CHAPTER 3 IMMUNITY
3.2 Origins and development of the notion of State immunity
3.2.2 From absolute to restrictive immunity
Before the emergence of the socialist State after the Russian revolution in 1917, States were not involved in private acts of trade and commerce.586 At this time, the boundary between the acts of a State (sovereign acts) which were immune from the jurisdiction of foreign courts, and those of private individuals was clear and, as a consequence, the
577 Hill “The Philosophy of the Law of Sovereign Immunity” 17.
578 McGregor 2008 The European Journal of International Law 913; Yitiha Immunity 105 and Dugard International Law 240.
579 Redress “Immunity v Accountability” 11.
580 Badr State Immunity 89 and Hillier Public International Law 289.
581 Comment 1954 Yale Law Journal 1148.
582 Comment 1954 Yale Law Journal 1148 and Murungu Immunity of State Officials 47.
583 Yitiha Immunity 93 and Dugard International Law 241.
584 Fox State Immunity 2 and Redress “Immunity v Accountability” 9.
585 Redress “Immunity v Accountability” 9.
586 Dugard International Law 241.
practice of States’ immunity did not pose any problem to commercial activities.587 Accordingly, States’ immunity from the courts of other States was absolute.588 During the 1920s,589 however, States started to be involved in trade.590 The emergence of the Communist States and the increasing use of nationalisation as a tool of economic development resulted in a massive growth in the commercial activity of States.591 It thus became increasingly common for private individuals and corporations to enter into contracts with foreign States’ trading companies.592
Absolute immunity became inappropriate in view of this development, especially with regard to the notions of stability, fairness and equity in the market place.593 If absolute immunity persisted with regard to commercial transactions, governmental organizations engaged in commerce would have been in an extremely unfair position and, for that reason, countries started to develop ways to ensure that commercial governmental agencies and private individuals were placed on an equal footing.594 A restrictive doctrine emerged, which distinguished between public acts (acts jure imperii) which attracted immunity and private acts (acts jure gestionis) which did not.595 A State acting as a private individual was no longer to be placed in the advantageous position of being immune from the courts of foreign States and was liable in the same way and to the same extent as private persons.596 Restrictive immunity was also justified by the belief
587 Yitiha Immunity 97.
588 Dugard International Law 241.
589 Bantekas and Nash International Criminal Law 166.
590 Yitiha Immunity 97.
591 Dugard International Law 241. See also Brownlie Principles 327: “In the course of the nineteenth century states appeared as commercial entrepreneurs on a considerable scale, creating monopolies in particular trades, and operating rail-way, shipping, and postal services.
The First World War increased such activities, and the appearance of socialist states has given greater prominence to the public sector in national economies”.
592 Hillier Public International Law 289.
593 Higgins 1982 Netherlands International Law Review 265.
594 Yitiha Immunity 97; Wallace International Law 121 and Bantekas and Nash International Criminal Law 166: “With the rapid growth of interstate commerce, there was a need to procure guarantees to private enterprises that trading with State entities would be on an equal basis.
Indeed, the erosion of absolute immunity rested on financial considerations”.
595 Brownlie Principles 327; Dugard International Law 241; O’Donnell 2008 Boston University International Law Journal 377; Hillier Public International Law 289; Yitiha Immunity 97; Wallace International Law 121; Swanepoel The Emergence 44; Fox “International Law and Restraints”
361 and Bantekas and Nash International Criminal Law 166.
596 Wallace International Law 122 and Malanczuk International Law 119.
that judicial review of a foreign State’s commercial or private actions did not offend a State’s dignity.597 It was considered that:
once the sovereign has descended from his throne and entered the marketplace he has divested himself of his sovereign status and is therefore no longer immune to the domestic jurisdiction of the courts of other countries.598
Belgian courts were the first to adopt the private acts exception as early as 1857,599 and Italian courts followed in the 1880s.600 By the middle of the 20th century the restrictive State immunity doctrine took hold in Western Europe; the commercial activity exception was codified in international treaties601 and many countries enacted statutes that restricted State immunity with reference to the commercial or private nature of the activity. These countries include the US,602 the UK,603 Canada,604 and South Africa.605 The activities that are not covered by State immunity under these laws include those relating to commercial activities,606 those relating to contracts of employment made in the forum State607 or to ownership, possession and use of property situated in the forum
597 O’Donnell 2008 Boston University International Law Journal 381.
598 Finke 2010 European Journal of International Law 859, referring to the legal opinion of the plaintiff in I° Congreso Del Partido House of Lords 16 July 1981 64 (1983) ILR 154.
599 Finke 2010 European Journal of International Law 858.
600 Finke 2010 European Journal of International Law 858.
601 See for example the 1926 International Convention for the Unification of Certain Rules Concerning the Immunities of State-Owned Ships. This convention was signed in Brussels on 10 April 1926 by representatives of twenty nations, including all the major powers except the United States and Russia. It limited sovereign immunity in the area of maritime commerce to ships and cargoes employed exclusively for public and non-commercial purposes. Accessible athttp://cil.nus.edu.sg/rp/il/pdf/1926%201934%20IC%20for%20the%20Concerning%20the%20I mmunity%20of%20State-owned%20Vessels%20and%20Additional%20Protocol-pdf.pdf [17 Octobre 2012].
602 Foreign Sovereign Immunities Act 28 USC §§ 1330 1602–1611.
603 State Immunity Act 1978 17 ILM (1978) 1123.
604 State Immunity Act 1982 21 ILM (1982) 798.
605 Foreign States Immunities Act 87 of 1981. This Act starts by asserting a general rule of immunity enjoyed by foreign states before South African courts (section 2(1)) and then proceeds to spell out the circumstances under which State immunity will not apply. See sections 4-12.
606 See, for example, section 4 of the South African Foreign States Immunities Act 87 of 1981. It is worth noting that quite before the passing of this Act, South African courts had already endorsed the restrictive approach to State immunity in the cases of Inter-Science Research and Development Services (Pty) Ltd v Republica Popular de Mocambique 1980 2 SA 111 (T) and Kaffraria Property v Government of the Republic of Zambia 1980 2 SA 709 (E). The facts of these cases are discussed in Swanepoel The Emergence 45-46 and Dugard International Law 242-243.
607 See for example s 4(1) of the State Immunity Act 1978 17 ILM 1123 (1978). See also s 5 of the South African Foreign States Immunities Act 87 of 1981.
State,608 or delictual acts that cause damages committed on the territory of the forum State.609
A general feature of these peaces of legislation is that sovereign immunity is the rule unless an exception has been created by a specific provision in the relevant national statute. This is so even if the allegations brought before the court relate to the acts that are contrary to international law.610 In Siderman de Blake v Republic of Argentina611 a US court observed as follows:
we do not write on a clean slate. […] we conclude that if violations of jus cogens committed outside the United States are to be exceptions to immunity, Congress must make them so.612
The same approach was taken by British courts in Al-Adsani v Kuwait.613 In this case, the plaintiff had brought a civil claim against the State of Kuwait for his alleged torture in a Kuwaiti prison. The Court of Appeal held that the State of Kuwait was entitled to immunity even in a case involving allegations of torture on the basis that no such exception was provided in the State Immunity Act of 1978, which it referred to as a
“comprehensive code”.614
This view was also recently endorsed by the ICJ in Germany v Italy,615 a case which was brought by Germany in relation to a number of decisions by Italian courts which, ignoring the State immunity of Germany, upheld claims against Germany brought by Italian victims of war crimes committed by German soldiers during World War II. The
608 See for example section 6(1) of the State Immunity Act 1978 17 ILM (1978) 1123. See also section 7 of the South African Foreign States Immunities Act 87 of 1981.
609 For example, section 28 USC § 1605(a)(5) of the American FSIA provides that a foreign state shall not be immune from jurisdiction in any case “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment […]”.
The “tort exception” was successfully used in the 1980 case of Letelier v Republic of Chile Chile 502 F Supp 259 (5 November 1980). In this case, the family of a former Chilean ambassador, Letelier, obtained an order for compensation from the Chilean government through the US courts for the death of the ex-ambassador who had been killed by a car bomb planted by Chilean agents in his car. Accessed at http://homepage.ntlworld.com/jksonc/docs/letelier- 502FSupp259.html [13 June 2012].
610 Jia 2012 Journal of International Criminal Justice 1314-1315.
611 Siderman de Blake v the Republic of Argentina 965 F 2d 688 (22 May 1992). A link to the judgement is available at http://www.icrc.org/applic/ihl/ihl- nat.nsf/46707c419d6bdfa24125673e00508145/752434334a8a7d0ec1256d180031c242?openD ocument [1 April 2014].
612 At 718-719.
613 Al-Adsani v Government of Kuwait CA 12 March 1996 107 ILR 536.
614 Al-Adsani v Government of Kuwait CA 12 March 1996 107 ILR 542.
615 Germany v Italy (Greece intervening) Jurisdictional Immunities of the State Judgement 2012 ICJ 99 (3 February 2012).
ICJ found that Italy was wrong to ignore the immunity of Germany, and ordered Italy to render the decisions of its courts against Germany without effect.616
3.2.3 The 2004 UN Convention on the Jurisdictional Immunities of States and Their