City Research Online

Abstract

Prior to the State Immunity Act 1978, the doctrine of state immunity applied in English courts as a matter of common law and precedent. The doctrine is a rule of customary international law and requires a domestic court to respect the immunity of a foreign state from the court’s jurisdiction both in relation to suit and enforcement. It is often also referred to as sovereign immunity. It is a derogation from the court’s jurisdiction justified by the sovereign equality and the independence of states. The late 20th century saw a shift from an absolute to a restrictive doctrine, although Lord Sumption in the English case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62; [2017] 3 W.L.R. 957 suggested that there never was a case for immunity “extending beyond what sovereigns did in their capacity as such” (para. 52). The arguments today are about the limits of the restrictions. In essence, a state is no longer immune in respect of its commercial activities (acte jure gestionis) but is immune from domestic litigation for almost all else (acte jure imperii), which may include war crimes and acts of torture (unless classified as a tort and committed in the forum state). Enforcement action against states is limited to the pursuit of assets in use for commercial purposes. The law differentiates between states as such and separate state entities whose immunity is more restricted. State and diplomatic immunity (the immunity of the individual diplomat or diplomatic premises) must also be distinguished. This article does not cover head of state immunity (except in respect of some recent developments), diplomatic immunity, organisational immunity or special missions’ immunity. The immunity of states with respect to criminal proceedings is generally thought to be absolute but there may be some movement where terrorist funding for example can be described as commercial. Cases involving employees of diplomats reveal that immunity where human rights abuses are alleged may be limited by the commercial activity exception as reviewed below. The extent of state immunity where arbitration proceedings are involved and the way in which a state can be served are also areas of discussion and development in English law.

Publication Type:	Internet Publication
Additional Information:	Reece Thomas, K, Insight, 2023, Sweet and Maxwell, copyright THOMSON REUTERS (PROFESSIONAL) UK LIMITED. This extract is taken from the author's original manuscript and has not been edited. The definitive, published, version of record is available here: https://uk.westlaw.com/Document/I316884E04A2B11E4965DE8E6B641E82E/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad62aee0000018df449c648895a13e7%3Fppcid%3D03916251d0a34f3d9058bbe16d6dbea3%26Nav%3DRESEARCH_COMBINED_WLUK%26fragmentIdentifier%3DI316884E04A2B11E4965DE8E6B641E82E%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=1dbd1eadd84c496c886c965900affce5&list=RESEARCH_COMBINED_WLUK&rank=1&sessionScopeId=959b2032747e0867ee75c41cc613994a711a52da3fcd217b4e3736e5da681c7a&ppcid=03916251d0a34f3d9058bbe16d6dbea3&originationContext=Search%20Result&transitionType=SearchItem&contextData=(sc.Search)&comp=wluk&navId=7FC5B7909F5BB1E6841742F6AC33C1F6
Subjects:	K Law > K Law (General)
Departments:	The City Law School The City Law School > Academic Programmes
Related URLs:	Publisher
SWORD Depositor:	Symplectic Administrator

Export

Downloads