The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position
Doctoral Thesis
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| Định dạng: | Dissertation |
| Ngôn ngữ: | Korean |
| Được phát hành: |
Hanyang University
2023
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| Những chủ đề: | |
| Truy cập trực tuyến: | https://scholar.dlu.edu.vn/thuvienso/handle/DLU123456789/116258 |
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| Thư viện lưu trữ: | Thư viện Trường Đại học Đà Lạt |
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oai:scholar.dlu.edu.vn:DLU123456789-116258 |
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Thư viện Trường Đại học Đà Lạt |
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Korean |
| topic |
Vietnam State Immunity Restrictive Theory of State Immunity Jurisdictional Immunity |
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Vietnam State Immunity Restrictive Theory of State Immunity Jurisdictional Immunity Nguyễn, Thị Cẩm Tú The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| description |
Doctoral Thesis |
| author2 |
최태현 |
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최태현 Nguyễn, Thị Cẩm Tú |
| format |
Dissertation |
| author |
Nguyễn, Thị Cẩm Tú |
| author_sort |
Nguyễn, Thị Cẩm Tú |
| title |
The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| title_short |
The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| title_full |
The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| title_fullStr |
The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| title_full_unstemmed |
The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position |
| title_sort |
scope and content of state immunity under international law : with focus on vietnam’s position |
| publisher |
Hanyang University |
| publishDate |
2023 |
| url |
https://scholar.dlu.edu.vn/thuvienso/handle/DLU123456789/116258 |
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1779408861404332032 |
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oai:scholar.dlu.edu.vn:DLU123456789-1162582023-10-05T16:57:37Z The Scope and Content of State Immunity under International Law : With Focus on Vietnam’s Position 국제법상 국가면제의 범위와 내용 : 베트남의 입장을 중심으로 Nguyễn, Thị Cẩm Tú 최태현 Vietnam State Immunity Restrictive Theory of State Immunity Jurisdictional Immunity Doctoral Thesis In today’s international society and establishing external political and economic relations, the state is also involved in legal connections with foreign individuals and corporations in the fields of civil, commercial, and labor. States, as sovereign entities, are entitled to immunity from proceedings in the domestic courts of foreign countries if they are involved in litigation by engaging in a legal relationship. In the 19th century, when the state’s exercise was limited to the public sector, it established the absolute theory of state immunity that the national court cannot exercise its jurisdiction without the express consent of the other state in light of the principle of sovereignty, independence, and sovereign equality, which are fundamental principles of international law. However, from the end of the 19th century, dynamic changes occurred in the state’s activities. The state became directly involved in economic activities that previously belonged to the private realm of the individual. Therefore, there is widespread awareness that the traditional theory of absolute immunity puts people who do business with foreign governments in a very disadvantageous position and brings narrow results out of equity, ultimately leading to the atrophy of international trade relations between countries. As this awareness spreads, many countries classify foreign countries exercise into sovereign acts and non-sovereign acts. And if these activities are still classified as sovereign acts, the foreign country has state immunity in the domestic courts of other countries. However, a new trend that does not grant immunity to the sovereign acts of the state has emerged, which is called the ‘restrictive theory of state immunity’. In general, it is similar to the absolute theory of state immunity, and even under the restrictive theory of state immunity, a lawsuit related to ‘real estate’ located in the national court is filed. The other one shall not benefit from state immunity when the foreign country waives immunity in the national court. And state immunity is also limited following the United Nations Convention on Immunity of Jurisdiction of States and Their Property; commercial transactions; employment contract; non-commercial torts; ownership, possession, and use of property; intellectual and industrial property; participation in companies or other collective bodies; ships owned or operated by the state; and even in the case of the effect of an arbitration agreement. Most countries are accepting the restrictive theory of state immunity. Continental European countries such as France and Germany have adopted the theory of restrictive immunity through precedents from the early 20th century. In the late 1970s, the British and American Commonwealth law countries abandoned their long-standing adherence to the absolute theory of state immunity, which had been adhered to until the mid-20th century. They adopted the restrictive theory of immunity through enacting the State Immunity Act in the late 1970s. It has had an impact on common law countries. In addition to the national legislation of each country, the content and scope of the restrictive theory of state immunity have been treated through several conventions, such as the European Convention on State Immunity and the United Nations Convention on Exemption from Jurisdiction of States and Their Property. Vietnam still supports the absolute theory of state immunity and opposes the restrictive theory of state immunity while many countries tend to adopt the latter these days. Since Vietnam, which asserts the absolute theory of state immunity, does not exercise jurisdiction over foreign countries in its courts, if Vietnam claims state immunity, i.e. immunity from jurisdiction, in a foreign court, these claims of state immunity are rejected because of the restrictive theory of state immunity and even Vietnam's state assets are confiscated in some cases. Even under these circumstances, Vietnamese individuals and companies that enter into civil relations with other countries will not be able to effectively protect their interests in Vietnamese courts. Thus, Vietnam needs to admit the restrictive theory of state immunity. Today, international trade activities are also expended increasingly, so each country can’t avoid the issues with the immunity of states and properties. Therefore, many countries have enacted legislation related to state immunity, providing a legal basis for the adoption of the restrictive theory of state immunity. Many researchers in Vietnam have also emphasized the need to transform the absolute theory of state immunity into restrictive theory, despite contrary to this doctrinal point of view, Vietnamese law does not directly and separately stipulate the overall content of state immunity, especially the content of the restrictive theory. The current jurisdictional immunity and compulsory execution immunity are mentioned in the ‘Ordinance on the privileges and immunities relating to diplomatic mission, consular posts and presentative offices of international organizations in Vietnam’ in 1993, the Civil Code in 2015, but the Civil Procedure Act in 2015 though the scope of the exemption is limited to the diplomatic field. That is, there is no state immunity law in Vietnam that can rely on when facing many cases regarding immunity of foreign countries and their properties. As a result, Vietnam will have to enact legislation on state immunity. If Vietnam enacts and enforces domestic laws on state immunity, domestic laws must also conform to the general practices and legislative examples of other countries and the general direction of regional and international multilateral treaties. Through this, it will be possible to properly prepare for the adoption and accession of the UN Convention on State Immunity henceforth, as well as actively participate in and contribute to the formation of customary international rules on the principle of restricted immunity. However, when accepting the restrictive theory of state immunity legislatively, the United States' Foreign Sovereignty Immunity Act (FSIA) and the United Kingdom's State Immunity Act (SIA) in domestic law and the European State Immunity Convention and the United Nations State Immunity Convention can be representative comparisons and reference cases in international law for specific standards, scope and contents of immunity. This will not only ensure Vietnam's legitimate interests but will also greatly contribute to bringing Vietnam's legal system closer to international legal standards. 2023-08-15T03:29:53Z 2023-08-15T03:29:53Z 2021 Dissertation https://scholar.dlu.edu.vn/thuvienso/handle/DLU123456789/116258 ko application/pdf Hanyang University |