Does a Sovereign State Immunity Say More than We Think? ITLOS’s Decision in ARA LIBERTAD Case
Nation’s immunity from the jurisdiction of other nations’ Courts has been recognized and codified by many nations under the term of ‘Sovereign States Immunity’. But, States still have to emphasize on the scope of this immunity in order to prevent conflicts of States’ sovereignty from enjoyment of other States immunity on their territory. Thus, many nations have provided for a ‘restrictive immunity’ in their domestic law. Following the path of these nations, the 2004 UNCSI has also provided for a ‘restrictive immunity’. However, the 1982 UNCLOS has addressed the issue of Sovereign State Immunity too. Surprisingly or interestingly, the interpretation of UNCLOS Article 32 by ITLOS in Libertad Case demonstrates that unlike to many pretentions or understandings, UNCLOS provides Sovereign States for an ‘absolute immunity’ for warships. This paper will try to find out some justifications for ITLOS’s position before coming to the conclusion that rather than a creative role, ITLOS played its role of interpretation. Keywords: Sovereign State Immunity; Warship; Restrictive immunity; Absolute immunity; ITLOS.
SOVEREIGN IMMUNITY OF NON-COMMERCIAL GOVERNMENT VESSELS AND DUE REGARD: CHINA COAST GUARD IN THE NATUNAS
Coastal states possess sovereign rights and jurisdiction within their Exclusive Economic Zone (EEZ), including the exercise of enforcement jurisdiction against foreign vessels conducting violations within the EEZ. However, certain ships are granted sovereign immunity and thus are not subject to coastal state’s jurisdiction. The United Nations Convention on the Law of the Sea (UNCLOS) only stipulated that injuries to the coastal state caused by activities conducted by a sovereign immune vessel will engage that vessel’s flag state responsibility. Indonesia had witnessed numerous violations within its EEZ, especially in waters around Natuna Islands. These violations are conducted by Chinese fishing vessels, which were escorted by China Coast Guard (CCG) vessels. Consequently violations by Chinese vessels would hamper Indonesia’s exercise of enforcement jurisdiction against Chinese fishermen caught committing illegal, unreported and unregulated fishing (IUUF), thus violating Indonesia’s sovereign rights and jurisdiction. This article discusses to what extent sovereign immunity applies to non-commercial government vessels, and whether they can be subjected to coastal state jurisdiction, should they hamper the exercise of coastal state’s enforcement jurisdiction within its EEZ. The article applies normative legal research by utilizing applicable regulations, theories, and existing practices. Sovereign immune vessels are required to pay due regard to other states, including coastal state. Activities constituting ‘abuse of rights’ jeopardizing coastal state’s exercise of enforcement jurisdiction will result in their flag state responsibility being invoked by the coastal state. This article recommends peaceful settlement of dispute through bilateral means, or multilateral means in the spirit of the 2002 Declaration of Conduct by pursuing a regional fisheries agreement.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.