Recent Developments in the Dynamics of Sovereign Immunity

Abstract

The subject of jurisdictional immunities of foreign states is of obvious interest both to academics and to practitioners involved in litigating and in deciding transnational disputes. It is a vast subject with myriad ramifications. I wish to focus attention on three landmarks on the legislative regulation of State immunity: the European Convention on State Immunity and Additional Protocol of 1972, the U.S. Foreign Sovereign Immunities Act of 1976, and the British State Immunity Act 1978. Then I shall briefly consider the possibilities of unification of the rules applicable to suits where a foreign State is defendant. The focus will be on immunity from suit; immunity from execution deserves a separate treatment. A survey of the provisions of the European Convention and the U.S. and British Acts shows that with regard to all categories of rights and obligations of foreign states which the local courts may be called upon to consider, the areas reserved for immunity from suit are either non-existent or, in a single instance under the Convention alone, very restrictively defined. Under all three instruments there is no immunity for the foreign state with regard to its contractual obligations, by far the most important and the most frequent source of claims leading to transnational disputes. With regard to torts attributable to a foreign state over which the local courts have jurisdiction, there is also no immunity whatsoever under the two Acts and only a very limited immunity under the Convention, the practical impact of which is likely to be minimal. In respect of its obligation arising from ownership or possession of immovable property and its obligation derived directly from the law, the foreign state has no immunity from suit under all three instruments outside the area of diplomatic immunities, with which we are not concerned. Even in this last area, the Report accompanying the U.S. Act rightly observes that [a]ctions short of attachment or execution seem to be permitted under the [Vienna] Convention, and a