At present time, the only comprehensive multilateral convention on state immunity is the European Convention on State Immunity. The Convention was adopted by Council of Europe in 1972 with the aim to codify the rules of state immunity whereas many countries still followed to absolute doctrine of state immunity. Articles 1-15 contain main principles of restriction of state immunity with requirement of strict territorial nexus.
Article 4 provide commercial activity exception which states that "A Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum".
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But the main particularity of this Convention is provision of exception in tortious conduct. It is stated there in the Article 11 that: "A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred". According to this provision it is clear that jure imperii is not applicable anymore in tortious activity but the strict territorial nexus requirement shall be fulfilled.
The exclusion of state immunity privilege in tortious activity is provided in the United Nations Convention of Jurisdictional Immunities of States and their Property as well. However, this Convention will come into force after submission of thirtieth ratification instrument.
Other conventions on state immunity are very specific and relate to very narrow aspects of state immunity. Among such conventions there are, for example, the Brussels Convention on the Unification of State-owned Vessels (1926), International Convention on Civil liability for oil pollution damage (1969) and others.
On the basis of provided short overview of the current legal situation on state immunity in different legal systems the conclusion can be maid as following.
Adoption of legislative acts and moving away from governmental and private distinction in tortious activity make me think that common law states had more open-minded approach to state immunity. But, this distinction between the approaches of civil and common law states to restrictive doctrine cannot be essential over long time due to international conventions, which gradually establish overall united approach.
But it can be found one advantage in the absence of legislative acts in civil law states. It is namely that these states are not obliged to play in the frameworks of strict legislative acts. And that is why it gives to their courts more discretion in judgments.
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