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over sovereign immunity cases--sanctioned in 1920 the not unreasonably restrict its opportunity effectively to do
Restrictive theory in a litigation involving the United so. Before the 1976 congressional change instituting the
Kingdom. By 19 18, the Supreme Court of Switzerland present practice, the procedures required of foreign states
was applying the Restrictive theory, and in 1925, the before United States courts and agencies were surn-
Supreme Court of Italy adopted this approach when a marized in Restatement (Second), 14 as follows:
trade mission of the USSR became involved in litigation 5 71. Assertion of Immunity: Law of the United States
before the Italian courts which arose from the mission's (1) In a federal court or other enforcing agency of the United States,
commercial activities. By 1928, the lower courts in an objection to its exercise of enforcement jurisdiction with respect to
a foreign state, based on the rule stated in 5 65, is ineffective if made
Greece were declining to grant immunity to the USSR in a
after the merits of the controversy have been placed in issue by the
suit involving a commercial act, and in 1929, the foreign state and unless made to the court or other enforcing agency
Supreme Court of France sanctioned the Restrictive theo- either:
ry, previously applied in the lower French courts, when a (a) by the United States by means of a suggestion originating in
trade mission of the USSR was sued in connection with its the Department of State and communicated to the court or other en-
forcing agency by the Department of Justice, or
commercial activities in France. Additionally, though
@) by the government of the foreign state or its accredited diplo-
refusing to apply the restrictive approach in 1921, the matic representative upon an appearance before the court or other en-
courts of the German Federal Republic have since forcing agency that does not place the merits of the controversy in
become committed to this theory. Finally, both the issue.
Netherlands and Austria have become exponents of the (2) In a court of a state of the United States, the procedure for assert-
ing immunity is determined by the law of that state. Such procedure is
restrictive view of jurisdictional immunity.
normally similar to that indicated in Subsection (1) but may permit
(2) In addition to these unilateral decisions to adopt assertion of immunity later or in a different manner than required by
the Restrictive theory, various states, in 1926, entered the rule stated in Subsection (1). A state may not prescribe more
into the frrst multilateral convention embodying this con- stringent requirements other than assertion before the merits of the
cept-The Brussels Convention on the Unification of Cer- controversy are placed in issue.
(3) Failure to assert immunity as indicated in Subsections (1) and (2)
tain Rules Relating to Immunity of State-owned
does not affect immunity from execution unless the circumstances in-
Vessels. 12 Article 1 (g) of this agreement provides that: dicate a waiver of such immunity. . ..
Seagoing vessels owned or operated by States, cargoes owned by
them, and cargoes and passengers carried on Government vessels, and 5-6. The Evolving Status of Sovereign Foreign Lit-
the States owning or operating such vessels, or owning such cargoes, are igants in U.S. Courts. a. Previous Role of the U.S.
subject in respect of claims relating to the operation of such vessels or Executive Branch in Questions of Jurisdictional Immunity.
the carriage of such cargoes to the same rules of liability and to the same The suggestion by the State Department, as set forth in
obligations as those applicable to private vessels, cargoes and equip- the Tate Letter, that the courts defer to the former's sug-
ments.
gestions regarding various requests for jurisdictional im-
An essential element of the convention rests in the fact munity was not a novel concept of the function of the
that when such vessels are involved in controversies relat- American judiciary. U.S. Courts, both State and Federal,
ing to collision, salvage, general average, repairs, supplies, and prior to and after the Tate Letter, often deferred to
or other contracts relating to the vessel, the claimant is en- suggestions from the Executive Branch in cases involving
titled to institute proceedings in the courts of the state the Nation's foreign relations. For example, suggestions
owning or operating the vessel, without the state being of the State Department 1s have played a role in connec-
permitted to avail itself of its immunity. 13 tion with recognition of foreign states and gover&ents
(3) This brief synopsis of the evolution of the restric- and the Act of State Doctrine. 16 While this deference did
tive theory has a dual purpose. First, it evidences the fact provoke charges that the courts are abdicating their
that a major shift toward the restrictive approach has oc- responsibility and that the State Department was intruding
curred throughout the international community. Addi- into the judicial sphere, 17 the constitutional supremacy'of
tionally, however, it is designed to alert the reader to the the Executive Branch 18 in the conduct of foreign relations
fact that, though many states do currently favor the was generally seen before the recent statutory changes as
restrictive theory, there still exists no universal approach requiring courts to defer to the Executive judgment with
toward the question of jurisdictional immunity. Even
among those countries which favor the restrictive form of 14. Restatement (Second), supra note 2 at 5 71.
protection, the methods of implementation and in- 1s. The reader's attention is called to the fact that, as the State
Department acts as the official spokesman for the Executive Branch on
terpretation vary. A clear understanding of this lack of matters of sovereign immunity, these two terms are very often used in-
uniformity is essential to an informed analysis of the sub- terchangeably.
ject in question. 16. See chapter 6, irlfra.
5-5. Procedures for Asserting Immunity. A foreign 17. See Jessup, Has the Supreme Court Abdicated One of Irs Func-
state may be required to follow certain procedures in tions? 40 Am. J. Int'l L. 168 (1946); Note, Sovereign ImmunipThe
asserting its immunity, provided that these procedures do Last Straw in Judicial Abdication, 46 TUL. L. REV. 841 (1972).
r 18. This supremacy has often been confied by the Supreme
12. 176 L.N.T.S. 199 (1926). Court, the most cited decision being United Stotes v. Curtiss-Wright
13. The United States is not a party to this convention. Export Corp., 299 U.S. 304 (1936).