Edited by Alexander Orakhelashvili
Chapter 8: The UK State Immunity Act 1978: history, scope and relation to international law
Ordinarily, the national courts’ practice can be seen as part of state practice in terms of the formation of customary international law on the relevant matter of public international law. However, the terms of reference to be used by national courts may be determinative of the actual extent to which their jurisprudence will contribute to that state practice. To illustrate, at times, the cases decided by English and US courts on the basis of national legislation on state immunity, such as the State Immunity Act (SIA) 1978 in the United Kingdom and the Foreign Sovereign Immunities Act (FSIA) 1976 in the United States, are prevented from applying the restrictive doctrine on state immunity, because the latter doctrine, as embodied in the common law that incorporates international law, has been displaced, in relation to those national jurisdictions, by the statute that prescribes that a general immunity persists unless a specific exception from it is identified. The practice of national courts that applies a national statute conflicting with the pre-existing common law, and thus with international law, has far lesser potential to contribute to state practice in terms of the creation of customary rules of international law. What options are available to English courts for dealing with the above dilemma, and to what extent are they supposed to take part in resolving it? According to F.A. Mann, the SIA 1978 is a remedial statute, given that it makes a ‘new provision’ on the issues of state immunity in the UK legal system.
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