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Riigiimmuniteet v lisriigi vastu tehtud otsuse j ustamisel kolmandas riigis

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Abstract:

[State Immunity in Enforcement Proceedings of a Foreign Judgment or Award Made against a Third State]The article concerns itself with the question of state immunity when a decision made or award given in state A against a state B is enforced in state C. Does state immunity apply in such enforcement proceedings? Despite its rising prominence and, in all probability, due to its controversy there are no international instruments regulating the matter. Thus the regulation derives in almost its entirety from customary international law. Despite all efforts it turns out to be impossible to demonstrate existence of a customary norm. The process of creation of customary international law as set out by ICJ simply does not envisage creation of norms in such factual circumstances as present themselves in such a specific case of state immunity. Thus a situation arises where admittance of existence of a customary norm contravenes the creation process of customary international law, and admittance of a lack of norm (i.e. of a prohibition on enforcement) contravenes common sense and reality. There are five possible solutions to resolve the dilemma. On closer consideration the most potent one seems to be the possibility of admitting that current position of international law on the subject amounts to lacunae, possibly by way of desuetude.

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