Edited by Alexander Orakhelashvili
Chapter 9: Treaties on state immunity: the 1972 and 2004 Conventions
Treaties on the subject matter of state immunity purport to introduce discrete legal frameworks to bind their states parties to a particular legal approach on this subject matter. Yet, the low participation of states in these treaties is a matter that cannot be overlooked. The 1972 European Convention on State Immunity is in force as between eight states only; while the 2004 UN Convention on Jurisdictional Immunities of States and Their Property is not in force yet, and it is uncertain when it will be. An issue different from the normative content and status of these instruments is the political and ideological suitability of these instruments in terms of a particular vision of state immunity, especially for granting immunity to states for serious human rights violations. The proper understanding of the structure and content of these two treaties may be of assistance towards enhancing our understanding as to whether these instruments legally assist that political and ideological agenda or merely provide a political cover to do certain things in a certain manner. This could help to clarify the question as to whether and to what extent international lawyers’ minds should be so strongly preoccupied with these instruments. The enthusiasm about both Conventions has been quite widespread. The 1972 Convention has been repeatedly used in judicial practice. Similarly, the adoption of the 2004 UN Convention was met with significant initial enthusiasm, hailing the 2004 Convention as an important document and a ‘great achievement’.
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