STATE IMMUNITY ACT 1978

State Immunity Act 1978 and Emerging Jurisprudence



State Immunity Act 1978 and Emerging Jurisprudence

Introduction

The State Immunity Act represents a major change in the law on state immunity to be applied by the courts of the United Kingdom. The Act not only enables the United Kingdom to ratify the Brussels Convention of 1926 with its 1934 Protocol on immunity of state-owned ships and the European Convention on State Immunity 1972, but also codifies the law on the immunities to be afforded to any state in proceedings before the courts of the United Kingdom. Because the immunities granted by the Act are more restrictive than the regime under the European Convention, the United Kingdom will be making a declaration to this effect under Article 24. Such a declaration will enable the law on state immunity in the United Kingdom to develop beyond the limits laid down by the European Convention. The Act follows the trend of recent developments in the common law rules. Since Lord Denning's famous lone dissent in 1958 in Rahimtoola v. Nizam of Hyderabad? the judges have shown themselves increasingly willing to reconsider the old authorities under which foreign states were immune from virtually all proceedings before the courts of the United Kingdom.' The passing of the Act is also in part due to the concern of the City (and the Government) that valuable business would be lost to New York as a consequence of the passing by the United States Congress of the Foreign Sovereign Immunities Act 1976.

The Act came into force on November 22, 1978 and the United Kingdom has thus joined the ever4norming number of states who adopt the doctrine of restrictive immunity under which a state is granted immunity only in respect of certain acts in the exercise of sovereign authority (acta iure imperii).

Part 1 of the Act is closely modelled on the European Convention,' whose main principles (with variations, some of great significance) are applied globally. The basic approach of this part of the Act is to provide an exhaustive list of cases in which there is no entitlement to immunity and to state a residual rule that in other cases a state impleaded before the courts of the United Kingdom is entitled to immunity (s. 1). Part I contains provisions implementing the important Articles of the European Convention which require states to give effect to judgments of the courts of other Convention countries against them. This is the only part of the Act that is limited to the European forum. The only really significant provision of Part I11 deals with the personal immunities of sovereigns and heads of state. The detailed provisions of Part 1 of the Act can perhaps best be considered in the context of those questions which have most vexed the judges when considering state immunity.

The Evolution of the Law of State Immunity

The law of State immunity has changed to accommodate the needs of society. For instance, in the past, the dominant doctrine of State ...