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 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 –2– 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 –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 –4– 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 b otherwise in the case of a commercial transaction between States or if the parties to the commercial transaction have expressly agreed 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 –5– 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 –6– 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 – 10 – 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 –8– 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 – 15 – 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 – 10 – 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 – 11 – 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 – 12 – 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 – 13 – 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 – 14 – 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 – 15 – 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 – 16 –