Page 211 - The Arabian Gulf States_Neat

IMMUNITY FROM FOREIGN JURISDICTION 149
States of doubtful status, such as protected States, is usually decided
not by the court entertaining the issue, but by the State Department.1
It may be deduced from the above statements that in a claim of
immunity by a Ruler of one of the Shaikhdoms before an American
court, the State Department would, probably, inquire about his
legal status from the British Foreign Office before issuing a certificate
to the court in question. This should not, however, be understood as
implying that the State Department would be inclined to accept a
statement made by the British Foreign Office in favour of the sovereign
status of the Ruler concerned as conclusive. But in a claim of immu­
nity by the Sultan of Muscat, it seems doubtful that the State Depart­
ment would have recourse to the British Government for the ascer­
tainment of his sovereign status since the United States has already
recognised the full independence of the Sultan. Similarly, it may be
presumed that in claims of immunity introduced by the Rulers of the
Shaikhdoms before the courts of European and Commonwealth
countries, these courts would give weight to declarations made by the
British Foreign Office as to the sovereign status of such Rulers. It
cannot, however, be suggested that in such cases European and Com­
monwealth courts would consider themselves bound by the declara­
tions made by the British Government in favour of the sovereign
immunities of the Rulers concerned.

LEGAL BASIS FOR IMMUNITY OF PROTECTED STATES
Does the above practice indicate that there is a general rule of inter­
national law regarding jurisdictional immunity in those cases? It has
been shown from reference to a number of decisions of British and
foreign courts on claims of jurisdictional immunity by not fully inde­
pendent States, that such States have very often been granted jurisdic­
tional immunities on the basis of certificates issued to the courts by
the executive. In most of those cases immunities have been granted
by a State to rulers and governments of territories under its protection,
not on the basis of a rule of customary international law, but on a
rule derived from its own constitutional system. However, the crucial
issue in this discussion seems to be whether there is any general rule
of international law recognising immunity before foreign courts of
governments and rulers under the protection of third States. In view
of lack of practice in this matter it is difficult to confirm the evolution
1 Lyons, A. B., ‘Conclusiveness of the Statements of the Executive: Continental
and Latin American Practice’, B.Y.I.L., 25 (1948), p. 194; ‘The Conclusiveness of
the “Suggestion” and Certificate of the American State Department’, B.Y.I.L.,
24 (1947), p. 116. According to the writer, ‘when an application of this kind is
made to the Department of State, the reply is often conveyed to the court by the
medium of a procedural device known as a “Suggestion” ’. And see for more
details, Feller, A. H., ‘Procedure in Cases Involving Immunity of Foreign States
in United States Courts’, A.J.I.L., 25 (1931), pp. 83-96.