NOTES OF CASES
| Date | 01 June 1938 |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00395.x |
| Published date | 01 June 1938 |
NOTES
OF
CASES
57
NOTES
OF
CASES
Immunity
of
sovereign
states
It
is only a small and, in any case, a cynical consolation to realise
that the Spanish Civil
War,
otherwise the cause of
so
many horrors and
calamities, promises to become a fertile source of instruction for the
student of international law. The decision of the House of Lords in
The
Cristina,
[1938]
I
All
E.R. 719, contains ample material for
a
thorough
re-examination of the present position of a far-reaching problem of law.
On 14th July, 1937. the defendant, the Spanish Government, repre-
sented by the Spanish Consul at Cardiff, took possession of
The Cristina,
a ship flying the Spanish flag, registered at the port of Bilbao and owned
by the plaintiffs, a Spanish company carrying on the business
of
ship
owners at Bilbao. The defendant acted in pursuance of a Spanish decree
of 28th June, 1937. requisitioning all vessels registered in the port of
Bilbao.
At
the date of the decree
The Cvistina
was not within Spanish
territory. The plaintiffs issued a
writ
in rem
claiming possession of the
ship. The defendant contested the jurisdiction of English courts and asked
to set aside the writ. This application was successful.
The case thus gave an opportunity for the House of Lords to review
a number of recent decisions of the Court of Appeal and to make an
authoritative pronouncement on many aspects of the wide problem of the
immunity of a foreign sovereign state from the jurisdiction of English
courts. In the course of the last
two
decades the subject has been exten-
sively discussed by foreign courts, in learned articles and by international
conferences, and it has been treated in a very valuable Draft Convention
with comments prepared by the Harvard Law School: See
Oppenheim
(Lauterpacht), 5th Edition, Vol.
I
(1g37),
p.
222, and the material there
collected
;
add Niboyet,
Revue Gknkrale
de
Droit
International Public.
1936,
525; Van F’raag,
Revue
de
Dvmt
Intevnational
et
de Lkgislation Comparh,
1934. 652; 1935, 100; Brookfield,
Journal
of
Comparative Legislation and
International Law,
XX
(1938) Vol.
I;
and especially Supplement to
American Journal
of
International
Law,
26 (1932). 451
seq.
It
is,
therefore, a matter of great regret that the decision of the House
of Lords fails to supply a final solution of many questions on which an
authoritative statement was anxiously awaited.
(I)
It
is an undoubted principle of law that, as Lord Atkin said (p. 720),
I‘
the courts
of
a country will not implead a foreign sovereign, that is they
will
not by their process make him against his will
a
party to legal pro-
ceedings, whether the proceedings involve process against his person or
seek to recover from him specsc property or damages.”
It
was this
principle which, in the opinion of their Lordships (with the possible
exception of Lord Maugham), was broken. The plaintiffs’ argument that
an action
in rem,
directed against “the steamship or vessel
C‘ristina
and
all persons claiming an interest therein,” did not directly or indirectly
implead a foreign sovereign government, was rejected by Lords Atkin
and Wright in careful reasoning; the former adhered to the view which
in harmony with Bankes and Scrutton,
L.
J
J., he had already expressed
in
The Jupiter,
[I924],
P.
236 in the Court of Appeal. Lord Maugham,
however, who did not base his judgment on the same principle, expressed
serious doubts whether
“in
such
a
case anything more is sought, or at any
rate can
be
obtained than a remedy against the
ves,”
and he would have
MODERN LAW REVIEW
June,
1938
preferred Sir Robert Phillimore’s judgment in
The
Parlement
Belge
(reversed by the Court of Appeal
(1880),
5
P.D.
1g7),
according to which,
proceedings against
a
state-owned Belgian ship did not involve
a
personal
remedy against the King of the Belgians (p.
740).
(2)
Lord Maugham
based
his decision on
a
ground which Lords Atkin
and Wright, followed by Lords Thankerton and Macmillan, treated
as
a
“second” and “separate
”
one, calling for separate analysis, though both
grounds “alike are based on the general principles of international law
according to which
a
sovereign state
is
held immune from the jurisdiction
of another sovereign state” (p.
728).
This second ground
was,
in the words
of Lord Atkin (p.
721).
that the courts of one country “will not by their
process, whether the sovereign
is
a
party to the proceedings or not, seize
or detain property which
is
his,
or
of which he
is
in possession or control.”
In view of the fact that,
as
mentioned above, an action against the
sovereign’s property involves the enforcement of a personal remedy against
the sovereign, it
is
not quite easy to understand why this
is
a second and
distinct ground. Dicey’s formula (5th Edition, pp.
193, 194)
that an action
against the property
“is
for the purpose of this rule an action or proceeding
against such person” appears to be preferable
as
will appear in paragraph
(7)
below.
(3)
Nevertheless, the real importance, and difficulty, of the decision lies
in what was said about the pre-requisites and the ambit of that second
principle. However often the opinions delivered by the five law Lords may
be read, all that can
be
ascertained with safety
as
their
communis opirrio
is
the following rule
:
ships which, by reason of a requisition by
a
sovereign
state (even
if
such requisition
is
effected while the ship
is
outside the
jurisdiction of the requisitioning state), are proved to be under the control
and in possession of that state and are, or are intended to be, devoted to
public uses, are protected
by
immunity. But would the absence of any
one of these circumstances have excluded the operation of the general
rule? This
is
the question which future generations of lawyers will have
to ask themselves, and, unfortunately,
it
would be hazardous to predict
the accurate answer.
The first difficulty concentrates on the term “property” within the
meaning of the principle.
It
is
clear that ownership
is
not required.
Possession is certainly sufficient according to Lords Atkin, Thankerton
and Wright, but
it
would seem that Lord Maugham regards possession
as
essential.
This
is
not the view of Lords Atkin and Wright according to whom
the material fact is the control over the ship (see
at
pp.
722, 732).
Lord
Wright said that the rule “applies to cases where the government has
a
lesser interest (than ownership) which may
be
not merely not proprietary,
but also not even possessory.”
Thus there arises this further question:
is
possession and/or control
sufficient even in the absence of requisition or some similar measure, or is,
on the contrary, requisition sufficient even without possession and/or
control? Lord Wright seems to favour the latter view (p.
732)
:
“In my
judgment
. . .
the requisitioning of the
Cristina
under the decree of June
28,1937,
gave the Spanish government
a
right or interest in the
Cristina,
whether called property or not, which was immune from interference
by
the courts of
this
country
”
;
he went on to explain
that
it
was immaterial
that
at
the time of and ever since the decree the
Cristina
was outside
Spanish waters. On the other hand, Lord Maugham seems to prefer the
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