claims of victims of World War II, and in the end the court ruled that no individual human rights violation at all can be enforced before a court of another state. This is not satisfying, because instead of creating a generalized group of forbidden individual claims, it would have been more effective to establish two different case groups: One of forbidden claims of violations during systematical conflicts, and one of possible claims of victims during peaceful times. The paper presented in this abstract deals with the statement given last. It primarily explains the current provisions of international law on how human rights could be claimed before foreign courts and sums up why it would have been more human rights friendly to establish two case groups. It also depicts the case and circumstances of Germany vs. Italy and distinguishes this case from current human rights violations.

https://www.iapss.org/wp-content/uploads/2014/10/166_Volume-29.pdf

Can serious Human Rights Violations Justify a Breach of State Immunity?: The current legal provisions of international law on why serious human rights violations cannot be brought to domestic courts

The Soviet doctrine of foreign state immunity starts out from the principle that state sovereignty, the sovereign equality of states, underlies this rule of international law. Sovereignty is an indefeasible attribute of every state. It follows from the legal equality of states, and their mutual independence, that no state may wield power with regard to another state, its organs and its property.

M.M. Boguslavsky

Papers

Foreign State Immunity: Soviet Doctrine and Practice*