联合国国家及其财产管辖豁免公约中英对照

United Nations Convention on Jurisdictional Immunities of

States and Their Property

The States Parties to the present Convention

,

Considering

that the jurisdictional immunities of States and their

property are generally accepted as a principle of customary international law,

Having in mind

the principles of international law embodied in the

Charter of the United Nations,

Believing

that an international convention on the jurisdictional

immunities of States and their property would enhance the rule of law and

legal certainty, particularly in dealings of States with natural or juridical

persons, and would contribute to the codification and development of

international law and the harmonization of practice in this area,

Taking into account

developments in State practice with regard to the

jurisdictional immunities of States and their property,

Affirming

that the rules of customary international law continue to

govern matters not regulated by the provisions of the present Convention,

Have agreed as follows

:

Part I

Introduction

Article 1

Scope of the present Convention

The present Convention applies to the immunity of a State and its

property from the jurisdiction of the courts of another State.

Article 2

Use of terms

1. For the purposes of the present Convention:

(a) “court” means any organ of a State, however named, entitled to

exercise judicial functions;

(b) “State” means:

(i) the State and its various organs of government;

(ii) constituent units of a federal State or political subdivisions of the

State, which are entitled to perform acts in the exercise of sovereign

authority, and are acting in that capacity;

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(iii) agencies or instrumentalities of the State or other entities, to the

extent that they are entitled to perform and are actually performing acts

in the exercise of sovereign authority of the State;

(iv) representatives of the State acting in that capacity;

(c) “commercial transaction” means:

(i) any commercial contract or transaction for the sale of goods or

supply of services;

(ii) any contract for a loan or other transaction of a financial nature,

including any obligation of guarantee or of indemnity in respect of any

such loan or transaction;

(iii) any other contract or transaction of a commercial, industrial,

trading or professional nature, but not including a contract of

employment of persons.

2. In determining whether a contract or transaction is a “commercial

transaction” under paragraph 1 (c), reference should be made pri

marily to the

nature of the contract or transaction, but its purpose should also be taken into

account if the parties to the contract or transaction have so agreed, or if, in the

practice of the State of the forum, that purpose is relevant to determining the

non-commercial character of the contract or transaction.

3. The provisions of paragraphs 1 and 2 regarding the use of terms in the

present Convention are without prejudice to the use of those terms or to the

meanings which may be given to them in other international instruments or in

the internal law of any State.

Article 3

Privileges and immunities not affected by the present Convention

1. The present Convention is without prejudice to the privileges and

immunities enjoyed by a State under international law in relation to the

exercise of the functions of:

(a) its diplomatic missions, consular posts, special missions, missions

to international organizations or delegations to organs of international

organizations or to international conferences; and

(b) persons connected with them.

2. The present Convention is without prejudice to privileges and

immunities accorded under international law to heads of State

ratione

personae

.

3. The present Convention is without prejudice to the immunities enjoyed

by a State under international law with respect to aircraft or space objects

owned or operated by a State.

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Article 4

Non-retroactivity of the present Convention

Without prejudice to the application of any rules set forth in the present

Convention to which jurisdictional immunities of States and their property are

subject under international law independently of the present Convention, the

present Convention shall not apply to any question of jurisdictional immunities

of States or their property arising in a proceeding instituted against a State

before a court of another State prior to the entry into force of the present

Convention for the States concerned.

Part II

General principles

Article 5

State immunity

A State enjoys immunity, in respect of itself and its property, from the

jurisdiction of the courts of another State subject to the provisions of the

present Convention.

Article 6

Modalities for giving effect to State immunity

1. A State shall give effect to State immunity under article 5 by refraining

from exercising jurisdiction in a proceeding before its courts against another

State and to that end shall ensure that its courts determine on their own

initiative that the immunity of that other State under article 5 is respected.

2. A proceeding before a court of a State shall be considered to have been

instituted against another State if that other State:

(a) is named as a party to that proceeding; or

(b) is not named as a party to the proceeding but the proceeding in

effect seeks to affect the property, rights, interests or activities of that other

State.

Article 7

Express consent to exercise of jurisdiction

1. A State cannot invoke immunity from jurisdiction in a proceeding before

a court of another State with regard to a matter or case if it has expressly

consented to the exercise of jurisdiction by the court with regard to the matter

or case:

(a) by international agreement;

(b) in a written contract; or

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(c) by a declaration before the court or by a written communication

in a specific proceeding.

2. Agreement by a State for the application of the law of another State

shall not be interpreted as consent to the exercise of jurisdiction by the courts

of that other State.

Article 8

Effect of participation in a proceeding before a court

1. A State cannot invoke immunity from jurisdiction in a proceeding before

a court of another State if it has:

(a) itself instituted the proceeding; or

(b) intervened in the proceeding or taken any other step relating to

the merits. However, if the State satisfies the court that it could not have

acquired knowledge of facts on which a claim to immunity can be based until

after it took such a step, it can claim immunity based on those facts, provided

it does so at the earliest possible moment.

2. A State shall not be considered to have consented to the exercise of

jurisdiction by a court of another State if it intervenes in a proceeding or takes

any other step for the sole purpose of:

(a) invoking immunity; or

(b) asserting a right or interest in property at issue in the proceeding.

3. The appearance of a representative of a State before a court of another

State as a witness shall not be interpreted as consent by the former State to the

exercise of jurisdiction by the court.

4. Failure on the part of a State to enter an appearance in a proceeding

before a court of another State shall not be interpreted as consent by the former

State to the exercise of jurisdiction by the court.

Article 9

Counterclaims

1. A State instituting a proceeding before a court of another State cannot

invoke immunity from the jurisdiction of the court in respect of any

counterclaim arising out of the same legal relationship or facts as the principal

claim.

2. A State intervening to present a claim in a proceeding before a court of

another State cannot invoke immunity from the jurisdiction of the court in

respect of any counterclaim arising out of the same legal relationship or facts

as the claim presented by the State.

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3. A State making a counterclaim in a proceeding instituted against it

before a court of another State cannot invoke immunity from the jurisdiction of

the court in respect of the principal claim.

Part III

Proceedings in which State immunity cannot be invoked

Article 10

Commercial transactions

1. If a State engages in a commercial transaction with a foreign natural or

juridical person and, by virtue of the applicable rules of private international

law, differences relating to the commercial transaction fall within the

jurisdiction of a court of another State, the State cannot invoke immunity from

that jurisdiction in a proceeding arising out of that commercial transaction.

2. Paragraph 1 does not apply:

(a) in the case of a commercial transaction between States; or

(b) if the parties to the commercial transaction have expressly agreed

otherwise.

3. Where a State enterprise or other entity established by a State which has

an independent legal personality and is capable of:

(a) suing or being sued; and

(b) acquiring, owning or possessing and disposing of property,

including property which that State has authorized it to operate or manage,

is involved in a proceeding which relates to a commercial transaction in which

that entity is engaged, the immunity from jurisdiction enjoyed by that State

shall not be affected.

Article 11

Contracts of employment

1. Unless otherwise agreed between the States concerned, a State cannot

invoke immunity from jurisdiction before a court of another State which is

otherwise competent in a proceeding which relates to a contract of

employment between the State and an individual for work performed or to be

performed, in whole or in part, in the territory of that other State.

2. Paragraph 1 does not apply if:

(a) the employee has been recruited to perform particular functions in

the exercise of governmental authority;

(b) the employee is:

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(i) a diplomatic agent, as defined in the Vienna Convention on

Diplomatic Relations of 1961;

(ii) a consular officer, as defined in the Vienna Convention on

Consular Relations of 1963;

(iii) a member of the diplomatic staff of a permanent mission to an

international organization or of a special mission, or is recruited to

represent a State at an international conference; or

(iv) any other person enjoying diplomatic immunity;

(c) the subject-matter of the proceeding is the recruitment, renewal of

employment or reinstatement of an individual;

(d) the subject-matter of the proceeding is the dismissal or

termination of employment of an individual and, as determined by the head of

State, the head of Government or the Minister for Foreign Affairs of the

employer State, such a proceeding would interfere with the security interests of

that State;

(e) the employee is a national of the employer State at the time when

the proceeding is instituted, unless this person has the permanent residence in

the State of the forum; or

(f) the employer State and the employee have otherwise agreed in

writing, subject to any considerations of public policy conferring on the courts

of the State of the forum exclusive jurisdiction by reason of the subject-matter

of the proceeding.

Article 12

Personal injuries and damage to property

Unless otherwise agreed between the States concerned, a State cannot

invoke immunity from jurisdiction before a court of another State which is

otherwise competent in a proceeding which relates to pecuniary compensation

for death or injury to the person, or damage to or loss of tangible property,

caused by an act or omission which is alleged to be attributable to the State, if

the act or omission occurred in whole or in part in the territory of that other

State and if the author of the act or omission was present in that territory at the

time of the act or omission.

Article 13

Ownership, possession and use of property

Unless otherwise agreed between the States concerned, a State cannot

invoke immunity from jurisdiction before a court of another State which is

otherwise competent in a proceeding which relates to the determination of:

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(a) any right or interest of the State in, or its possession or use of, or

any obligation of the State arising out of its interest in, or its possession or use

of, immovable property situated in the State of the forum;

(b) any right or interest of the State in movable or immovable

property arising by way of succession, gift or

bona vacantia

; or

(c) any right or interest of the State in the administration of property,

such as trust property, the estate of a bankrupt or the property of a company in

the event of its winding up.

Article 14

Intellectual and industrial property

Unless otherwise agreed between the States concerned, a State cannot

invoke immunity from jurisdiction before a court of another State which is

otherwise competent in a proceeding which relates to:

(a) the determination of any right of the State in a patent, industrial

design, trade name or business name, trademark, copyright or any other form

of intellectual or industrial property which enjoys a measure of legal

protection, even if provisional, in the State of the forum; or

(b) an alleged infringement by the State, in the territory of the State

of the forum, of a right of the nature mentioned in subparagraph (a) which

belongs to a third person and is protected in the State of the forum.

Article 15

Participation in companies or other collective bodies

1. A State cannot invoke immunity from jurisdiction before a court of

another State which is otherwise competent in a proceeding which relates to its

participation in a company or other collective body, whether incorporated or

unincorporated, being a proceeding concerning the relationship between the

State and the body or the other participants therein, provided that the body:

(a) has participants other than States or international organizations;

and

(b) is incorporated or constituted under the law of the State of the

forum or has its seat or principal place of business in that State.

2. A State can, however, invoke immunity from jurisdiction in such a

proceeding if the States concerned have so agreed or if the parties to the

dispute have so provided by an agreement in writing or if the instrument

establishing or regulating the body in question contains provisions to that

effect.

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Article 16

Ships owned or operated by a State

1. Unless otherwise agreed between the States concerned, a State which

owns or operates a ship cannot invoke immunity from jurisdiction before a

court of another State which is otherwise competent in a proceeding which

relates to the operation of that ship if, at the time the cause of action arose, the

ship was used for other than government non-commercial purposes.

2. Paragraph 1 does not apply to warships, or naval auxiliaries, nor does it

apply to other vessels owned or operated by a State and used, for the time

being, only on government non- commercial service.

3. Unless otherwise agreed between the States concerned, a State cannot

invoke immunity from jurisdiction before a court of another State which is

otherwise competent in a proceeding which relates to the carriage of cargo on

board a ship owned or operated by that State if, at the time the cause of action

arose, the ship was used for other than government non-commercial purposes.

4. Paragraph 3 does not apply to any cargo carried on board the ships

referred to in paragraph 2, nor does it apply to any cargo owned by a State and

used or intended for use exclusively for government non-commercial purposes.

5. States may plead all measures of defence, prescription and limitation of

liability which are available to private ships and cargoes and their owners.

6. If in a proceeding there arises a question relating to the government and

non-commercial character of a ship owned or operated by a State or cargo

owned by a State, a certificate signed by a diplomatic representative or other

competent authority of that State and communicated to the court shall serve as

evidence of the character of that ship or cargo.

Article 17

Effect of an arbitration agreement

If a State enters into an agreement in writing with a foreign natural or

juridical person to submit to arbitration differences relating to a commercial

transaction, that State cannot invoke immunity from jurisdiction before a court

of another State which is otherwise competent in a proceeding which relates

to:

(a) the validity, interpretation or application of the arbitration

agreement;

(b) the arbitration procedure; or

(c) the confirmation or the setting aside of the award,

unless the arbitration agreement otherwise provides.

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Part IV

State immunity from measures of constraint in connection with

proceedings before a court

Article 18

State immunity from pre-judgment measures of constraint

No pre-judgment measures of constraint, such as attachment or arrest,

against property of a State may be taken in connection with a proceeding

before a court of another State unless and except to the extent that:

(a) the State has expressly consented to the taking of such measures

as indicated:

(i) by international agreement;

(ii) by an arbitration agreement or in a written contract; or

(iii) by a declaration before the court or by a written communication

after a dispute between the parties has arisen; or

(b) the State has allocated or earmarked property for the satisfaction

of the claim which is the object of that proceeding.

Article 19

State immunity from post-judgment measures of constraint

No post-judgment measures of constraint, such as attachment, arrest or

execution, against property of a State may be taken in connection with a

proceeding before a court of another State unless and except to the extent that:

(a) the State has expressly consented to the taking of such measures

as indicated:

(i) by international agreement;

(ii) by an arbitration agreement or in a written contract; or

(iii) by a declaration before the court or by a written communication

after a dispute between the parties has arisen; or

(b) the State has allocated or earmarked property for the satisfaction

of the claim which is the object of that proceeding; or

(c) it has been established that the property is specifically in use or

intended for use by the State for other than government non-commercial

purposes and is in the territory of the State of the forum, provided that

postjudgment

measures of constraint may only be taken against property that has a

connection with the entity against which the proceeding was directed.

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Article 20

Effect of consent to jurisdiction to measures of constraint

Where consent to the measures of constraint is required under articles 18

and 19, consent to the exercise of jurisdiction under article 7 shall not imply

consent to the taking of measures of constraint.

Article 21

Specific categories of property

1. The following categories, in particular, of property of a State shall not

be considered as property specifically in use or intended for use by the State

for other than government non- commercial purposes under article 19,

subparagraph (c):

(a) property, including any bank account, which is used or intended

for use in the performance of the functions of the diplomatic mission of the

State or its consular posts, special missions, missions to international

organizations or delegations to organs of international organizations or to

international conferences;

(b) property of a military character or used or intended for use in the

performance of military functions;

(c) property of the central bank or other monetary authority of the

State;

(d) property forming part of the cultural heritage of the State or part

of its archives and not placed or intended to be placed on sale;

(e) property forming part of an exhibition of objects of scientific,

cultural or historical interest and not placed or intended to be placed on sale.

2. Paragraph 1 is without prejudice to article 18 and article 19,

subparagraphs (a) and (b).

Part V

Miscellaneous provisions

Article 22

Service of process

1. Service of process by writ or other document instituting a proceeding

against a State shall be effected:

(a) in accordance with any applicable international convention

binding on the State of the forum and the State concerned; or

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(b) in accordance with any special arrangement for service between

the claimant and the State concerned, if not precluded by the law of the State

of the forum; or

(c) in the absence of such a convention or special arrangement:

(i) by transmission through diplomatic channels to the Ministry of

Foreign Affairs of the State concerned; or

(ii) by any other means accepted by the State concerned, if not

precluded by the law of the State of the forum.

2. Service of process referred to in paragraph 1 (c) (i) is deemed to have

been effected by receipt of the documents by the Ministry of Foreign Affairs.

3. These documents shall be accompanied, if necessary, by a translation

into the official language, or one of the official languages, of the State

concerned.

4. Any State that enters an appearance on the merits in a proceeding

instituted against it may not thereafter assert that service of process did not

comply with the provisions of paragraphs 1 and 3.

Article 23

Default judgment

1. A default judgment shall not be rendered against a State unless the court

has found that:

(a) the requirements laid down in article 22, paragraphs 1 and 3, have

been complied with;

(b) a period of not less than four months has expired from the date on

which the service of the writ or other document instituting a proceeding has

been effected or deemed to have been effected in accordance with article 22,

paragraphs 1 and 2; and

(c) the present Convention does not preclude it from exercising

jurisdiction.

2. A copy of any default judgment rendered against a State, accompanied if

necessary by a translation into the official language or one of the official

languages of the State concerned, shall be transmitted to it through one of the

means specified in article 22, paragraph 1, and in accordance with the

provisions of that paragraph.

3. The time-limit for applying to have a default judgment set aside shall

not be less than four months and shall begin to run from the date on which the

copy of the judgment is received or is deemed to have been received by the

State concerned.

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Article 24

Privileges and immunities during court proceedings

1. Any failure or refusal by a State to comply with an order of a court of

another State enjoining it to perform or refrain from performing a specific act

or to produce any document or disclose any other information for the purposes

of a proceeding shall entail no consequences other than those which may result

from such conduct in relation to the merits of the case. In particular, no fine or

penalty shall be imposed on the State by reason of such failure or refusal.

2. A State shall not be required to provide any security, bond or deposit,

however described, to guarantee the payment of judicial costs or expenses in

any proceeding to which it is a respondent party before a court of another

State.

Part VI

Final clauses

Article 25

Annex

The annex to the present Convention forms an integral part of the

Convention.

Article 26

Other international agreements

Nothing in the present Convention shall affect the rights and obligations

of States Parties under existing international agreements which relate to

matters dealt with in the present Convention as between the parties to those

agreements.

Article 27

Settlement of disputes

1. States Parties shall endeavour to settle disputes concerning the

interpretation or application of the present Convention through negotiation.

2. Any dispute between two or more States Parties concerning the

interpretation or application of the present Convention which cannot be settled

through negotiation within six months shall, at the request of any of those

States Parties, be submitted to arbitration. If, six months after the date of the

request for arbitration, those States Parties are unable to agree on the

organization of the arbitration, any of those States Parties may refer the dispute

to the International Court of Justice by request in accordance with the Statute

of the Court.

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3. Each State Party may, at the time of signature, ratification, acceptance or

approval of, or accession to, the present Convention, declare that it does not

consider itself bound by paragraph 2. The other States Parties shall not be

bound by paragraph 2 with respect to any State Party which has made such a

declaration.

4. Any State Party that has made a declaration in accordance with

paragraph 3 may at any time withdraw that declaration by notification to the

Secretary-General of the United Nations.

Article 28

Signature

The present Convention shall be open for signature by all States until

17 January 2007, at United Nations Headquarters, New York.

Article 29

Ratification, acceptance, approval or accession

1. The present Convention shall be subject to ratification, acceptance or

approval.

2. The present Convention shall remain open for accession by any State.

3. The instruments of ratification, acceptance, approval or accession shall

be deposited with the Secretary- General of the United Nations.

Article 30

Entry into force

1. The present Convention shall enter into force on the thirtieth day

following the date of deposit of the thirtieth instrument of ratification,

acceptance, approval or accession with the Secretary-General of the United

Nations.

2. For each State ratifying, accepting, approving or acceding to the present

Convention after the deposit of the thirtieth instrument of ratification,

acceptance, approval or accession, the Convention shall enter into force on the

thirtieth day after the deposit by such State of its instrument of ratification,

acceptance, approval or accession.

Article 31

Denunciation

1. Any State Party may denounce the present Convention by written

notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which

notification is received by the Secretary-General of the United Nations. The

present Convention shall, however, continue to apply to any question of

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jurisdictional immunities of States or their property arising in a proceeding

instituted against a State before a court of another State prior to the date on

which the denunciation takes effect for any of the States concerned.

3. The denunciation shall not in any way affect the duty of any State Party

to fulfil any obligation embodied in the present Convention to which it would

be subject under international law independently of the present Convention.

Article 32

Depositary and notifications

1. The Secretary-General of the United Nations is designated the

depositary of the present Convention.

2. As depositary of the present Convention, the Secretary-General of the

United Nations shall inform all States of the following:

(a) signatures of the present Convention and the deposit of

instruments of ratification, acceptance, approval or accession or notifications

of denunciation, in accordance with articles 29 and 31;

(b) the date on which the present Convention will enter into force, in

accordance with article 30;

(c) any acts, notifications or communications relating to the present

Convention.

Article 33

Authentic texts

The Arabic, Chinese, English, French, Russian and Spanish texts of the

present Convention are equally authentic.

IN WITNESS WHEREOF, the undersigned, being duly authorized

thereto by their respective Governments, have signed this Convention opened

for signature at United Nations Headquarters in New York on 17 January 2005.

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Annex to the Convention

Understandings with respect to certain provisions of the

Convention

The present annex is for the purpose of setting out understandings

relating to the provisions concerned.

With respect to article 10

The term “immunity” in article 10 is to be understood in the context of

the present Convention as a whole.

Article 10, paragraph 3, does not prejudge the question of “piercing the

corporate veil”, questions relating to a situation where a State entity has

deliberately misrepresented its financial position or subsequently reduced its

assets to avoid satisfying a claim, or other related issues.

With respect to article 11

The reference in article 11, paragraph 2 (d), to the “security interests” of

the employer State is intended primarily to address matters of national security

and the security of diplomatic missions and consular posts.

Under article 41 of the 1961 Vienna Convention on Diplomatic

Relations and article 55 of the 1963 Vienna Convention on Consular Relations,

all persons referred to in those articles have the duty to respect the laws and

regulations, including labour laws, of the host country. At the same time, under

article 38 of the 1961 Vienna Convention on Diplomatic Relations and article

71 of the 1963 Vienna Convention on Consular Relations, the receiving State

has a duty to exercise its jurisdiction in such a manner as not to interfere

unduly with the performance of the functions of the mission or the consular

post.

With respect to articles 13 and 14

The expression “determination” is used to refer not only to the

ascertainment or verification of the existence of the rights protected, but also

to the evaluation or assessment of the substance, including content, scope and

extent, of such rights.

With respect to article 17

The expression “commercial transaction” includes

investment matters.

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With respect to article 19

The expression “entity” in subparagraph (c) means the State as an

independent legal personality, a constituent unit of a federal State, a

subdivision of a State, an agency or instrumentality of a State or other entity,

which enjoys independent legal personality.

The words “property that has a connection with the entity” in

subparagraph (c) are to be understood as broader than ownership or

possession.

Article 19 does not prejudge the question of “piercing

the corporate

veil”, questions relating to a situation where a State entity has deliberately

misrepresented its financial position or subsequently reduced its assets to avoid

satisfying a claim, or other related issues.

联合国国家及其财产管辖豁免公约

中国网

|

时间：

2006-08-08

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文章来源：

第五十九届会议议程项目

142

04-47853

大会决议

[

根据第六委员会的报告

(A/59/508 )

通过

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59/38.

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