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II. IMMUNITY FOR HEADS OF STATE ACTING IN THEIR PRIVATE CAPACITY—THOR SHIPPING A/S V THE SHIP ‘AL DUHAIL’

Published online by Cambridge University Press:  14 July 2009

Matthew Alderton
Matthew Alderton
Affiliation:
BA, LLB (Hons) (Macq) LLM (UCL), Legal Case Manager at the Federal Court of Australia.
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Abstract

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Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 58 , Issue 3 , July 2009 , pp. 702 - 711
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 As evidenced by State practice, State immunity is often restricted in relation to commercial activity, the infringement of intellectual property rights, employment contracts, and personal injury. See H Fox QC, The Law of State Immunity (OUP, Oxford, 2002) 22.

2 [2008] FCA 1842 (Dowsett J) (hereinafter, Thor Shipping).

3 Thor Shipping (n 2) 1–2.

4 ibid.

5 His Honour was inclined to think that the cause of action arose on the date of the alleged repudiation, namely 9 June 2008, although his Honour also noted that it probably did not matter whether the cause of action arose on 9 or 11 June 2008. See Thor Shipping (n 2) 5.

6 His Honour was inclined to the view that the law of New Zealand (as the lex situs immediately before registration) should be applied to determine whether or not property passed to the Amir as the result of registration. His Honour suspected that the probable answer was that according to New Zealand law, it did not, but that question had not been argued. See Thor Shipping (n 2) 51.

7 ibid 51.

8 Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984) [163] (hereinafter, ALRC Report), emphasis added, footnotes omitted. It was similarly apparent from the research of the many counsel in the Pinochet case that there is no clear customary international law relating to the precise nature and scope of the immunities of a head of state. See Fox, H, ‘The Pinochet Case No. 3’ (1999) 48 ICLQ 687, 692Google Scholar.

9 ALRC Report ibid. The ALRC Report recommended adopting the approach taken in the United Kingdom legislation with the exception that ‘there seems to be no reason to extend similar immunities to members of the family (other, perhaps, than the spouse) or to the retinue of the head of state in his private capacity, as the United Kingdom Act does’: ibid.

10 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 (hereinafter, Vienna Convention).

11 Thor Shipping (n 2) 64.

12 Columbian legislation, for instance, refers to ‘actions in rem, including possessory actions, which relate to movable or immovable property situated in the territory’. See E Denza, Diplomatic Law (3rd edn, OUP, Oxford, 2008) 291.

13 Denza, ibid 292–293.

14 Thor Shipping (n 2) 64.

15 ibid 65.

16 ibid 66.

17 ibid.

18 ibid.

19 ibid.

20 ibid 67.

21 ibid.

22 ibid 68.

23 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International intervening) (No 3) [2000] 1 AC 147 (hereinafter, Pinochet (No 3)) 202–203 (Lord Brown Wilkinson), 209 (Lord Goff ).

24 ibid 203 (Lord Browne-Wilkinson).

25 Thor Shipping (n 2) 69.

26 Fox (n 1) 141, citing HL, Hansard vol. 388, col. 58 17 January 1978 (emphasis added).

27 Fox (n 1) 141.

28 ibid 438.

29 Fox (n 8) 694.

30 ibid 693.

31 Denza (n 12) 284.

32 Fox (n 1) 438.

33 Similarly, s 20 of the SIA provides that subject to ‘any necessary modifications’ the Diplomatic Privileges Act 1964 (UK) applies to a head of State.

34 ILC, ‘Jurisdictional Immunities of States and their Property’ (1986) YBILC I (1) 5, para 10Google Scholar.

35 Fox (n 1) 222–223.

36 ILC, ‘Draft Articles on Jurisdictional Immunities of States and Their Property’ (1991) YBILC II (2) 21–22Google Scholar. This approach was adopted in Article 3(2) of the United Nations Convention on Jurisdictional Immunities of States and Their Property (adopted 2 December 2004) (2004) 44 ILM 803.

37 ALRC Report (n 9) 163.

38 Cf In Skidmore Energy, Inc et al v KPMG et al No. 3:03–CV–2138 (N.D. Tex. Dec. 3, 2004), cited in Denza (n 13) 306–308. The proceedings involved an attempt to bring proceedings in Texas against the Ambassador of Saudi Arabia to the Unites States in respect of investments made by the Ambassador in a company incorporated in Liechtenstein and which carried out business in Morocco. The Court dismissed the case on the basis that it lacked jurisdiction.

39 Rahimtoola v Nizam of Hyperbad [1957] 3 All ER 441.

40 Section 10 of the SIA and s 1605(b) of the Foreign Sovereign Immunities Act 1976 (USA) contain similarly worded provisions.

41 ALRC Report (n 8) 139 (emphasis added).

42 Fox (n 1) 427.

43 ALRC Report (n 8) 11.

44 Pinochet (No. 3) (n 23) 201 (Lord Browne-Wilkinson).

45 Fox (n 1) 2.

46 Sornarajah, M, ‘Problems in Applying the Restrictive Theory of Sovereign Immunity’ (1982) 31 ICLQ 661, 661CrossRefGoogle Scholar.

47 I Congresso del Partido [1983] 1 AC 244, 262.

48 Pinochet (No 3) (n 23) 201 (Lord Browne-Wilkinson) (emphasis added).

49 ibid 203 (Lord Browne-Wilkinson).