دانلود کتاب مناقشه مصونیت دولت در حقوق بین الملل

The application of restrictive immunity by the courts of western European countries, American and Canadian courts, however, trenchant has failed to provide a uniform solution to the state immunity controversy. This is so in view of the fact that it is difficult to subject the power of a sovereign to a law that lacks usus and opinio juris in a horizontal legal system, hence the problem cannot be resolved effectively by simply resigning only to the distinction between acts jure imperii and acts jure gestionis. There is the need, therefore, that the law is carefully managed since there is a considerable divergence on state practice in respect to state immunity and moreover, restrictive immunity is an unsettled legal proposition. A commercial transaction can easily be transformed into a sovereign act either through legislation or perhaps through an executive order, and it is difficult to come up with a sound approach in demarcating commercial activities from the public activities of states since, in reality, the public activities of states have become albeit intertwined with commercial activities of states. In this respect, the application of restrictive immunity remains patently problematic, coupled with the continuing problems of territorial jurisdiction and the quest by some states to take measures of constraint or enforcement action against state property. These snags have created a herculean task for judges in so far as states cannot be sued against their will, for consent is necessary for the settlement of disputes in international law. Hence, the best approach in resolving these problems respecting state immunity may be through a multilateral treaty regime (i.e. opinio obligationis conventionalis), or possibly through arbitration or the contextual approach.