Sovereign Immunity by Xiaodong Yang

Sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction: only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.” Because different types of legal proceedings may be brought against foreign states, sometimes courts find it necessary to refer to jurisdictional immunities of states. In history, the words “exterritoriality” and “extraterritoriality” were also used in this sense. The current law of state immunity has developed predominantly as a result of cases decided by national courts in legal proceedings against foreign states. Doctrinal debates among the scholars are of much later occurrence and consist mainly of comments on decided cases. The fact that the law of state immunity is primarily judge-made law gives judicial decisions a prominent position among the possible sources of international law as contemplated by Article 38 (1) of the Statute of the International Court of Justice; instead of being a “subsidiary means for the determination of rules of law,” they are now a main source of legal rules. This feature of the law also shapes and determines the contours of a research guide on sovereign immunity. As far as possible, the leading cases in the field must be introduced first, so as to provide a firsthand view of the law and to place the relevant doctrinal debate in its proper context.

General Overviews

The convenient place to start, so far as the relatively modern developments are concerned, is Lauterpacht 1951, which seeks to offer a doctrinal exploration in the light of judicial practice of a number of states during the early part of the 20th century. This set the pattern of the scholarly exposition throughout the history of the law of state immunity. Sucharitkul 1959 was the most important work to appear and argue decidedly in favor of restrictive immunity, at a crucial juncture where the absolutist and the restrictivist camps were of equal strength. The defense of restrictive immunity remained the central concern of the academic works published before the end of the 1980s. Badr 1984 offers a typical justification for the transition from absolute to restrictive immunity. Starting from Schreuer 1988, however, leading writers no longer find it necessary to engage in such a defense but instead concentrate on how restrictive immunity is or should be given effect in practice. Schreuer 1988 thus simply assumes restrictive immunity and discusses the question of immunity along the lines of the pressing issues facing the practitioners. Bankas 2005 discusses a selection of issues based on selection of cases. As a comprehensive summing-up of the developments so far, Fox 2008 gives a good indication of what issues and aspects of state immunity are now facing the student in this field. The book starts with the theoretical bases of state immunity and then conducts a detailed analysis of such practical issues as commercial activity and other exceptions to immunity, express and implied waiver of immunity, and immunity from execution. Finally, the book discusses the extension of state immunity to heads of state, diplomats, and armed forces. Gong 2005 follows a similar pattern and discuses both historical and current issues. A more theory-oriented, rather than case-based, work is Cosnard 1996. The central theme of the book is to demonstrate that state immunity is an entitlement under international law, derived from sovereign equality. Immunity is seen as a “privilege of exemption” that provides protection to the––defendant––state; for this reason one-quarter of the book is devoted to the “beneficiaries of immunity” (Part 1, Title 2), including persons and organs of the state. The book sheds much light on the conceptualization of the notion of statehood and will be of considerable value to the academic researcher.

• Badr, Gamal Moursi. State Immunity: An Analytical and Prognostic View. The Hague and Boston: Martinus Nijhoff, 1984. Defends the restrictive immunity doctrine. Traces the evolution of the law and discusses the distinction between immune and nonimmune acts of foreign states. It then conducts an ingenious rereading of the case law and argues that even those apparently absolutist cases in fact support the restrictive doctrine.
• Bankas, Ernest K. The State Immunity Controversy in International Law: Private Suits against Sovereign States in Domestic Courts. Berlin and Heidelberg, Germany: Springer, 2005. Discusses the origins of absolute immunity, subsequent development of restrictive immunity, possible justifications for immunity, and some other issues, mainly on the basis of selected UK and US case law. Of particular interest are two chapters (chapters 5 and 6) on the position of African states on sovereign immunity.
• Cosnard, Michel. La soumission des États aux tribunaux internes: Face à la théorie des immunités des États. Paris: Éditions A. Pedone, 1996. Views state immunity as an entitlement that is derived from sovereign equality and which protects every state against possible encroachments by the exercise of jurisdiction by foreign national courts.
• Fox, Hazel. The Law of State Immunity. 2d ed. Oxford: Oxford University Press, 2008. By far the most extensive work published in the English language, this widely acclaimed and oft-cited work provides a well-documented, in-depth, and critical analysis of all the issues, both theoretical and practical, of state immunity in current international law.
• Gong, Renren. A Comparative Study of the Question of State Immunity. 2d ed. Beijing: Beijing University Press 2005. The most authoritative and widely cited work in the Chinese language. This exhaustive, lucid and insightful book critically analyses, from a historical and comparative perspective, the core doctrinal and practical issues of state immunity, as well as the practice of China. The discussion on the historical evolution is particularly illuminating. First published in 1994.
• Lauterpacht, Hersch. “The Problem of Jurisdictional Immunities of Foreign States.” British Year Book of International Law 28 (1951): 220–272. This article explores the theoretical underpinnings of sovereign immunity and calls for a complete abolition of immunity, by way of an international agreement. Of significance is that the conclusions are based on a survey of judicial practice in various states, gathered in a long appendix (two-fifths of the article).
• Schreuer, Christoph H. State Immunity: Some Recent Developments. Cambridge, UK: Grotius, 1988. A practitioner-oriented work, it has remained a major work in the field and is often cited by courts. The analysis is chiefly based on the then-up-to-date case law. The structure, centering on practical issues rather than theoretical controversy, is the most easily navigable.
• Sucharitkul, Sompong. State Immunities and Trading Activities in International Law. London: Stevens & Sons, 1959. The author rightly reasoned that restrictive immunity was to be the future law, adducing abundant evidence to prove this point. Much of the material dealt with herein is now of historical interest only, but the superbly well-presented and well-documented analysis still has much to offer to today’s researchers.

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