United Nations Convention on Jurisdictional Immunities of
States and Their Property
The States Parties to the present Convention,
Considering that the jurisdictional immunities of States and their
property are generally accepted as a principle of customary international law,
Having in mind the principles of international law embodied in the
Charter of the United Nations,
Believing that an international convention on the jurisdictional
immunities of States and their property would enhance the rule of law and
legal certainty, particularly in dealings of States with natural or juridical
persons, and would contribute to the codification and development of
international law and the harmonization of practice in this area,
Taking into account developments in State practice with regard to the
jurisdictional immunities of States and their property,
Affirming that the rules of customary international law continue to
govern matters not regulated by the provisions of the present Convention,
Have agreed as follows:
Part I
Introduction
Article 1
Scope of the present Convention
The present Convention applies to the immunity of a State and its
property from the jurisdiction of the courts of another State.
Article 2
Use of terms
1. For the purposes of the present Convention:
(a) “court” means any organ of a State, however named, entitled to
exercise judicial functions;
(b) “State” means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political subdivisions of the
State, which are entitled to perform acts in the exercise of sovereign
authority, and are acting in that capacity;
– 2 –
(iii) agencies or instrumentalities of the State or other entities, to the
extent that they are entitled to perform and are actually performing acts
in the exercise of sovereign authority of the State;
(iv) representatives of the State acting in that capacity;
(c) “commercial transaction” means:
(i) any commercial contract or transaction for the sale of goods or
supply of services;
(ii) any contract for a loan or other transaction of a financial nature,
including any obligation of guarantee or of indemnity in respect of any
such loan or transaction;
(iii) any other contract or transaction of a commercial, industrial,
trading or professional nature, but not including a contract of
employment of persons.
2. In determining whether a contract or transaction is a “commercial
transaction” under paragraph 1 (c), reference should be made primarily to the
nature of the contract or transaction, but its purpose should also be taken into
account if the parties to the contract or transaction have so agreed, or if, in the
practice of the State of the forum, that purpose is relevant to determining the
non-commercial character of the contract or transaction.
3. The provisions of paragraphs 1 and 2 regarding the use of terms in the
present Convention are without prejudice to the use of those terms or to the
meanings which may be given to them in other international instruments or in
the internal law of any State.
Article 3
Privileges and immunities not affected by the present Convention
1. The present Convention is without prejudice to the privileges and
immunities enjoyed by a State under international law in relation to the
exercise of the functions of:
(a) its diplomatic missions, consular posts, special missions, missions
to international organizations or delegations to organs of international
organizations or to international conferences; and
(b) persons connected with them.
2. The present Convention is without prejudice to privileges and
immunities accorded under international law to heads of State ratione
personae.
3. The present Convention is without prejudice to the immunities enjoyed
by a State under international law with respect to aircraft or space objects
owned or operated by a State.
– 3 –
Article 4
Non-retroactivity of the present Convention
Without prejudice to the application of any rules set forth in the present
Convention to which jurisdictional immunities of States and their property are
subject under international law independently of the present Convention, the
present Convention shall not apply to any question of jurisdictional immunities
of States or their property arising in a proceeding instituted against a State
before a court of another State prior to the entry into force of the present
Convention for the States concerned.
Part II
General principles
Article 5
State immunity
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.
Article 6
Modalities for giving effect to State immunity
1. A State shall give effect to State immunity under article 5 by refraining
from exercising jurisdiction in a proceeding before its courts against another
State and to that end shall ensure that its courts determine on their own
initiative that the immunity of that other State under article 5 is respected.
2. A proceeding before a court of a State shall be considered to have been
instituted against another State if that other State:
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in
effect seeks to affect the property, rights, interests or activities of that other
State.
Article 7
Express consent to exercise of jurisdiction
1. A State cannot invoke immunity from jurisdiction in a proceeding before
a court of another State with regard to a matter or case if it has expressly
consented to the exercise of jurisdiction by the court with regard to the matter
or case:
(a) by international agreement;
(b) in a written contract; or
– 4 –
(c) by a declaration before the court or by a written communication
in a specific proceeding.
2. Agreement by a State for the application of the law of another State
shall not be interpreted as consent to the exercise of jurisdiction by the courts
of that other State.
Article 8
Effect of participation in a proceeding before a court
1. A State cannot invoke immunity from jurisdiction in a proceeding before
a court of another State if it has:
(a) itself instituted the proceeding; or
(b) intervened in the proceeding or taken any other step relating to
the merits. However, if the State satisfies the court that it could not have
acquired knowledge of facts on which a claim to immunity can be based until
after it took such a step, it can claim immunity based on those facts, provided
it does so at the earliest possible moment.
2. A State shall not be considered to have consented to the exercise of
jurisdiction by a court of another State if it intervenes in a proceeding or takes
any other step for the sole purpose of:
(a) invoking immunity; or
(b) asserting a right or interest in property at issue in the proceeding.
3. The appearance of a representative of a State before a court of another
State as a witness shall not be interpreted as consent by the former State to the
exercise of jurisdiction by the court.
4. Failure on the part of a State to enter an appearance in a proceeding
before a court of another State shall not be interpreted as consent by the former
State to the exercise of jurisdiction by the court.
Article 9
Counterclaims
1. A State instituting a proceeding before a court of another State cannot
invoke immunity from the jurisdiction of the court in respect of any
counterclaim arising out of the same legal relationship or facts as the principal
claim.
2. A State intervening to present a claim in a proceeding before a court of
another State cannot invoke immunity from the jurisdiction of the court in
respect of any counterclaim arising out of the same legal relationship or facts
as the claim presented by the State.
– 5 –
3. A State making a counterclaim in a proceeding instituted against it
before a court of another State cannot invoke immunity from the jurisdiction of
the court in respect of the principal claim.
Part III
Proceedings in which State immunity cannot be invoked
Article 10
Commercial transactions
1. If a State engages in a commercial transaction with a foreign natural or
juridical person and, by virtue of the applicable rules of private international
law, differences relating to the commercial transaction fall within the
jurisdiction of a court of another State, the State cannot invoke immunity from
that jurisdiction in a proceeding arising out of that commercial transaction.
2. Paragraph 1 does not apply:
(a) in the case of a commercial transaction between States; or
(b) if the parties to the commercial transaction have expressly agreed
otherwise.
3. Where a State enterprise or other entity established by a State which has
an independent legal personality and is capable of:
(a) suing or being sued; and
(b) acquiring, owning or possessing and disposing of property,
including property which that State has authorized it to operate or manage,
is involved in a proceeding which relates to a commercial transaction in which
that entity is engaged, the immunity from jurisdiction enjoyed by that State
shall not be affected.
Article 11
Contracts of employment
1. Unless otherwise agreed between the States concerned, a State cannot
invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to a contract of
employment between the State and an individual for work performed or to be
performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in
the exercise of governmental authority;
(b) the employee is:
– 6 –
(i) a diplomatic agent, as defined in the Vienna Convention on
Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on
Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an
international organization or of a special mission, or is recruited to
represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of
employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or
termination of employment of an individual and, as determined by the head of
State, the head of Government or the Minister for Foreign Affairs of the
employer State, such a proceeding would interfere with the security interests of
that State;
(e) the employee is a national of the employer State at the time when
the proceeding is instituted, unless this person has the permanent residence in
the State of the forum; or
(f) the employer State and the employee have otherwise agreed in
writing, subject to any considerations of public policy conferring on the courts
of the State of the forum exclusive jurisdiction by reason of the subject-matter
of the proceeding.
Article 12
Personal injuries and damage to property
Unless otherwise agreed between the States concerned, a State cannot
invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to pecuniary compensation
for death or injury to the person, or damage to or loss of tangible property,
caused by an act or omission which is alleged to be attributable to the State, if
the act or omission occurred in whole or in part in the territory of that other
State and if the author of the act or omission was present in that territory at the
time of the act or omission.
Article 13
Ownership, possession and use of property
Unless otherwise agreed between the States concerned, a State cannot
invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to the determination of:
– 7 –
(a) any right or interest of the State in, or its possession or use of, or
any obligation of the State arising out of its interest in, or its possession or use
of, immovable property situated in the State of the forum;
(b) any right or interest of the State in movable or immovable
property arising by way of succession, gift or bona vacantia; or
(c) any right or interest of the State in the administration of property,
such as trust property, the estate of a bankrupt or the property of a company in
the event of its winding up.
Article 14
Intellectual and industrial property
Unless otherwise agreed between the States concerned, a State cannot
invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to:
(a) the determination of any right of the State in a patent, industrial
design, trade name or business name, trademark, copyright or any other form
of intellectual or industrial property which enjoys a measure of legal
protection, even if provisional, in the State of the forum; or
(b) an alleged infringement by the State, in the territory of the State
of the forum, of a right of the nature mentioned in subparagraph (a) which
belongs to a third person and is protected in the State of the forum.
Article 15
Participation in companies or other collective bodies
1. A State cannot invoke immunity from jurisdiction before a court of
another State which is otherwise competent in a proceeding which relates to its
participation in a company or other collective body, whether incorporated or
unincorporated, being a proceeding concerning the relationship between the
State and the body or the other participants therein, provided that the body:
(a) has participants other than States or international organizations;
and
(b) is incorporated or constituted under the law of the State of the
forum or has its seat or principal place of business in that State.
2. A State can, however, invoke immunity from jurisdiction in such a
proceeding if the States concerned have so agreed or if the parties to the
dispute have so provided by an agreement in writing or if the instrument
establishing or regulating the body in question contains provisions to that
effect.
– 8 –
Article 16
Ships owned or operated by a State
1. Unless otherwise agreed between the States concerned, a State which
owns or operates a ship cannot invoke immunity from jurisdiction before a
court of another State which is otherwise competent in a proceeding which
relates to the operation of that ship if, at the time the cause of action arose, the
ship was used for other than government non-commercial purposes.
2. Paragraph 1 does not apply to warships, or naval auxiliaries, nor does it
apply to other vessels owned or operated by a State and used, for the time
being, only on government non-commercial service.
3. Unless otherwise agreed between the States concerned, a State cannot
invoke immunity from jurisdiction before a court of another State which is
otherwise competent in a proceeding which relates to the carriage of cargo on
board a ship owned or operated by that State if, at the time the cause of action
arose, the ship was used for other than government non-commercial purposes.
4. Paragraph 3 does not apply to any cargo carried on board the ships
referred to in paragraph 2, nor does it apply to any cargo owned by a State and
used or intended for use exclusively for government non-commercial purposes.
5. States may plead all measures of defence, prescription and limitation of
liability which are available to private ships and cargoes and their owners.
6. If in a proceeding there arises a question relating to the government and
non-commercial character of a ship owned or operated by a State or cargo
owned by a State, a certificate signed by a diplomatic representative or other
competent authority of that State and communicated to the court shall serve as
evidence of the character of that ship or cargo.
Article 17
Effect of an arbitration agreement
If a State enters into an agreement in writing with a foreign natural or
juridical person to submit to arbitration differences relating to a commercial
transaction, that State cannot invoke immunity from jurisdiction before a court
of another State which is otherwise competent in a proceeding which relates
to:
(a) the validity, interpretation or application of the arbitration
agreement;
(b) the arbitration procedure; or
(c) the confirmation or the setting aside of the award,
unless the arbitration agreement otherwise provides.
– 9 –
Part IV
State immunity from measures of constraint in connection with
proceedings before a court
Article 18
State immunity from pre-judgment measures of constraint
No pre-judgment measures of constraint, such as attachment or arrest,
against property of a State may be taken in connection with a proceeding
before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures
as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication
after a dispute between the parties has arisen; or
(b) the State has allocated or earmarked property for the satisfaction
of the claim which is the object of that proceeding.
Article 19
State immunity from post-judgment measures of constraint
No post-judgment measures of constraint, such as attachment, arrest or
execution, against property of a State may be taken in connection with a
proceeding before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures
as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication
after a dispute between the parties has arisen; or
(b) the State has allocated or earmarked property for the satisfaction
of the claim which is the object of that proceeding; or
(c) it has been established that the property is specifically in use or
intended for use by the State for other than government non-commercial
purposes and is in the territory of the State of the forum, provided that postjudgment
measures of constraint may only be taken against property that has a
connection with the entity against which the proceeding was directed.
– 10 –
Article 20
Effect of consent to jurisdiction to measures of constraint
Where consent to the measures of constraint is required under articles 18
and 19, consent to the exercise of jurisdiction under article 7 shall not imply
consent to the taking of measures of constraint.
Article 21
Specific categories of property
1. The following categories, in particular, of property of a State shall not
be considered as property specifically in use or intended for use by the State
for other than government non-commercial purposes under article 19,
subparagraph (c):
(a) property, including any bank account, which is used or intended
for use in the performance of the functions of the diplomatic mission of the
State or its consular posts, special missions, missions to international
organizations or delegations to organs of international organizations or to
international conferences;
(b) property of a military character or used or intended for use in the
performance of military functions;
(c) property of the central bank or other monetary authority of the
State;
(d) property forming part of the cultural heritage of the State or part
of its archives and not placed or intended to be placed on sale;
(e) property forming part of an exhibition of objects of scientific,
cultural or historical interest and not placed or intended to be placed on sale.
2. Paragraph 1 is without prejudice to article 18 and article 19,
subparagraphs (a) and (b).
Part V
Miscellaneous provisions
Article 22
Service of process
1. Service of process by writ or other document instituting a proceeding
against a State shall be effected:
(a) in accordance with any applicable international convention
binding on the State of the forum and the State concerned; or
– 11 –
(b) in accordance with any special arrangement for service between
the claimant and the State concerned, if not precluded by the law of the State
of the forum; or
(c) in the absence of such a convention or special arrangement:
(i) by transmission through diplomatic channels to the Ministry of
Foreign Affairs of the State concerned; or
(ii) by any other means accepted by the State concerned, if not
precluded by the law of the State of the forum.
2. Service of process referred to in paragraph 1 (c) (i) is deemed to have
been effected by receipt of the documents by the Ministry of Foreign Affairs.
3. These documents shall be accompanied, if necessary, by a translation
into the official language, or one of the official languages, of the State
concerned.
4. Any State that enters an appearance on the merits in a proceeding
instituted against it may not thereafter assert that service of process did not
comply with the provisions of paragraphs 1 and 3.
Article 23
Default judgment
1. A default judgment shall not be rendered against a State unless the court
has found that:
(a) the requirements laid down in article 22, paragraphs 1 and 3, have
been complied with;
(b) a period of not less than four months has expired from the date on
which the service of the writ or other document instituting a proceeding has
been effected or deemed to have been effected in accordance with article 22,
paragraphs 1 and 2; and
(c) the present Convention does not preclude it from exercising
jurisdiction.
2. A copy of any default judgment rendered against a State, accompanied if
necessary by a translation into the official language or one of the official
languages of the State concerned, shall be transmitted to it through one of the
means specified in article 22, paragraph 1, and in accordance with the
provisions of that paragraph.
3. The time-limit for applying to have a default judgment set aside shall
not be less than four months and shall begin to run from the date on which the
copy of the judgment is received or is deemed to have been received by the
State concerned.
– 12 –
Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of
another State enjoining it to perform or refrain from performing a specific act
or to produce any document or disclose any other information for the purposes
of a proceeding shall entail no consequences other than those which may result
from such conduct in relation to the merits of the case. In particular, no fine or
penalty shall be imposed on the State by reason of such failure or refusal.
2. A State shall not be required to provide any security, bond or deposit,
however described, to guarantee the payment of judicial costs or expenses in
any proceeding to which it is a respondent party before a court of another
State.
Part VI
Final clauses
Article 25
Annex
The annex to the present Convention forms an integral part of the
Convention.
Article 26
Other international agreements
Nothing in the present Convention shall affect the rights and obligations
of States Parties under existing international agreements which relate to
matters dealt with in the present Convention as between the parties to those
agreements.
Article 27
Settlement of disputes
1. States Parties shall endeavour to settle disputes concerning the
interpretation or application of the present Convention through negotiation.
2. Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which cannot be settled
through negotiation within six months shall, at the request of any of those
States Parties, be submitted to arbitration. If, six months after the date of the
request for arbitration, those States Parties are unable to agree on the
organization of the arbitration, any of those States Parties may refer the dispute
to the International Court of Justice by request in accordance with the Statute
of the Court.
– 13 –
3. Each State Party may, at the time of signature, ratification, acceptance or
approval of, or accession to, the present Convention, declare that it does not
consider itself bound by paragraph 2. The other States Parties shall not be
bound by paragraph 2 with respect to any State Party which has made such a
declaration.
4. Any State Party that has made a declaration in accordance with
paragraph 3 may at any time withdraw that declaration by notification to the
Secretary-General of the United Nations.
Article 28
Signature
The present Convention shall be open for signature by all States until
17 January 2007, at United Nations Headquarters, New York.
Article 29
Ratification, acceptance, approval or accession
1. The present Convention shall be subject to ratification, acceptance or
approval.
2. The present Convention shall remain open for accession by any State.
3. The instruments of ratification, acceptance, approval or accession shall
be deposited with the Secretary-General of the United Nations.
Article 30
Entry into force
1. The present Convention shall enter into force on the thirtieth day
following the date of deposit of the thirtieth instrument of ratification,
acceptance, approval or accession with the Secretary-General of the United
Nations.
2. For each State ratifying, accepting, approving or acceding to the present
Convention after the deposit of the thirtieth instrument of ratification,
acceptance, approval or accession, the Convention shall enter into force on the
thirtieth day after the deposit by such State of its instrument of ratification,
acceptance, approval or accession.
Article 31
Denunciation
1. Any State Party may denounce the present Convention by written
notification to the Secretary-General of the United Nations.
2. Denunciation shall take effect one year following the date on which
notification is received by the Secretary-General of the United Nations. The
present Convention shall, however, continue to apply to any question of
– 14 –
jurisdictional immunities of States or their property arising in a proceeding
instituted against a State before a court of another State prior to the date on
which the denunciation takes effect for any of the States concerned.
3. The denunciation shall not in any way affect the duty of any State Party
to fulfil any obligation embodied in the present Convention to which it would
be subject under international law independently of the present Convention.
Article 32
Depositary and notifications
1. The Secretary-General of the United Nations is designated the
depositary of the present Convention.
2. As depositary of the present Convention, the Secretary-General of the
United Nations shall inform all States of the following:
(a) signatures of the present Convention and the deposit of
instruments of ratification, acceptance, approval or accession or notifications
of denunciation, in accordance with articles 29 and 31;
(b) the date on which the present Convention will enter into force, in
accordance with article 30;
(c) any acts, notifications or communications relating to the present
Convention.
Article 33
Authentic texts
The Arabic, Chinese, English, French, Russian and Spanish texts of the
present Convention are equally authentic.
IN WITNESS WHEREOF, the undersigned, being duly authorized
thereto by their respective Governments, have signed this Convention opened
for signature at United Nations Headquarters in New York on 17 January 2005.
– 15 –
Annex to the Convention
Understandings with respect to certain provisions of the
Convention
The present annex is for the purpose of setting out understandings
relating to the provisions concerned.
With respect to article 10
The term “immunity” in article 10 is to be understood in the context of
the present Convention as a whole.
Article 10, paragraph 3, does not prejudge the question of “piercing the
corporate veil”, questions relating to a situation where a State entity has
deliberately misrepresented its financial position or subsequently reduced its
assets to avoid satisfying a claim, or other related issues.
With respect to article 11
The reference in article 11, paragraph 2 (d), to the “security interests” of
the employer State is intended primarily to address matters of national security
and the security of diplomatic missions and consular posts.
Under article 41 of the 1961 Vienna Convention on Diplomatic
Relations and article 55 of the 1963 Vienna Convention on Consular Relations,
all persons referred to in those articles have the duty to respect the laws and
regulations, including labour laws, of the host country. At the same time, under
article 38 of the 1961 Vienna Convention on Diplomatic Relations and article
71 of the 1963 Vienna Convention on Consular Relations, the receiving State
has a duty to exercise its jurisdiction in such a manner as not to interfere
unduly with the performance of the functions of the mission or the consular
post.
With respect to articles 13 and 14
The expression “determination” is used to refer not only to the
ascertainment or verification of the existence of the rights protected, but also
to the evaluation or assessment of the substance, including content, scope and
extent, of such rights.
With respect to article 17
The expression “commercial transaction” includes investment matters.
– 16 –
With respect to article 19
The expression “entity” in subparagraph (c) means the State as an
independent legal personality, a constituent unit of a federal State, a
subdivision of a State, an agency or instrumentality of a State or other entity,
which enjoys independent legal personality.
The words “property that has a connection with the entity” in
subparagraph (c) are to be understood as broader than ownership or
possession.
Article 19 does not prejudge the question of “piercing the corporate
veil”, questions relating to a situation where a State entity has deliberately
misrepresented its financial position or subsequently reduced its assets to avoid
satisfying a claim, or other related issues.