Page 87 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 5
JURISDICTIONAL IMMUNITIES

5-1. General. Having examined the various means by dictional immunities, four specific areas will be analyzed. 1
which a state may exercise its jurisdiction in the interna- Although discussed as distinctive elements of the total
tional community, attention must now be focused on subject matter, each aspect of jurisdictional immunity re-
those instances when a state generally refrains from exer- lates to the other. Accordingly, it is imperative that the at-
cising this jurisdiction over certain individuals and proper- torney understand fully one area of this chapter before
ty. In dealing with this somewhat technical subject ofjuris- directing his attention to the next.

Section I. JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
5-2. The Current Importance of Jurisdictional Im- even if the claimant obtains a judgment against the foreign
munities. a. Under international law, states enjoy certain state, his victory will be a false one if he is unable to secure
immunities from the exercis'e by another state of jurisdic- payment by the defendant state. The effect of a validly in-
tion to enforce rules of law. The primary impact of these terposed plea of state immunity is to bar consideration of
immunities, which in some cases extend not only to the the merits of the claim presented by the claimant. 2 Ac-
foreign state itself, but also to its property, its agents, and cordingly, as a general rule, it is only after the court ac-
its instrumentalities, is felt when a private party finds it quires jurisdiction that a claim of immunity becomes im-
necessary to press a claim against a foreign government or portant. Thiswill be the case both when the claim is raised
the latter's agent or instrumentality in judicial or arbitral after the court has obtained in personam jurisdiction over
proceedings. Often, the major obstacle faced by the pri- the foreign state, and when a plea or suggestion of im-
vate party will be the immunity the foreign government munity seeksto vacate an attachment of property effected
enjoys under applicable principles of international law or in connection with acquiring in rem or quasi in rem juris-
under the law of the state in which the proceeding is to be diction. If, moreover, the claimant should obtain a judg-
brought. Under United States law, a broader measure of ment against the foreign state, a claim of immunity may
immunity is sometimes accorded to foreign states than is still be interposed to prevent execution of that judgment
required by international jurisprudence. against the foreign state's property. Thus,assuming that
b. During the last thirty years, governments the claimant can frnd a basis on which the court's jurisdic-
throughout the world have become increasingly involved tion can be founded, state immunity may deny the
in international commercial dealings with private parties. claimant his day in court, and even if he has, and carries,
The most obvious manifestations of this trend have been that day, immunity may make it impossible for him to en-
the state foreign trade monopolies of the Communist force his judgment if voluntary satisfaction by the defen-
states and the pervasive role that the governments of dant is not forthcoming. 3
many developing countries have chosen or have been 5-3. The Two Theories of Sovereign Immunity. a.
compelled by circumstances to play in international com- There have evolved through the years, two basic theories
merce. An increased participation of government in com- of jurisdictional immunity--the absolute and the restric-
mercial dealings has been a phenomenon clearly discerni- tive. There exists no universal approach toward the grant-
ble even in those industrialized countries that most
ing of this very special form of protection to a sovereign,
vigorously champion private enterprise. A continuing in- his agents, and instrumentalities. Often, states employ a
crease in governmental participation in commerce, possi-
combination of the two theories of immunity. Moreover,
bly accelerated by a growth in East-West trade and in trade
some countries, such as the United States, generally grant
between the industrialized countries and the developing greater immunity than international law would seem to
countries suggests that problems of state immunities may
well become more frequent and pressing in the years 1. These areas are: Jurisdictional Immunities of Foreign States, Im-
ahead. munities of State Representatives, Immunities of International
c. Any claimant bringing an action against a foreign Organizations, and the Granting of Political Asylum or Temporary
state in a court within the United States must face prob- Refuge.
lems raised by the special status of the defendant at three 2. Restatement (Second) Foreign Relations Law of the United
Stares. 5 65, comment c (1965).
key procedural stages. First, steps must be taken to give a
3. It is important, at this point, to direct the reader's attention to
court jurisdiction so that it may entertain the action. If the the distinction between the concepts of jurisdictional immunity and the
foreign state has no property within the territory of the Act of State doctrine. Jurisdictional immunity stands for the proposition
forum that can provide the basis for in rem or quasi in rem that a sovereign, his agents, and property will not be made the subject of
jurisdiction, jurisdiction in personam must be sought. Sec- a suit in another state, regardlessof where the activity giving rise to the
cause of action occurred. The Act of State doctrine, discussed exten-
ond, even if jurisdiction can be acquired, a claim of im-
sively in chapter 7, idra, declares that the actions of a state, taken solely
munity by the foreign state may prevent the court from within its territorial boundaries, will not be subjected to judicial review
proceeding to decide the claim on the merits. Finally, by U.S. courts.