The function of rules on the enforcement of foreign state claims

What kind of legal claims may a foreign state permissibly assert within Anglo-Commonwealth municipal legal systems? This is the essential question considered in Chapter 11. The answer to this question is of considerable practical importance, since it determines the extent to which a foreign state may resort to the courts of the forum in the enforcement of its rights against others. It is also significant for the light that it may shed on the larger question of the nature and limits on the external exercise of public power by states – a major theme of this work as a whole.

The analysis starts from the basic uncontested proposition that a foreign state is not shut out, merely by the fact that it is a state, from seeking relief in the courts of Anglo-Commonwealth countries. On the contrary, as was seen in Chapter 10, one reason for the development of specific rules of municipal law in order to determine statehood has been precisely because foreign states have been, and are permitted to be, frequent plaintiffs in Anglo-Commonwealth courts. When in 1828 counsel for an agent for the King of Spain resisted the King’s claim for an account on the alleged ground that a foreign sovereign cannot sue in the English courts, the Lord Chancellor remonstrated: ‘Has not the sovereign power of another country the common privilege of mankind?’ Lord Redesdale held: