Declaration on Jurisdictional Immunities of State Owned Cultural Property

At the 45^th meeting of the CAHDI (Strasbourg, 25-26 March 2013), the delegation of the Czech Republic, supported by the delegation of Austria, presented an initiative aimed at elaborating a Declaration in support of the recognition of the customary nature of the relevant provisions of the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) in order to guarantee the immunity of State cultural property on loan. The Declaration on Jurisdictional Immunities of State Owned Cultural Property, presented at the 46^th meeting of the CAHDI in September 2013, has been elaborated as a legally non-binding document expressing a common understanding on opinio juris on the basic rule that certain kind of State property (cultural property on exhibition) enjoyed jurisdictional immunity.

This Declaration was jointly signed by the Minister of Foreign Affairs of the Czech Republic and the Federal Minister for European and International Affairs of Austria in Brussels on 18 November 2013 and opened for signature by other States, members and non-members of the Council of Europe. To date, the Declaration has been signed by the Ministers of Foreign Affairs of 20 States, members and non-members of the Council of Europe. The CAHDI Secretariat performs the functions of depositary of the Declaration.

United Nations Convention on Jurisdictional Immunities of States and their Property

At its 3^rd meeting (Graz, 16-17 March 1992), the CAHDI initiated a follow-up of the Draft Articles on Jurisdictional Immunities of States and their Property drawn up by the International Law Commission (ILC) and, in particular, the relevant activities of the Sixth Committee of the UN General Assembly.

Since its 29^th meeting (Strasbourg, 17-18 March 2005) and following the adoption by the UN General Assembly of the United Nations Convention on Jurisdictional Immunities of States and their Property in December 2004, the CAHDI has monitored the ratification and signature of the Convention by CAHDI member and observer States.

Two informal consultations of the States parties to the European Convention on State Immunity were held in the context of the 31^st and 32^nd meeting of the CAHDI (Strasbourg, 23-24 March 2006 and Athens, 13-14 September 2006) and under the aegis of it. Those consultations were aimed at making an exchange of views on the relationship between the United Nations Convention on the Jurisdictional Immunities of States and their Properties of 2004 and the European Convention on State Immunity of 1972 (ETS No. 74) as well as the future of the latter. The report of the second consultation is attached to the report of the 32nd meeting of the CAHDI.

Furthermore, following the Report by the Secretary General on the Review of Council of Europe Conventions, the CAHDI at its 50^th meeting (Strasbourg, 24-25 September 2015) examined the European Convention on State Immunity (ETS No. 74) as well as its Additional Protocol (ETS No. 74A). The CAHDI agreed that the European Convention could be regarded as a source of customary international law. In this regard the number of important judgments issued by national jurisdictions, the European Court of Human Rights and the International Court of Justice recognising that the European Convention represents customary law was underlined. However, considering the existence of the United Nations Convention on Jurisdictional Immunities of States and their Property (the “UN Convention”) which is not in force yet, the CAHDI agreed that a reflection should be engaged on the relationship between both Conventions once the UN Convention enters into force for the States Parties to both Conventions. In this respect, Article 33 of the European Convention and Article 26 of the UN Convention governing the relationship between both conventions should be examined in detail.

Council of Europe Pilot Project regarding State Immunities

The Council of Europe Pilot Project regarding State Immunities led to the CAHDI publication “State Practice Regarding State Immunities” edited by Gerhard Hafner, Marcelo G. Kohen and Susan Breau (2006, ISBN-13 9789004150737, xxviii, 1043 pp.)

This project was launched at the CAHDI’s 21^st meeting (Strasbourg, 6-7 March 2001) where the Committee began studying State legal practice under the "Pilot Project of the Council of Europe on State Practice regarding State Immunities".  The aim of the activity was to compile the most relevant judicial decisions regarding the immunities of States and their property in order to take stock of the current situation and state practice. At the 22^nd meeting (Strasbourg, 11-12 September 2001), delegations were invited to appoint a national co-ordinator in each State to collect data on their practice.

At its 26^th meeting (Strasbourg, 18-19 September 2003), the CAHDI asked the British Institute of International and Comparative Law, the Centre for International Law of Vienna University and the Geneva Graduate Institute of International Studies to prepare an analytical study of the contributions submitted by Council of Europe member and observer States.

At the 27^th meeting (Strasbourg, 18-19 March 2004), Ms Susan Breau from the British Institute of International and Comparative Law and Mr Marcelo G Kohen and Mr Saba Rangel do Carmo from the Graduate Institute of International Studies held an exchange of views with members on the method employed and the progress made with the preparation of the analytical report.

The final analytical report was presented by Mr Gerhard Hafner at the 30^th meeting (Strasbourg, 19-20 September 2005).

The study was published shortly before the CAHDI's 32^nd meeting (Athens, 13-14 September 2006) under the title State Practice Regarding State Immunities as mentioned above.

At its 30^th meeting (Strasbourg, 19-20 September 2005), the CAHDI expressed the wish to be able to update the information gathered on an on-going basis within the pilot project framework and create a monitoring mechanism making it possible to identify and examine new developments in this area. This resulted in the setting up of the database, which was presented at the 31^st meeting (Strasbourg, 23-24 March 2006). This database was updated in 2016 to facilitate the contribution process and to facilitate the access of the CAHDI members and the public at large to the information, in a more intuitive way thus allowing, in fine a broader dissemination of the work of the Committee.

This database contains documentation provided by States and international organisations on their practice (e.g. with regard to relevant legislation and jurisprudence) regarding:

• Immunity of State;
• Immunity of State agents and representatives;
• Immunity of Heads of State, Heads of Government and Ministers of Foreign Affairs;
• Immunity of diplomatic and consular missions;
• Immunity of international organisations;
• Immunity of agents and representatives of international organisations.

Following the publication of the Pilot Project study, the CAHDI decided to keep the issue of State immunities on its meeting agendas and asked members to report on the latest developments in their states in this area and update their existing contributions.  At each meeting, delegations give details of cases pending before their courts or international courts regarding state immunities and of any amendments to their legislation.  This activity is now covered by the CAHDI's terms of reference, which require it to "continue to update and improve databases managed by the committee related to “Immunities of States and international organisations"".

Debts of diplomatic missions

At its 9^th meeting (Strasbourg, 21-22 March 1995), the CAHDI agreed to set up a working party to study in depth the specific question of the debts of embassies.  The working party drew up a draft recommendation on the subject, which the CAHDI adopted at its 13^th meeting (Strasbourg, 4-5 March 1997).  This led to the adoption of Recommendation No. R (97) 10 on debts of diplomatic missions, permanent missions, and diplomatic missions with "double accreditation by the Committee of Ministers at the 595^th meeting of the Ministers' Deputies on 12 June 1997 .