DOCTRINE OF SOVEREIGN IMMUNITY

Doctrine Of Sovereign Immunity



Doctrine Of Sovereign Immunity

Introduction

The doctrine of foreign sovereign immunity provides that a foreign state generally is immune from the jurisdiction of the courts of another sovereign state. State immunity developed as an “undisputed principle of customary international law” and the law of nations based upon core aspects of sovereignty applicable in common law, civil law and other judicial systems. Until the mid-Twentieth Century, (GORDON 1977) sovereign immunity from the jurisdiction of foreign courts was almost absolute. However, as governments and state enterprises became more and more active in commercial activities in the modern era, private entities interacting with foreign states attacked complete sovereign immunity as fundamentally unfair in eliminating judicial recourse and favoring state companies.

Discussion

The United States and some Western European nations reacted by adopting a “restrictive” approach to foreign sovereign immunity. The restrictive theory of state immunity provided that foreign states were immune from jurisdiction relating to their “public acts” (acta jure imperii) but were not immune from jurisdiction for their “private acts” (Michael 2005) (acta jure gestionis) including commercial activities. The United States codified the restrictive approach to state immunity through the Foreign Sovereign Immunities Act of 1976 (the “FSIA”). Two years later, the United Kingdom passed similar legislation: the State Immunity Act of 1978.

In addition to domestic law, efforts were undertaken to develop multilateral treaties governing foreign sovereign immunity issues. The Council of Europe adopted a European Convention on State Immunity and an Additional Protocol that became effective in 1976 (the “European Convention”). Most recently, the United Nations, which had been working on state immunity issues for decades, finalized its own restrictive approach to state immunity through the United Nations Convention on Jurisdictional Immunities of States and Their Property (the “UN Convention”). The United Nations General Assembly passed the UN Convention on December 2, 2004 and the treaty is currently open for signatures through 2007. (The Belgian Constitution 2009) If widely adopted, the UN Convention may serve as a new international norm in the field of state immunity.

The reality of modern international dispute resolution is that foreign states and their subdivisions, agencies, instrumentalities, organs and state-owned enterprises are often engaged in transnational commerce. Such entities are active in: energy exploration, development and production; mining and other natural resources exploitation; banking; maritime, rail and aerial transportation; tourism; utilities including electricity, water, natural gas and sewage; industrial manufacturing; international trade; and many other sectors of important commercial activity. Given the prevalence of state actors in the world economy, lawyers practicing international law should be knowledgeable concerning state immunity. (Akehurst 1997)

The balance of this presentation will provide a broad overview of foreign sovereign immunity with special focus on the FSIA and United States state immunity law including:

Historical Development of United States Foreign Sovereign Immunity Law;

the United States Foreign Sovereign Immunities Act; and

State Immunity Approaches in Other Jurisdictions and Multilateral Treaties.

Historical Development of United States Foreign Sovereign Immunity Law

The United States Supreme Court's 1812 decision, The Schooner Exchange ...