Page 91 - Law of Peace, Volume ,

Pam 27-161-1

A study of the law of sovereign immunity reveals the existence of two by treaty or in practice an important part of the immunity which they
conflicting concepts of sovereign immunity, each widely held and fiy claim under the classical theory.
established. According to the classical or absolute theory of sovereign It is thus evident that with the possible exception of the United
immunity, a sovereign cannot, without his consent, be made a respond- Kingdom little support has been found except on the part of the Soviet
ent in the courts of another sovereign. According to the newer or Union and its satellites for continued full acceptance of the absolute
restrictive theory of sovereign immunity, the immunity of the sovereign theory of sovereign immunity. There are evidences that British
is recognized with regard to sovereign or public acts (jure imperii) of a authorities are aware of its deficiencies and ready for a change. The
state, but not with respect to private acts (jure gestionis). There is agree- reasons which obviously motivate state trading countries in adhering to
ment by proponents of both theories, supported by practice, that the theory with perhaps increasing rigidity are most persuasive that the
sovereign immunity should not be claimed or granted in actions with United States should change its policy. Furthermore, the granting of
respect to real property (diplomatic and perhaps consular property ex- sovereign immunity to foreign governments in the courts of the United
cepted) or with respect to the disposition of the property of a deceased States is most inconsistent with the action of the Government of the
person even though a foreign sovereign is the beneficiary. United States in subjecting itself to suit in these same courts in both
The classical or virtually absolute theory of sovereign immunity has contract and tort and with its long established policy of not claiming im-
generally been followed by the courts of the United States, the British munity in foreign jurisdictions for its merchant vessels. Finally, the
Commonwealth, Czechoslovakia, Estonia, and probably Poland. Department feels that the widespread and increasing practice on the part
The decisions of the courts of Brazil, Chile, China, Hungary, Japan, of governments of engaging in commercial activities makes necessary a
Luxembourg, Norway, and Portugal may be deemed to support the practice which will enable persons doing business with them to have
classical theory of immunity if one or at most two old decisions anterior their rights determined in the courts. For these reasons it will hereafter
to the development of the restrictive theory may be considered sum- be the Department's policy to follow the restrictive theory of sovereign
cient on which to base a conclusion. immunity in the consideration of requests of foreign governments for a
The position of the Netherlands, Sweden, and Argentina is less clear grant of sovereign immunity.
since although immunity has been granted in recent cases coming It is realized that a shift in policy by the executive eannot control the
before the courts of those countries, the facts were such that immunity courts but it is felt that the courts are less likely to allow a plea of
would have been granted under either the absolute or restrictive theory. sovereign immunity where the executive has declined to do so. There
However, constant references by the courts of these three countries to have been indications that at least some Justices of the Supreme Court
the distinction between public and private acts of the state, even though feel that in this matter courts should follow the branch of the Govern-
the distinction was not involved in the result of the case, may indicate an ment charged with responsibility for the conduct of foreign relations.
intention to leave the way open for a possible application of the restric- In order that your Department, which is charged with representing
tive theory of immunity if and when the occasion presents itself. the interests of the Government before the courts, may be adequately
A trend to the restrictive theory is already evident in the Netherlands informed it will be the Department's practice to advise you of all re-
where the lower courts have started to apply that theory following a quests by foreign governments for the grant of immunity from suit and
Supreme Court decision to the effect that immunity would have been of the Department's action thereon.
applicable in the case under consideration under either theory. Sincerely yours,
The German courts, after a period of hesitation at the end of the nine- For the Secretary of State:
teenth century have held to the classical theory, but it should be noted JACK B. TATE
that the refusal of the Supreme Court in 1921 to yield to pressure by the Acting Legal Adviser
lower courts for the newer theory was based on the view that that theory
had not yet developed sufficiently to justify a change. In view of the The purpose of the Tate Letter was, of course, to explain
growth of the restrictive theory since that time the German courts might future U.S. policy with regard to jurisdictional immunity
take a different view today. and to offer guidelines as to how the State Department
The newer or restrictive theory of sovereign immunity has always would act upon requests for such protection. It soon
been supported by the courts of Belgium and Italy. It was adopted in became evident, however, that despite the guidance con-
turn by the courts of Egypt and of Switzerland. In addition, the courts of tained in this letter, uncertainty, as well as legal and politi-
France, Austria, and Greece, which were traditionally supporters of the
classical theory, reversed their position in the 20's to embrace the cal problems, continued to surround this jurisdictional
restrictive theory. Rumania, Peru, and possibly Denmark also appear to concept. These issues will be discussed in the pages that
follow this theory. follow. In order to appreciate the need for the recent shift
Furthermore, it should be observed that in most of the countries still away from executive to full judicial primacy in determina-
following the classical theory there is a school of influential writers favor- tion of state immunity, 11 an examination of U.S. practice
ing the restrictive theory and the views of writers, at least in civil law
countries, are a major factor in the development of the law. Moreover, under and a critque of the Tate approach follows. It is of
the leanings of the lower courts in civil law countries are more significant importance to note that the Tate Letter was simply tangi-
in shaping the law than they are in common law countries where the ble evidence to continuing American movement toward
rule of precedent prevails and the trend in these lower courts is to the the majority view of jurisdictional immunity.
restrictive theory. b. Evolution of the Restrictive Theory.
Of related interest to this question is the fact that ten of the thirteen
countries which have been classified above as supporters of the classical (1) Prior to 1952, there had been a consistent turn
theory have ratified the Brussels Convention of 1926 under which im- away from the absolute to the restrictive theory ofjurisdic-
munity for government owned merchant vessels is waived. In addition tional immunity by the majority of the world community.
the United States, which is not a party to the Convention, some years The Supreme Court of Belgium adopted the Restrictive
ago announced and has since followed, a policy of not claiming im- theory in 1903. In Egypt, the Court of Appeals of the
munity for its public owned or operated merchant vessels. Keeping in
mind the importance placed by cases involving public vessels in the field Mixed Courts-then the highest court with jurisdiction
of sovereign immunity, it is thus noteworthy that these ten countries
(Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Po- 11. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90
land,Portugal, Sweden) and the United States have already relinquished Stat. 2891 (1976), 28 U.S.C. 1602.