archives@tulane.edu / International conventions do not set down rules on state immunity and leave it to
national courts to decide the nature and scope of state immunity. The inevitable result of
this state-centrist approach is the evolution of divergent views among states on the reach
of state immunity. In the early years of international relations, the accepted view was that
states enjoyed absolute sovereign immunity and that as a result no state, without its consent,
was subject to the national jurisdiction of another state. Gradually many states, mainly
through judicial decisions, moved towards a qualified doctrine of immunity enabling a
degree of submission by one state to the jurisdiction of another.
This restricted view of sovereign immunity was prompted by the changing nature
of socio-economic and political circumstances, with states taking an increasingly felt
presence in trading and commercial activities. It is generally the developed countries that
were eager to embrace the restrictive view of state immunity, which enabled their nationals
to press claims against errant foreign states. Naturally, the developing countries tended to
favor the absolute doctrine of state immunity, in order to resist claims, however well
founded, made against them. Today, most developing countries still insist on absolute state
immunity.
While not yet codified in an international convention, the doctrine of state immunity
has found its way into customary international law. In identifying and interpreting
international customary law of state immunity, national courts frequently refer to and
follow judicial decisions of foreign jurisdictions. This practice enables states to learn from
different legal techniques and criteria that are used in other jurisdictions to demarcate the
scope of the doctrine of state immunity. An area where states have reached some common
understanding is the enforcement of arbitral awards—imposing measures of constraint
against state assets.
While judicial enforcement of arbitral awards is the much preferred and most
prevalent means of subjecting state assets to seizure or attachment, there are some notable
non-judicial remedial measures which may aid the aggrieved investors in satisfying their
claims against state parties to a dispute. These non-judicial means of relief rely on the
willingness of the investors’ parent state to pursue their cause with the recalcitrant state.
The parent state’s willingness is dictated by political considerations in contrast to non
political nature of judicial proceedings. It is commonly agreed that an independent judicial
process is much preferable to politically motivated non-judicial avenues of relief. As such,
attention of judges, scholars and lawmakers must focus on refining judicial processes and
building effective enforcement mechanisms. This calls for widely agreed principles of state
immunity and a commonly shared enforcement mechanism.
Having identified problems arising from a lack of universal agreement on state
immunity and the diversity and, more dishearteningly, the inadequacy of forms of
enforcement available to an aggrieved claimant, this thesis proposes that the international
community must work towards the setting up of a central enforcement agency, a functional
model of enforcement. This thesis suggests that the central mechanism of enforcement
could be set up through reaching an international treaty or convention or modifying the
existing mechanisms. / 1 / Zixin Meng
| Identifer | oai:union.ndltd.org:TULANE/oai:http://digitallibrary.tulane.edu/:tulane_120559 |
| Date | January 2020 |
| Contributors | Meng, Zixin (author), Wang, Guiguo (Thesis advisor), School of Law LLM and SJD Programs (Degree granting institution) |
| Publisher | Tulane University |
| Source Sets | Tulane University |
| Language | English |
| Detected Language | English |
| Type | Text |
| Format | electronic, pages: 362 |
| Rights | No embargo, Copyright is in accordance with U.S. Copyright law. |
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