“Foreign Sovereign Immunity Act,” https://en.wikipedia.org/wiki/ Foreign_ Sovereign_ Immunities_Act.
Reading response questions: Answer one question. Please copy the question to your answer sheet.
(1) A number of other states, including Australia, Canada, South Africa, and the United Kingdom, have codified the restrictive theory of sovereign immunity. However, the shift from the absolute to the restrictive theory of immunity is hardly universal; China, India, Indonesia, and Russia, among others, still adhere to the absolute theory of immunity. What factors might prompt states to adopt the restrictive theory?
(2) What justification does the ICJ give for privileging Germany’s sovereign immunity over Italy’s ability to exercise jurisdiction over acts on Italian soil? What normative principle supports the finding that Germany’s sovereign immunity should take precedence over the right of Italian citizens to recover for widespread violations of core international legal norms? Note that, in analyzing the customary international law of sovereign immunity, the Court observed:
“the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.”
(3) Are you persuaded by the Court’s statement that permitting an exception to sovereign immunity for serious violations of human rights law would require a court “to hold an enquiry into the merits in order to determine whether it had jurisdiction”? If so, does the same argument apply to permitting a commercial activity exception to sovereign immunity?
(4) Sovereign debt restructuring is a recurrent issue and repeatedly reveals the need for an organized restructuring process. Some observers propose the addition of clauses permitting a super-majority of bondholders approve a debtor’s restructuring proposal. This approval would bind all bondholders, eliminating the possibility of hold-outs. Others propose creation of a treaty-based international bankruptcy regime, which would permit states to discharge their debts. As among contract, treaty, or politics, which do you think is the best approach to the problem of sovereign debt restructuring?
(5) Can the judgments of the ICJ and the Italian Constitutional Court be harmonized? Can you justify judicial outcomes finding that international jus cogens norms cannot displace international legal immunities from jurisdiction, but fundamental constitutional rights can?
(6) Take one of the notable cases from this link and answer the question: why did the doctrine of state immunity prevail or fail in the finnal judgement? https://en.wikipedia.org/wiki/Foreign_Sovereign_Immunities_Act.
