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Asser Institute Lectures on International Law: Developments and Prospects of the Doctrine of State Immunity – Some Aspects of Codification and Progressive Development*

Published online by Cambridge University Press:  21 May 2009

Sompong Sucharitkul
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Extract

The speaker expresses his indebtedness to the T.M.C. Asser Institute for the opportunity afforded for his return to The Hague, which he considers to be the natural habitat of many an international lawyer. The Hague has long been and still remains the centre for international adjudication, arbitration and other activities in the field of pacific settlement of disputes. The speaker is particularly gratified to be back at the birth place of the illustrious Hugo de Groot, whose four hundredth birthday anniversary is soon to be celebrated, not only in The Netherlands, but also the world over. Many great names have indeed followed that of Grotius. To name but one further, Cornelius van Bijnkershoek ranks among the celebrated classics of international law.

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Articles
Information
Netherlands International Law Review , Volume 29 , Issue 2 , August 1982 , pp. 252 - 264
Copyright
Copyright © T.M.C. Asser Press 1982

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References

1. See the General Survey of International Law by the Secretary General of the United Nations, 1948; document A/CN.4/1/Rev. 1 (United Nations publication, Sales No. 1948.V.1 (1)), para 50, pp. 30–31.

2. This title is chosen with the approval of SirWaldock, Humphrey as Chichile Professor of International Law in 1953Google Scholar.

3. This title was suggested by Judge Sir Hersch Lauterpacht in 1958.

4. This was the title of lectures by SirSinclair, Ian, given at the Hague Academy of International Law, Hague Recueil vol 167 (1980)Google Scholar.

5. This title was used by ProfessorHiggins, Rosalyn for an article in the American Journal of International Law, vol. 71, no. 3 (1977)CrossRefGoogle Scholar.

6. See the Survey of 1971; Yearbook of the International Law Commission, 1971, vol. II (Part Two), p. 1Google Scholar, document A/CN.4/245, para 75, p. 20.

7. This was the title currently adopted by the International Law Commission.

8. This title of a course of lectures given at the Hague Academy by the speaker was suggested by PresidentLachs, Manfred of the International Court of Justice in 1973Google Scholar.

9. See, e.g., Mighell v. The Sultan of Jahore, (1894) 1 Q.B. 149.

10. See, e.g., Duke of Brunswick v. King of Hanover, (1844) 6 Beav. 1; 2 H.L.C.l.

11. See, e.g., de Haber v. The Queen of Portugal, (1851) 17 Q.B. 171, 206–207; 117 E.R. 1246, Lord Campbell C.J. Compare Hullet v. King of Spain (1828) 2 Bligh (N.S.) 310.

12. See, e.g., the definition in Article I (a) of Part 1. of the Harvard Draft Convention, Jessup, P.C., American Journal of International Law, vol. 26 (1932), supp., Part iii, pp. 455–738Google Scholar, under directorship of Manley O. Hudson (Competence of Courts in regard to Foreign States).

13. (1938) A.C. 485: Annual Digest 1938–40, Case No. 86.

14. (1938) A.C. at p. 490; Annual Digest 1938–40, Case No. 86, at p. 252.

15. U.N. document A/CN.4/343/Add. 1 and 2, 16 April 1981.

II: Materials submitted by governments together with their replies to the questionnaire; and

III: Materials submitted by governments who have not replied to the questionnaire.

16. U.N. document – Bibliography “Jurisdictional Immunities of States and their Property” prepared by the Codification Division, Office of Legal Affairs, June 1980, no. number.

17. Government replies to the questionnaire as contained in U.N. document A/CN.4/343, 14 April 1981, and /Add.3 and Add.4, 5 and 8 May 1981.

18. See Draft Article 1: Scope of the present articles. “The present articles apply to questions relating to the immunity of one State and its property from the jurisdiction of another State.”

19. See Draft Article 2: Use of terms.

20. See Draft Article 3: Interpretative provisions.

21. See Draft Article 4: Jurisdictional immunities not within the scope of the present articles.

22. See Draft Article 5: Non-retroactivity of the present articles.

23. The Harvard Draft Convention, curiously enough is entitled “Draft Convention on Competence of Courts in regard to Foreign States” op-cit., 1932 A.J.I.L. Supp.

24. U.N. document A/CN.4/L.322, paragraph 1 of the commentary to Draft Article 6. See also Yearbook of the International Law Commission 1980 Vol. II, Part two, A/CN.4/SER.A/1980/Add. 1 (Part 2), p. 142.

25. Draft Article 6: State immunity, paragraph 1. See U.N. document A/CN.4/L322, and commentary; and A/CN.4/SER.A/1980/Add. 1 (Part 2), pp. 142–157, paras (l)–(60).

26. Ibid., Article 6: State immunity, paragraph 2.

27. See U.N. document A/CN.4/L.334, p. 14, note 22, Article 7, paragraph 1. “Obligation to give effect to State immunity”. See also Report of the International Law Commission on the work of its thirty-third session, 1981, G.A.O.R.36th session, Supp. No. 10 (A/36/10), p. 364, note 682.

28. See U.N. document A/CN.4/331, 11 April 1980, Article 2 (d.) and Article 3 (a.)

29. See U.N. document A/CN.4/L.334, p. 14, note 22, or A/36/10, p. 360, note 682. Article 7, Alternative B.

30. See U.N. document A/CN.4/L.334, p. 15, Draft Article 8: Consent of State. See also A/36/10, p. 365, note 683.

31. See ibid., p. 15, note 24, Draft Article 9, Expression of consent, paragraphs 3, 4 and 5. See also A/36/10, p. 365, note 684.

32. See ibid., p. 15, note 24, Article 9, paragraphs 3, 6 and 7. See also A/36/10, p. 365, note 684.

33. See ibid., p. 16, note 25, Article 10: Counter-claims; see also A/36/10, p. 366, note 685.

34. U.N. document A./CN.4/329, 18 June 1979.

35. The simultaneous exercise was recommended by Professor Willem Riphagen, Representative of the Netherlands to the Sixth Committee, 36th Session, 1981.

36. To start from the proposition of a general rule of State immunity is more in line with the established practice, whereas to require proof of international law for every type of State activity said to be immune might run counter to the very concept of sovereignty of States.

37. See U.N. document A/CN.4/L.322, pp. 16–22: Historical and Legal Development of the Rule of State Immunity, paragraphs (7)–(18). See also A/CN.4/SER.A/1980/Add.l (Part 2), pp.143–156.

38. See ibid., pp. 22–29, paragraphs (19)–(30);also in A/CN.4/SER.A/1980/Add.l (Part 2), paragraphs (19)–(30).

39. See ibid., p. 37, paragraph (44), Article 61 of the Soviet Act entitled “Fundamentals of Civil Procedures in the Soviet Union and the Union Republics 1961.”

40. See U.N. document A/CN.4/323, 18 june 1979, pp. 26–31.