The concept of the institution of immunity of state property. Basic concepts. Jurisdictional immunity of foreign central banks: international and foreign legal regulation
1. The emergence of the theory of functional immunity was a response to the emerging need to limit the absolute immunity of the state. The essence of the theory of functional immunity of the state is quite simple: all actions of the state are divided into public law (acta jure imperii) and private law (acta jure qestionis). As a result, in public-law actions, when the state exercises its functions based on sovereignty, it retains immunity and, accordingly, is not subject to the jurisdiction of foreign courts, in relation to it, measures to secure a claim are impossible and enforcement is impossible. judgment foreign court. In case of actions of a private law nature, the state is deprived of immunity and acts in relations with its foreign counterparties on an equal footing.
The first attempt to formulate a theory of functional immunity of the state was made in 1891 in the draft regulations of the Institute of Private International Law, which allowed the filing of claims against commercial or industrial enterprises owned by foreign country.
The next step was the Convention for the Unification of Certain Rules on Immunity state courts of April 10, 1926, adopted in Brussels and supplemented by the Protocol of May 24, 1934, which established the norm on the functional immunity of the state.
In May 1952, the US State Department officially announced that it would be guided by the theory of functional immunity when issuing conclusions on the existence of immunity in a foreign state.
2. The first international act regulating state immunity was the European Convention on State Immunity, signed on May 16, 1972 within the framework of the Council of Europe.
The preamble contained the rationale for the adoption of the Convention: “… the aim of the Council of Europe is to achieve a closer union between its members; there is a tendency in international law to limit the cases in which a state can invoke immunity in foreign courts; the establishment in relation to each other of joint rules concerning the scope of immunity from jurisdiction, which the state enjoys in the courts of another state. "
Chapter I of the Convention "Immunity from Jurisdiction" listed the conditions under which a Contracting State would not enjoy immunity in the courts of another Contracting State. These conditions include:
Filing a counterclaim against a Contracting State acting as a plaintiff or a third party in proceedings before the court of another Contracting Person (Art. 1);
The existence of an international agreement, an explicit provision contained in a written agreement, or an explicit consent given after a dispute has arisen (Art. 2);
A Contracting State does not enjoy immunity in a court of another Contracting State if it invokes immunity from jurisdiction after a decision on the merits has been taken (Art. 3);
If the litigation is connected with an obligation of the state, which, by virtue of the existing agreement, must be carried out on the territory of the state where the litigation takes place (Art. 4);
When litigation involves labor agreement concluded between the state and an individual, and the work must be performed on the territory of the state where the trial takes place (Art. 5);
If a Contracting State participates with one or more private persons in a society, association or legal entity having its real or official seat or its main institution in the territory of the state where the proceedings are taking place (Art. 6);
If a Contracting State has, on the territory of the State where the proceedings are taking place, a bureau, agency or other institution through which it carries out, in the same manner as a private person, industrial, commercial or financial activities and if the proceedings concern these activities (Article 7 );
a) a patent for an invention, drawing or industrial model, production or trademark, company name or other similar right;
b) non-observance by the state in the state where the trial takes place, the mentioned right, which is protected in it and belongs to a third party;
c) non-compliance by the state in the state where the proceedings are taking place, copyright, which is protected in it and belongs to a third party;
d) the right to use the name of the firm in the state where the litigation takes place (art. 8);
If the proceedings concern:
a) the right of the state to real estate, to own or to use such real estate by the state; or
b) the obligation imposed on him, either as the owner of the right to real estate, or as the owner or user of this real estate, and if the real estate is located in the territory of the state where the legal proceedings are taking place (Art. 9);
If the litigation concerns the right to movable or immovable property, depending on the right of inheritance or donation, or to ownerless property (Article 10);
If the litigation concerns reimbursement for bodily injury or material damage caused by a fact that took place in the territory of the state where the trial is taking place, and if the person who caused the damage was there at the time when this fact took place (Art. 11);
If the Contracting State has agreed in writing to submit to arbitration already arisen disputes or those that may arise on civil or commercial issues (Art. 12).
The 1972 European Convention on the Immunity of States was ratified by a few Council of Europe states and did not enter into force until 1990, although this required only three instruments of ratification. Only eight states are officially parties to the Convention. Despite this, the theory of functional immunity of the state is currently valid in the judicial systems of Germany, Austria, France, Belgium, Greece, Switzerland, Italy, Denmark, Finland, Norway and other European countries.
3. Of the national laws that have had a significant impact on the approval of the theory of functional immunity, the laws adopted in the United States and Great Britain stand out.
The US law "On the Immunity of Foreign States" was adopted in 1976 and legislatively formalized the transition of this country to the theory of functional immunity of the state, which in practice, as already noted, has been applied since 1952. Art. 1604 of the Law confirmed the existence of immunity of foreign states in the courts of the United States and the courts of individual states. Exceptions to immunity from foreign jurisdiction are listed in Art. 1605 and 1607.
According to Art. 1605, a foreign country does not enjoy immunity from jurisdiction in US courts in any matter:
1) in which it waived immunity;
2) in which the claim is based on the commercial activity of a foreign country in the United States;
3) in which the subject of the proceedings are violated property rights and this property is located in the United States and is used by a foreign country in commercial activities;
4) in which the US title is acquired by succession or donation, or the subject of the proceedings is the title to immovable property located in the United States;
5) in which a claim is filed for compensation for monetary compensation for bodily harm or death, or property damage or loss caused by an offense of a foreign state or any official or employer of that state acting in an official capacity;
6) in which a claim is filed with the Admiralty for the recognition of the right of retention of a ship or cargo of a foreign state in connection with its commercial activities.
According to Art. 1607, a foreign country does not enjoy counterclaim immunity.
The UK National Immunity Act was passed on November 22, 1978 and was notably influenced by US law. The UK law also establishes a general rule on the effect of foreign immunity (Art. 1), and then follows a list of exceptions to this rule (Art. 2-11).
The most important exception is the exemption from the immunity of commercial transactions and obligations of foreign states (Art. 3). A commercial transaction is defined as any contract for the supply of goods or the provision of services, any loan or other transaction for the provision of financial services, as well as any other transaction or activity of a commercial, industrial, financial, professional or any other similar nature, into which the state enters out of order the exercise of their sovereign power.
At the same time, Art. 16 of the Law of Great Britain confirms diplomatic and consular immunities, inviolability of the state's rights in relation to the armed forces, nuclear installations, in matters of criminal procedure and taxation.
Voskoboinik Igor AlekseevichLomonosov Moscow State University
Sukhanov Evgeniy Alekseevich, Doctor legal sciences, Professor, Head of the Department of Civil Law of the Moscow state university named after Mikhail Vasilyevich Lomonosov
Annotation:
Consideration of this issue is important, since the Russian Federation has its own interests in the political arena. The foreclosure on her property located abroad is an effective instrument of pressure on our state.
The present topic is an important, because the Russian Federation has its own political interests. An enforcement measures to the public property are effective mechanism of pression to our country.
Keywords:
state property; immunities
public property; immunities
UDC 347.19
Introduction: this article discusses the main approaches to the concept of immunity state property both domestic and foreign.
Relevance This topic lies in the fact that the Russian Federation is an active participant in litigation on the foreclosure of its property abroad. Correct handling of the categories under consideration allows you to form an effective position in the protection of state property of the Russian Federation.
purpose of work lies in the correct definition of the concept of immunity of state property.
The task work is to differentiate the institution under consideration from those adjacent to it.
Methods: When writing the article and conducting the research, the formal-logical, system-structural, comparative-legal were used.
Scientific novelty research is that the problem under consideration is almost not raised in the domestic legal literature, which entails a lot of law enforcement problems.
The concept of immunity of state property in private international law
Among the various participants in property turnover, the state is the model. This is due to the fact that the latter acts in the interests of the whole society, performing public legal tasks, and also has impressive resources and powers that allow regulating the activities of other subjects of civil legal relations.
In this regard, special attention should be paid to the issue of the responsibility of the state for the assumed civil obligations. This happens due to the following circumstances. First, for several centuries (starting from the 16th) for states, in view of the inviolable nature of state sovereignty, absolute immunity from all types of responsibility, including civil liability, was recognized, which, of course, raises a number of questions requiring both theoretical and and practical resolution. Secondly, bringing the state to justice entails minimizing the property funds of the latter. Obviously, if the state is responsible for all issues related to its activities, this will subsequently lead to difficulties in the implementation of its sovereign functions. However, on the other hand, the absolute denial of the advisability of bearing responsibility public law entities will negatively affect the interests of participants in civil turnover. The above circumstances indicate that the granting of immunity to the state is an objective necessity, but the degree of its immunity should not be absolute.
Historically, two forms of state immunity have developed: judicial immunity and immunity of state property. In the first case, we are talking about the fact that the courts of a foreign state are not entitled to consider claims against another state. This issue is purely procedural and legal and is not subject to consideration in this work. However, it should be borne in mind that in the case when the state has immunity from the jurisdiction of a foreign court, the question of property penalties does not arise under any circumstances. On the other hand, if a foreign court makes a decision to bring a foreign state to justice, then a problem arises related to the admissibility of foreclosure on its property.
The essence of the concept of "immunity of state property" is revealed through its content. So, I.A. Demidov points out that the immunity of state property is reduced to the impossibility of using violent actions on the part of the state on whose territory such property is located. However, the author also distinguishes immunities from preliminary securing of a claim and from the execution of a court decision. It seems that this point of view is incorrect, since any of the coercive measures is directed towards property and, therefore, is included in the content of the institution considered in this work. A similar point of view is shared by N.A. Ushakov, pointing out that the immunity of state property means the impossibility of applying coercive measures to his property. MM. Boguslavsky singles out in this case two types of immunities: from the preliminary provision of a claim and from the enforcement of a court decision.
B. Heß adheres to an interesting point of view, identifying immunity of state property only with immunity from enforcement. Meanwhile, further disclosing the content of the concept under consideration, the author points to its following elements: immunity from foreclosure on state property pursuant to a court decision, immunity from arrest, immunity from court orders aimed at limiting the property rights of the state. E. Wiesinger believes that the institution in question means the prohibition of the implementation of coercive measures in relation to state property.
In essence, the above points of view correspond to the legislative practice of individual states and the United Nations. So, in accordance with the US Law "On Immunities of Foreign States" 1976 (hereinafter - FSIA 1976), the concept considered in this paper is disclosed through immunities from interim measures and measures related to the enforcement of a court decision. Two years later, the UK State Immunities Act 1978 (hereinafter - SIA 1978) was adopted, adopting a definition similar to that contained in the FSIA. The 2004 UN Convention on Jurisdictional Immunities of States and Their Property (hereinafter referred to as the 2004 UN Convention) prohibits the imposition of coercive measures in relation to state property both before and after a court decision.
The Russian legislator followed a similar path, having fixed in the Federal Law of November 3, 2015 No. 297-FZ "On Jurisdictional Immunities of a Foreign State and Property of a Foreign State in the Russian Federation" that immunity of state property means that it is impossible to apply measures to secure a claim against the state and coercive measures related to the execution of a judgment.
Thus, the immunity of state property is the impossibility of the application by a court of a foreign state of interim measures and coercive actions related to the execution of a court decision in relation to state property located in a foreign territory. This institution should not be equated with judicial immunity, which, at first glance, is similar to it, since completely different criteria are used to establish their existence. This institution matters at that stage judicial trial when the question of the admissibility of consideration statement of claim in relation to the state or the satisfaction of the claims of its creditors has already been decided. Therefore, even a court decision that is not in favor of the state does not mean that it will incur property liability. Apparently, in this regard, the drafters of the 2004 UN Convention called it “the last bastion of state Immunity”.
Basic concepts of state immunity
To begin with, it should be determined that the term "concept of immunity" is not identified with the concept of "type of immunity". In the latter case, we are talking about an object of legal protection, in the capacity of which either the state acts as a participant in the judicial process (judicial immunity), or its property when deciding on the issue of foreclosure on it (immunity of state property). The concepts of immunity refer to the historical approaches to the application of these varieties.
The first of the considered concepts is the theory of absolute immunity, which is based on the following:
1) claims against a foreign state cannot be considered without its consent in the courts of another state;
2) in order to secure a claim, the property of any state cannot be subjected to coercive measures by another state;
3) it is inadmissible to apply compulsory enforcement measures to state property without its consent.
This theory has been applied by courts since the 17th century (the first known case of state immunity dates back to 1668). The adherence of states to this theory was due to the “sacred” nature of state sovereignty and the proclamation of the principle “equal over equal has no power”. In addition, it was believed that the king (namely, he was a mirror of any state in those centuries) could not commit any wrong or illegal actions, and therefore, the question of his responsibility could not arise (the principle “the King can do no wrong ). However, it appears that highest value had an extremely low degree of state involvement in civil circulation.
In view of the above circumstances, the state could only be held liable in the event of an explicit waiver of immunity. The latter, as a rule, was contained in international treaties with specific states or in arbitration clauses to foreign trade contracts.
However, since the end of the 19th century, states have become more widely involved in commercial activities, which are closely related to international commodity and financial markets. In addition to the increase in the number of transactions concluded by states, they have also become more diverse. Several decades later, states increasingly began to turn to foreign banks and international financial institutions to receive loans. The number of legal entities under public law and other political entities actively involved in civil circulation has increased. In this regard, states began to gradually move away from the theory of absolute immunity. It is worth noting that this process was of an evolutionary and not a forced nature, while the activity of the courts served as a catalyzing factor in almost all states.
It is important to note that the United States was the only state where there was no progressive departure from the theory of absolute immunity, which was developing in jurisprudence, and the greatest role, oddly enough, was played by the message of the chief adviser on legal issues The 1952 US Department of State, in which it indicated that immunity should be granted only in respect of government acts of an authoritative nature. Later, this approach was reflected in the decision The Supreme Court USA in the case of Alfred Dunhill of London Inc. v. Republic of Cuba from 1976. In this case, a claim was made against agents of the Cuban government, which had confiscated tobacco-manufacturing businesses. The agents violated the obligation to pay the forfeit, in connection with which the counterparties made demands on them to pay it. Despite the agents' argument that they were carrying out a public task in connection with the instructions of the Cuban government, the court indicated that it cannot be recognized as authoritative trading activities, since this is usually inherent in private individuals and not sovereign entities. A few months later, the 1976 FSIA was adopted in the United States, based on a functional approach to state immunity.
In the UK, on the contrary, the approach under consideration has developed in judicial practice. In this regard, it should be noted several of the most significant court decisions that influenced the formation of the theory of limited immunity. The first judgment that reflected this approach was in The Charkieh in 1873. The Admiralty Court refused to recognize immunity for a ship belonging to the Khedive of Egypt on the grounds that he was not the sovereign ruler of that state. Moreover, even assuming the opposite, it would be necessary to recognize the absence of immunity on the grounds that the ship was chartered by a private person and was intended for commercial purposes. Further development approach was related to the decision in the Philippine admiral case of 1976, where the court drew attention to the following circumstances: firstly, it was not taken into account judicial precedent in the Alexander case of 1920, which was a classic example of an absolute approach to state immunity; secondly, the court indicated that modern trend does not allow us to regard the actions of the state as having an exclusively imperious character and, finally, it was found inappropriate to apply the doctrine of absolute immunity, given that the state is responsible for commercial contracts in domestic relations. A logical point in the development of the considered approach was set in the decision in the case of Trendtex Trading Corporation Ltd v. Central Bank of Nigeria from 1977, where the composition of the appellate court indicated that the only possible approach to analyzing the actions of the state could be to separate its actions into imperious (iure imperii) and private (iure gestionis). Within the framework of the latter, the state acts as legal entity carrying out commercial activities that have nothing to do with the implementation of public authority. A year later, the UK adopted the 1978 SIA, which, like the 1976 American FSIA, reflected the concept of a functional approach.
An important act that influenced the formation of the functional approach is the European Convention on State Immunities of 1972 (hereinafter referred to as the 1972 Convention). Despite the fact that this act is mandatory only for seven European states (Germany, Great Britain, Luxembourg, Austria, the Netherlands, Switzerland, Belgium), it can be said that it reflects a clear position of European states associated with adherence to a functional approach. So, in accordance with Art. 7 of the 1972 Convention, a state does not enjoy immunity if it has, on the territory of the state where the proceedings are taking place, a bureau, agency or other institution through which it carries out, in the same manner as an individual, industrial, commercial or financial activity and if litigation concerns this activity of a bureau, agency or institution. Obviously, the concept of immunity in accordance with this provision is broader than in the above-mentioned acts of the United States and Great Britain, since, in addition to commercial activities, it includes industrial and financial ones. In addition, the convention is based on the nexus principle, according to which property can only be foreclosed if it is directly related to the obligation or action that is the subject of judicial review. This allows you to protect the property of the state from unjustified collection of its creditors.
The UN Convention on Jurisdictional Immunities of States and Their Property, adopted in 2004, establishes an approach similar to the one contained in the 1972 Convention. However, this act enters into force upon ratification by thirty states, while at the moment only 13 states have done so. Meanwhile, its role is essential, since it reflects modern approaches to the content of state immunity.
For a long time, practice in the Russian Federation followed the path of applying absolute immunity. This is due to the fact that in the Soviet Union there was a monopoly of foreign trade and, therefore, any transaction by the state was recognized as an act of an imperious nature. However, due to cardinal economic changes, the beginning of active interaction of the Russian Federation with foreign partners, and the attraction of significant investments in the Russian economy, the use of this approach has become impractical. For this reason, the need arose to create a favorable jurisdictional environment in our state. In addition, foreign states did not take into account the fundamental principle of private international law - the principle of reciprocity and, despite the inadmissibility of the seizure of foreign property on the territory of the Russian Federation and the use of other coercive measures (since the Russian Federation adhered to the concept of absolute immunity, in fact, until 2016), they applied the measures in question in relation to Russian property. Consequently, the expediency of adherence to this concept of immunity for our state was virtually absent. In view of the above reasons, the Federal Law of November 3, 2015 No. 297-FZ "On Jurisdictional Immunities of a Foreign State and Property of a Foreign State in the Russian Federation" (hereinafter referred to as the Law) was adopted, which enshrines the functional concept of state immunity. So, in accordance with Articles 14 and 15 of this law, measures to secure a claim against state property are applied only in cases where the state has explicitly expressed its consent to the application of these measures or has reserved or otherwise designated the property in case of settlement of the dispute. Coercive measures related to the execution of a court decision can be applied only if it is established that the property of a foreign state is used and (or) intended for use by this foreign state for purposes not related to the exercise of sovereign powers.
Based on the foregoing, it can be concluded that, within the framework of the concept of functional immunity, the actions of the state are divided into two types - actions of an imperious (iure imperi) and actions of a commercial nature (iure gestionis). Accordingly, state property can be divided into those intended for use for public or commercial purposes. In the latter case, immunity is not granted and therefore the property may be subject to foreclosure or the application of interim measures to it.
Thus, given that the subject of both civil and private international law is property relations, it seems that the concept of functional immunity is the most acceptable. Entering into a civil legal relationship, the state voluntarily submits itself to the method of private legal regulation, acting, in essence, as a legal entity. While denying the possibility of the state being held liable for its obligations, there is a controversial understanding of the state as a participant in property relations, which implies interference in legal relations, in all respects corresponding to the civil, public-legal institution of immunity. As a result, the interests of the counterparties of the state are violated, which incur losses, primarily financial ones. In addition, the state looks like not the most reliable counterparty, which at any time can put on a “public-law mask” in order to avoid responsibility, which can negatively affect its trade and other economic relations.
The recent changes in the legislation of the Russian Federation on immunities should be positively assessed, since this corresponds to the current economic situation and general theoretical ideas about this category.
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hurray, USA, South Africa, jurisprudence of Austria, Greece, Italy, Switzerland, Germany. The provisions of the draft are entirely based on the doctrine of functional immunity; very many norms are taken from the European Convention of 1972.
Currently, the main means of overcoming the territorial nature of copyright and patent law is the conclusion of interstate agreements on the mutual recognition and protection of rights to intellectual property... Their development and adoption allow the rights arising under the laws of one state to operate and be protected on the territory of another in accordance with its legislation. In this case, foreigners get the opportunity to have the powers granted local laws, and their national laws are generally not taken into account and not applied.
In order to eliminate the practice of counterfeiting (not legal reprinting of literary works), since the second half of the 19th century, the tendency to conclude bilateral agreements between states on the protection of the copyright of their citizens has been increasing. in this area, the first multilateral international treaty, the Berne Convention for the Protection of Literary and Artistic Works, was adopted. Subsequently, this document was repeatedly revised at international conferences held in 1896, 1908, 1914, 1928, 1948 and 1967. The last of them took place in 1971. in Paris. Therefore, for the participating countries, the convention is valid in different editions. For Russia, this international legal document has been in effect since March 13, 1995.
In accordance with this document, copyrights to literary and artistic works and collections, including products of cinematographic, photographic, choreographic, musical and dramatic creativity, are protected.
When determining the subjects of protection, the Berne Convention is guided by a geographical criterion, according to which preference is given to the country of origin (first publication) of the Work, therefore, if, for example, a citizen of a state that is not a member of the Berne Union published a work for the first time on the territory of a state party to the convention, then his copyright rights in this country must, of course, be respected.
The term of copyright protection is established within the lifetime of the author and fifty years after his death. However, the participating countries may set longer terms. In the case of a specific dispute, this period cannot be longer than the duration of the copyright that was established in the country where the disputed work was first published. This means, for example, that in Germany, according to the legislation of which the term of protection of works is the period of the author's life and 70 years after his death, republished works of Russian authors will be protected only for 50 years after their death, since this is the term of copyright protection. the legislation of our country. The Berne Convention also defines shorter periods of protection for the exercise of the author's exclusive right to translate his work.
Berne Convention contains detailed rules defining the content of copyright. Firstly, these are personal property and moral rights, volume and order judicial protection which should be established by the national legislation of the state where the protection requirement is made. Secondly, it is special rights, stipulated in the Convention itself, the implementation of which can occur without reference to the legislation of its member countries. The latter include exclusive right the author's translation of his works, for the reproduction of copies of the work, for the public performance of musical and dramatic works, for the transmission of his works on radio and television, their public reading, alteration, recording and a number of other rights.
The Berne Convention restricts the possibility of free use of literary and artistic works abroad, stipulating mandatory conditions for obtaining the consent of copyright holders, publication of such works, payment of royalties, etc., therefore the Convention does not meet in some cases the interests of developing countries for which a high level of protection the rights of authors is economically disadvantageous or unattainable.
The second most important multilateral international treaty adopted for the protection of copyright was the 1952 Universal (Geneva) Convention on Copyright, which was developed under the auspices of UNESCO (in 1971, at the diplomatic conference in Paris, amendments were made to it). The initiators of the adoption of the new convention were those states that considered it undesirable for themselves to participate in the Berne Convention, which contained rather stringent requirements for the national legislation of their member countries. Currently, more than 90 states of the world participate in the Geneva Convention. For the Russian Federation from March 13, 1995. it is valid as amended in 1971.
The main difference between the Berne and Geneva Conventions is that if the former is aimed at establishing a relatively uniform legal regime protection of copyright in the member states, then the main goal of the second is to ensure the protection of copyrights of foreigners in accordance with the national legislation of the member states. Thereby Geneva Convention to a lesser extent than the Bernese, it requires the unification of the national legal norms of the participating countries. In terms of its content, it is more universal in nature, which makes it possible for states with different copyright laws to participate in it.
The rights of authors and other copyright holders as stated in Art. I of the Convention should be protected insofar as they relate to works of literature, science and art, including written, musical, dramatic, cinematographic works, as well as works of painting, graphics, etc. sculptures. States in their national legislation have the right to expand this list. However, the rights to the above categories of works must be protected by their legislation without fail.
The Convention provides for the protection of the rights to published and unpublished works of citizens of the member states, even if this work was first published on the territory of a country that is not a party to the Convention (Art. II). Moreover, in accordance with Art. IV, the release of a work into the world should be understood as "reproduction in any material form and provision of copies of the work to an indefinite circle of persons for reading or familiarization by means of spectator perception." This implies, in particular, that musical composition will be considered released not at the time of its performance, but at the time of going out of print.
The Geneva Convention enshrines the principle of a national regime for the protection of copyright for foreigners. Its meaning is that the works published abroad by foreign authors of the participating countries in a given state should be provided with the same protection that, according to its domestic legislation, has already been granted to works of its own citizens first published in a given country. Unreleased works of citizens of the States Parties to the Convention are subject to protection under the same conditions.
Article III of the Convention establishes the procedure for facilitating the formalities necessary for the acquisition of copyright protection. So, if under the domestic law of a State Party, the condition for copyright protection is compliance with a number of formalities (deposit, registration, notarization, payment of fees, etc.), then in relation to all works protected by the Convention, these requirements are considered fulfilled subject to compliance following two conditions:
firstly, if this work was first published outside the territory of the country where protection is sought, and if the author is not a citizen of that state;
secondly, if, starting from the first publication of the work, all copies of it, published with the permission of the author or any other owner of his rights, bear a sign indicating the name of the copyright holder and the year of the first publication of the work.
If these conditions are absent, then the state where protection is sought may require compliance with all the formalities and conditions necessary for the acquisition and implementation of copyright, including procedural ones, when considering copyright protection cases in court. However, a State party to the Convention, in accordance with its provisions, must establish without any formalities legal means protection for unreleased works of citizens of other participating countries.
The main rule of the Convention, which applies to the definition of the term of copyright protection, like the entire Convention, is based on the principle of national treatment and is as follows: works that are subject to the provisions of the Convention must be protected in this state for the same period as and works by national authors. However, there are two exceptions to this rule:
no State party is obliged to protect works of foreign authors to which the Convention applies for a period longer than the period specified by the law of the country of origin of the work.
The only right of the author, which is directly regulated by the Convention is the right to translation (Art. V). It is exclusive and without the permission of the author or other copyright holder, any translation of the work will be illegal. If the permission to transfer
United Kingdom. The UK State Immunity Act of 1978 does not contain a specific exception to the immunity of a state responsible for torture, blackmail, restriction of human liberty, etc. However, there is a general exception to the immunity of a delinquent foreign state. , which can also be used by a person whose fundamental rights have been violated by a foreign state.
UK law includes both an express exclusion from the immunity of a foreign harm-causing country (§ 5 of the Act) and an implied exclusion that we may find in the rule of business and immunity of § 3 (c), which may be believed to give the ability to limit the immunity of a foreign state in the event of a commercial tort (for example, defamation in connection with commercial activities).
Under § 5 of the Act, a foreign country does not enjoy immunity from litigation concerning death or personal injury (§ 5 (a)) or damage to or loss of tangible property § 5 (b) caused by an act or omission in the United Kingdom.
The principal provision immediately catches the eye: the law does not distinguish between commercial and non-commercial tort committed in the territory of the court's country. As in the United States, a foreign state cannot obtain recognition of its immunity simply by claiming that the harm is of a public nature. According to a theory that relied on the division of acts of the state onjure imperil and jure gestionis, here a blow has been struck. In any case, such a conclusion follows from a literal reading of this norm.
Like US law, UK law only applies this rule to physical, visible, material damage. Moreover, this is done more subtly and clearly than in the US Law: the UK law already definitely speaks about tangible property. So purely economic damage(pure economic loss), as well as causing personal harm not associated with physical harm and suffering (non-physical damage), are not covered by the considered exception. However, as rightly noted in the literature, this exception applies if non-pecuniary damage has resulted in physical harm to a person 1.
The UK law is not original in addressing the issue of territorial connection. The action (inaction) that caused harm must take place on the territory of this state. However, unlike the US law, the English act speaks only of action or inaction, without mentioning the need for offensive and harmful consequences in the territory of the court state.
And what about a tort committed outside the state? The best answer to this question is the case Al-Adsani v. Government of Kuwait and Others 2 .
A claim for compensation for physical and mental suffering was brought by a British citizen (possibly also a Kuwaiti citizen) against Kuwait (the first defendant) and three individuals (the second, third and fourth defendants, respectively).
In 1991, while in Kuwait, Al Adsani became the owner of the videotapes belonging to the second defendant. The cassette tapes, if known to the public, could damage the reputation of their owner. And it happened. The "video lover" harbored a grudge against Al Adsani, suspecting that he was the one who disseminated information about the recordings.
Some time later, the second, third and fourth defendants kidnapped Al Adsani and subjected him to torture: they dipped his head into a pool of corpses, placed him in a room with impregnated bodies.
1 See: Fox. State Responsibility and Tort Proceedings against a Foreign State in Municipal Courts // NYIL. Vol. 20.P. 24-25.
2 103 1LR. P. 420.
gasoline and lighted mattresses. Al Adsani, who suffered severe burns, was then sent to prison. Of course, without observance of any legal "formalities". The proximity of the second defendant to the emir and other influential people of the state played a role. In the prison, the beatings by the guards continued for days on end.
After his release, Al Adsani managed to leave for England, but his suffering did not end there either. The plaintiff gave an interview to ITN, in which he spoke about his imprisonment and torture. The response was followed by threats from the Kuwaiti ambassador to the UK and anonymous silent phone calls for several years on the other end of the line. In 1993, there were several anonymous death threats. Al Adsani believed that persons acting on behalf of the government of Kuwait were behind all these calls. "
This is the background to the lawsuit. And what? Having considered the case, the court (High Court, Queen's Bench Division) recognized Kuwait's immunity both in relation to the actions that, according to Al Adsani, took place in Kuwait and in England. in immunity in relation to actions that allegedly took place on the territory of England, the court substantiated his mental anguish may have come from Kuwait. and the court did not consider them as causing any damage that could serve as a basis for filing a claim for damages. The th case does not in any way indicate that immunity was granted by virtue of the public nature of the act. The court did not make such a gift to the “absolutists” 2.
Now about the court's assessment of the actions that took place in Kuwait. It was obvious to the court that the beatings of Al Adsani by prison
1 103 ILR. R. 422-424.
2 Ibid. P. 431-432.
guards can be considered torture, and torture is an international crime. As such, they are recognized by English law. The Court, however, emphasized that the issue before the Court is that of immunity in the light of the 1978 Act, and that it contains an explicit tort rule that does not allow for immunity to be denied in the event of harm outside the UK. The plaintiff's argument that there is an implied exclusion from the immunity of a foreign state that has committed an international crime cannot be recognized as substantiated. The court stressed that if the language of the law is clear, it should prevail and the norms of international law can be taken into account only provided that they do not conflict with national law. This is the traditional position of the English courts, as we know. The Court further added that if Parliament were to consider torture outside the UK as an exception to immunity, it would have to explicitly establish such a provision in the Act. In the absence of such a rule, there is simply no need to speak of an implied exception. I would like to note that, in substantiating its position, the court also relied on the aforementioned American precedent - the Hess case.
A few words about the possibility of application common law when solving the problem of immunity. The 1978 Act does not exclude the possibility of recourse to common law, both in relation to state actions that took place before its entry into force (i.e., it has no retroactive effect), and in relation to issues to which the Act does not apply (§ 16 ). Thus, for example, the exceptions to the immunity of a foreign state established by the Law do not apply to acts committed by the military forces of a foreign state located in the UK.
In a recent case Holland v. Lampen- Wolfe, reaching the House of Lords (judgment of July 20, 2000), the Immunity Act was declared inapplicable, and the court recognized US immunity in the action of defamation. Both the plaintiff and the defendant worked at a US military base in North Yorkshire. The court considered that the defendant had disseminated information discrediting the plaintiff in connection with the exercise of sovereign functions.
1 103 ILR. R. 425-431.
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Canada. Canada's State Immunity Act of 1982, like the previously reviewed laws, does not contain a specific exception to the immunity of a state violating fundamental human rights. The main assistants of the victim here can be both the express exception from the immunity of the foreign state-delinquent, which we find in § 6, and the exception on commercial activities (§ 5), which can be used in the event of a commercial tort.
Canadian law complies with the laws of other countries. It does not establish a requirement that the immunity of the state can be limited only in relation to actions of a private law nature. As highlighted in the decision in the case Walker et al. v. Bank of New York / is. 1 (Court of Appeal for Ontario), the claim that § 6 applies exclusively to private acts of the State cannot be substantiated. The argument that the Law is inapplicable to public tort was put forward on the grounds that this legal act is (as recognized in the jurisprudence of this country) a codification of the theory of limited immunity, as it developed in common law, and in it the refusal of immunity is allowed only regarding action jure gestionis. The court emphasized that there was no special exception to the immunity of a foreign delinquent state in general law and that, accordingly, it is difficult to imagine how it could be codified by law. Thus, the need to consider a tort from the standpoint jure imperil(orjure gestionis) missing.
The law is not original in determining what kind of tort can "torpedo" immunity. Only a tort that has caused physical harm (damage to property, bodily harm) possesses such a crushing ability.
Canadian law does not require any connection with the court state for a commercial tort. This is believed to provide some additional options for the plaintiffs. At the same time, we must not forget that a possible positive solution to the problem of immunity for the plaintiff does not reduce
There are no problems in establishing the existence of a territorial connection of a tort with the country of the court when referring to the general rules of Canadian private international law on jurisdiction.
^ Australia, Singapore and South Africa. There is no special exception from the immunity of a foreign state that violates fundamental human rights in the laws of Australia, Singapore and South Africa.
The approach of the legislator of these states to the problem of "Immunity - tort" turned out to be very similar to the English one. Australia's 1985 (Foreign States Immunities Act), Singapore 1979 (State Immunity Act) and South Africa's 1981 (Foreign States Immunities Act) laws also have a kind of dualism in resolving this issue. Like English Law, they include the express exemption from the immunity of a foreign delinquent State (§ 13 Australian Act, § 7 Singapore Act, § 6 South African Act) and the exemption from immunity in connection with foreign business activities (§ 11 Australian Act, § 5 Singapore Law, § 4 South African Law).
It appears that the laws allow for the limitation of immunity for both commercial and non-commercial tort. The approach to solving the problem of physical harm is the same as in the previously considered laws.
Pakistan. The expression about a spoonful of ointment is very suitable for the legal act, which will now be discussed. The Pakistani Ordinance of 1981 (State Immunity Ordinance) is the only one known to us on the immunity of a foreign state, which does not contain not only a special rule on the refusal of immunity to a foreign state violating fundamental human rights, but also a general exception from other laws. immunity of a foreign delinquent state. One can only guess why such an exception was not provided. This is all the more curious since the rest of the Ordinance clearly follows the UK law in addressing immunity issues. As for conjectures, G. Badr is inclined to believe that the purpose of just such a legislative decision was to preserve diplomatic and consular immunities in this area 1. However, I agree with J. Bremer, who notes that § 17 of the Ordinance
Cm.: Badr G. M. Op. cit. P. 164 (note 86).
contains a special provision stating that it does not affect the effect of diplomatic and consular immunities to which it is dedicated special act about diplomatic and consular immunities 1972. 1 Regardless of the explanation, the essence does not change - there are no norms on immunity and tort.
Argentina. Argentina's 1995 Foreign Immunity Law is the first legal act on immunity in a country whose legal system is not based on common law. A tort exception is contained in Art. 2 of Law 2. In accordance with this rule, a foreign state does not enjoy judicial immunity (Argentine law is generally devoted only to judicial immunity) in the event of harm in Argentina. Thus, the law, following the previously adopted acts on immunity, establishes the requirement for the territorial connection of the tort with the country of the court (delitos o cuasidelitos cometidos en el territorio). The lapidary wording of the Law, however, does not allow determining whether the norm covers a cross-border tort. Is the fact of damage inflicted on the territory of the country enough? Can an action (inaction) that caused harm in Argentina take place outside the state? These questions, as well as the question whether the Law covers public tort, must be answered by judicial practice.
A unique rule was included in Art. 3 Laws. According to it, the court should not consider the case of violation of human rights, but only indicate to the victim the appropriate international Judicial authority, in which a claim against a foreign state can be considered. Moreover, if it comes about the injured citizen of Argentina, the court is obliged to inform the Ministry of Foreign Affairs of the country in order to seek the protection of violated rights through diplomatic channels. This regulation, however, was not destined to come into force. The country's government, by decree 849/95, vetoed it as contrary to the Argentine Constitution. According to the government, in accordance with this provision of the Law, the court turned into a simple information
1 See: Brohmer J. Op. cit. P. 103.
2 La ley 24.488 (ADLA, 1995-A-220) “Inmunidad Jurisdicciona! de los Estados Extranjeros ante los Tribunales Argentines ", 05/31/1995 // Boletfn Oficial, 06/28/1995.
an onion agency that does not perform the functions of justice, but only transfers paper.
§ 7. Jurisdictional immunity of the state
The first mentions of the jurisdictional immunity of the state date back to the XIV century. The theory of state immunity is formulated in the famous saying of the Italian lawyer Bartolus: par in parem non habet imperium(lat. equal over equal has no power). It means that states are equal at the level of interaction between the supreme political authorities, i.e. sovereignty, and no jurisdiction can be exercised by one state over another at this level.
State immunity is understood as the lack of jurisdiction of one state to the courts of another state. The principle of state immunity is based on the generally recognized principle of international law - the principle of the sovereign equality of states. States have equal sovereignty, and therefore no state can exercise power over other equally sovereign states, including exercising jurisdiction over them. The immunity of states follows from the sovereignty of states. No state can bring another state to court without its consent, take measures against it for preliminary provision of a claim and enforcement of a court decision.
The problem of state immunity is at the intersection of the sciences of public international law and private international law. Consideration of the principle of immunity of states as arising from the sovereignty of states, as well as the recognition of state immunity when the state performs public legal actions, i.e. actions in the implementation of state sovereignty, speaks of its public-legal basis. Cases of exemption from state immunity in the commission of private law actions by him belong to the sphere of private international law.
The customary rule of international law on state immunity developed on the basis of the practice of municipal courts. State legislation, bilateral and multilateral treaties, as well as international legal doctrine in the field of state immunity were developed much later on the basis of judicial practice. The first known case of recognition of the immunity of a state and its property in a court of another state occurred in 1668. Due to the debt of the Spanish king, three of his warships were detained in a foreign harbor. The court seized the warships, which was later declared inadmissible.
Formation of the principle of state immunity in states of the common law system... In the states of the common law system, especially in England and the United States, the principle of state immunity developed on the basis of the traditional immunity of the personality of the local sovereign. In England, the doctrine of sovereign immunity was based on the constitutional custom that no case could be brought against the king in his own courts. The rationale behind the doctrine of sovereign immunity is found in Judge Brett's dictum in "The Parlement Belge"(1880). This rationale for sovereign immunity rests on principles such as international courtesy, independence, sovereignty and the dignity of each sovereign authority.
Later, the immunities accorded to sovereigns and their property resulted in the fundamental immunities of states and their property.
US courts were the first to formulate the principle of state immunity. Its classic formulation was set forth by Chief Justice Marshall in "The Schooner" Exchange "v. McFaddon and others"(1812), who declared that a sovereign power has exclusive and absolute jurisdiction over its territory. All exceptions to the full and unlimited power of a nation within its own territory must be subject to the consent of the nation itself. Sovereign states with equal rights and equal independence for the mutual benefit and exchange of good offices have agreed to mitigate the effect of absolute and complete jurisdiction within their territory.
This absolute equality and absolute independence of the sovereigns and the common interest compelling them to maintain relations with each other, as well as the exchange of good offices, led to a number of cases in which each sovereign refused to exercise part of this full exclusive territorial jurisdiction.
Formation of the principle of state immunity in the countries of the continental law system. In countries of the civil law system, the rule on state immunity has developed differently than in countries of the common law system. Here, state immunity was closely linked to the jurisdictional powers of the courts. Thus, in France, a distinction was made between acts subject to the jurisdiction of administrative tribunals and acts of government not subject to judicial or judicial review. administrative authorities... The actions of foreign states were viewed as actions of the government, and therefore were not subject to review by judicial or administrative authorities.
Courts in civil law countries, like courts in common law countries, base immunity on the sovereignty of the state and the mutual independence of states. But if in the countries of the common law system, the immunity of the state grew out of the immunity of the individual of the local sovereign, then in the countries of the civil law system, the recognition of the immunity of the state depended on the presence or absence of the state's court of authority to conduct a case against a foreign state.
There is a close relationship between the immunities of local sovereigns, ambassadors, diplomatic agents and the immunities of the state and its organs. The immunities of the first served as the basis for the formation of state immunity, were its historical predecessors.
Types of state immunity... There are several types of state immunity: judicial, from preliminary securing of a claim and from enforcement of a decision.
Judicial immunity lies in the lack of jurisdiction of one state to the courts of another state. A state can be brought to court of another state only with its own consent.
Immunity from preliminary security of a claim means that in the order of preliminary securing of the claim it is impossible to take any coercive measures in relation to the property of the state without its consent.
Immunity from execution of a decision means that without the consent of the state, it is impossible to enforce a decision against it.
In addition to these types of state immunity, immunity of state property is distinguished.
Basic concepts of state immunity... In the modern doctrine of international law, two basic concepts of state immunity have developed: the concept of functional (relative, or limited) immunity and the concept of absolute immunity.
Functional immunity means the immunity of the state, recognized only in relation to some of its actions. The essence of the concept of functional immunity is that the state has immunity only when it acts as a sovereign, i.e. when performing acts of a public nature (acta jure imperii), and when committing private law action (acta jure gestionis) does not possess immunity. This means that the state enjoys immunity only when it acts as a subject of power. When committing civil actions, foreign trade transactions, exploitation of the merchant fleet, the state and its property do not have immunity. In this case, a claim may be brought against the state in the court of another state.
The essence of the concept of absolute immunity is that the state has immunity as in the case of committing actions of a public law nature (acta jure imperii), and when performing actions of a private law nature (acts jure gestionis).
The concept of limited immunity seems to be the most realistic and viable. From the recognition that the basis of immunity is sovereignty, it follows that the state enjoys immunity in the exercise of its sovereignty, i.e. when acting in the exercise of sovereign power. They represent public actions, or political acts of the state. Private law actions, including commercial, civil law, are not sovereign in the true sense of the word.
The recognition of the immunity of the state in relation to its private law actions actually leads to the impossibility of bringing it to justice, puts it in a privileged position compared to the other party to the dispute, leads to inequality of subjects in private law relations, which gives rise to mistrust and unwillingness to carry out economic, commercial, scientific and technical ties with states adhering to the concept of absolute immunity, and ultimately hinders the development of interstate relations. Therefore, in the scientific literature you can find the characterization of the concept of absolute immunity as a "legal fossil".
Domestic regulation of state immunity... Some states have adopted special legislation on state immunity. The first example of such legislation is the United States Sovereign Immunities Act 1976. Later, the State Immunities Act of England 1978, the Singapore State Immunities Act 1979, the South African Foreign Sovereign Immunities Act 1981, the Pakistan State Immunities Ordinance 1981 Canada National Immunities Act 1982, Australia Foreign Sovereign Immunities Act 1985
Most states do not have special laws on state immunity; provisions on immunity are contained in laws that are more general in content. So, in the Russian legislation there are only a few provisions on state immunity. This is Art. 251 of the Arbitration Procedure Code of the Russian Federation, Art. 401 of the Civil Procedure Code of the Russian Federation, Art. 23 Federal law dated December 30, 1995 N 225-FZ "On Production Sharing Agreements". These norms of Russian legislation indicate that at present, Russian law adheres to the concept of absolute immunity of a foreign state. In 2005, a draft Federal Law "On Jurisdictional Immunity of a Foreign State and Its Property" was developed.
International legal regulation of state immunity... In some cases, state immunity is regulated by bilateral treaties. Most often they contain exemptions from the principle of immunity. The bilateral form of regulation of legal relations of state immunity is characteristic mainly of states that adhere to the concept of absolute immunity. Asserting the absolute nature of state immunity in theory, these states are forced, in order to integrate into world economic relations, to allow exemptions from the principle of absolute immunity in special treaties. The Russian Federation has this contractual practice.
There are several multilateral conventions governing some aspects of state immunity: the Brussels Convention for the Unification of Certain Rules on the Immunity of State Courts of 1926 and its Additional Protocol 1934, the Vienna Convention on Diplomatic Relations 1961, the Vienna Convention on Consular Relations 1963, the Convention on Special missions 1969, Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character 1975, Convention on International Liability for Damage Caused by Space Objects, 1972
A regional convention specifically devoted to State immunity is the 1972 European Convention on State Immunity.
ConventionUN on Jurisdictional Immunities of States and Their Property 2004... The UN International Law Commission included the issue of jurisdictional immunities of states and their property on the agenda at its 1st session. In 1978, a Working Group was established, which by 1991 had prepared draft articles "On Jurisdictional Immunities of States and Their Property", consisting of 22 articles.
At its 43rd session in 1991, the UN ILC proposed convening an international conference with the aim of adopting a convention on the jurisdictional immunities of states and their property. Later, the draft articles were revised by several working groups specially created to finalize it.
For many years, in the framework of discussions in the International Law Commission and in the Sixth UN Committee, states could not come to a consensus on the text of an international convention on state immunity. This was primarily due to disagreements between adherents of a restrictive approach to state immunity and adherents of absolute state immunity (the former USSR, China, etc.). States that have already adopted their own legislation in the field of state immunity have sought to ensure that their legislation does not substantially contradict the new convention, so that later it does not have to be brought in line with international standards.
As a result of 27 years of work of the International Law Commission, the Sixth UN Committee and the Committee ad hoc was the adoption of the Convention on Jurisdictional Immunities of States and Their Property.
In 2003 the Committee ad hoc resumed work pursuant to General Assembly Resolution 58/74 in order to “formulate a preamble and final clauses with a view to finalizing the Convention”. The Committee reached agreement on the final version of the 1991 draft articles on jurisdictional immunities of states and their property. This text, together with annexes, was adopted by the UN General Assembly on December 2, 2004.
The Convention on Jurisdictional Immunities of States and Their Property consists of six parts and 33 articles.
Part I "Introduction" (Articles 1-4) defines the terms used in the text of the Convention, such as "state", "commercial transactions", "court", and also indicates those privileges and immunities that are not affected by this Convention , namely: privileges and immunities of diplomatic missions, consular offices, special missions, privileges and immunities of heads of state ratione personae(lat. in view of the circumstances relating to the person in question).
Part II "Basic Principles" (Art. Art. 5-9) contains general rule on the immunity of the state and its property and defines the cases in which the state is considered as having given consent to waive immunity.
Part III (Art. Art. 10-17) contains a list of cases in which the state does not enjoy immunity. These are commercial transactions, labor agreements, damage to health or property, property rights, intellectual and industrial property, state courts, etc. The Convention covers civil proceedings against one state in the courts of another state, but does not apply to criminal proceedings.
Part IV "State immunity from coercive measures in connection with the consideration of a case in court" (Articles 18-21) provides for state immunity from pre-trial and post-trial coercive measures, and also determines the list of categories of state property, which is considered state non-commercial property and has appropriate intended use (property used by diplomatic representations of the state, its consular offices, special missions, missions to international organizations and international conferences; property of a military nature; property of the central bank of the state; property that forms part of cultural heritage state, part of its archives; property forming part of exhibitions not for sale).
Parts V and VI are the final provisions of the Convention.
The Convention on Jurisdictional Immunities of States and Their Property has not yet entered into force, as it must be ratified by at least 30 States. To date, it has been signed by 28 states, ratified by 11 states. Russia signed the Convention on December 1, 2006 and was the 24th signatory state to the Convention.
1. The sources of the law of state immunity are: domestic (judicial practice, activities of government bodies and domestic legislation of states) and international bilateral treaties of states and multilateral conventions.
2. Domestic legislation of states in the field of state immunity is represented by special laws on state immunity and regulatory legal acts affecting some aspects of state immunity. In most states, the principle of immunity does not have a proper legal basis, and the existing rules on state immunity are scattered, often contradicting each other. Only a few states have adopted special legislation on state immunity (USA, England, Canada, Australia, South Africa, Singapore, Pakistan).
3. Some aspects of state immunity are regulated by bilateral international treaties.
4. Among multilateral international conventions on state immunity, the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 deserves the greatest attention.
5. The doctrine of modern international law reflects the existing in practice different approaches to the scale of state immunity - the concept of absolute immunity and the concept of limited immunity. The concept of absolute immunity recognizes immunity in relation to both public and private actions of the state, while the concept of limited immunity recognizes immunity only in relation to public actions of the state. Analysis of domestic and international practice in the field of state immunity testifies to the transition of most states to the position of limited immunity.
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