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On December 2, 2004, the UN General Assembly adopted the UN Convention on Jurisdictional Immunities of States and Their Property.1 Capping more than a quarter of a century of intense international negotiation, the new treaty is the first modern multilateral instrument to articulate a comprehensive approach to issues of state or sovereign immunity from suits in foreign courts. Notably, it embraces the so-called restrictive theory of sovereign immunity, under which governments are subject to essentially the same jurisdictional rules as private entities in respect of their commercial transactions. The treaty was opened for signature on January 17, 2005 (when Austria and Morocco became the first states to sign), and will enter into force when thirty states have deposited their instruments of ratification, acceptance, approval, or accession with the UN secretary-general.
The convention's text originated in the deliberations of the International Law Commission2 (ILC) and was elaborated by an Ad Hoc Committee reporting to the Sixth Committee of the General Assembly.3 The convention builds on experience under the 1972 European Convention on State Immunity4 as well as on state practice under various domestic statutory regimes.5 Substantively, it provides that, subject to certain specified exceptions, a state enjoys immunity from the jurisdiction of foreign courts in respect of itself and its property. The express exceptions include, inter alia, claims arising from: commercial transactions; contracts of employment; personal injury and damage to property; ownership, possession, and use of property; intellectual and industrial property; state-owned or -operated ships used for other than government noncommercial purposes; certain matters relating to arbitration proceedings; and situations involving consent to jurisdiction. The text also sets forth exceptions to protection from pre- and post-judgment measures of constraint. Separate articles provide criteria for service of process and rendering default judgments.
Until the early to mid-twentieth century, there was virtual unanimity in international law and practice that sovereigns (both states and heads of state) were absolutely immune from the jurisdiction of foreign courts (under the doctrinal maxim par in parem non habet imperium). As international commerce grew, as states became more involved in the international marketplace, and as concepts of state liability evolved, legislators and courts increasingly sought to treat states and their trading entities like ordinary commercial enterprises when they acted in the marketplace of...