Freedom With Their Exception: Jurisdiction and Immunity as Rule and Exception

Exceptions and Defences in International Law, Federica Paddeu and Lorand Bartels, eds, Oxford University Press, Forthcoming

26 Pages Posted: 14 Dec 2017

See all articles by Eleni Methymaki

Eleni Methymaki

School of law, University of Glasgow

Antonios Tzanakopoulos

University of Oxford - Faculty of Law

Date Written: December 13, 2017

Abstract

The relationship between the rules on state jurisdiction and sovereign immunity, as well as the rules of sovereign immunity between themselves, has been the subject of long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts are barred from exercising such jurisdiction over acts of another sovereign. This latter rule has its own exceptions, namely that a foreign state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.

Keywords: state jurisdiction, sovereign immunity, state practice, rule and exception, defences, exceptions and defences. consent, waiver, burden of proof, restrictive interpretation

Suggested Citation

Methymaki, Eleni and Tzanakopoulos, Antonios, Freedom With Their Exception: Jurisdiction and Immunity as Rule and Exception (December 13, 2017). Exceptions and Defences in International Law, Federica Paddeu and Lorand Bartels, eds, Oxford University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3087316

Eleni Methymaki

School of law, University of Glasgow ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

Antonios Tzanakopoulos (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/antonios-tzanakopoulos

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