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: Rule, Comity or Something Else?
Sovereign immunity is best understood not as a specific rule of customary international law, but as a legally binding principle. If not bound by detailed treaty obligations, states are free to frame and define the scope and limits of sovereign immunity within their legal orders as long as they observe the boundaries set by other principles of international law. Viewing sovereign immunity as a principle provides for a much better explanation of the still diverse state practice than the currently prevailing concept that conceives immunity as a rule of customary international law and its denial as an exception to that rule. The distinction between principle and rule also has far-reaching practical implications. Instead of asking whether state practice allows for a certain exception, the focus must be on the limits that international law prescribes. States therefore enjoy much greater liberty to define the limits and scope of sovereign immunity, even though this liberty is restricted.
Unfair competition law : the protection of intellectural and industrial creativity
Introduction 1. Unfair Competition, Its Legal Basis 2. Making the General Clause Specific 3. The Economics of Preemption and the Abuse of a Dominant Position 4. Shaping a New Action Malign Competition 5. Cognisance in Malign Competition 6. Cognisance in Intellectual Property Law 7. Malign Competition: Action and Remedy Conclusion