International order is founded on the idea that all States are sovereign and equal under the law. As a consequence, a State cannot be subject to the procedures or judgements of the courts or tribunals of another State. Although this principle of jurisdictional immunity has long been recognised in international law, the scope of immunities has been a contentious issue.
The United Nations Convention on Jurisdictional Immunities of States and Their Property meets the need to establish a global regime in an area that is essential for the good functioning of international society. This regime of universally applicable State immunities will enhance legal certainty. Switzerland, as a host-state to many international conferences and organisations, has a particular interest in a strong legal framework in this field because of the large presence of State representatives on its territory.
The Convention codifies the principle of restrictive immunity, which was adopted by the Swiss Federal Supreme Court a long time ago. This approach makes the distinction between activities of a commercial nature, for which a State cannot invoke immunity from jurisdiction, and activities performed in the exercise of its public functions, for which State immunity is upheld. It follows that the Convention is essentially in harmony with Swiss practice in the area of the jurisdictional immunities of States. The entry into force of the Convention does however mean that minor legislative amendments will be necessary in procedural matters.
The Convention will also affect the practice of Swiss courts in the area of immunity from enforcement measures. Under the regime of the Convention, the property of States will not be liable to seizure prior to a judgement without the express consent of the State concerned. In contrast, following a judgement, the property of States will be liable to seizure with the exception of certain categories of property, in particular property intended for use in public service, the property of a foreign central bank, or property which forms part of the cultural heritage of a State.
The Convention will only enter into force following the deposit of the thirtieth instrument of ratification with the Secretary-General of the United Nations. Switzerland is the ninth State to deposit its instrument of ratification.
For further information:
Jürg Lindenmann, Vice-director of the Directorate of International Law, tel. +41 31 324 55 99
Address for enquiries:
Tel.: (+41) 031 322 31 53
Fax: (+41) 031 324 90 47