The United Nations Convention on Jurisdictional Immunities of States and Their Property (hereinafter the Convention) originated as a project to harmonise and clarify the law on State immunity. It enshrines the restrictive doctrine of immunity, which is a distinction between acts performed in the exercise of sovereign power or acta de jure imperii (immune) and acts of a commercial or private law nature or acta de jure gestionis (non-immune).

The Convention follows the 1972 European Convention on State Immunity and domestic legislation of States like the United States (1976 Foreign Sovereign Immunities Act) and the United Kingdom (1978 State Immunity Act), by stating a general rule that States and their property benefit from immunity from jurisdiction of the courts of another State, and then setting out the exceptions to this rule, including waiver. Like those instruments, the Convention is restricted to immunity from the civil (not criminal) jurisdiction of foreign courts.

The Convention was adopted without a vote by the United Nations General Assembly on 2 December 2004 (resolution 59/38). As of April 2019, the Convention has 22 parties of the required 30 parties to enter into force under its Article 30. It has nonetheless proved to be influential on the development of the law of State immunity, and certain of its provisions are regarded as codifying customary international law (see below).

2. Significant developments in the negotiating history

The Convention was the culmination of years of work by the International Law Commission (ILC), the Sixth Committee of the General Assembly, and the Ad Hoc Committee on Jurisdictional Immunities of States and their Property established by General Assembly resolution 55/150 of 12 December 2000. Negotiations were difficult at times, but the decades of work on the Convention have been recognized by judges and academic commentators as evidence of where international consensus exists, and where it remains elusive, on certain issues.

The work on the Convention originated in the ILC in the late 1970s. In 1977, the General Assembly included the topic “Jurisdictional immunities of States and their property” in the ILC’s programme of work, and Sompong Sucharitkul (Thailand) was appointed as Special Rapporteur for the topic. In 1986, a draft text was adopted by the ILC on first reading. In 1987, Motoo Ogiso (Japan)took over as Special Rapporteur. In 1991, the revised Draft Articles on Jurisdictional Immunities of States and Their Property were adopted by the ILC on second reading and submitted to the General Assembly, with the recommendation that an international conference be convened to examine the ILC Draft Articles and to conclude a convention. It had a mixed reception. Outstanding substantive issues and the question of convening a conference to adopt the Convention were referred to an open-ended Working Group of the Sixth Committee, established by the General Assembly. In 1994, the General Assembly approved in principle the idea of convening a conference (resolution 49/61), but discussions also continued in the open-ended Working Group of the Sixth Committee.

The five substantive issues on which States were divided in the 1990s were:

(i)	How to define the concept of a State for the purposes of immunity;
(ii)	What the criteria are for determining the commercial character of a contract or transaction;
(iii)	The concept of a State enterprise or other entity in relation to commercial transactions;
(iv)	The nature and extent of an exception to State immunity for contracts of employment; and
(v)	The nature and extent of measures of constraint that can be taken against State property.

These issues were debated in the Working Group of the Sixth Committee, chaired by Carlos Calero-Rodrigues (Brazil) and subsequently by Gerhard Hafner (Austria).

In 1999, the topic was referred back to the ILC, which established a Working Group on Jurisdictional Immunities of States and Their Property that was also chaired by Gerhard Hafner and provided comments on the outstanding issues. The discussions, in light of the ILC’s comments, led to two more issues for consideration by the Sixth Committee:

(vi)	What form the outcome of the ILC’s work should take (e.g., convention, model law, guidelines); and
(vii)	Whether there is an exception to State immunity for violation of jus cogens norms.

It was considered that the question of an exception to immunity for violations of jus cogens norms was not ripe enough for codification. To further the work done, consolidate areas of agreement and resolve outstanding issues, the General Assembly decided in 2000 to establish the Ad Hoc Committee on Jurisdictional Immunities of States and their Property (resolution 55/150). In 2002, the Ad Hoc Committee reached compromise solutions on the outstanding issues and published a revised text. In 2003, the Ad Hoc Committee, working in informal consultative groups coordinated by Chusei Yamada (Japan) and Michael Bliss (Australia), resolved the outstanding issues. In 2004, the Ad Hoc Committee finalized the text. On the recommendation of the Sixth Committee, the General Assembly adopted this text as the Convention (resolution 59/38). After decades of work, the delicate balance to achieve consensus had been achieved through the interaction between the ILC, the Sixth Committee and the Ad Hoc Committee. It was not considered necessary to convene a treaty-making conference.

3. A summary of key provisions

The starting point of the Convention is article 5: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” The rest of the Convention can be seen as a means of defining the meaning of, and exceptions to, this principle.

The Convention is divided into five parts. In Part I (Introduction), article 2 sets out the use of terms, including the meaning of the terms “court”, “State”, “commercial transaction”, and the controversial interpretative provision in article 2(2) refers to both the nature and purpose of a “commercial transaction”. Article 3 clarifies that the Convention is without prejudice to the privileges and immunities enjoyed by diplomatic and other missions and persons connected with them, the privileges and immunities of heads of State ratione personae, and the immunities enjoyed by a State with respect to aircraft or space objects owned or operated by a State. Article 4 provides for the non-retroactivity of the Convention.

Part II (General Principles) sets out the rules relating to express waiver, participation in court proceedings by the foreign State, and counterclaims. The Convention follows the widespread practice of treating separately immunity from adjudication (Part III) and immunity from enforcement (Part IV).

Part III contains eight types of proceedings in which State immunity cannot be invoked. These exceptions are modeled on – but not identical to – the 1972 European Convention on State Immunity, the United States Foreign Sovereign Immunities Act and the United Kingdom State Immunity Act. The exceptions include: commercial transactions; employment contracts; personal injuries and damage to property; ownership, possession and use of property; intellectual and industrial property; participation in companies or other collective bodies; ships in commercial use; and arbitration agreements.

Part IV deals with immunity from measures of constraint in connection with proceedings before a court. It contains separate rules on pre-judgment (article 18) and post-judgment (article 19) measures of constraint. Article 21 lists five categories of State property immune from attachment, arrest, or execution.

Part V (Miscellaneous Provisions) addresses service of process (article 22), default judgment (article 23), failure to comply with a court order, and in particular, the exemption of a State from imposition of fine, penalty or security for costs (article 24). Part VI (Final Clauses) contains the standard provisions relating to signature (article 28), ratification (article 29), entry into force (article 30), denunciation (article 31), depositary and notifications (article 32), and authentic texts (article 33). Article 25 specifies that the annex, containing the understandings with respect to certain provisions of the Convention, is an integral part of the Convention. Article 26 states that nothing in the Convention shall affect the rights and obligations of States Parties under existing international agreements.

Article 27 contains a compromissory clause providing for settlement of disputes concerning the interpretation or application of the Convention by arbitration or referral to the International Court of Justice, along with an opting-out procedure at the time of signature, ratification or accession.

4. The influence of the instrument on subsequent legal developments, including
treaties and jurisprudence

Fifteen years after its adoption, the Convention is still eight ratifications short of the thirty needed for entry into force. States parties are mainly from western Europe and parts of eastern Europe and the Middle East. But the relatively low number of parties belies its influence as evidence of State practice and opinio juris on the law of State immunity. Certain of its provisions have been held by international and national courts to reflect customary international law. Even where a court may doubt the Convention’s customary status, reference to the Convention has become routine in proceedings involving issues of immunity.

The Convention’s provisions have been enacted as national legislation by States including Japan, Spain and Sweden. States may also enact provisions only in part, such as the 2016 French law that draws on the Convention’s Part IV provisions on enforcement measures. Russia, a signatory to the Convention, has a 2015 law that adopts the restrictive doctrine of immunity in a manner similar to the Convention.

However, China, also a signatory, has rejected the presumption that signing the Convention endorses the restrictive doctrine. The Office of the Commissioner of the Ministry for Foreign Affairs has explained in the context of litigation (Democratic Republic of the Congo and Others v. FG Hemisphere Associates LLC [2011] HKCFA 43):

China signed the Convention on 14 September 2005, to express China’s support of the … coordination efforts made by the international community. However, until now China has not yet ratified the Convention, and the Convention itself has not yet entered into force. Therefore, the Convention has no binding force on China, and moreover it cannot be the basis of assessing China’s principled position on relevant issues.

After signature of the Convention, the position of China in maintaining absolute immunity has not been changed, and has never applied or recognized the so-called principle or theory of “restrictive immunity.

The United Kingdom, another signatory but not party, has not made any attempt to modify its legislation on State immunity, but the courts have paid careful attention to the Convention. The general approach has been to examine the Convention on a provision-by-provision basis (including the travaux préparatoires) to assess whether it reflects customary international law. In 2006, Lord Bingham in Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and another (Secretary of State for Constitutional Affairs and another intervening) [2006] UKHL 26 (Jones v. Saudi Arabia) cited the Convention as evidence that there is no exception to State immunity from civil proceedings for violations of jus cogens norms such as torture. He observed that, “[d]espite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases, and the absence of a torture or jus cogens exception is wholly inimical to the claimants’ contention” (para. 26). Lord Hoffmann also found the Convention relevant, noting that “[i]t is the result of many years work by the International Law Commission and codifies the law of state immunity” (para. 47).

The New Zealand High Court, following Jones v. Saudi Arabia, observed that “the absence of a torture or jus cogens exception to state immunity in the United Nations Immunities Convention 2004 speaks powerfully against the plaintiffs’ argument. This Convention is a very recent expression of the consensus of nations on this topic” (Fang and Others v. Jiang and Others, 21 December 2006, para. 65).

In 2017, the United Kingdom Supreme Court in Belhaj and another v. Straw and others; Rahmatullah (No.1) v. Ministry of Defence and another [2017] UKSC 3 referred to the words “interests or activities” in article 6(2)(b) of the Convention. The question was whether these words extended the basis for the indirect impleading of a State beyond a State’s property and rights and, if so, whether this represented the “current consensus of nations” (para. 195 per Lord Sumption). Lord Mance observed that in Jones v. Saudi Arabia the question had been about the existence of an exception to immunity from civil proceedings for torture, which was “a fundamental question which the Convention, however embryonic, could be expected to cover” (para. 25). However, “[t]o attach equivalent relevance to the use in a Convention with no binding international status of the ambiguous terminology of article 6(2)(b) is to take Lord Bingham’s words out of context” (ibid). After analysing the travaux of article 6, the Court concluded that the concept of “interests” could not be carried so far as to cover “reputational or like disadvantage” to a State and indirect impleading needed some specifically legal effect on the State (paras. 26, 29 and 195).

In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Foreign and Commonwealth Affairs, [2017] UKSC 62, the United Kingdom Supreme Court considered the employment contract exception to immunity, which is worded differently in the UK Statute Immunity Act and the Convention. Lord Sumption observed, “[i]t is therefore necessary to distinguish between those provisions of the Convention which were essentially declaratory and those which were legislative in the sense that they sought to resolve differences rather than to recognise existing consensus” (para 32). He cautioned at “even where it is declaratory, it can never be definitive, if only in order to allow for the future development of state practice” (para 39). He found that Article 11 of the Convention did not yet represent customary international law (para 72).

In another case, the Judicial Committee of the Privy Council considered whether the Convention contained an “autonomous international concept of property” that could be applied to a case originating in Jersey: Boru Hatlari Ile Petrol Taşima AŞ and others v Tepe Insaat Sanayii AS, [2018] UKPC 31, para 17. After detailed submissions on the travaux, the Privy Council concluded that such a concept of property could not be deduced from the drafting negotiations (paras 24-27) and it applied a notion of “property” by reference to the relevant domestic law (para 17).

The Dutch Supreme Court has applied the three exceptions to immunity of a foreign State’s assets listed in article 19 of the Convention, even though the Netherlands has neither signed nor ratified the Convention: Netherlands v. Servaas, 14 October 2016, Hoge Raad.

The European Court of Human Rights (ECtHR) has been more willing to embrace the Convention as an expression of customary international law, in particular article 11 on the employment contract exception to State immunity. The ECtHR has held that the Convention (or its specific provisions) reflect customary international la

(i)	Has not objected to the Convention’s adoption: Cudak v. Lithuania, Application no. 15869/02 (ECtHR Grand Chamber, 23 March 2010), paras. 66-67; Naku v. Lithuania and Sweden, Application no. 26126/07 (ECtHR Fourth Section, 8 November 2016), para. 60;
(ii)	Has not objected to the adoption of a specific rule in the ILC Draft Articles: Wallishauser v. Austria, Application no. 156/04 (ECtHR First Section, 17 July 2012), para. 69;
(iii)	Signed the Convention: Oleynikov v. Russia, Application no. 36703/04 (ECtHR First Section, 14 March 2013), para. 67; or
(iv)	Was in the process of ratifying the Convention: Sabeh El Leil v. France, Application no. 34869/05 (ECtHR Grand Chamber, 29 June 2011), para. 58.

According to the ECtHR, a State’s participation in the negotiation or adoption of the Convention makes it “possible to affirm that [a draft article] applies to the respondent state under customary international law” (Cudak, para. 67). In the Oleykinov judgment, the Court held that Russia appeared to have accepted restrictive immunity as a principle of customary international law, even prior to its signature of the Convention (paras. 67-68).

The International Court of Justice, in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment, ICJ Reports 2012, p. 99, took a more circumspect approach to the Convention as a reflection of customary international law. The ILC work, negotiations, signing, ratification and application of the Convention may constitute evidence of State practice and opinio juris (para. 55):

In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over foreign States.

The International Court of Justice considered articles 12 (personal injuries and damage to property) and 19 (immunity from post-judgment measures of constraint) of the Convention, while carefully noting the provisions of the Convention are “relevant only in so far as their provisions and the process of their adoption and implementation shed light on the content of customary international law” (para. 66).

The Convention’s influence is not dependent on entry into force. International and national courts have been treating it as a useful, but not always definitive, starting point for their analysis of the law on State immunity. The belief that the Convention would have a harmonising effect on law and practice (preambular para. 3 of the Convention) is thus more realistic than the slow rate of ratifications suggests.

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At its first session, in 1949, the International Law Commission selected the subject of jurisdictional immunities of States and their property as one of the topics for codification without, however, including it in the list of topics to which it gave priority. At its twenty-ninth session, in 1977, the Commission recommended the topic “Jurisdictional immunities of States and their property” for selection in the near future for active consideration, bearing in mind its day-to-day practical importance as well as its suitability for codification and progressive development.

The General Assembly, in resolution 32/151 of 19 December 1977, invited the Commission, at an appropriate time and in the light of progress made on other topics on its agenda, to commence work on the topic of jurisdictional immunities of States and their property.

At its thirtieth session, in 1978, the Commission set up a Working Group to consider the question of the future work of the Commission on the topic and to report thereon to the Commission. The Working Group submitted to the Commission a report (A/CN.4/L.279/Rev.1) that dealt, inter alia, with general aspects of the topic and contained a number of recommendations. The Commission took note of the report of the Working Group and, on the basis of the recommendations contained therein, decided to begin its consideration of the topic “Jurisdictional immunities of States and their property”. It also appointed Mr. Sompong Sucharitkul as Special Rapporteur for the topic and invited him to prepare a preliminary report at an early juncture for consideration by the Commission. The Commission, further, requested the Secretary-General to invite Governments of Member States to submit relevant materials on the topic, including national legislation, decisions of national tribunals and diplomatic and official correspondence and requested the Secretariat to prepare working papers and materials on the topic as the need arose and as requested by the Commission or the Special Rapporteur (A/CN.4/SER.A/1978/Add.l (Part 2), paras. 179, 180 and 188 to 190).

At its thirty-first session, in 1979, the Commission had before it a preliminary report on the topic submitted by the Special Rapporteur, Mr. Sucharitkul (A/CN.4/323). During the discussion in the Commission, a consensus emerged to the effect that for the immediate future the Special Rapporteur should continue his study, concentrating on general principles and thus confining the areas of initial interest to the substantive contents and constitutive elements of the general rules of jurisdictional immunities of States. It was furthermore agreed, in terms of priorities to be accorded in the treatment of the topic, that the Special Rapporteur should continue his work on the immunities of States from jurisdiction, leaving asid for the time being the question of immunity from execution of judgment.

The Commission began the first reading of the draft articles at its thirty-second session, in 1980, which was concluded at its thirty-eighth session, in 1986. At the thirty-eighth session, the Commission transmitted the draft articles adopted on first reading through the Secretary-General to Governments for comments and observations in accordance with articles 16 and 21 of its Statute. The Sixth Committee discussed the draft articles during its thirty-sixth (1981), thirty-seventh (1982), thirty-eighth (1983), thirty-ninth (1984), fortieth (1985), forty-first (1986) sessions.

The General Assembly, in resolutions 41/81 of 3 December 1986 and 42/156 of 7 December 1987, inter alia, urged Governments to give full attention to the request of the Commission for comments and observations on the draft articles adopted on first reading by the Commission.

The Commission began the second reading of the draft articles based on the three reports of the new Special Rapporteur, Mr. Motoo Ogiso, at its forty-first session, in 1989. In his preliminary report (A/CN.4/415), the Special Rapporteur analysed some of the comments and observations of Governments and proposed to revise or merge some of the draft articles based on those comments. In his second report (A/CN.4/422), the Special Rapporteur gave further consideration to some of the draft articles on the basis of the written comments and observations of Governments and his analysis of relevant treaties, laws and State practice, and proposed certain revisions, additions or deletions complementary to those contained in his preliminary report. Responding to a request from some members of the Commission, the Special Rapporteur also included a brief review of the recent development of general State practice concerning State immunity. In his third report (A/CN.4/431), the Special Rapporteur reviewed once again the entire set of draft articles and suggested certain reformulations, taking into account the views expressed by members of the Commission at its forty-first session, in 1989, as well as by Governments in their written comments and in the Sixth Committee of the General Assembly at its forty-fourth session. In 1990, at its forty-fifth session, the Sixth Committee members commented further on the draft articles contained in the third report of the Special Rapporteur.

In undertaking the second reading of the draft articles, at its forty-first session, in 1989, the Commission agreed with the Special Rapporteur that it should avoid entering yet again into a doctrinal debate on the general principles of State immunity, which had been extensively debated in the Commission and on which the views of the Commission remained divided; the Commission should instead concentrate its discussion on individual articles, so as to arrive at a consensus as to what kind of activities of the State should, or should not, enjoy immunity from jurisdiction of another State. This, in the view of the Commission, was the only pragmatic way of preparing a convention which would command wide support of the international community. The Commission also noted that the law of State jurisdictional immunity was in a state of flux as some States were in the process of amending their basic laws or had done so recently, and thus it was essential that the draft articles be given the opportunity to reflect such Government practice, and, moreover, to leave room for further development of the law of jurisdictional immunity of States (A/CN.4/SER.A/1989/Add.l (Part 2), paras. 406 and 407).

At its forty-third session, in 1991, the Commission adopted the final text of twenty-two draft articles on the jurisdictional immunities of States and their property, with commentaries (A/CN.4/SER.A/1991/Add.l (Part 2), paras. 23 and 28). At the forty-sixth session of the Sixth Committee (1991), States expressed their general support for the draft articles. In accordance with article 23 of its Statute, the Commission submitted the draft articles to the General Assembly, together with a recommendation that the Assembly convene an international conference of plenipotentiaries to examine the draft articles and to conclude a convention on the subject (A/CN.4/SER.A/1991/Add.l (Part 2), para. 25).

As regards the question of the settlement of disputes, the Commission was of the view that this could be dealt with by the proposed international conference, if the conference considered that a legal mechanism on the settlement of disputes should be provided in connection with the draft articles (A/CN.4/SER.A/1991/Add.l (Part 2), para. 26).

The General Assembly, by its resolution 46/55 of 9 December 1991, invited States to submit their written comments and observations on the draft articles, and decided to establish at its forty-seventh session an open-ended working group of the Sixth Committee to examine, in the light of the written comments of Governments, as well as views expressed in debates at the forty-sixth session of the Assembly: (a) issues of substance arising out of the draft articles, in order to facilitate a successful conclusion of a convention through the promotion of general agreement; and (b) the question of the convening of an international conference, to be held in 1994 or subsequently, to conclude a convention on jurisdictional immunities of States and their property.

The Working Group began its work at the forty-seventh session of the General Assembly (A/C.6/47/L.10) and resumed it, in accordance with General Assembly decision 47/414 of 25 November 1992, at the forty-eighth session (A/C.6/48/L.4). The reports of the Working Group were discussed in the Sixth Committee at its forty-seventh and forty-eighth sessions. By its decision 48/413 of 9 December 1993, the General Assembly decided that consultations should be held in the framework of the Sixth Committee at its forty-ninth session, to continue consideration of the substantive issues with respect to which  the identification and attenuation of differences was desirable in order to facilitate the successful conclusion of a convention through general agreement. The General Assembly also decided that, at its forty-ninth session, in the light of the progress thus far achieved and of the expected results of the consultations, it would give full consideration to the recommendation of the International Law Commission that an international conference of plenipotentiaries be convened, to examine the draft articles on the jurisdictional immunities of States and their property and to conclude a convention on the subject.

At the forty-ninth session of the General Assembly, in 1994, the Sixth Committee, in accordance with General Assembly decision 48/413, decided to convene informal consultations. The consultations were held at six meetings, from 27 September to 3 October 1994. At the same session, the Chair of the informal consultations introduced a document (A/C.6/49/L.2) containing conclusions he had drawn from such consultations (Report of the Sixth Committee on the Convention on Jurisdictional Immunities of States and their Property, A/49/744, paras. 3 to 7).

By its resolution 49/61 of 9 December 1994, the General Assembly accepted the above-cited recommendation of the International Law Commission, invited States to submit to the Secretary-General their comments on the conclusions of the Chair of the informal consultations held pursuant to General Assembly decision 48/413, and on the reports of the Working Group established under General Assembly resolution 46/55 and decision 47/414, and decided to resume consideration, at its fifty-second session, in 1997, of the issues of substance, in the light of the reports mentioned above and the comments submitted by States thereon, and to determine, at its fifty-second or fifty-third session, the arrangements for the conference, including the date and place, due consideration being given to ensuring the widest possible agreement at the conference. It further decided to include in the provisional agenda of its fifty-second session the item entitled “Convention on jurisdictional immunities of States and their property”.

The item was considered at the fifty-second and fifty-third sessions of the General Assembly, in 1997 and 1998, respectively. At the fifty-second session of the Sixth Committee (1997), States commented on the suitability of convening a diplomatic conference. By its resolution 52/151 of 15 December 1997, the General Assembly, inter alia, decided to consider the item again at its fifty-third session with a view to establishing a working group at its fifty-fourth session, taking into account the comments submitted by States in accordance with resolution 49/61. At the fifty-third session of the Sixth Committee, in 1998, States expressed their views on the elaboration of an international convention on the topic and recommended the establishment of a working group (A/53/629). By its resolution 53/98 of 8 December 1998, acting on the recommendation of the Sixth Committee, the General Assembly decided to establish at its fifty-fourth session, in 1999, an open-ended working group of the Sixth Committee to consider outstanding substantive issues related to the draft articles taking into account, inter alia, recent developments in State practice and legislation as well as the comments submitted by States on the topic. It also invited the International Law Commission to present any preliminary comments that it might have regarding outstanding substantive issues related to the draft articles in the light of the results of the informal consultations held in the Sixth Committee, in 1994, pursuant to General Assembly decision 48/413.

At its fifty-first session, in 1999, the Commission established a Working Group on Jurisdictional Immunities of States and Their Property in accordance with General Assembly resolution 53/98. The Working Group concentrated its work on the five main issues identified in the conclusions of the Chair of the informal consultations held in the Sixth Committee, in 1994, namely: (1) the concept of a State for purposes of immunity, (2) the criteria for determining the commercial character of a contract or transaction; (3) the concept of a State enterprise or other State entity in relation to commercial transactions; (4) contracts of employment; and (5) measures of constraint against State property. The Working Group also considered the question of the existence or non-existence of immunity in the case of violation by a State of jus cogens norms of international law, which was identified as an issue that might be considered in the light of recent State practice. In its report to the Commission (A/CN.4/SER.A/1999/Add.l (Part 2), Annex), the Working Group made a number of suggestions regarding possible ways of solving the five issues. The Commission took note of the report of the Working Group and adopted the suggestions contained therein.

At the fifty-fourth session of the General Assembly, in 1999, the open-ended Working Group of the Sixth Committee established under General Assembly resolution 53/98 considered the same five outstanding substantive issues as well as the possible form of the outcome of the work on the topic. It also considered the question identified by the Working Group of the Commission on the existence or non-existence of immunity in the case of violation by a State of jus cogens norms (A/C.6/54/L.12). Pursuant to General Assembly resolution 54/101 of 9 December 1999 (A/C.6/55/L.12), the Working Group of the Sixth Committee continued its consideration of the future form of, and outstanding substantive issues related to, the draft articles, at the fifty-fifth session of the General Assembly. As a result of these discussions, the Chair prepared a number of texts on the five outstanding issues as a possible basis for further discussions on the topic (A/C.6/55/L.12).

By its resolution 55/150 of 12 December 2000, the General Assembly, having considered the reports of the Working Group of the Sixth Committee, decided to establish an Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, open to all States Members of the United Nations and to States members of the specialized agencies, with the mandate to further the work done, consolidate areas of agreement and resolve outstanding issues with a view to elaborating a generally acceptable instrument based on the draft articles, and also on the discussions of the Working Group of the Sixth Committee and their results. By its resolution 56/78 of 12 December 2001, the General Assembly decided that the Ad Hoc Committee should meet in February 2002, and that it should report to the General Assembly at its fifty-seventh session on the outcome of its work.

The Ad Hoc Committee on Jurisdictional Immunities of States and Their Property proceeded with its work in a Working Group of the Whole in two stages by discussing first, the five outstanding substantive issues and, second, the remainder of the draft articles with a view to identifying and resolving any further issues arising from the text (A/57/22). The Working Group of the Whole made significant progress on the five substantive issues by reducing the number of outstanding matters and narrowing the divergent views with respect to the remaining matters. The Working Group of the Whole decided to reflect the remaining divergent views on certain draft articles in the revised text of the draft articles contained in its report. The Ad Hoc Committee emphasized the importance of elaborating in a timely manner a generally acceptable instrument and urged States to make every effort to resolve the remaining outstanding issues in the interest of arriving at an agreement (A/57/22, paras. 8 to 13).

After considering the report of the Ad Hoc Committee at its fifty-seventh session, in 2002, the General Assembly adopted resolution 57/16 of 19 November 2002 in which, noting that few issues remained outstanding and stressing the importance of uniformity and clarity in the law applicable to jurisdictional immunities of States and their property, decided that the Ad Hoc Committee should be reconvened in February 2003 and requested the Ad Hoc Committee to report to the General Assembly at its fifty-eighth session on the outcome of its work.

In 2003, the Ad Hoc Committee proceeded with the substantive discussion of the outstanding issues in a Working Group of the Whole. The Working Group of the Whole established two informal consultative groups. It discussed and resolved all of the outstanding issues. The Ad Hoc Committee adopted its report (A/58/22) containing the text of draft articles (A/58/22, Annex I), together with understandings with respect to draft articles 10 (Commercial transactions), 11 (Contracts of employment), 13 (Ownership, possession and use of property), 14 (Intellectual and industrial property), 17 (Effect of an arbitration agreement) and 19 (as renumbered, previously article 18) (State immunity from post-judgement measures of constraint) as well as a general understanding that the draft articles did not cover criminal proceedings (A/58/22, Annex II). The Ad Hoc Committee recommended that the General Assembly take a decision on the form of the draft articles and noted that, if the General Assembly decided to adopt the draft articles as a convention, the draft articles would need a preamble and final clauses, including a general saving provision concerning the relationship between the articles and other international agreements relating to the same subject (A/58/22, para.12). At the fifty-eighth session of the Sixth Committee (2003), noting the broad support for the conclusion of a convention on jurisdictional immunities of States and their property, the Sixth Committee recommended that the Ad Hoc Committee be reconvened with a view to completing such a convention (A/58/512).

The General Assembly, in resolution 58/74 of 9 December 2003, decided to reconvene the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property with the mandate to formulate a preamble and final clauses, with a view to completing a convention on jurisdictional immunities of States and their property. The Ad Hoc Committee held its third session from 1 to 5 March 2004 and agreed on a preamble and final clauses for a draft Convention on jurisdictional immunities and their property, as well as the chapeau for the understandings with respect to certain provisions of the draft Convention. The Ad Hoc Committee further endorsed the recommendation of the Working Group of the Whole that the general understanding that the draft convention did not apply to criminal proceedings should be reflected in an appropriate place, such as in a General Assembly resolution. The Ad Hoc Committee accordingly adopted its report containing the text of a draft United Nations Convention on Jurisdictional Immunities of States and Their Property and recommended its adoption by the General Assembly (A/59/22, paras. 13 to 14). At its fifty-ninth session (2004), the Sixth Committee recommended the adoption of the Convention (A/59/508), with minor drafting corrections proposed by the Chair at the Ad Hoc Committee (A/C.6/59/SR.13, para 34).

The General Assembly, in resolution 59/38 of 2 December 2004, agreed with the general understanding reached in the Ad Hoc Committee that the Convention did not cover criminal proceedings and adopted the United Nations Convention on Jurisdictional Immunities of States and Their Property.

The Convention consists of a preamble together with 33 articles divided into six parts (Introduction; General principles; Proceedings in which State immunity cannot be invoked; State immunity from measures of constraint in connection with proceedings before a court; Miscellaneous provisions; and Final clauses). A number of understandings relating to specific provisions of the Convention are laid down in an annex which forms an integral part thereof. Such understandings exist in addition to the general understanding, reflected in the operative part of General Assembly resolution 59/38, that the Convention does not cover criminal proceedings.

Yearbook of the International Law Commission 1949, vol. I (A/CN.4/SER.A/1949)

Yearbook of the International Law Commission 1977, vol. II, Part Two (A/CN.4/SER.A/1977/Add.l (Part 2))

General Assembly resolution 32/151 of 19 December 1977(Report of the International Law Commission)

Report of the Working Group on jurisdictional immunities of States and their property (1978) (A/CN.4/L.279/Rev.1)

Report of the International Law Commission on the work of its thirtieth session, 8 May to 28 July 1978 (A/33/10, reproduced in Yearbook of the International Law Commission 1978, vol. II, Part Two (A/CN.4/SER.A/1978/Add.l (Part 2))) 

General Assembly resolution 33/139 of 19 December 1978 (Report of the International Law Commission)

Preliminary report on the topic of jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1979) (A/CN.4/323)

Report of the International Law Commission on the work of its thirty-first session, 14 May to 3 August 1979 (A/34/10, reproduced in Yearbook of the International Law Commission 1979, vol. II, Part Two (A/CN.4/SER.A/1979/Add.l (Part 2)))

Second report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1980) (A/CN.4/331 and Add.l)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Texts adopted by the Drafting Committee: articles 1 and 6 and titles of parts 1 and 2 of the draft (1980) (A/CN.4/L.317)

Report of the International Law Commission on the work of its thirty-second session, 5 May to 25 July 1980 (A/35/10, reproduced in Yearbook of the International Law Commission 1980, vol. II, Part Two (A/CN.4/SER.A/1980/Add.l (Part 2)))

Third report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1981) (A/CN.4/340 and Add.l)

Comments by Governments, Jurisdictional immunities of States and their property - Information and materials submitted by Governments (1981) (A/CN.4/343, Add.1, Add.2, Add.3 and Add.4)

Report of the International Law Commission on the work of its thirty-third session, 4 May to 24 July 1981 (A/36/10, reproduced in Yearbook of the International Law Commission 1981, vol. II(2) (A/CN.4/SER.A/1981/Add.1 (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 36 and 40 to 54 of the thirty-sixth regular session, held, respectively, on 30 October and from 4 to 19 November 1981 (A/C.6/36/SR.36, A/C.6/36/SR.40, A/C.6/36/SR.41, A/C.6/36/SR.42, A/C.6/36/SR.43, A/C.6/36/SR.44, A/C.6/36/SR.45, A/C.6/36/SR.46, A/C.6/36/SR.47, A/C.6/36/SR.48, A/C.6/36/SR.49, A/C.6/36/SR.50, A/C.6/36/SR.51, A/C.6/36/SR.52, A/C.6/36/SR.53, A/C.6/36/SR.54)

Fourth report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1982) (A/CN.4/357)

Report of the Drafting Committee, Texts adopted by the Drafting Committee: article 1, article 2, para. 1 (a), and articles 7 to 9 (1982) (A/CN.4/L.342)

Report of the International Law Commission on the work of its thirty-fourth session, 3 May to 23 July 1982 (A/37/10, reproduced in Yearbook of the International Law Commission 1982, vol. II, Part Two (A/CN.4/SER.A/1982/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 37 to 41 and 44 to 52 of the thirty-seventh regular session, held, respectively, from 4 to 22 November 1982 (A/C.6/37/SR.37, A/C.6/37/SR.38, A/C.6/37/SR.39, A/C.6/37/SR.40, A/C.6/37/SR.41, A/C.6/37/SR.44, A/C.6/37/SR.45, A/C.6/37/SR.46, A/C.6/37/SR.47, A/C.6/37/SR.48, A/C.6/37/SR.49, A/C.6/37/SR.50, A/C.6/37/SR.51, A/C.6/37/SR.52)

Fifth report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1983) (A/CN.4/363 and Add.1)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Texts adopted by the Drafting Committee: articles 10, 12, 2, para. 1 (g), 3, para.2, and 15 (1983) (A/CN.4/L.364)

Report of the International Law Commission on the work of its thirty-fifth session, 3 May to 22 July 1983 (A/38/10, reproduced in Yearbook of the International Law Commission 1983, vol. II, Part Two (A/CN.4/SER.A/1983/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 34, 36 to 48, 50 and 54 of the thirty-eighth regular session, held, respectively, on 4, 8 to 22 and 25 November 1983 (A/C.6/38/SR.34, A/C.6/38/SR.36, A/C.6/38/SR.37, A/C.6/38/SR.38, A/C.6/38/SR.39, A/C.6/38/SR.40, A/C.6/38/SR.41, A/C.6/38/SR.42, A/C.6/38/SR.43, A/C.6/38/SR.44, A/C.6/38/SR.45, A/C.6/38/SR.46, A/C.6/38/SR.47, A/C.6/38/SR.48, A/C.6/38/SR.50, A/C.6/38/SR.54)

Sixth report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1984) (A/CN.4/376 and Add.1 and 2)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of states and their property. Texts adopted by the Drafting Committee: articles 13, 14, 16, 17 and 18 (1984) (A/CN.4/L.379)

Report of the International Law Commission on the work of its thirty-sixth session, 7 May to 27 July 1984 (A/39/10, reproduced in Yearbook of the International Law Commission 1984, vol. II, Part Two (A/CN.4/SER.A/1984/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 33 to 46 of the thirty-ninth regular session, held, respectively, from 1 to 14 November 1984 (A/C.6/39/SR.33, A/C.6/39/SR.34, A/C.6/39/SR.35, A/C.6/39/SR.36, A/C.6/39/SR.37, A/C.6/39/SR.38, A/C.6/39/SR.39, A/C.6/39/SR.40, A/C.6/39/SR.41, A/C.6/39/SR.42, A/C.6/39/SR.43, A/C.6/39/SR.44, A/C.6/39/SR.45, A/C.6/39/SR.46)

Seventh report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1985) (A/CN.4/388)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Texts adopted by the Drafting Committee: articles 19 and 20 (1985) (A/CN.4/L.397)

Report of the International Law Commission on the work of its thirty-seventh session, 6 May to 26 July 1985 (A/40/10, reproduced in Yearbook of the International Law Commission 1985, vol. II, Part Two (A/CN.4/SER.A/1985/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 23 to 36 of the fortieth regular session, held, respectively, from 28 October to 12 November 1985 (A/C.6/40/SR.23, A/C.6/40/SR.24, A/C.6/40/SR.25, A/C.6/40/SR.26, A/C.6/40/SR.27, A/C.6/40/SR.28, A/C.6/40/SR.29, A/C.6/40/SR.30, A/C.6/40/SR.31, A/C.6/40/SR.32, A/C.6/40/SR.33, A/C.6/40/SR.34, A/C.6/40/SR.35, A/C.6/40/SR.36)

Eighth report on jurisdictional immunities of States and their property, by Mr. Sompong Sucharitkul, Special Rapporteur (1986) (A/CN.4/396)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Titles and texts adopted by the Drafting Committee: titles of parts II and III of the draft; articles 2 to 6 and 20 to 28 (1986) (A/CN.4/L.399)

Report of the International Law Commission on the work of its thirty-eighth session, 5 May to 11 July 1986 (A/41/10, reproduced in Yearbook of the International Law Commission 1986, vol. II, Part Two (A/CN.4/SER.A/1986/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meeting nos. 27 to 34, 36 to 44 and 51 of the forty-first regular session, held, respectively, on 29 October and from 13 to 24 November 1986 (A/C.6/41/SR.27, A/C.6/41/SR.28, A/C.6/41/SR.29, A/C.6/41/SR.30, A/C.6/41/SR.31, A/C.6/41/SR.32, A/C.6/41/SR.33, A/C.6/41/SR.34, A/C.6/41/SR.36, A/C.6/41/SR.37, A/C.6/41/SR.38, A/C.6/41/SR.39, A/C.6/41/SR.40, A/C.6/41/SR.41, A/C.6/41/SR.42, A/C.6/41/SR.43, A/C.6/41/SR.44, A/C.6/41/SR.51)

General Assembly resolution 41/81 of 3 December 1986 (Report of the International Law Commission)

Report of the International Law Commission on the work of its thirty-ninth session, 4 May to 27 July 1987 (A/42/10, reproduced in Yearbook of the International Law Commission 1987, vol. II, Part Two (A/CN.4/SER.A/1987/Add.l (Part 2)))

General Assembly resolution 42/156 of 7 December 1987 (Report of the International Law Commission)

Comments and observations received from Governments (1988) (A/CN.4/410 and Add.1-5)

Preliminary report on jurisdictional immunities of States and their property, by Mr. Motoo Ogiso, Special Rapporteur (1988) (A/CN.4/415)

Report of the International Law Commission on the work of its fortieth session, 9 May to 29 July 1988 (A/43/10, reproduced in Yearbook of the International Law Commission 1988, vol. II, Part Two (A/CN.4/SER.A/1988/Add.l (Part 2)))

Second report on jurisdictional immunities of States and their property, by Mr. Motoo Ogiso, Special Rapporteur (1989) (A/CN.4/422 and Add.l)

Report of the International Law Commission on the work of its forty-first session, 2 May to 21 July 1989 (A/44/10, reproduced in Yearbook of the International Law Commission 1989, vol. II, Part Two (A/CN.4/SER.A/1989/Add.l (Part 2))

Third report on jurisdictional immunities of States and their property, by Mr. Motoo Ogiso, Special Rapporteur (1990) (A/CN.4/431)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Titles and texts adopted by the Drafting Committee on second reading: articles 1 to 10 and 12 to 16 (1990) (A/CN.4/L.444)

Report of the International Law Commission on the work of its forty-second session, 1 May to 20 July 1990 (A/45/10, reproduced in Yearbook of the International Law Commission 1990, vol. II, Part Two (A/CN.4/SER.A/1990/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meetings no. 23 to 30 of the forty-fifth regular session, held, respectively, from 29 to 31 October and 1 to 5 and 9 to 13 November 1990 (A/C.6/45/SR.23, A/C.6/45/SR.24, A/C.6/45/SR.25, A/C.6/45/SR.26, A/C.6/45/SR.27, A/C.6/45/SR.28, A/C.6/45/SR.29, A/C.6/45/SR.30, A/C.6/45/SR.36, A/C.6/45/SR.37, A/C.6/45/SR.38, A/C.6/45/SR.39)

Report of the Drafting Committee, Draft articles on jurisdictional immunities of States and their property. Titles and texts adopted by the Drafting Committee on second reading: articles 1 to 23 (1991) (A/CN.4/L.457)

Report of the International Law Commission on the work of its forty-third session, 29 April to 19 July 1991 (A/46/10, reproduced in Yearbook of the International Law Commission 1991, vol. II, Part Two (A/CN.4/SER.A/1991/Add.l (Part 2)))

Sixth Committee of the General Assembly, Summary records of meetings no. 22 to 25, 27 and 30 to 37 of the forty-sixth regular session, held, respectively, from 28 to 30 October and 1 and 6 to 13 November 1991 (A/C.6/46/SR.22, A/C.6/46/SR.23, A/C.6/46/SR.24, A/C.6/46/SR.25, A/C.6/46/SR.27, A/C.6/46/SR.30, A/C.6/46/SR.31, A/C.6/46/SR.32, A/C.6/46/SR.33, A/C.6/46/SR.34, A/C.6/46/SR.35, A/C.6/46/SR.36, A/C.6/46/SR.37)

General Assembly resolution 46/55 of 9 December 1991 (Consideration of the draft articles on jurisdictional immunities of States and their property)

Report of the open-ended working group of the Sixth Committee established under General Assembly resolution 46/55 of 9 December 1991 (A/C.6/47/L.10, 3 November 1992)

Sixth Committee of the General Assembly, Summary records of meetings no. 7 and 32 of the forty-seventh regular session, held, respectively, on 28 September and 10 November 1992 (A/C.6/47/SR.7, A/C.6/47/SR.32)

General Assembly decision 47/414 of 25 November 1992 (Convention on jurisdictional immunities of States and their property)

Report of the open-ended working group of the Sixth Committee established under General Assembly resolution 47/414 of 25 November 1992 (A/C.6/48/L.4, 11 November 1993)

Sixth Committee of the General Assembly, Summary records of meeting no. 29 of the forty-eighth regular session, held on 15 November 1993 (A/C.6/48/SR.29)

General Assembly decision 48/413 of 9 December 1993 (Convention on jurisdictional immunities of States and their property)

Informal consultations held pursuant to General Assembly decision 48/413 (A/C.6/49/L.2, 4 October 1994)

Sixth Committee of the General Assembly, Summary records of meetings no. 7, 32, 33, 37, 38, 40 and 41 of the forty-ninth regular session, held, respectively, on 6 October and 11, 14, 17, 18, 25 and 29 November 1994 (A/C.6/49/SR.7, A/C.6/49/SR.32, A/C.6/49/SR.33, A/C.6/49/SR.37, A/C.6/49/SR.38, A/C.6/49/SR.40 and A/C.6/49/SR.41)

Report of the Sixth Committee, “Convention on jurisdictional immunities of States and their property” (A/49/744, 2 December 1994)

General Assembly resolution 49/61 of 9 December 1994 (Convention on jurisdictional immunities of States and their property)

General Assembly resolution 52/151 of 15 December 1997 (Convention on jurisdictional immunities of States and their property)

Sixth Committee of the General Assembly, Summary records of meetings no. 23 and 35 of the fifty-third regular session, held, respectively, on 9 and 24 November 1998 (A/C.6/53/SR.23, A/C.6/53/SR.35)

Report of the Sixth Committee, “Convention on jurisdictional immunities of States and their property” (A/53/629, 24 November 1998)

General Assembly resolution 53/98 of 8 December 1998 (Convention on jurisdictional immunities of States and their property)

Report of the Working Group on jurisdictional immunities of States and their property (1999) (A/CN.4/L.576, reproduced in Yearbook of the International Law Commission 1999, vol. II, Part Two, annex (A/CN.4/SER.A/1999/Add.l (Part 2)))

Report of the International Law Commission on the work of its fifty-first session, 3 May to 23 July 1999 (A/54/10, reproduced in Yearbook of the International Law Commission 1999, vol. II, Part Two (A/CN.4/SER.A/1999/Add.l (Part 2))

Report of the open-ended working group of the Sixth Committee established under General Assembly resolution 53/98 of 8 December 1998 (A/C.6/54/L.12, 12 November 1999)

General Assembly resolution 54/101 of 9 December 1999 (Convention on jurisdictional immunities of States and their property)

Report of the open-ended working group of the Sixth Committee established under General Assembly resolution 53/98 of 8 December 1998 (A/C.6/55/L.12, 10 November 2000)

General Assembly resolution 55/150 of 12 December 2000 (Convention on jurisdictional immunities of States and their property)

General Assembly resolution 56/78 of 12 December 2001 (Convention on jurisdictional immunities of States and their property)

Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, 4 to 15 February 2002 (A/57/22)

General Assembly resolution 57/16 of 19 November 2002 (Convention on jurisdictional immunities of States and their property)

Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, 24 to 28 February 2003 (A/58/22)

Sixth Committee of the General Assembly, Summary records of meetings no. 12, 13, 20 and 21 of the fifty-eighth regular session, held, respectively, on 21 and 23 October and 3 and 4 November 2003 (A/C.6/58/SR.12, A/C.6/58/SR.13, A/C.6/58/SR.20, A/C.6/58/SR.21)

Report of the Sixth Committee, “Convention on jurisdictional immunities of States and their property” (A/58/512, 4 November 2003)

General Assembly resolution 58/74 of 9 December 2003 (Convention on jurisdictional immunities of States and their property)

Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, 1 to 5 March 2004 (A/59/22)

Sixth Committee of the General Assembly, Summary records of meetings no. 13, 14, 21 and 25 of the fifty-ninth regular session, held, respectively, on 25 and 26 October and 5 and 9 November 2004 (A/C.6/59/SR.13, A/C.6/59/SR.14, A/C.6/59/SR.21, A/C.6/59/SR.25)

Report of the Sixth Committee, “Convention on jurisdictional immunities of States and their property” (A/59/508, 30 November 2004)

General Assembly resolution 59/38 of 2 December 2004 (United Nations Convention on Jurisdictional Immunities of States and Their Property)