Sovereign Immunity

Summary of Sovereign Immunity

A principle of international law that holds that the territory, property, and official agents of a sovereign state are exempt from seizure, suit, trial, or other submission to the jurisdiction of any other state. Normally a state may not be sued in a foreign court without its consent, nor its property seized nor its diplomatic agents arrested by a foreign power for any reason. Violation of this immunity may constitute an act of war. Some limitations on this immunity have arisen through statute and international agreement. (Main Author: William J. Miller)

Comparative Overview

International

The International Convention for the Unification of Certain Rules Relating to the Immunity of State Owned Vessels, Brussels, 10 April 1926 with the Protocol of 24 May 1934, both of which entered into force 8 January 1937. Countries have adopted or are leaning towards “restrictive” foreign sovereign immunity , i.e. that commercial ships owned by a sovereign state are not immune from seizure.

The Law of the Sea Convention 1982 , adopted at Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994, see art. 236 on foreign sovereign immunity.

Canada

The State Immunity Act, R.S.C. 1985, c. S-18, as amended, in force as of 15 July 1982. See in particular sect. 7 which refers to in rem and in personam actions. Canada now has restrictive foreign sovereign immunity. See also the Federal Courts Act, R.S.C. 1985, c. F-7, s. 43(7)(c).

United States

Foreign Sovereign Immunities Act (F.S.I.A.) 1976, 28 U.S. Code 1330, 1332(a), 1391(f), 1441(d), 1602-1611. An in rem action against vessels owned by a foreign sovereign is permitted when it is used for commercial purposes, and with respect to arrest for the enforcement of a preferred ship mortgage (see 28 U.S. Code 1605(c), 1610(e)), or with respect to attachment, subject to certain conditions (see sects. 1610 (d)(1) and (2)). Another important exception to the principle of foreign sovereign immunity is the Arbitration Exception (see sect. 1605(a)(6)(B)).

United Kingdom

The State Immunity Act 1978, (1978) U.K. c. 33, in force 22 November 1978, designed in part to give effect to the European Convention on State Immunity 1972, Basle, 16 May 1972 (in force 11 June 1976). The restrictive foreign sovereign immunity doctrine is found in sect. 10.

The U.K. ratified the 1926 Immunity Convention on 3 July 1979 with reservations (1) as to the application of arts. 1 and 2 of the Convention, and (2) to give effect to the terms of any international agreement with a non-contracting State, as to the right to make special provision (a) as regards the delay or arrest of a ship or cargo belonging to such a State, and (b) to prohibit seizure of or execution against such a ship or cargo.

France

France ratified the 1926 Immunity Convention on 27 July 1955. France therefore has restrictive foreign sovereign immunity. A ship owned by a foreign sovereign of a state which is not a party to the 1926 Convention may be seized as well when it is being used for commercial activity or when it is not performing a public act of state: Cour de Cassation, 25 February 1969, [1969] ETL 744.

By William Tetley, Q.C.

Immunities

This section covers the following:

Immunities and Privileges
Immunities Bill of Rights
Immunities Clause
Immunities Convention
Immunities Definition
Immunities from Jurisdiction
Immunities Government
Immunities in International Criminal Law
Immunities in International Law
Immunities of International Organizations
Immunity and Privileges
Immunity Clause
Immunity Definition
Immunity from Prosecution
Immunity from Seizure
Immunity from Suit
Immunity Means
Immunity of Citizens
Immunity of Heads of State
Immunity of State Officials
Immunity Ratione Material
Immunity Regulations
Immunity Response
Immunity Specialized Agencies
Immunity to Diplomats
Jurisdictional Immunities

U.S. Foreign Sovereign Immunities Legislation

For information about the United States Foreign Sovereign Immunities Act, see the entry in the American legal Encyclopedia.