The Modern Law of Sovereign Immunity

Published date01 September 1991
Date01 September 1991
AuthorLakshman Marasinghe
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02661.x
The Modern
Law
of
Sovereign Immunity
Lakshman Marasinghe
*
The early ideas regarding sovereign immunity had their philosophical underpinnings
in the writings of Bodin,’ Austin,* and Hegel.’ In
1577,
Bodin wrote:
[Ill
is
the distinguished mark
of
the Sovereign that he cannot in anyway be subject to the
commands
of
an~ther.~
Bodin’s notion of sovereignty, or the absolute and perpetual power within the
state,5 coupled with Hobbes’6 justification of absolute power as ‘an imaginary
compact between ruler and ruled” appears to have provided Austin with the raw
materials for his own view of law as a command of the sovereign.8 Austin’s
command theory provided that the sovereign who is not subject to any law
whatsoever, could,
if
that was the wish, command all whom he may find within
his ‘independent political s~ciety’~ to be subject to his command. Hegel, who fell
under the influence of these views formulated his theory of dialectics.i0 At the
zenith of social advancement chartered by Hegelian dialectics may be found the
state which for Hegel was the ‘highest achievement of human endeavour.’”
Within this nineteenth century philosophical framework sovereign immunity took
an absolutist form justifying an attitude against impleading a foreign sovereign before
a local court. This attitude became clearly established
in
the decisions concerning
ships, which were handed down by the courts on both sides
of
the Atlantic.lz Yet
another contributing factor for the growth of the absolutist view was the nineteenth
century quest for colonial expansion. Colonial expansion raised the notion of a
sovereign with absolute powers. Austin described
his
sovereign as one whose powers
were indivisiblei3 and illimitable.
l4
Chief Justic Marshall of the United States
Supreme Court’s and Lord Stowell
in
the Admiralty Courti6 took the view that
‘Sovereigns have made an implied contract to respect each others’ independence
I
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
*
Professor of Law, University of Windsor, Ontario, Canada. This is the text of a paper delivered at the
National Law Conference held
in
Colombo, Sri Lanka on 31 August-1 September 1990.
Bodin,
79ie Six Books
of
the Cotninonwealth
(Tooley, transl
1955).
Austin,
The Province
of
JurisDrudence Deterinitred
(ed by Berlin, Hampshire, Wolheim, 1954).
Hegel,
Philosophy
of
Righr
(Knox, transl) p279.
Note
I
p43.
ibid.
Hobbes,
Leviathan
(ed by Oakshott).
Dias,
Jurisprudence
5th edn p81.
Note 2, pp133-134.
ibid
pp131-134 and 193-195.
ibid.
The Schooner Exchange
v
M’Faddon
I1
US
(7 Cranch) 116 (1812);
The Pesaro
271
US
562;
The
Baja California
324
US
30;
The Ucayli
318
US
578;
The Navetnar
303
US
68;
The Gleneden
254
US
522;
79ie Hudson
336 F(2d) 254 (US decision);
The Prim Fredrik
165
ER
1543;
The Parlement
Belge
5 PD 197;
The Porto Alexaridre
[1920] Probate 30;
The Cristina
(19381 AC 485.
Note 2 Lecture
IV.
The notion of ‘indivisibility’ was refuted
in
the 20th century
in
such decisions
as,
In re Mwenya
[I9541 3
All
ER
525;
Madzinrbamuto
v
Lardner-Burke
[
19691 AC 645;
Harris
v
Minister of the Interior
[
19521
I
TLR
1245;
R
v
Secretary of State for Foreign Aflairs
[
19821
I
QB
892;
Manuel
v
A-G
[
19821 3
All
ER
822.
ibid:
The notion of ‘illimitability’ was refuted
in
the 201h century
in
such decisions as:
Harris
v
Minister
of rhe Interior ibid; Ranasinghe
v
Bribery Commissioner
[I9651 AC 172.
The Schooner Exchange
v
M’Faddon
I1
US
(7 Cranch)
116,
2 L Ed 287 (1812).
77ie Prins Fredrik
2 Dods 451,
165
ER
1543.
Note 3 pp375-386.
664
The Modern
Lclw
Review
545 September 1991 0026-7961
September
199
I
1
The
Modern
Lcrw
of
Sovereigtt biiniuttity
and dignity.’I7 More recently, the Harvard Research Unit stated
in
its Draft
Convention’* on the competence of courts in regard to the impleading of foreign
states:
Historically
the
rule
may
be traced to
a
time when most States were ruled by personal
sovereigns who,
in
a
very
real sense, personified
the
State: ‘L’Etat, c’est moi.’
In
such
a
period,
influenced
by
the
survival
of
the
principle
of
feudalism,
the exercise
of
authority
on
the part
of
one
sovereign
over
another
inevitably indicated
either
the
superiority
of
overlordship
or
the
active
hostility
of
an
equal.
The peaceful intercourse
of
States could be
predicated
only
on
the basis
of
respect for other
sovereign^.'^
In practice, the absolute
view
of sovereign immunity caused no great problems
until the turn of the century. In previous periods sovereigns were mainly engaged
in
wars and conquests, commercial activity being left to individual merchants of
the realm. The sovereign’s interest was in taxing their earnings, in return for which
he supplied them with the armed protection of his naval power. Colonial expansion
was principally a means of extending the sovereign’s authority through this indirect
exploitation of new overseas dependencies. The Dutch East India Company, the
British East India Company and the British South Africa Company were a few of
the colonial agencies established by the sovereign for the purpose of exploiting the
riches of the new conquests. The sovereign’s role, however, began to change from
about the middle of the nineteenth century.*O
The Russian Revolution of
1918
marked the beginning of massive participation
by sovereign states
in
trading activities. The Bolsheviks’ nationalization of industries
meant that the ‘means of production’ became vested in the state; commercial activities
began to be performed by a myriad of state agencies.*I The question whether these
state agencies could be impleaded
in
foreign courts began to loom large during the
twenties and thirties. During the years succeeding the Bolshevik revolution, the
monarchies of
the
Iberian Peninsula were deposed, and, following the pattern set
by the Soviet Union, Spain and Portugal also began trading through state
agencies.
**
Other countries have since followed this trend.23 Naturally enough, the
question began to be asked whether the absolute view
of
sovereign immunity, which
had been developed in such different circumstances, was still a reasonable one,
particularly
in
view of the new types of disputes bringing sovereign states before
the courts,
in
which the sovereign appeared directly in the role of a commercial
trader
.**
Most states reacted by developing a restrictive theory of sovereign immunity,
limiting
the
immunity to the sovereign’s
acza
injure
imperii,
and excluding from
17 O’Connell,
International
Law
(Stevens, 2nd edn 1970)
Vol
11 p844.
I8
‘The Drat? Convention and comment
on
the competence of courts
in
regard to Foreign States,’ published
in
vol
26,
77te
Atncrican Journal
of
international
Law,
(supp) p451.
19
ibid
p527.
20
The following cases are only
a
few of those involving vessels owned
by
Sovereigns that were being
used for trading purposes:
The
Prins Fredrik
(Note 16);
The Charkieh
[
1873)
8
QB
197;
nie
Parlernent
Belge
and
The
Porto Alexandre
[
19201
PD
30.
21
Johnson,
An
Introduction to the Soviet
Legal System,
1973, Ch
11.
See
also
Krajina
v
Tam Agency
119491
2
All
ER
277.
22
Baccus
SRL
v
Servicio Naciottal
de
Trig0
[
19571
1
QB
438.
23
Mellegtier
v
New Brutiswick Development Corporation
[I9711 2
All
ER 593,
[
19711
I
WLR
604;
Swiss Israel Trade Bank
v
Salta
[I9721
I
Lloyd’s
L
Rep 497.
24 Fawcett, ‘Legal Aspects of State Trading’ (1948)
25
British Year Book
of
Intentational
Law
34,
Lauterpacht, ‘The Problems of Jurisdictional Immunities of Foreign States’ (195
I)
28
British Year
Book
of
Btternational Law.
665

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