The State Immunity Controversy in International Law Private Suits Ag
The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals bef
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Ernest K. Bankas
The State Immunity Controversy in International Law Private Suits Against Sovereign States in Domestic Courts
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Ernest K. Bankas, PhD, SJD 3912 mitchell Court Sachse, Texas 75048 USA [email protected]
ISBN-10 ISBN-13
3-540-25695-4 Springer Berlin Heidelberg New York 978-3-540-25695-3 Springer Berlin Heidelberg New York
Library of Congress Control Number: 2005927488 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer-Verlag. Violations are liable for prosecution under the German Copyright Law. Springer is a part of Springer Science+Business Media springeronline.com ° Springer Berlin ´ Heidelberg 2005 Printed in Germany The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Hardcover-Design: Erich Kirchner, Heidelberg SPIN 11419204
64/3153-5 4 3 2 1 0 ± Printed on acid-free paper
Dedication
Dedicated to my Parents: Darling Dzah and Joscph S.K. Bankas - popularly known as "Shall Pass" - for their love, kindness and support Specially to my lovely wifc, Maurccn, and children, Krystle Mawuse Abra Bankas, Latasha Nukunya Ama Bankas; the twins, Alison Akofa Yawa and Alethea Akpene Yawa Bankas, and Joshua Kofi Tawiah Bankas - for thcir love, kindness and encouragement. I remain indebtcd to my wife for her encouragemcnt and paticnce through all these years. Hcr contribution to the writing of this book is immeasurable, for she always kept thc fort whilst I was away studying and conducting research at the University of Durham Faculty of Law, and the World Court (The Hague). A substantial part of the study was done at thc University of Durham, UK, Great Britain. Again, special thanks to my family and 1 shall forever be grateful. When the cock crows early tomorrow morning, be advised that Ernest Kwasi Bankas is still saying thank you. February 23, 2005
Preface
Prior to 1900 thc immunity of sovereign states from the judicial process and enforcement jurisdiction of municipal courts was absolute and this in the main ex hypothesi was derived from two important concepts, namely sovereignty and the equality of states. Sovereignty may be defined as the power to makc laws backed by all the coercive forces it cares to employ. This means that a sovereign state has what can be known as suprema potestas within its territorial boundaries. Jean Bodin was the first of writers to propose this idea of sovereignty, but in his exposition of this noti
