ABSTRACT
The International Law Commission has been working for some time on the subject of state immunity and has produced a series of Draft Articles. The Draft Articles have been subject to consideration by the Sixth (Legal) Committee of the General Assembly and have not passed without comment. The wide differences in practice even by those states that adopt the restrictive view has made it desirable to seek codification on the basis of an international convention. In broad terms, the Draft Articles favour the restrictive approach; however, Art 2 allows the purpose of the transaction to be taken into account in determining the nature of the transaction.208 It may be that the difference of opinion between the ‘nature’ and ‘purpose’ of a transaction is less important than it was thought to be and the two tests are inter related.209 Article 5 of the Draft Articles set out the general rule of immunity subject to exceptions:
In considering the meaning of the expression ‘state’ Draft Article 2(1)(b) provides that the expression extends not only to the normal executive branch but to sub divisions and entities exercising sovereign authority.
