STATE IMMUNITY AND THIRD-PARTY LIMITS ON THE JURISDICTION OF DOMESTIC COURTS

• Published in: The International and comparative law quarterly Vol. 72; no. 3; pp. 819 - 835
• Main Author: Franchini, Daniel
• Format: Journal Article
• Language: English
• Published: Cambridge, UK Cambridge University Press 01.07.2023
• Subjects: Ambiguity; Civil law; Confusion; Courts; Immunities of foreign states; Immunity from prosecution; International law; Jurisdiction; Jurisdiction (International law); Law; Political parties; Public officials; Rules; Shorter Articles; State; State courts; Third party; EUROPEAN UNION; United Kingdom > UK; United States > US; indirect impleading; acts of State; jurisdiction; domestic courts; non-justiciability; Monetary Gold; foreign affairs; State immunity; functional immunity
• ISSN: 0020-5893; 1471-6895
• DOI: 10.1017/S0020589323000167

Recent case law has evidenced doctrinal ambiguity concerning whether State immunity precludes domestic courts’ jurisdiction when rights and interests of third-party States may be affected. This article posits that such confusion arises from a failure to recognize State immunity as a rule predicated on the sovereign status of the defendant. Through an analysis of State practice, the article contends that the concept of indirect impleading incorporated in the United Nations Convention on State Immunity does not challenge the status-based nature of this rule. Construing State immunity as a subject-matter rule erroneously conflates it with distinct doctrines, such as Monetary Gold and the act of State doctrine.