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Part I General Concepts, 3 The Plea of State Immunity Distinguished from Act of State and Non-Justiciability

Hazel Fox, Philippa Webb

From: The Law of State Immunity (Revised and Updated 3rd Edition)

Hazel Fox, QC, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 22 May 2024

Act of state doctrine — Immunity from jurisdiction, ratione materiae — Immunity from jurisdiction, states — Immunity from jurisdiction, waiver — Non-justiciability — Sovereignty — Customary international law — Peremptory norms / ius cogens — Separation of powers — Jurisdiction of states, domestic — Jurisdiction of states, enforcement

This chapter distinguishes the plea of State immunity from the related but different concepts of act of State and non-justiciability, focusing on the approaches taken in the UK and the US. While the doctrines of act of State and non-justiciability will normally work in the same direction as the plea of State immunity to prevent examination of the validity of a foreign State's acts, practice shows that in proceedings between private parties the court may set aside its usual respect for other States' jurisdiction where the acts of the foreign State constitute a fundamental breach of international human rights or other clearly established international law, whereas it will show hesitation in a direct suit to rule against the foreign State defendant.

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