Autore: Marongiu Buonaiuti, Fabrizio
Titolo: Rinuncia all'immunità dello Stato estero dalle misure coercitive e tutela del diritto di accesso alla giustizia in alcune pronunce recenti della Cour de cassation francese
Periodico: Diritti umani e diritto internazionale
Anno: 2013 - Volume: 7 - Fascicolo: 3 - Pagina iniziale: 615 - Pagina finale: 642

The French Supreme Court in three recent judgments of 28 March 2013 has interpreted restrictivelythe rules of general international law concerning waiver of State immunity from measures ofconstraint. Assuming that those rules were to be considered as mirrored by the provisions of theUnited Nations Convention on Jurisdictional Immunities of States and Their Property adopted on2 December 2004, which is not yet in force, and providing a particularly narrow reading of the relevantrules which is not supported by a consistent State practice, the Cour de cassation considered ageneral waiver of immunity from execution, as contained in contracts for the issue of Argentinebonds subscribed by private investors, as inapplicable in respect of property of a foreign State to beused for governmental purposes, absent a specific mention of such property within the waiverclause. In extending to any category of State property to be used for governmental purposes a rulewhich is generally observed only in respect of specific categories of property, such as property pertainingto diplomatic or consular missions and military assets, the French Supreme Court undulyextended the scope of State immunity from measures of constraint, thereby facing the risk of havingFrance being held liable for a violation of the right of access to a court, as guaranteed by Article6, par. 1, European Convention of Human Rights. Pursuant to the consistent case law of the EuropeanCourt of Human Rights, such a right, which extends to post-judgment enforcement measuresand up to a certain extent can be considered likely to extend to pre-judgment measures of constraintas well, may suffer limitations which, as concerns State immunity, are to be considered asproportionate only insofar as they reflect the existing rules of customary international law.




SICI: 1971-7105(2013)7:3<615:RADSED>2.0.ZU;2-O
Testo completo: http://www.mulino.it/download/article/10.12829/75252
Testo completo alternativo: http://www.mulino.it/doi/10.12829/75252

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