Paper Details Paper Code: RA-CLA-V2-17 Category: Research Article Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Hema Swetha A, “The Devolving Classification of Sovereign Immunity”, 2, AIJACLA, 191, 191-195 (2022). Author Details: Hima Swetha A, 4th Year BALLB. Student, IFIM Law School
Abstract Sovereign immunity being a traditional part of international law has evolved through a wide array. Although the concept is extremely antiquated, the relevance is still used by the countries to justify their actions. The classification of sovereign immunity into restrictive and absolute immunity will be the main focus addressed in this essay. There will be an emphasis on the history of these sovereign immunities to the succeeded ways followed by countries with a short insight about the problems faced by the states while applying the absolute immunity theory. Also, going by the current state of affairs, there is a diversion in the concept of sovereign immunity from an absolute immunity to a restrictive immunity model. A legal doctrine that was once a norm followed in the kingdoms has effects in the world even now but through a very different approach as per the dynamic world. The research has been put forth by analysing various scholarly papers and articles with the hope that it further enlightens the readers. Keywords:
Sovereign immunity, Absolute, Restrictive, Territorial Jurisdiction
The concept of sovereign immunity is a principle based on the customary international law, conventions and domestic law. The abstraction of sovereign immunity is that one sovereign state cannot be used in the court of another sovereign court within its prior consent. The classification is on the basis of how flexible the immunity has evolved over time. The starting point of sovereign immunity can be traced back to 1215 A.D. and it all began when King John conceded liberties to his subjects by the Magna Charta. Sovereign immunity functioned from the absolute monarchy era without specifying any classification but later on as the nations progressed and the laws changed, two theories of sovereign immunity emerged. They are named the absolute theory and the restrictive theory and are on the basis of Jure Imperii which refers to a foreign state’s public or government acts and Jure Gestionis which means private or commercial acts. The absolute theory is inclined towards Jure Imperii while the restrictive theory functions on the basis of Jure Gestionis.
THE BEGINNING: ABSOLUTE THEORY
It is an undisputed principle under the customary international law. It all started in the case of Schooner Exchange v. McFaddon, Chief Justice Marshall articulated the absolute theory of sovereign immunity when the American plaintiffs wanted to get back their ship that was in the United States port. This ship although originally belonged to them was seized by the French Navy. Justice Marshall while adjudging this case held that the French government was entitled to immunity so they can retain their vessel with the reasoning that although the United States could claim judicial jurisdiction over its own territory with respect to property and people, this power can be nullified by the jurisdictional immunity of a foreign sovereign. As there were no exceptions to the rule of immunity articulated by Marshall, hence the rule was called the absolute theory of sovereign immunity.
The British Court also followed this concept in the case of The Parlement Belge  wherein the court had to unanimously settle the dispute of to whom the vessel belonged. It was held that the consequence of absolute independence of every sovereign authority, and the international community following this as a whole encourages to recognised the dignity of other sovereign states, thus not exercising the territorial jurisdiction of a person belonging to any other sovereign. This shows the orthodox concept of absolute jurisdiction and its independence. Also, even during Marshall’s time, the absolute theory of sovereign immunity was not accepted universally. Eventually, as there was a dip in the colonisation leading to more integration of the world by treaties and customs, the image of absolute immunity seemed very obsolescent and in need of specific qualifications.
CHANGING EXPECTATIONS: THE RESTRICTIVE THEORY
Judicially, there was an effort in the nineteenth century to modify an obstruction on the absolute nature of sovereign immunity that was being followed for centuries. One of the earliest cases where restrictions were emphasized was in the Charkieh case. This case involved a vessel owned by the Khedive of Egypt that was being used as a merchant trading vessel. This trading vessel was involved in a collision on the River Thames, England. The High Court of Admiralty while hearing this case presented the problem of the necessity of a restricted view of sovereign immunity. They recognized that the rule of sovereignty may compose a legion of activities, but they don’t necessarily fall under the concept of sovereign immunity strictly. The activity needs to be analysed as to its kind, participants and public orientation competency of the sovereign. However, this explanation in fact posed more questions regarding the appropriation of the sovereign immunity.
With the dynamic nature of the states, there were increased commercial operations that changed the very nature of the sovereign immunity and thereby, leading to the first exception: the commercial exception. This was a result of globalization as there was cross border movement of commodities. In the year 1903, the Supreme Court of Belgium provided an elucidation distinguishing the commercial and the public acts in the case, Societe Anonyme des Chemins de Fer Liegeois Luxembourgeois v. the Netherlands. It was held that when there is an involvement of the state through any political acts, and then it falls in the ambit of sovereignty. When the state is encompassed by the means of commercial aspects such as to buy, own, credit or involve in commerce, then the state is involved in its private capacity without any public power.
The concept of exception to sovereign immunity in the United States was adopted much later. Only after the Cold War, the United States decided to accept the commercial exception to use it to their benefit. They articulated a limited jurisdictional immunity through an instrument referred to as the “Tate Letter”. This letter bifurcated immunity into commercial and non-commercial activities on the basis of transactions involved. According to the traditional theory, they can be termed as sovereign or non-commercial acts that are referred to as Acta Jure Imperii where the immunity can be affirmed and secondly, commercial or private acts, referred to as Acta Jure Gestionis, where any such immunities cannot be granted.
The materialization of the Acta Jure Imperii and Acta Jure Gestionis doctrine led to the relinquishment of the absolute jurisdictional immunity thereby, crystallizing into the customary international law. The structure of the traditional notion was relaxed and broadened so the international interests were considered. There are other exceptions that have evolved subsequently through international customs and conventions that facilitate fairness.
THE LEGISLATIVE DIMENSION
The very first attempt that sought to create an international instrument to govern sovereign immunity was only in the late nineteenth century. There have been numerous efforts to document the application of sovereign immunity between states. On the 4th of December, 2004, the United Nations General Assembly adopted the ‘UN Convention on Jurisdictional Immunities of States and their property’. This draft convention seeks to synchronize the concept of sovereign immunity among the states by setting out the occurrences during which the sovereign immunity to a foreign state is not protected. However, it never came into force as the Convention has been signed by only 28 countries and ratified by 13 signatories when the limit is 30 countries.
There is also another convention, namely, The European Convention on State Immunity. It aims in codifying and standardize the treatment of state immunity across Europe. Although it is only ratified by 8 states, it is in force. There are various draft conventions, such as those by the Institute de Droit International and The International Law Association (ILA) They specifically aim in pecuniary compensation on the basis of the damage.
Sovereign immunity was developed during the era when absolute monarchy times were considered above the law and they were not considered as the legal subjects in their own jurisdiction. Back then, dignity and notion of equality of foreign states were on the basis of par in parem non habet imperium and with the passing of the absolute monarchy system, these notions were inadequate for the rule of sovereign immunity.
Also, when it comes to disputes, the concerned court is to determine on the basis of the involved transaction, such as, commercial or non-commercial. It is important for the court to not just look at the type of transaction but also its purpose. There are some countries that consider the nature test to determine the kind of transaction involved but this principle is not accepted all over the globe to be a criterion. This nature test often forgets the fact that one of the parties to the dispute in hand is a sovereign entity. Hence, the question of the sovereign nature of the transaction will further be in a state of dilemma and can result in inconclusive results.
Another possible shortcoming is about the domestic courts not being in a position to pronounce the validity of political acts of foreign states and therein use the rule of sovereign immunity as a reservation to dismiss the case. The rationale behind this is the very fact that disputes may be of complex nature which would be required to be dealt with under the executive branch. This can in turn even triggers displeasure between states when there are international forums.
Today, the doctrine of sovereign immunity is in disfavour, and the courts usually tend to dispose of any such action against a state unless there is a very good reason but again, this is unlikely. Speaking realistically, even if the concept of sovereign immunity is applied now it is just a tortuous act of a state against a single individual or a set of individuals rather than an entire community against whom it should be.
The doctrine of jurisdictional immunity takes the abstract concept of sovereignty and applies it to the facts on the ground. The scope of this doctrine in the English and Commonwealth countries still remains unclear and requires clarification as these courts used to fall under the ambit of the absolute theory of sovereign immunity for a predominantly long time.
 Le Parlement belge  5 LR 197.  The Charkieh  1 Asp. Mar. Law Cas. 58  Winston P. Nagan & Joshua L. Root, ‘The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory’ (2013) 38 N.C. J. Int'l L. & Com. Reg. 410.  Michael Singer, 'Abandoning Restrictive Sovereign Immunity: An Analysis in Terms of Jurisdiction to Prescribe' (1985) 26 Harv Int'l L J 1  Christine G. Cooper, ’Act of State and Sovereign Immunity: A Further Inquiry’ (1980) 11 Loy. U. Chi. I. J. 200.  Supra note 1  Manuel R. Garcia Mora, ‘The Doctrine of Sovereign Immunity of Foreign States and Its Recent Modifications; (1956) 42(3) Virginia Law Review 336.  M. Sornarajah, ‘Problems in Applying the Restrictive Theory of Sovereign Immunity’ (1982) International and Comparative Law Quarterly 662. William R Hartl, ‘Sovereign Immunity: An outdated doctrine faces demise in a changing judicial arena’ (1993) 69(2) North Dakota Law Review 433.