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Asser Institute Lectures on International Law: Certain Unresolved Aspects of the Law of State Immunity

Published online by Cambridge University Press:  21 May 2009

R. Higgins
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Extract

The law of State immunity has changed very significantly over the last twenty years. Legal development often occurs because a new international law topic has burst upon the scene, or because pressures-have mounted from numerically important States who find the old law unsatisfactory. But developments in the law of State immunity seem to have been precipitated by other factors. The topic has a very long legal history. And much of the third world, from whom so much of the impetus for change today comes, has very conservative views about State immunity. The developments in State immunity have been a self-generated response to the requirements of the contemporary commercial world and to notions of stability, fairness and equity in the market place.

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Articles
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Netherlands International Law Review , Volume 29 , Issue 2 , August 1982 , pp. 265 - 276
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Copyright © T.M.C. Asser Press 1982

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References

1. For text see, Singh, , International Conventions on Merchant Shipping, 2nd ed., 1973, 1433Google Scholar.

2. See, Sinclair, , “The European Convention on State Immunity” 22 I.C.L.Q. (1973) 266CrossRefGoogle Scholar.

3. See especially, Sucharitkul, , State Immunities and Trading Activities (1959)Google Scholar; and “Immunities of Foreign States before National Authorities”, Hague Recueil (1976) I, 91Google Scholar; Thommen, , Legal Status of Government Merchant Ships in International Law (1962)Google Scholar.

4. For example, Higgins, , “Recent Developments in the Law of Sovereign Immunity in the United Kingdom”, 71 A.J.I.L. (1977) 423Google Scholar; Bowett, , “The State Immunity Act, 1978”, 37 C.L.J. (1977) 193CrossRefGoogle Scholar; Schreur, , “Some Recent Developments in the Law of State Immunity”, 2 Comp. Law Y.B. (1978) 215Google Scholar; Delaume, , “The State Immunity Act of the United Kingdom”, 73 A.J.I.L. (1979) 185Google Scholar.

5. See, The Charkieh (1873) L.R. 4 A. & E. 59; The Parlement Beige (1880) 5 P.D, 197; The Cristina (1938) A.C. 485; Thai-Europe Tapioca Service Ltd v. Government of Pakistan (1975) 1 W.L.R. 1485.

6. The Philippine Admiral (1977) A.C. 373.

7. Trendtex Trading Corporation v. Central Bank of Nigeria (1977) Q.B. 529.

8. See, for example, The Uganda Company (Holdings) Ltd. v. The Government of Uganda (1979) 1 LL.R. 581, where Donaldson J. (as he then was) declined to follow Trendtex; cf. Hispano America Mercantil SA v. Central Bank of Nigeria (1979) 2 LL.R. 277, where the Court of Appeal affirmed Trendtex; and 1° Congreso del Partido (1981) 3 W.LR. 328, where the House of Lords itself confirmed the applicability of the restrictive doctrine.

9. More recent Italian decisions include Consorzio Agrario di Tripolitania v. Federazione Italiano Consorzi Agrari, Guistizia Civile (1967) I. 972–975Google Scholar; and Ditta Campione v. DittaPeti Nitrogenmuvek, 1972, n. 3368, 1st sess.

10. The landmark decision is Claim against The Empire of Iran Case, 45 I.L.R. 57.

11. See the Victory Transport v. Comisaria General de Abastecimentos Transportes, 336 F. 2d. 354 (1964), applying the so-called Tate Letter of 1952, Dept. of State Bull. May 19, 1952. See further, U.S. Foreign Sovereign Immunities Act 1976, clarifying certain issues and effecting certain changes; and subsequent case law, including National American Corporation v. Federal Republic of Nigeria (1978) 448 F. Supp. 622; and Alfred Dunhill of London Inc. v. Republic of Cuba (1976) 125 U.S. 682.

12. Thus, e.g., in The Empire of Iran Case, op. cit., supra, n. 10, the Court had already stated that “the distinction between sovereign and non-sovereign activities cannot be drawn according to the purpose of the state transaction.”

13. (1980) 1 LL.R. 30.

14. YousefNada v. Central Bank of Nigeria, Dec. 2 1975, Provincial Court of Frankfurt.

15. E.g., in National American Corporation v. Federal Republic of Nigeria, op. cit., supra. n. 11, where the trial judge held that even if cement was ordered with governmental purposes in mind, no immunity was available under the Act.

16. Supra, n. 10.

17. Supra, n. 14.

18. Supra, n. 9.

19. Supra, n. 8.

20. The claim could have been advanced in the Trendtex Case, supra, n. 7, where the Court of Appeal had acknowledged that it was the internal crisis in Nigeria that led to the failure to honour the letter of credit. Equally, it could have been advanced in Yousef Nada, but the argument was not formulated in these terms. For an implied rejection of the argument (which again, was not expressly articulated) see the United States case, Behring International Inc. v. Imperial Iranian Air Force (1979)Google Scholar I.L.M. 1370.

21. (1978) Q.B. 500 at 528.

22. (1980) 1 LL.R. 29.

23. (1958) A.C. 379 at 418.

24. (1958) A.C. 379 at 422. For criticism by this speaker of Lord Dcnning's position on “territorial connection”, see, Higgins, , “Recent Developments in the Law of Sovereign Immunity in the United Kingdom” 71 A.J.I.L. (1977) 423 at 436Google Scholar.

25. See, for example, Carey v. National Oil Corporation, 592 Fd. 673 2d. Cir. 1970; Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp. 849 (S.D.N.Y. 1978); International Association of Machinists v. OPEC (1979) Trade Reg. Rep. (CCH) Trade Cas., S. 62, 868.

26. (1955) A.C. 72.

27. See, I° Congreso del Partido (1978) 1 Q.B. 500 at 520, per Goff J., citing Earl Jowitt in Juan Ysmael (1955) A.C. 72 at 87. For a more detailed analysis of this problem and discussion of other cases, see, Higgins, , “Execution of State Property: United Kingdom Practice”, Neth. Y.B.I.L. (1979) 35 at 39–40Google Scholar.

28. Compare s. 10(5) with s. 6(4) of the 1978 Act, where slightly different tests seem to apply to vessels and other property. See also Higgins, , Neth. Y.B.I.L. (1979) at 48Google Scholar.

29. See, for example, The Pesaro (1926) 271 US 30; Republic of Mexico v. Hoffman (1945) 324 U.S. 30.

30. The question of ownership arose in novel form in the Congreso Case before the House of Lords. There two of their Lordships (Lord Wilberforce and Lord Edmund-Davies) drew a distinction between the Playa Larga vessel (which was owned by Cuba) and the Marble Islands (which on the relevant date was not). They found that so far as the latter was concerned “Cuba had no concern with, interest in, or responsibility for the cargo or for the operation of the ship or for the actions of the master”. It therefore had not itself entered into commercial contracts in respect of the Marble Islands, and thus was not (through its subsequent orders not to discharge the cargo) breaking its own commercial undertakings. The majority of the House of Lords declined to make a distinction between the two vessels – not because the Marble Islands had always been under the effective control of Cuba, but rather because the events complained of largely occurred after Cuba had acquired ownership of the Marble Islands in mid-Pacific.

31. And see generally, the articles in the 1979 Neth. Y.B.I.L.; and also Crawford, “Execution of Judgments and Foreign Sovereign Immunity”, 75 A.J.I.L. (1981) 820; Mann, , “the State Immunity Act 1978”, Brit. Y.B.I.L. (1979) 43 at 59–62Google Scholar.

32. Cf. UK s. 13(2)(a) with USA, s. 1610(d).

33. For a valuable general analysis, see Singer, , “The Act of State Doctrine of the United Kingdom: an analysis, with comparisons to United States practice”, 75 A.J.I.L. (1981) 283Google Scholar.

34. For act of state arising as a sword in the hands of a State (not a private party) see, Republic of Peru v. Peruvian Guana Co., 1887 Ch.D. 489; and, State of Netherlands v. Federal Reserve Bank, 99 Fed. Supp. 655 (1953).

35. In the case of Alfred Dunhill of London Inc. v. Republic of Cuba (1976) 125 U.S. 682 it was the Republic of Cuba itself which relied on act of state as a defence. In National American Corporation v. Federal Republic of Nigeria (1978) 448 F. Supp. 622 it was interesting to note that the Federal Republic of Nigeria itself embraced an act of state defence on the merits – having pleaded sovereign immunity in respect of jurisdiction.

36. Dunhill, op. cit., supra, n. 35, Part III of the judgment, per 4 of the 5 Justices forming the majority.