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Interim Report of the Informal Meeting
of the Parties to the European Convention on State Immunity
Strasbourg, 23 March 2006

Presented by the Chair of the meeting, Sir Michael Wood,
Vice-chair of the CAHDI

This is an interim report of the informal meeting of parties to the European Convention on State Immunity, which took place on 23 March 2006 in the margins of the 31st meeting of the CAHDI. The participants had a useful initial discussion and agreed that there should be a further meeting in the margins of the next CAHDI.

There are eight parties to the European Convention (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and one state that has signed but not ratified (Portugal).

The participants in the informal meeting included seven of the eight parties, the signatory, other interested Council of Europe member states (which included states where the European Convention had been referred to by the courts as reflecting customary international law), as well as the Council of Europe Secretariat.

The meeting had three documents before it: a document submitted by Portugal giving a comparative analysis of the European Convention on State Immunity and the United Nations Convention on Jurisdictional Immunities of States and their Properties (CAHDI (2005) 16); a document submitted by Austria containing a draft of a supplemental agreement between the States Parties to the European Convention (CAHDI (2006) Misc 1); and a document submitted by Belgium assessing the compatibility between the European Convention and the UN Convention (CAHDI (2006) Misc 2).

The Secretariat described the very limited practice of the Council of Europe in respect of the termination of European Conventions.

Most of the participants from the parties to the European Convention confirmed that they were proceeding towards ratification of the UN Convention in due course. One such participant said they would no doubt consider the question if others proceeded in this way. Portugal confirmed that they no longer intended to ratify the European Convention. It was recalled that the UN Convention would enter into force only when it had been ratified by thirty states.

The participants from the parties to the European Convention all considered that in due course the UN Convention regime should supersede that of the European Convention. They noted that this should be seen as a mark of the success of the European Convention, the first multilateral treaty to cover the field, which had been very influential in shaping the world-wide regime established by the UN Convention.

The participants noted that there were at least two broad options for achieving this objective:

First, each of the parties to the European Convention and its Additional Protocol could simply proceed to denounce the Convention (in accordance with its Article 40) and Protocol as and when the UN Convention entered into force for it. Portugal would make it clear that it no longer intended to proceed to ratification (see Article 18 of the Vienna Convention on the Law of Treaties).

Second, the parties to the European Convention could agree among themselves (possibly in some kind of declaration) that the European Convention and, if applicable, the Additional Protocol, would cease to be applied as between those of its parties which had become parties to the UN Convention from the date on which the UN Convention entered into force. It could thus be made clear that the UN Convention, as a subsequent treaty, superseded the earlier European Convention (in accordance with the Vienna Convention), notwithstanding the provisions of Article 26 of the UN Convention.

The Chairman of the meeting undertook to circulate in the near future a draft of a possible declaration illustrating the second option.

The possible need to make upon ratification of the UN Convention some kind of a reservation or declaration concerning its Article 26 was also raised.

The second option might achieve in substance what was proposed in the Austrian draft supplemental agreement. The form of the Austrian proposal was considered by some to require an unnecessary and possibly lengthy process.

The informal meeting agreed to consider further these two options, and any others that might be proposed, at a further informal meeting in the margins of the next CAHDI.