Edited by Alexander Orakhelashvili
Chapter 10: Foreign state immunity: a private international law analysis
In 1999, the present author proposed that the doctrine of foreign state immunity be abolished for claims against foreign states and be replaced by an approach that exclusively relied upon private international law principles of personal jurisdiction. The basis of the argument was that, while the rationale of immunity was to protect foreign states from the domestic jurisdiction of other countries in certain circumstances, such an objective could be equally achieved by application of principles of private international law. The purpose of this chapter in the Research Handbook is to review the position after 15 years and to reassess the case for abandonment of foreign state immunity. The origins of foreign state immunity lie in the sovereign equality of states in public international law, with the key idea being that it is incompatible with a state’s sovereignty and dignity for it to be subject to adjudication by another state’s courts. Such a principle formed the basis of the doctrine of absolute immunity, which provided that under no circumstances could a state be impleaded before the courts of another. Yet such a principle did not operate without qualification. There also existed in parallel another principle of public international law: the concept of territorial sovereignty. Pursuant to this idea, a state is considered to have exclusive and unqualified competence with regard to matters occurring within its territory, including the power to exercise its jurisdiction over acts and persons within its borders.
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