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Sovereign Law Series

New York “Convention on
Jurisdictional Immunities of
States and Their Property” of
2004


Short-Form Reference:

2004 “Convention on Jurisdictional Immunities of States”

In-Line Micro Reference:

2004 “Immunities of States”

Ratification / Registration:

UN-GA Res. 59/38 New York (02 Dec 2004)


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Articles 1.2, 2.1, 2.7), and is liable for any of its own violations of international law and
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Words of Rights in Red – Operative words and phrases most effective for invoking and
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added in Green font, in Brackets, to guide effective use to assert and enforce rights.]



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Official Text of this Law Source as Ratified

Convention on Jurisdictional
Immunities of States and Their Property

Preamble

The States Parties to the present Convention,

Considering that the jurisdictional immunities of States and their property are
generally accepted as a principle of customary international law;

Having in mind the principles of international law embodied in the Charter of the
United Nations;

Believing that an international convention on the jurisdictional immunities of States
and their property would enhance the rule of law and legal certainty, particularly in
dealings of States with natural or juridical persons, and would contribute to the
codification and development of international law and the harmonization of practice
in this area;

Taking into account developments in State practice with regard to the jurisdictional
immunities of States and their property;

Affirming that the rules of customary international law continue to govern matters not
regulated by the provisions of the present Convention;

Have agreed as follows:


Part I – Introduction

Article 1

Scope of the present Convention

The present Convention applies to the immunity of a State and its property from the
jurisdiction of the courts of another State.



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Article 2

Use of Terms

1.
For the purposes of the present Convention:

(a)
“court” means any organ of a State, however named, entitled to exercise judicial
functions;

(b)
“State” means:


(i)
the State and its various organs of government;


(ii)
constituent units of a federal State or political subdivisions of the State,
which are entitled to perform acts in the exercise of sovereign authority, and are
acting in that capacity;


(iii)
agencies or instrumentalities of the State or other entities, to the extent
that they are entitled to perform and are actually performing acts in the exercise of
sovereign authority of the State;

[This evidences that an inter-governmental organization (IGO), as an “instrumentality…
exercising sovereign authority” of its Member States, is thus created by joint
sovereignty as a “State” in its own right. As a result, it has immunity from the
jurisdiction of all other States (Article 5). This proves that the legal entity of an IGO is
established by its constitutional Charter alone, and is exempt from needing any
registration or incorporation in any country.]


(iv)
representatives of the State acting in that capacity;

(c)
“commercial transaction” means:


(i)
any commercial contract or transaction for the sale of goods or supply of
services;


(ii)
any contract for a loan or other transaction of a financial nature, including
any obligation of guarantee or of indemnity in respect of any such loan or transaction;


(iii)
any other contract or transaction of a commercial, industrial, trading or
professional nature, but not including a contract of employment of persons.

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2.
In determining whether a contract or transaction is a “commercial transaction”
under paragraph 1 (c), reference should be made primarily to the nature of the
contract or transaction, but its purpose should also be taken into account if the parties
to the contract or transaction have so agreed, or if, in the practice of the State of the
forum, that purpose is relevant to determining the non-commercial character of the
contract or transaction.

3.
The provisions of paragraphs 1 and 2 regarding the use of terms in the present
Convention are without prejudice to the use of those terms or to the meanings which
may be given to them in other international instruments or in the internal law of any
State.

Article 3

Privileges and Immunities Not Affected by the present Convention

1.
The present Convention is without prejudice to the privileges and immunities
enjoyed by a State under international law in relation to the exercise of the functions
of:

(a)
its diplomatic missions, consular posts, special missions, missions to
international organizations or delegations to organs of international organizations or
to international conferences; and

(b)
persons connected with them.

2.
The present Convention is without prejudice to privileges and immunities
accorded under international law to heads of State ratione personae.

3.
The present Convention is without prejudice to the immunities enjoyed by a
State under international law with respect to aircraft or space objects owned or
operated by a State.

Article 4

Non-Retroactivity of the present Convention

Without prejudice to the application of any rules set forth in the present Convention
to which jurisdictional immunities of States and their property are subject under
international law independently of the present Convention, the present Convention
shall not apply to any question of jurisdictional immunities of States or their property
arising in a proceeding instituted against a State before a court of another State prior
to the entry into force of the present Convention for the States concerned.
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Part II – General Principles

Article 5

State Immunity

A State enjoys immunity, in respect of itself and its property, from the jurisdiction of
the courts of another State subject to the provisions of the present Convention.

Article 6

Modalities for Giving Effect to State Immunity

1.
A State shall give effect to State immunity under Article 5 by refraining from
exercising jurisdiction in a proceeding before its courts against another State and to
that end shall ensure that its courts determine on their own initiative that the
immunity of that other State under Article 5 is respected.

2.
A proceeding before a court of a State shall be considered to have been
instituted against another State if that other State:

(a)
is named as a party to that proceeding; or

(b)
is not named as a party to the proceeding but the proceeding in effect
seeks to affect the property, rights, interests or activities of that other State.

Article 7

Express Consent to Exercise of Jurisdiction

1.
A State cannot invoke immunity from jurisdiction in a proceeding before a court
of another State with regard to a matter or case if it has expressly consented to the
exercise of jurisdiction by the court with regard to the matter or case:

(a)
by international agreement;

(b)
in a written contract; or

(c)
by a declaration before the court or by a written communication in a
specific proceeding.

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2.
Agreement by a State for the application of the law of another State shall not be
interpreted as consent to the exercise of jurisdiction by the courts of that other State.

Article 8

Effect of Participation in a Proceeding Before a Court

1.
A State cannot invoke immunity from jurisdiction in a proceeding before a court
of another State if it has:

(a)
itself instituted the proceeding; or

(b)
intervened in the proceeding or taken any other step relating to the
merits. However, if the State satisfies the court that it could not have acquired
knowledge of facts on which a claim to immunity can be based until after it took such
a step, it can claim immunity based on those facts, provided it does so at the earliest
possible moment.

2.
A State shall not be considered to have consented to the exercise of jurisdiction
by a court of another State if it intervenes in a proceeding or takes any other step for
the sole purpose of:

(a)
invoking immunity; or

(b)
asserting a right or interest in property at issue in the proceeding.

3.
The appearance of a representative of a State before a court of another State as
a witness shall not be interpreted as consent by the former State to the exercise of
jurisdiction by the court.

4.
Failure on the part of a State to enter an appearance in a proceeding before a
court of another State shall not be interpreted as consent by the former State to the
exercise of jurisdiction by the court.

Article 9

Counterclaims

1.
A State instituting a proceeding before a court of another State cannot invoke
immunity from the jurisdiction of the court in respect of any counterclaim arising out
of the same legal relationship or facts as the principal claim.

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2.
A State intervening to present a claim in a proceeding before a court of another
State cannot invoke immunity from the jurisdiction of the court in respect of any
counterclaim arising out of the same legal relationship or facts as the claim presented
by the State.

3.
A State making a counterclaim in a proceeding instituted against it before a
court of another State cannot invoke immunity from the jurisdiction of the court in
respect of the principal claim.

Part III – Proceedings in which State Immunity Cannot be Invoked

Article 10

Commercial Transactions

1.
If a State engages in a commercial transaction with a foreign natural or juridical
person and, by virtue of the applicable rules of private international law, differences
relating to the commercial transaction fall within the jurisdiction of a court of another
State, the State cannot invoke immunity from that jurisdiction in a proceeding arising
out of that commercial transaction.

2.
Paragraph 1 does not apply:

(a)
in the case of a commercial transaction between States; or

(b)
if the parties to the commercial transaction have expressly agreed
otherwise.

3.
Where a State enterprise or other entity established by a State which has an
independent legal personality and is capable of:

(a)
suing or being sued; and

(b)
acquiring, owning or possessing and disposing of property, including
property which that State has authorized it to operate or manage, is involved in a
proceeding which relates to a commercial transaction in which that entity is engaged,
the immunity from jurisdiction enjoyed by that State shall not be affected.



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Article 11

Contracts of Employment

1.
Unless otherwise agreed between the States concerned, a State cannot invoke
immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to a contract of employment between the
State and an individual for work performed or to be performed, in whole or in part, in
the territory of that other State.

2.
Paragraph 1 does not apply if:

(a)
the employee has been recruited to perform particular functions in the
exercise of governmental authority;

(b)
the employee is:



(i)
a diplomatic agent, as defined in the Vienna Convention on
Diplomatic Relations of 1961;



(ii)
a consular officer, as defined in the Vienna Convention on Consular
Relations of 1963;



(iii)
a member of the diplomatic staff of a permanent mission to an
international organization or of a special mission, or is recruited to represent a State at
an international conference; or



(iv)
any other person enjoying diplomatic immunity;

(c)
the subject-matter of the proceeding is the recruitment, renewal of
employment or reinstatement of an individual;

(d)
the subject-matter of the proceeding is the dismissal or termination of
employment of an individual and, as determined by the head of State, the head of
Government or the Minister for Foreign Affairs of the employer State, such a
proceeding would interfere with the security interests of that State;

(e)
the employee is a national of the employer State at the time when the
proceeding is instituted, unless this person has the permanent residence in the State
of the forum; or

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(f)
the employer State and the employee have otherwise agreed in writing,
subject to any considerations of public policy conferring on the courts of the State of
the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.

Article 12

Personal Injuries and Damage to Property

Unless otherwise agreed between the States concerned, a State cannot invoke
immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to pecuniary compensation for death or
injury to the person, or damage to or loss of tangible property, caused by an act or
omission which is alleged to be attributable to the State, if the act or omission
occurred in whole or in part in the territory of that other State and if the author of the
act or omission was present in that territory at the time of the act or omission.

Article 13

Ownership Possession and Use of Property

Unless otherwise agreed between the States concerned, a State cannot invoke
immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to the determination of:

(a)
any right or interest of the State in, or its possession or use of, or any
obligation of the State arising out of its interest in, or its possession or use of,
immovable property situated in the State of the forum;

(b)
any right or interest of the State in movable or immovable property
arising by way of succession, gift or bona vacantia; or

(c)
any right or interest of the State in the administration of property, such as
trust property, the estate of a bankrupt or the property of a company in the event of
its winding up.

Article 14

Intellectual and Industrial Property

Unless otherwise agreed between the States concerned, a State cannot invoke
immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to:

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(a)
the determination of any right of the State in a patent, industrial design,
trade name or business name, trademark, copyright or any other form of intellectual
or industrial property which enjoys a measure of legal protection, even if provisional,
in the State of the forum; or

(b)
an alleged infringement by the State, in the territory of the State of the
forum, of a right of the nature mentioned in subparagraph (a) which belongs to a third
person and is protected in the State of the forum.

Article 15

Participation in Companies or other Collective Bodies

1.
A State cannot invoke immunity from jurisdiction before a court of another
State which is otherwise competent in a proceeding which relates to its participation
in a company or other collective body, whether incorporated or unincorporated, being
a proceeding concerning the relationship between the State and the body or the other
participants therein, provided that the body:

(a)
has participants other than States or international organizations; and

(b)
is incorporated or constituted under the law of the State of the forum or
has its seat or principal place of business in that State.

2.
A State can, however, invoke immunity from jurisdiction in such a proceeding if
the States concerned have so agreed or if the parties to the dispute have so provided
by an agreement in writing or if the instrument establishing or regulating the body in
question contains provisions to that effect.

Article 16

Ships Owned or Operated by a State

1.
Unless otherwise agreed between the States concerned, a State which owns or
operates a ship cannot invoke immunity from jurisdiction before a court of another
State which is otherwise competent in a proceeding which relates to the operation of
that ship if, at the time the cause of action arose, the ship was used for other than
government non-commercial purposes.

2.
Paragraph 1 does not apply to warships, or naval auxiliaries, nor does it apply to
other vessels owned or operated by a State and used, for the time being, only on
government non-commercial service.

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3.
Unless otherwise agreed between the States concerned, a State cannot invoke
immunity from jurisdiction before a court of another State which is otherwise
competent in a proceeding which relates to the carriage of cargo on board a ship
owned or operated by that State if, at the time the cause of action arose, the ship was
used for other than government non-commercial purposes.

4.
Paragraph 3 does not apply to any cargo carried on board the ships referred to
in paragraph 2, nor does it apply to any cargo owned by a State and used or intended
for use exclusively for government non-commercial purposes.

5.
States may plead all measures of defence, prescription and limitation of liability
which are available to private ships and cargoes and their owners.

6.
If in a proceeding there arises a question relating to the government and non-
commercial character of a ship owned or operated by a State or cargo owned by a
State, a certificate signed by a diplomatic representative or other competent authority
of that State and communicated to the court shall serve as evidence of the character
of that ship or cargo.

Article 17

Effect of an Arbitration Agreement

If a State enters into an agreement in writing with a foreign natural or juridical person
to submit to arbitration differences relating to a commercial transaction, that State
cannot invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to:

(a)
the validity, interpretation or application of the arbitration agreement;

(b)
the arbitration procedure; or

(c)
the confirmation or the setting aside of the award,

unless the arbitration agreement otherwise provides.




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Part IV – State Immunity from Measures of Constraint
in Connection with Proceedings Before a Court

Article 18

State Immunity from Pre-judgment Measures of Constraint

No pre-judgment measures of constraint, such as attachment or arrest, against
property of a State may be taken in connection with a proceeding before a court of
another State unless and except to the extent that:

(a)
the State has expressly consented to the taking of such measures as indicated:


(i)
by international agreement;


(ii)
by an arbitration agreement or in a written contract; or


(iii)
by a declaration before the court or by a written communication after a
dispute between the parties has arisen; or

(b)
the State has allocated or earmarked property for the satisfaction of the claim
which is the object of that proceeding.

Article 19

State Immunity from Post-judgment Measures of Constraint

No post-judgment measures of constraint, such as attachment, arrest or execution,
against property of a State may be taken in connection with a proceeding before a
court of another State unless and except to the extent that:

(a)
the State has expressly consented to the taking of such measures as indicated:


(i)
by international agreement;


(ii)
by an arbitration agreement or in a written contract; or


(iii)
by a declaration before the court or by a written communication after a
dispute between the parties has arisen; or

(b)
the State has allocated or earmarked property for the satisfaction of the claim
which is the object of that proceeding; or
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(c)
it has been established that the property is specifically in use or intended for use
by the State for other than government non-commercial purposes and is in the
territory of the State of the forum, provided that post-judgment measures of
constraint may only be taken against property that has a connection with the entity
against which the proceeding was directed.

Article 20

Effect of Consent to Jurisdiction to Measures of Constraint

Where consent to the measures of constraint is required under Articles 18 and 19,
consent to the exercise of jurisdiction under Article 7 shall not imply consent to the
taking of measures of constraint.

Article 21

Specific Categories of Property

1.
The following categories, in particular, of property of a State shall not be
considered as property specifically in use or intended for use by the State for other
than government non-commercial purposes under Article 19, subparagraph (c):

(a)
property, including any bank account, which is used or intended for use in
the performance of the functions of the diplomatic mission of the State or its consular
posts, special missions, missions to international organizations or delegations to
organs of international organizations or to international conferences;

(b)
property of a military character or used or intended for use in the
performance of military functions;

(c)
property of the central bank or other monetary authority of the State;

(d)
property forming part of the cultural heritage of the State or part of its
archives and not placed or intended to be placed on sale;

(e)
property forming part of an exhibition of objects of scientific, cultural or
historical interest and not placed or intended to be placed on sale.

2.
Paragraph 1 is without prejudice to Article 18 and Article 19, subparagraphs (a)
and (b).


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Part V – Miscellaneous provisions

Article 22

Service of process

1.
Service of process by writ or other document instituting a proceeding against a
State shall be effected:

(a)
in accordance with any applicable international convention binding on the
State of the forum and the State concerned; or

(b)
in accordance with any special arrangement for service between the
claimant and the State concerned, if not precluded by the law of the State of the
forum; or

(c)
in the absence of such a convention or special arrangement:



(i)
by transmission through diplomatic channels to the Ministry of
Foreign Affairs of the State concerned; or



(ii)
by any other means accepted by the State concerned, if not
precluded by the law of the State of the forum.

2.
Service of process referred to in paragraph 1 (c) (i) is deemed to have been
effected by receipt of the documents by the Ministry of Foreign Affairs.

3.
These documents shall be accompanied, if necessary, by a translation into the
official language, or one of the official languages, of the State concerned.

4.
Any State that enters an appearance on the merits in a proceeding instituted
against it may not thereafter assert that service of process did not comply with the
provisions of paragraphs 1 and 3.



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Article 23

Default judgment

1.
A default judgment shall not be rendered against a State unless the court has
found that:

(a)
the requirements laid down in Article 22, paragraphs 1 and 3, have been
complied with;

(b)
a period of not less than four months has expired from the date on which
the service of the writ or other document instituting a proceeding has been effected
or deemed to have been effected in accordance with Article 22, paragraphs 1 and 2;
and

(c)
the present Convention does not preclude it from exercising jurisdiction.

2.
A copy of any default judgment rendered against a State, accompanied if
necessary by a translation into the official language or one of the official languages of
the State concerned, shall be transmitted to it through one of the means specified in
Article 22, paragraph 1, and in accordance with the provisions of that paragraph.

3.
The time-limit for applying to have a default judgment set aside shall not be less
than four months and shall begin to run from the date on which the copy of the
judgment is received or is deemed to have been received by the State concerned.

Article 24

Privileges and Immunities During Court Proceedings

1.
Any failure or refusal by a State to comply with an order of a court of another
State enjoining it to perform or refrain from performing a specific act or to produce
any document or disclose any other information for the purposes of a proceeding shall
entail no consequences other than those which may result from such conduct in
relation to the merits of the case. In particular, no fine or penalty shall be imposed on
the State by reason of such failure or refusal.

2.
A State shall not be required to provide any security, bond or deposit, however
described, to guarantee the payment of judicial costs or expenses in any proceeding to
which it is a respondent party before a court of another State.



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Part VI – Final Clauses

Article 25

Annex

The annex to the present Convention forms an integral part of the Convention.

Article 26

Other International Agreements

Nothing in the present Convention shall affect the rights and obligations of States
Parties under existing international agreements which relate to matters dealt with in
the present Convention as between the parties to those agreements.

Article 27

Settlement of Disputes

1.
States Parties shall endeavour to settle disputes concerning the interpretation
or application of the present Convention through negotiation.

2.
Any dispute between two or more States Parties concerning the interpretation
or application of the present Convention which cannot be settled through negotiation
within six months shall, at the request of any of those States Parties, be submitted to
arbitration. If, six months after the date of the request for arbitration, those States
Parties are unable to agree on the organization of the arbitration, any of those States
Parties may refer the dispute to the International Court of Justice by request in
accordance with the Statute of the Court.

3.
Each State Party may, at the time of signature, ratification, acceptance or
approval of, or accession to, the present Convention, declare that it does not consider
itself bound by paragraph 2. The other States Parties shall not be bound by
paragraph 2 with respect to any State Party which has made such a declaration.

4.
Any State Party that has made a declaration in accordance with paragraph 3
may at any time withdraw that declaration by notification to the Secretary-General of
the United Nations.



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Article 28

Signature

The present Convention shall be open for signature by all States until 17 January 2007,
at United Nations Headquarters, New York.

Article 29

Ratification Acceptance Approval or Accession

1.
The present Convention shall be subject to ratification, acceptance or approval.

2.
The present Convention shall remain open for accession by any State.

3.
The instruments of ratification, acceptance, approval or accession shall be
deposited with the Secretary-General of the United Nations.

Article 30

Entry into force

1.
The present Convention shall enter into force on the thirtieth day following the
date of deposit of the thirtieth instrument of ratification, acceptance, approval or
accession with the Secretary-General of the United Nations.

2.
For each State ratifying, accepting, approving or acceding to the present
Convention after the deposit of the thirtieth instrument of ratification, acceptance,
approval or accession, the Convention shall enter into force on the thirtieth day after
the deposit by such State of its instrument of ratification, acceptance, approval or
accession.

Article 31

Denunciation

1.
Any State Party may denounce the present Convention by written notification to
the Secretary-General of the United Nations.

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2.
Denunciation shall take effect one year following the date on which notification
is received by the Secretary-General of the United Nations. The present Convention
shall, however, continue to apply to any question of jurisdictional immunities of States
or their property arising in a proceeding instituted against a State before a court of
another State prior to the date on which the denunciation takes effect for any of the
States concerned.

3.
The denunciation shall not in any way affect the duty of any State Party to fulfil
any obligation embodied in the present Convention to which it would be subject under
international law independently of the present Convention.

Article 32

Depositary and Notifications

1.
The Secretary-General of the United Nations is designated the depositary of the
present Convention.

2.
As depositary of the present Convention, the Secretary-General of the United
Nations shall inform all States of the following:

(a)
signatures of the present Convention and the deposit of instruments of
ratification, acceptance, approval or accession or notifications of denunciation, in
accordance with Articles 29 and 31;

(b)
the date on which the present Convention will enter into force, in
accordance with article 30;

(c)
any acts, notifications or communications relating to the present
Convention.

Article 33

Authentic Texts

The Arabic, Chinese, English, French, Russian and Spanish texts of the present
Convention are equally authentic.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their
respective Governments, have signed this Convention opened for signature at United
Nations Headquarters in New York on 17 January 2005.


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Annex to the Convention

Understandings with respect to certain provisions of the Convention

The present Annex is for the purpose of setting out understandings relating to the
provisions concerned.

With respect to Article 10

The term “immunity” in Article 10 is to be understood in the context of the present
Convention as a whole.

Article 10, paragraph 3, does not prejudge the question of “piercing the corporate
veil”, questions relating to a situation where a State entity has deliberately
misrepresented its financial position or subsequently reduced its assets to avoid
satisfying a claim, or other related issues.

With respect to Article 11

The reference in Article 11, paragraph 2 (d), to the “security interests” of the employer
State is intended primarily to address matters of national security and the security of
diplomatic missions and consular posts.

Under Article 41 of the 1961 Vienna Convention on Diplomatic Relations and Article 55
of the 1963 Vienna Convention on Consular Relations, all persons referred to in those
articles have the duty to respect the laws and regulations, including labour laws, of the
host country. At the same time, under Article 38 of the 1961 Vienna Convention on
Diplomatic Relations and Article 71 of the 1963 Vienna Convention on Consular
Relations, the receiving State has a duty to exercise its jurisdiction in such a manner as
not to interfere unduly with the performance of the functions of the mission or the
consular post.

With respect to Articles 13 and 14

The expression “determination” is used to refer not only to the ascertainment or
verification of the existence of the rights protected, but also to the evaluation or
assessment of the substance, including content, scope and extent, of such rights.

With respect to Article 17

The expression “commercial transaction” includes investment matters.

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With respect to Article 19

The expression “entity” in subparagraph (c) means the State as an independent legal
personality, a constituent unit of a federal State, a subdivision of a State, an agency or
instrumentality of a State or other entity, which enjoys independent legal personality.

The words “property that has a connection with the entity” in subparagraph (c) are to
be understood as broader than ownership or possession.

Article 19 does not prejudge the question of “piercing the corporate veil”, questions
relating to a situation where a State entity has deliberately misrepresented its financial
position or subsequently reduced its assets to avoid satisfying a claim, or other related
issues.