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duces every sovereign state to respect the independence of every other through the use of promissory notes, give guarantees, conclude agree-
sovereign state, each and everyone declines to exercise by means of any ments regarding the submission of disputes to arbitration courts and in
of its courts, any of its territorial jurisdiction over the person of any general undertake all legal actions necessary to carry out the respon-
sovereign or ambassador of any other state, or over the public property sibilities with which they are vested, including appearing in foreign
of any state which is destined to its public use, or over the property of courts as a plaint8. Trade missions can be defendants only in cases aris-
any ambassador, though such sovereign, ambassador or property be ing out of contracts concluded or guaranteed by them in the country
within its territory, and therefore, but for the common agreement, sub- concerned, and only in countries in relation to which the Government
ject to its jurisdiction. of the U.S.S.R. has by means of an international treaty or unilateral
declaration clearly and precisely expressd its consent to the trade mission
The adherence of English courts to the absolute theory of being subject to local courts in disputes of the character concerned. a
sovereign immunity may well result from a rigid applica-
tion of the rule of precedent rather than from a conviction (c) Although the Soviet view is that, inasmuch as
that international law requires them to continue applying the wrying on of foreign trade is a sovereign activity of
the theory. the Soviet Union, trade delegations and their property en-
In The Porto Alexandre, 6 the immunity of foreign joy immunities in foreign countries derived directly from
states, previously established with respect to litigation aris- the sovereignty of the Soviet state itself, the Soviet Union
ing from an activity which was not commercial, was has concluded a large number of bilateral treaties which
contain provisions subjecting its trade delegations to the
granted in litigation involving a ship owned by a foreign
state and used for trading. In The Cristina, 7 several of the local jurisdiction in respect of their commercial activities. 9
Law Lords indicated they doubted the immunity should (4 Since 1924, the Soviet Union has had legis-
have been granted with respect to a commercial activity in lation requiring the permission of the "Council of Peo-
The Porto Alexandre and suggested the extension of irn- ple's Commissars" before property belonging to a foreign
munity in the case was not required by the previous deci- state could be attached or levied upon in satisfaction of a
sion in point. However, the facts in The Cristina did not judgment. The immunity of foreign states receives more
afford them the opportunity of passing anew on the issue. extensive regulation in the new Soviet legislation on civil
Thus, the theory of absolute immunity remains the rule of procedure. While the Soviet Council of Ministers or other
law in English courts. The precedents established in the authorized organs may provide for retaliation against
United Kingdom with respect to sovereign immunity have foreign states that do not respect Soviet immunity the new
been followed generally by courts in the British Common- law, unlike the earlier, does not contain a reciprocity pro-
wealth, though with occasional indications of doubt about vision. 10 Though the absolute theory still frnds favor in
the soundness of the absolute theory. the courts of the United Kingdom and the socialist states,
(3) The Socialist States' View. the majority of the international community has now
(a) Socialist states are committed to the "absolute moved toward the application of some form of the restric-
theory" of sovereign immunity and claim international tive concept of jurisdictional immunity. Thus, attention
law requires that it be granted even in cases where the must now be focused in this direction.
litigation arises from commercial activities. In many states 5-4. The Restrictive Theory. a. The Tate Letter. The
in western Europe and elsewhere, however, the courts ap- first major step in the U.S. shift toward the restrictive
ply "the restrictive theory" and deny immunity to theory and an explanation of the conceptual basis of this
socialist states- and other states- in litigation arising approach were best set forth in 1952, in what has since
from such activities. Socialist states look upon the denial come to be known as "the Tate Letter."
of immunity in these cases as unwarranted interference UNITED STATES: LETTER FROM THE ACTING LEGAL
with the conduct of their trade abroad through state ADVISER OF THE DEPARTMENT OF STATE TO THE
monopolies. DEPARTMENT OF JUSTICE, MAY 19,1952.
26 United States Department of State Bulletin 984 (1952).
(b) In the Soviet system, foreign trade is a state
MY DEAR MR. ATTORNEY GENERAL:
monopoly, normally carried on through trade delegations The Department of State has for some time had under consideration
in foreign countries. the question whether the practice of the Government in granting im-
Under Soviet law, these delegations . . . are an integral part of the diplo- munity from suit to foreign governments made parties defendant in the
matic missions of the U.S.S.R. abroad and enjoy the same privileges as courts of the United States without their consent should not be changed.
the latter. Trade missions fulfil three main functions: a) the representa- The Department has now reached the conclusion that such immunity
tion of the interests of the U.S.S.R. in the field of foreign trade and the should no longer be granted in certain types of cases. In view of the ob-
promotion of the commercial and other economic relations between the vious interest of your Department in this matter I should like to point
U.S.S.R. and the country in which the mission is resident; b) the regula- out briefly some of the facts which influenced the Department's deci-
tion of the trade between the U.S.S.R. and the country in which they are sion.
resident; c) the implementation of the trade between the U.S.S.R. and
the country in which they are resident.. . . 8. Academy of Sciences of the U.S.S.R., International Law 305-07
Trade missions enjoy all the powers necessary for the fulfiient of (Ogden transl. 1961).
these functions. They can conclude all kinds of agreements and con- 9. For details, see J. Triska and R. Slusser, The Theory, Law, and
tracts on behalf of the U.S.S.R., enter into commitments, including Policy of Soviet Treaties 342-33 (1962), and S. Sucharitkul, State Im-
munities and Trading Activities in International Law 152-61 (1959).
6. [I9201 P. 30 (C.A.).
'0. See Soviet Civil Legislation and Procedure (Foreign Languages
7 119381 A.C. 485.
Publishing House, Moscow, 1965).