7.4 Immunity of Foreign States (Sovereign Immunity)

The doctrine's arc — absolute to restrictive: Classical absolute immunity: The Schooner Exchange v. McFaddon (US, 1812, Marshall C.J.) — the friendly sovereign's ship in the port exempt from local jurisdiction: comity's and equality's doctrine; The restrictive doctrine: state trading forced the distinction — acta jure imperii (sovereign acts: immune) vs. acta jure gestionis (commercial acts: not) — announced by the Tate Letter (1952); implemented by the UK State Immunity Act 1978, the US Foreign Sovereign Immunities Act 1976, and the UN Convention on Jurisdictional Immunities (2004, not yet in force). The exceptions' catalogue: commercial activity; contractual dealings; non-diplomatic employment; territorial torts (personal injury); immovable property; arbitration submissions; counterclaims; waiver; The case-law lineage (the single most examinable sequence): Trendtex (UK, 1977) — the grain-import case adopting restrictive immunity; Pinochet (No. 3) (UK, 1999) — the ex- head of state not immune from extradition proceedings for torture (the Torture Convention's structure; ratione personae gone with office, ratione materiae pierced for torture); Jurisdictional Immunities (Germany v. Italy, ICJ 2012) — Italy's judgments against Germany for WWII wrongs violated Germany's immunity: immunity is procedural and applies even to alleged jus cogens breaches (the human-rights exception rejected at the ICJ level — the debate's frontier); Heads of state and government: full personal immunity (ratione personae) while in office — the Arrest Warrant case (DRC…