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Published online by Cambridge University Press: 12 April 2017
Under what circumstances is a state entitled to claim immunity from suit in the courts of another state? It is an old problem which assumes new importance in the face of the steadily enlarging scope of governmental commercial enterprise. Considerable difference of opinion has manifested itself. In England and the United States, where the principle of the immunity of the sovereign before the courts of its own state has long been firmly entrenched, there has been a decided reluctance to open the door to suits against foreign states, however commercial in character the controversy may be. On the Continent a more liberal tendency has long been making itself felt. On general principles, the subject would seem to be one to invite regulation by international agreement.
The writer gratefully acknowledges the editorial assistance of Professor Edwin M. Borchard (himself foremost among American students inthe field of governmental responsibility) who kindly saw this article through the press.Translations from Egyptian and Continental decisions and other authorities are in every case the writer's, and are unofficial.
2 Committee of Experts for the Progressive Codification of International Law: Second Report to the League of Nations, 1928. A. 15. 1928. V. [C. P. D. I. 117 (1)].
3 Reply of the United States to the Bases of Discussion on Responsibility of States, prepared for submission to the Conference for the Codification of International Law. League of Nations document C. 75. (A) M. 69. (A) 1929. V. Geneva, May 22, 1929.
4 “ The British Courts, on the ground of international comity, or courtesy, and on no other ground, decline to exercise jurisdiction against a foreign Sovereign or independent State, unless the Sovereign or State voluntarily submits to the jurisdiction.” C. R. Dunlop, K. C., Journal of Comparative Legislation and International Law, 3d Ser. Vol. VI, p. 275.
5 On this theory of Justice Holmes, see the critical article of Edwin M. Borchard, “ Governmental Responsibility in Tort,” in 36 Yale L. J. 757, 1039.
6 Dame Marigo Kildani Veuve Nicolas Bey Haggar contre Jean Gregoriou, Nicolas Eliopoulos, le Ministre des Finances du Gouvernement Hellenique, pris comme representant du Fisc Grec, domiciliè à Athcnes au Ministere des Finances, et al. May 9, 1912. Bulletin, Vol. XXIV, p. 330; Gazette, Vol. II, p. 161. References are to the official reports of decisions in the Court of Appeals as published in the Bulletin de Législation et de Jurisprudence Egyptienne, and to the monthly law magazine,the Gazette des Tribunaux Mixtes d'Egypte. References will also be occasionally made to the Journal, or tri-weekly legal news magazine published by the editors of the Gazette. The translations throughout arethe writer's. Opinions in the Mixed Courts are rendered by majority vote. Dissenting opinions are not recorded.
7 Capitaine Hall, ès qualité de Commandant du Vapeur anglais Sumatra appartenant au Gouvernement Britannique (Ministry of Shipping) contre Capitaine Zacarias Bengoa, Commandant du Vapeur espagnol Mercedes. Bulletin, Vol. XXXIII, p. 25; Gazette, Vol. XI, p. 23.
8 Stapledon , William & Sons et Cts conlre S. E. lePremier Lord de l'Amirauté Britannique et autres. June 28, 1923. Bulletin, Vol. XXXV,p. 542; Gazette, Vol. XIV, p. 253 Google Scholar.
9 Borg, Giovanni conire Caisse Nationale d’Epargne Frangaise. Nov. 29, 1924. Gazette, Vol. XVI, p. 123 Google Scholar.
10 The Palestine Railway contre Nicolas Moussouris. Dec. 11, 1923. Gazette, Vol. XV, p. 93.
11 Commandant Paolo Saglietto contre Mohamed Tawil Effendi ès qualité, etc. Jan. 15, 1924. Gazette, Vol. XIV, p. 251.
12 Zaki Bey Gabra contre R. E. Moore ès qualité et autre. Feb. 14, 1927. Gazette, Vol. XVII, p. 104.
13 The National Navigation Co. of Egypt contre Tavoularidis & Cie 6s quality et autres. Nov. 9, 1927. Gazette, Vol. XIX, p. 251.
14 Monopole des tabacs de Turquie et autre contre Regie co-intcressie des tabacs de Turquie. Jan. 22, 1930. Bulletin, Vol. XLII, p. 212.
15 The Egyptian decisions have from time to time been reviewed by Egyptian legal writers. See Assabgui , N. B. “ Contribution A I'Stude de la Competence des Tribunaux Nationaux a I'Sgard des Gouvernements Étrangers,” L'Egypte Cmtemporaine. Vol. XVIII, 1927, p. 215 Google Scholar. Also Raymond Schemeil, “ De VImmuniU de Juridiction des Stats Strangers,” Gazette, Vol. XVII, p. 229. Also Anon., same title, Journal, June 2-3, 1930, No. 1120, p. 2. Copies of these documents, as also of the reports containing the decisions of the Mixed Courts, reported in the foregoing pages may be obtained by addressing the Librairie Judiciare Ibrahimieh, Alexandria.
16 Pasicrisie beige, 1903, 1, 294. Compare the decision of the Tribunal of Brussels, Oct. 12, 1925, ibid., 1926, 3, 121.
17 17Dalloz, Repertoire, 1929, p. 161. The French jurisprudence on the subject has been well covered in a valuable study by Eleanor Wyllys Allen (The Position of Foreign States before French Courts, The Macmillan Co., 1929), but which appeared too early in the year to include the decision of the Court of Cassation. This work is one of a series of studies, not yet completed, by Miss Allen under the auspices of the Bureau of International Research of Harvard University and Radcliffe College, other studies so far having covered the jurisprudence of Germany and Belgium.
18 See, for instance, the decision of the Court ofAppeal of Lucca, Mar. 22, 1887, reported in Clunet (Journal du Droit International Privi, 1889, p. 335). Also decision of the Court of Appeals of Milan, April 19,1929 (Journal Trib. Mixtes, No. 1210,15-16, March, 1930), retaining jurisdiction over the Swiss Railways, a branch of the Swiss Government, in a suit by an Italian commune for damages to a forest set fire to by escaping sparks from locomotives.
19 See Report of Committee of Experts, supra, p. 69.
20 Acadimie de Droit International, Recueil des Cows, 1923, Vol. I, pp. 545-6.
21 Quoted by Phillimore, “ Immunity des Stats,” Acadimie de Droit International, Recueil des Cours, 1925, Vol. I l l , p. 468.
22 In the Pesaro case (June 7, 1926, 271 U. S. 562) the Supreme Court allowed immunity from arrest under process in rem in the case of governmental operation of merchant vessels. The opinion of the court was based upon the reasoning of Chief Justice Marshall in the case of the Exchange (7 Cranch, 116) which, however, involved the libel of a vessel claimed by the French Government as a war ship; butin the Pesaro case the court was of opinion that the principle laid down by Chief Justice Marshall was equally applicable to ships used for purposes of trade. It does not appear that foreign jurisprudence, other than certain English cases, was cited to the court. See the interesting comments on this decision in the article by John G. Hervey, MichiganLaw Review, May, 1929, p. 751. The decision of the Supreme Court is not in accord with the general policy of the State Department as expressed in its reply to an inquiry from Judge Mack at an earlier stage in the litigation. 277 Fed. 473, note 3, at pp. 479-480. In the article above cited, Mr. Hervey, after recognizing the dangers of an attempted international convention, proposes as an alternative solution “ a resumption of territorial jurisdiction through an express legislative pronouncement” in all cases where a foreign state engaged in a commercial undertaking, extends its operations into the United States. The practical difficulties of this solution, however, would seem to be hardly less formidable than those attendant upon the securing of an international accord on thewhole subject.
23 Mason's U. S. Code, Vol. 3, Chap. 20, par. 747, p. 3285.
24 Hyde, A Treatise on International Law, Vol. I, p. 448.
