Roger O’Keefe & Christian J. Tams, The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary, Oxford, Oxford University Press 2013, pp. 465, £ 95

The law of state immunity has always rested on the dictates of municipal law and the judgments rendered by national courts. Its sources are particularly important for they reveal that although the subject matter of immunity is quintessentially international – from the point of view that it regulates the relations of states inter se – it has always developed by means other than a comprehensive multilateral treaty. And if custom is anything to go by, this has always been derived largely from the practice of domestic institutions, namely, immunity statutes, and local judgments. Of course, this is hardly surprising given that the first port of call as to the existence or absence of immunities in a particular case would have to be those courts charged with determining the issue at hand, unless of course the executive were to intervene, deeming the issue as not falling within the judicial remit.
However, what all this means is that the development of the concept of immunities, and its application for litigants in practice, does give rise to some, if not considerable, legal uncertainty. Even the very subject matter of this commentary, the 2004 UN Convention on Jurisdictional Immunities of States, is of recent import and not at all certain that it will become the blueprint for assessing immunities, let alone become widely ratified. In order to demonstrate the complexities involved, a recent string of cases that are still ongoing before the courts of England involved the question as to whether the hiring of domestic servants by a foreign diplomat amounts to a public act, even if the servant is hired for the personal needs of the diplomat and his or her family and is not an official member of the mission. The courts in England, largely following US precedent, have thus far held that the labour relationship between the diplomat and the domestic servant is not covered by immunity on the ground that it is for his or her own personal affairs and has nothing to do with the work of the diplomatic mission.¹xWokuri v. Kassam [2012] EWHC 105 (Ch). This is a very simplistic reading of the facts and of the concept of the mission, for if chief diplomats risked being sued by their domestic servants, no diplomat with children would ever go on mission or rent a large house; the diplomat would have to undertake every little chore and as a result the work of the mission would suffer. Certainly, this could not have been the intention, or rationale, underlying the law of diplomatic immunities, but the point I am trying to make is that the law is anything but straightforward.
The present book under review constitutes one of those rare exceptions that actually deconstructs the law of immunity, puts it into context, and rationalises it. The reader can go through a chapter and understand what the law is in a particular situation as well as distinguish relevant pitfalls and differences of opinion. This is important because the law of immunities is so complex that in most cases the reader of a relevant book or article is usually none the wiser as to the present status of the law, despite the fact that all the relevant case law has been aptly cited and explained. The editors have done well in not recruiting an army of contributors but have instead relied on a small, but distinguished, cohort of enthusiastic authors, and as a result there is a large degree of uniformity and coherency underlying the final product. This is a real commentary, in the sense that each provision of the 2004 Convention is set out as a distinct chapter, each organised around in a way that clearly describes historical evolution, travaux préparatoires, developments through the courts, etc. The reader, therefore, understands not only what the current law is but also how it came about as a result of consistent practice. Clearly, attention has been paid to detail, and the editors have done an excellent job in ensuring that each contributor flesh out the relevant principles by not falling into the trap of simply amassing citations that ultimately yield little, or no, visibility.
This book, and its analysis of the 2004 Convention, should set the standard for legal reform of statutes and orders dealing with the jurisdictional immunities of states in the domestic sphere. No doubt, states that ratify the convention and which do not already possess adequate statutes in place will have to transpose the convention into their domestic law, and they will have to do so effectively. The problem remains, however, that no matter how detailed the convention is, the commentary demonstrates that it is wrought with so many complexities that any drafter will still have to consult a commentary of this nature in order to clarify certain provisions. I have no doubt, therefore, that this book is the yardstick for any future discussion of the relevant law and that it will be indispensable to any lawyer, practitioner, or academic working in the field of jurisdictional immunities. Hats off to the editors and contributors for their brilliant work.

Ilias Bantekas
Brunel Law School

Noten

• 1 Wokuri v. Kassam [2012] EWHC 105 (Ch).