The state immunity controversy in international law : private suits against sovereign states in domestic courts / Ernest K. Bankas.
Bankas, Ernest K. (Ernest Kwasi)
2022
KZ4012
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Title The state immunity controversy in international law : private suits against sovereign states in domestic courts / Ernest K. Bankas.
Author Bankas, Ernest K. (Ernest Kwasi)
Edition 2nd ed.
ISBN 9783662640432 (electronic bk.)
3662640430 (electronic bk.)
9783662640425
3662640422
DOI https://doi.org/10.1007/978-3-662-64043-2
Imprint Berlin, Germany : Springer, 2022.
Language English
Description 1 online resource (890 pages)
Other Standard Identifiers 10.1007/978-3-662-64043-2 doi
Call Number KZ4012
Dewey Decimal Classification 341.26
Summary This book thoroughly discusses the concept of sovereign immunity in international law and how the problems normally associated with the said subject can be resolved in order to promote justice. In part one, the author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries and that it lacks usus. He also argues that forum law, i.e., the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal. Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile as a prelude to determine jurisdiction. The said Italian doctrine, therefore, is ex-facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence the contextual approach, arbitration and comparative dominant theory are suggested as essential tools to supplement the UN Treaty on state immunity when it comes into force because some states are likely to stay out of the said treaty regime. In part two, of the book, the author provides a comprehensive analysis of international criminal justice i.e., the prosecution of heads of state before international tribunals and the means or tools available to defend these leaders. To that end, it is apposite that a distinction between immunity ratione personae and immunity ratione materiae be made clear, whereby emphasis must be placed on their differences and legal consequences in regard to the verticality of international tribunals and foreign criminal jurisdiction of states e.g., the ICC and SCLC. The author further argues forcefully that the law has not changed and that despite the reforming zeal of some important states to change the law, in reality however, the law remains almost intact wholly structured on the presumption of immunity subject to certain limited acknowledged exceptions duly supported by opinio juris, thus eclipsing the suggestion by some scholars, senior courts and international tribunals that the law be instead based on an acknowledged exception to a presumed jurisdiction. This is because international law is a decentralized public order system without a compulsory jurisdiction.
Bibliography, etc. Note Includes bibliographical references and index.
Access Note Access limited to authorized users.
Source of Description Online resource; title from PDF title page (SpringerLink, viewed June 20, 2022).
Available in Other Form State Immunity Controversy in International Law.
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Part I
A General Perspective on the Historical Development of International Law
The Origins of Absolute Immunity of States
The Development of Sovereign Immunity
The Privileges and Immunities of States
Restrictive Immunity in U.S. and U.K. Courts
Private Suits against African States in Foreign Courts
African States and the Practice of State Immunity
The ILC Report on Jurisdictional Immunities of States
State Immunity and Certain Unresolved Problems
State Immunity and Violation of International Law
UN Draft Convention on State Immunity
The Current Law of State Immunity
New Horizons in the Law of State Immunity
State Immunity and Vulture Funds
Concluding Statement of Part I
Part II
State Immunity and International Criminal Justice
Invoking State Immunity before the ICJ, International Tribunals and Foreign Courts
The ICC and the Immunity Question
The Normative Hierarchy Theory: Does Jus Cogens Conflict with State Immunity?
Case Study: Can a Sitting President be Prosecuted by an International Tribunal?
The Overlap of Immunity Ratione Personae and Immunity Ratione Materiae.

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