The plea of State immunity prevents a foreign State being made party to proceedings in the national court of another State directly, or indirectly by the bringing of proceedings against its property, and thereby prevents the subjection of an independent State to proceedings in another country relating to a dispute about its activities. Two other pleas, Act of State and non-justiciability may also be relevant in the common law in proceedings where as with State immunity the facts pleaded relate to a foreign State and its transactions (see Chapter 3).
The making of a plea of immunity is only one of many matters that may fall to be considered on the institution of proceedings. A first stage is service of process by which the defendant is made aware of the claim, of the proposed court to adjudicate it, and of his required presence to answer the claim. Service of process requiring attendance in court of a person as representative of the State or on the premises of a diplomatic mission located in the forum State may constitute a breach of inviolability and is prohibited by diplomatic law.1
Service of process in relation to proceedings against a State will therefore necessarily be made through diplomatic channels out of the jurisdiction.2 Other procedures relate to preservation of property which may be the subject-matter of the proceedings or which may be required to satisfy any judgment obtained. The party when served may wish to challenge the jurisdiction of the court, make application for a stay of proceedings, or seek an order for the case to be tried elsewhere. Where there is no appearance, the claimant may seek a judgment in default of appearance; where no defence is filed, summary judgment may be obtained.
Service of process is a first stage in the institution of proceedings. Civil courts have fixed criteria for the exercise of their competence. Common law courts in proceedings in personam base jurisdiction on the presence of the defendant within the territory of the forum State. Where individuals have residence or domicile, or a corporation its place of registration or centre of business within the jurisdiction, the institution of proceedings between private parties by service of process should be reasonably straightforward.
Whilst the provision of information to a State as to the court and the proceedings which are to be instituted against it may be in order, service of process requiring attendance in court of a person as representative of the State or on the premises of a diplomatic mission located in the forum State may constitute a breach of inviolability and is prohibited by diplomatic law.3 Service of process in relation to proceedings against a State will therefore necessarily be made through diplomatic channels out of the jurisdiction.4
Where process has been served, a party may seek to obtain an order from the court enabling trial of the claim in the most appropriate court. Pleas of anti suit litigation, lis alibi pendens and forum non conveniens may be raised regarding the choice of the appropriate forum between two or more courts in different States.
The order in which these pleas are taken varies from one national jurisdiction to another. The International Court of Justice (ICJ) in a decision relating to immunities of the United Nations (the immunity from legal process of an expert) declared that the national court is under an ‘obligation to deal with the question of immunity from legal process as a preliminary issue to be decided expeditiously ex limine litis’.5 It confirmed this position in its 2012 judgment in Jurisdictional Immunities: ‘a national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established …’ (paragraph 82).6 Once satisfied that the defendant is a foreign State, the forum court will dismiss the proceedings, unless satisfied that the foreign State has waived its immunity or that the proceedings fall within an exception to State immunity.
The formulation of immunity as a general rule of immunity with exceptions has the consequential effect that the court is itself required to give effect to immunity. The 2004 UN Convention on Jurisdictional Immunities of States and their Property (UNCSI) requires a State to ‘ensure that its courts determine on their own initiative’ that a foreign State’s immunity is respected (Article 6(1)). In the common law, and as enacted by statute in section 2(1) of the State Immunity Act 1978 (SIA), English law requires the court to give effect to immunity even though the State does not appear. In US law, although immunity is taken at a preliminary stage, the plea is treated as a defence with the burden to establish status as a foreign State placed upon the defendant.7
A claim to State immunity is a public claim and it is arguable that it demands open litigation.8
Unlike the preliminary pleas referred to above, the entitlement of a foreign State before national courts to immunity is recognized not merely as a prescription with the force of law but also as a rule of international law.9 The practice of civil law courts and common law jurisdictions (and indeed many US courts) recognize the international character of the rule of immunity. The European Court of Human Rights in Al-Adsani has noted that ‘sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State.’10 For UK law Lord Hoffmann in Jones v Minister of Interior of Kingdom of Saudi Arabia stressed the international law source of State immunity:
As Lord Millett said in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588, state immunity is not a ‘self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt’ and which it can, as a matter of discretion, relax or abandon. It is imposed by international law without any discrimination between one state and another.11
The rule of State immunity ranks within a number of the sources of international law listed in the ICJ Statute, Article 38(1). Judicial decisions of national courts acknowledging the immunity of a foreign State rank under Article 38(1)(d) as ‘a subsidiary means of determination of rules of law’ and when put into effect qualify under Article 38(1)(b) as ‘evidence of a general practice accepted as law’ and thus of customary international law. Whilst Article 38(1)(c) identifies ‘the general principles of law recognized by civilized states’ as a source of international law, this source is now little relied upon—in part by its discredited reference to ‘civilized states’.12 Lauterpacht’s explanation that the intention of this source was ‘to authorize the International Court to apply the general principles of jurisprudence, in so far as they are applicable to relations of states’13 is a particularly apt description of the doctrine of immunity which is formed by an amalgam of international and national law. Whilst the diversity and contradictions to be found relating to the treatment of State immunity in such judicial decisions calls for interpretative and comparative skills to detect the common international law rule which they uphold, a subject more fully discussed below and in Chapter 5, there can be little doubt that there is a general acceptance, both as a general principle of law and as a rule of customary international law, of immunity as a legal bar in international law to certain national court proceedings being taken against a foreign State. The International Law Commission, in the preparation of its draft articles on the jurisdictional immunities of States and their property, after an extensive survey, concluded that the rule of State immunity had been ‘adopted as a general rule of customary international law solidly rooted in the current practice of States’.14 And finally the ICJ recently confirmed, with regard to ‘the record of national legislation, judicial decisions, assertions of a right to immunity and the comments of States on what became the United Nations Convention’ that the current practice of States
shows that whether in claiming immunity for themselves or according it to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity.15
The ICJ’s ruling in Jurisdictional Immunities that immunity is a rule of law, as with the enactment of rules of State immunity in UNCSI and other international conventions or national legislation, directly restricts the extent to which the executive branch of a State may enlarge or reduce immunity (see further discussion under waiver in Chapter 11). Indeed, a foreign State denied immunity by a US court following the Supreme Court’s direction in Republic of Austria v Altmann that immunity merely provides ‘some present protection from the inconvenience of suit as a gesture of comity’,16 would now seem entitled to claim a breach of the international obligation to afford immunity. The effect in law of the practice of China17 and Russia18 along with other States to legislate on a basis of reciprocity would thus seem rendered uncertain. Arguably, in the future the grant of immunity on terms of reciprocity or as a matter of discretion will constitute a breach of the forum State’s obligation to afford immunity; at most it can only be treated as evidence of the forum State’s view, or opinio juris, that the facts of the case do not come within the entitlement to State immunity.
Express protest to a forum State’s refusal of immunity may now become more frequent. State practice in the past shows that, rather than express protest, response to a refusal of immunity has resulted in non-appearance by a foreign State when summoned to appear or an appeal to the forum State to intercede on its behalf.19 Formal protests have rarely been made; and when made, such representations more often object to the execution than to the giving of a judgment. A State has tended to ignore a refusal of immunity unless its property is jeopardized. Germany’s decision to bring proceedings against Italy at the ICJ was motivated, at least in part, by the measures of constraint taken against Villa Vigoni, a property of the German State near Lake Como.20 When the English Court of Appeal in Alcom21 allowed attachment of the account of the Colombian diplomatic mission in London in execution of a default judgment relating to a commercial transaction, Colombia protested to the Foreign Office and cancelled a ministerial visit to Bogota. There were also wider repercussions, with several diplomatic missions moving their accounts out of the jurisdiction of English courts and considering action against the accounts of British missions abroad.22 In consequence, the Attorney-General was briefed by Her Majesty’s Government to act as amicus curiae on appeal, the outcome of which was the Lords’ reversal of the decision of the lower court.
Acquiescence in the practice of another State considered to be contrary to international law cannot necessarily be deduced from the absence of diplomatic protest. In a critique of the Arrest Warrant case, Cassese refers to the assertion for many years of universal civil jurisdiction by US courts over serious violations of international law perpetrated by foreigners abroad and claims ‘whether or not this trend of US courts is objectionable as a matter of policy or on legal grounds, it is a fact that it has not been challenged, or in other words has been acquiesced in, by other states’.23 Yet, in an amicus curiae brief to the US Supreme Court in the Sosa v Alvarez-Machain proceedings, the European Commission challenged the application of the Alien Tort Claims Act to conduct undertaken outside the US by foreigners. It submitted in strong terms that the US Congress and US courts were obliged in determining when the immunity of a foreign State may be set aside to apply the substantive standards and jurisdictional limits imposed by international law.24 Given that the consequences of national courts’ decision have at most indirect impact on the overall foreign relations of one State with another, representations made by way of amicus brief to the supreme court of another State as well as by diplomatic note may surely qualify as a protest. It is to be noted that while Judges Higgins, Kooijmans, and Buergenthal in their joint opinion in the Arrest Warrant case noted in the Alien Tort Claims Act ‘the beginnings of a very broad extraterritorial jurisdiction’ in the civil sphere, they commented that ‘[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States’.25
Whether the law of countermeasures may be of relevance now that State immunity is a rule of international law seems questionable; namely, whether a forum State may invoke the law of countermeasures to justify a failure of its national court to accord such immunity by reason of the defendant State’s violation towards the forum State of an international obligation.26
The concept of countermeasures was alluded to by Italy in its oral pleadings in the Jurisdictional Immunities case.27 Italy contended that, by reason of Germany’s breach of its international obligation to make reparations to Italian victims for violations of international humanitarian law by the German Reich during the Second World War, Italy was entitled to deny Germany immunity in its courts, even if this was a breach of Italy’s own international obligation to grant immunity to Germany in civil proceedings brought in its national courts.28 But the Court’s dismissal of Italy’s counterclaim asserting Germany’s violation of its obligation owed to the Italian victims of war crimes and crimes against humanity committed by the German Reich left it without jurisdiction ‘to rule on those questions’ (paragraph 48). Although the Court considered ‘it a matter of surprise—and regret—that Germany decided to deny compensation to a group of victims … [and] the legal protection to which [their] status entitled them’ (paragraph 99), it made no ruling as to the responsibility of Germany for such denial of compensation and had no jurisdiction to do so.29 Accordingly, there was no breach of an obligation owed to the forum State to justify the latter’s withdrawal of immunity as a countermeasure.
The ICJ did not address the issue of countermeasures in its final judgment. Italy’s consistent view had been that denying immunity to Germany was justified under international law on the basis of an exception to State immunity for grave human rights violations, and not that it was invoking a countermeasure in breach of its obligation to grant immunity.30
During the twentieth century, national legislation, national decisions, and the reaction (or inaction) of States to a forum State’s refusal of immunity potentially constituted evidence of the customary international law relating to State immunity. Further, by reason of the subject-matter, and by the exercise or refusal of jurisdiction over a party to a proceeding in a national court, its reasoning and conclusion may be said to contribute to the formulation of the law relating to State immunity; as such, a national court may both create the law as well as implement an existing international rule. Chapter 5 on Sources discusses the justifications for this law creation by national legislation and national courts and further discusses their role as a source of the customary international law of State immunity. As more particularly described in that chapter, recent international conventions and decisions of international tribunals addressing aspects of State immunity—UNCSI and the ICC Statute and three judgments of the ICJ in the last decade—make probable a reduction in any recourse to the proceedings of national courts for a first articulation of the relevant rule of international law. For issues of civil jurisdiction, UNCSI, however ambiguous in its terms, will provide parameters for the interpretation of the relevant international law of State immunity: in consequence national courts’ role may now be less one of novel law creation but rather of interpretation, a reformulation of the relevant international rule as it applies to the particular facts in the national proceeding. For the exercise of criminal jurisdiction and the prosecution of international crimes committed by State officials, national courts’ role alongside international criminal tribunals may continue to be one more of experimentation and tentative rulings. But whatever the nature of the issue, civil or criminal, the lasting impact of all national courts’ decisions will be dependent on their imitation or rejection in the practice of other States and by the wider international community.
The requirements of the plea of immunity are governed by international law, but, given its lack of particularity, the individual national law of the State before whose court a claim against another State is made (the forum law) determines the precise extent and manner of application. As the phases of the development of the rule of immunity show (see Chapter 2), there has been a steady elucidation of the details of the rule initially with considerable input from national law but throughout moderated by overriding considerations of respect for the independent status of the State. This process is shown in the solutions achieved with regard to the definition of the act of the foreign State entitled to immunity and to the extension of the concept of a foreign State to an entity enjoying independent legal personality.
When this question was addressed as early as 1891, in discussion on the applicable law of State immunity in the Institut de Droit International, several members queried whether the topic fell outside international law. This view was rejected by a large majority.31 In its 1954 resolution the Institut declared that the law of the forum State is to be applied to identify the private/commercial nature of an act and its application to particular types of transaction, whilst international law defines acts in exercise of sovereign authority.32
The Institut’s approach was confirmed and elaborated by the Constitutional Court of the Federal Republic of Germany in 1963 in the Empire of Iran case. The Court addressed the issue of the applicable law as follows: Accepting that the ‘qualification of State activity as sovereign or non-sovereign must in principle be made by national (municipal) law, since international law, at least usually, contains no criteria for this distinction’, the court found this qualification by national law to be subject to ‘international law restrictions’: ‘National law can only be employed to distinguish between a sovereign and non-sovereign activity of a foreign State insofar as it cannot exclude from the sovereign sphere, and thus from immunity, such State dealings as belong to its field of State authority in the narrow and proper sense, according to the predominantly held view of States’.33
On the facts of the case, a contract for the repair of embassy premises of Iran was held not to fall within the essential sphere of State authority and hence proceedings in respect of its breach were not barred by that State’s immunity. The purpose of the function, the improvement of premises in order to carry out diplomatic functions which the State was pursuing, was held not to be relevant. The court accordingly concluded that: ‘The distinction of sovereign functions according to the nature of the transaction and the qualification of the transaction according to national law, may not yet have found the comprehensive recognition which is indispensable for a general rule of international law; it is however so widespread that a grant of immunity going beyond it can no longer be seen as being required by international law’. Accordingly, the exercise of German jurisdiction over the dispute relating to the Iranian embassy was confirmed.
Less clarity has been achieved in respect of the entitlement of separately incorporated entities to State immunity. As the discussion in Chapter 10 on Definition of the Foreign State in Part III reveals, given the absence of any clear guidance in international law, national courts have differed on whether the inclusion of such ‘State’ entities within the immunity enjoyed by the foreign State is a matter for the determination of the law of the forum State or the consent of the foreign State or by its national law. The current solution adopted by UNCSI authorizes a reference to both forum State and foreign State law; in Article 2(2)(b)(iii) ‘agencies or instrumentalities’ come within the convention’s definition of the State ‘to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State’ ie entitled to perform according to the law of the foreign State and actually performing according to the law of the forum State.
The setting out in treaty form of rules relating to State immunity in the 2004 UNCSI, particularly after its coming into force, will greatly strengthen the international law content of the rules of immunity and reduce the frequency of the determination of issues by reference to national law. It is to be hoped that the status of such rules will then be equated to those relating to the immunities of diplomats and consuls which are set out in the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations and which have received almost universal recognition. It is significant that such codification in treaty form accelerated their recognition as general international law.
The recognizable attributes of a plea of State immunity are:
(i) a plea;
(ii) proceedings brought in a court;
(iii) against a foreign State; and
(iv) which by law results in the refusal of the forum court to hear the case.
Each of these attributes may be considered in turn.
The plea of immunity is only available to a defendant which is an independent and sovereign State under international law. In common law jurisdictions, a State is treated as a foreign State only where it is recognized as such by the forum State.34 Common law courts will usually take judicial notice of the status of a State defendant but in case of doubt may seek advice from the forum State’s executive. In the UK on the request of the parties to the Foreign Office, or sometimes at the instance of the court, the Secretary of State for Foreign Affairs will issue a certificate which under the SIA 1978 is conclusive as to the status of the State or its government. In other jurisdictions, proof of the essential attributes of a State—territory, population, government capacity to enter foreign relations—may be sufficient, though usually some recognition by diplomatic or treaty relation with the forum State will be present.35 No specific guidance on this issue is provided by UNCSI, see further Chapter 10.
For the purposes of immunity the central government, its departments, and organs are treated as within the protected status of a foreign State; national courts may extend State immunity to other agencies established by the State dependent on their relationship or function. The acts of individuals performed on behalf of the State for whom they act as representatives may also be imputed to the State (see Chapter 10) so as to render the immunity which they enjoy co-extensive with the immunity of the State. Historically, so far as the immunities of heads of State and of the diplomatic agent and the diplomatic mission are concerned, the immunities of individuals acting on behalf of the State evolved independently of State immunity, particularly in respect of the immunity extending to private acts while they were in office. Immunities accorded to the visiting armed forces of a foreign State have also been treated as a separate regime in international law. Following the 2010 decision in Samantar, the US Supreme Court seems to favour a similar form of independent treatment as applicable to all State officials stating that ‘the immunity of individual officials is governed not by the FSIA but by the common law of foreign official immunity as recognized by the Executive’ (see further Chapter 8).36 By reason of these differences, the immunities enjoyed by Heads of State and high ranking officials, diplomats, the visiting armed forces of a foreign State, and officials of international organizations are examined separately in Chapters 18 and 19 and are to be regarded broadly as a subject to be regulated, though with some considerable overlap, by regimes separate from that of State immunity.37
In contrast to non-justiciability where nature of the subject-matter of the claim may render it non-justiciable in a national court,38 the plea of immunity is a bar based on the status of the defendant as a sovereign State and is hence described as immunity ratione personae. As the ICJ has commented, ‘immunity [by reason of this personal status of a foreign State] may represent a departure from the principle of territorial sovereignty and the [territorial] jurisdiction which flows from it’.39 But for immunity, that jurisdiction would be validly based on the presence of the foreign State and its agencies or its property or on the commission of acts on its part within the territory of the forum State. The plea of immunity acts as a personal bar. On this account as a beneficiary enjoying a personal immunity, the defendant State can consent to its removal. Such consent to the proceedings in the national court of another State may now be given prior to or after the initiation of proceedings, provided the foreign State’s intention to accept the jurisdiction of the forum State’s court is made clear.40
State immunity may act as a bar to proceedings before an international tribunal as well as a national court, but its main significance relates to its effect upon the jurisdiction of a national court.
Jurisdiction and immunity are two separate concepts. ‘Jurisdiction relates to the power of a State to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and exemption from the jurisdiction or competence of the courts and tribunals of a foreign State and is an essential characteristic of a State.’41 Logically the existence of jurisdiction precedes the question of immunity from such jurisdiction but the two are ‘inextricably linked’ (see Chapter 4).42
The plea concerns immunity from the judicial power of another State, although the enforcement of that power may also involve the executive power and the administrative authorities of the State. It does not relate to the legislative power of the State, its jurisdiction to prescribe which goes more to substantive liability (see Chapter 4).43.
Such court proceedings include all manifestations of the judicial power within the forum State territory, and accordingly can be raised in any tribunal exercising judicial or quasi-judicial powers, whether in criminal, civil, family, or other matters. The plea is available to bar proceedings before administrative tribunals. The position as to arbitration tribunals is different. In so far as an arbitration tribunal derives its authority to determine a dispute from the consent of the parties, the foreign State’s consent may constitute a waiver of any immunity; but in so far as the tribunal looks to the forum State and its courts to enforce the arbitral award, the plea of State immunity may have relevance (see Chapter 11).
Application of the forum State’s choice of law rules relating to the alleged activity will usually result in the forum State’s court applying its own law or the law of the place where the acts complained of took place, which may often be the same. In US cases the FSIA provides a basis for US federal court jurisdiction but substantive law will be determined by the law of the particular State in which the federal court has its seat.
The plea of immunity is one of immunity from suit, not of exemption from law. This is shown clearly by the fact that immunity can be waived and then the case can be decided by the application of the law in the ordinary way.44 The ICJ has held that
[t]he rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another…. It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful.45
The underlying substantive law relating to private law liability or State responsibility of the defendant State is unaffected by the plea, as the ICJ noted in confirming Germany’s entitlement to immunity.46 The entitlement to immunity is in no way dependent upon the existence of alternative means of securing redress47 although, as can be seen from recent challenges to the rule, a plea of immunity from suit may undoubtedly assist a foreign State in the avoidance of substantive liability.
The degree to which immunity of the foreign State prevails against the exercise of local jurisdiction varies according to whether the proceedings relate to the exercise of the criminal or civil jurisdiction of the national court. The exercise of criminal jurisdiction of national courts relates to proceedings where the forum State prosecutes a private party for an offence prohibited by national penal codes, and the exercise of civil jurisdiction, whether of the courts of common law or civil law countries, relates to proceedings between two parties as applicant and defendant on an equal footing.
A foreign State is not subject to the criminal proceedings of a national court of another State more by reason of substantive law than procedural immunity. In criminal proceedings the substantive penal code of the forum State defines acts constituting criminal offences and on conviction provides punishment by imposition of fines and other penalties including imprisonment. By reason of its independent status, the foreign State cannot be subjected to such prosecution by the forum State or its officials nor punished by way of fine, penalty, or imprisonment (see Chapter 4).
However, the recognition that there is no impunity by reason of official status for the commission of international crimes by individuals48 and the prosecution of high-ranking State officials before international criminal tribunals for such crimes has led to pressure for the removal of the immunity enjoyed by such State officials in respect of criminal proceedings in national courts. In 1999 in Pinochet (No 3)49 the Judicial Committee of the House of Lords declared that a former head of State present in England had no immunity from extradition proceedings, brought at the request of the State of the nationality of some of the victims, relating to the alleged offence of State torture under the 1984 UN Torture Convention, that is proceedings relating to an international crime involving violation of a fundamental human right, even though committed while in office and for the purposes of the State. This decision, which was followed by proceedings being initiated in the national courts of other countries against serving50 as well as former heads of State,51 marked a significant change by introducing an exception for international crimes including torture to the absolute rule of immunity in respect of the criminal prosecution of individuals who represent the State.
However, it is to be noted that the Lords in Pinochet expressly stated that the immunity of the State and a serving Head of State in respect of criminal proceedings remained absolute and was unchanged,52 and in the Arrest Warrant case the ICJ ruled that a serving Minister for Foreign Affairs enjoys personal inviolability and immunity from criminal jurisdiction in respect of alleged crimes against humanity and found that the issuance and international circulation of an arrest warrant for international crimes against such a high ranking official when in office was a breach of international law.53 The subordination in recent national legislation of the initiation of criminal prosecution in national courts of serving foreign high-ranking officials to the political decision of the forum State indicates State practice in support of this ruling of the Court.54 Whether such a Minister when he vacates office loses immunity for heinous international crimes committed in the course of official functions, however, would seem undecided; the ICJ was of the view that immunity was retained even in respect of the commission of grave international crimes, but this opinion was strictly obiter.55
Adjudication jurisdiction relates to the court’s inquiry into the claim and adjudication by means of a judgment or declaration of rights and obligations; it extends to interlocutory proceedings, appeal, and recognition (the grant of exequatur) of foreign judgments given against States. Enforcement jurisdiction relates to the making and execution of mandatory orders or injunctions against the State in respect of, for example, restitution, damages, penalties, production of documents or witnesses, and accounts. The UNCSI, national legislation and State practice observes this distinction between immunity from adjudication and immunity from enforcement (see further Chapters 9, 16 and 17).
When first recognized by the common law, the plea of immunity was treated as a general bar to all types of civil claim.56 Under the restrictive doctrine, however, immunity is given for acts performed in the exercise of sovereign power but withdrawn in respect of acts of a commercial or private law nature. This distinction between acta de jure imperii, acts in exercise of the public or sovereign powers of a State, and acta de jure gestionis, acts performed as a private person or trader, is crucial to the present law of State immunity; it is relevant to determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act, and accordingly has, as the ICJ has stated, to be applied before that jurisdiction can be exercised. As such, it is to be contrasted with the legality of the act, which is to be determined only in the exercise of that jurisdiction.57 Chapter 12 examines the general notion of commerciality upon which many of the exceptions to state immunity are based and in the following Chapter 13 the nature of each exception and the extent to which it permits proceedings against a foreign State are discussed.58
Immunity of the foreign State from adjudication jurisdiction and the delivery of judgments against a foreign State may properly be restricted by exceptions, whereas immunity from enforcement jurisdiction in respect of such proceedings remains largely absolute. The application of coercive measures to a State and its property involves different and more directly intrusive mechanisms than the ruling of a national court as to liability. In consequence, the bar against coercive measures against a foreign State remains largely absolute, subject at the present time to the State’s consent. As the ICJ observed in Jurisdictional Immunities:
… the immunity from enforcement enjoyed by States in regard to their property situated on foreign territory goes further than the jurisdictional immunity enjoyed by those same States before foreign courts. Even if a judgment has been lawfully rendered against a foreign State, in circumstances such that the latter could not claim immunity from jurisdiction, it does not follow ipso facto that the State against which judgment has been given can be the subject of measures of constraint on the territory of the forum State … with a view to enforcing the judgment in question.59
Some jurisdictions, including the UK in its State Immunity Act 1978, permit execution or attachment against property in commercial use of the State, but the rules permitting enforcement against State property remain narrow and strict (see Chapter 16 as to Enforcement generally and Chapter 7 on English law).
This chapter has sought to give a general outline of the plea of State immunity and its main features as regards its operation in proceedings in national courts. The sources of that law are more fully addressed in Part II and the detailed application of the rules and practice in Part III.