698
i n t e r nat i o na l l aw
of the existence and power of the state.
2
The sovereign was a definable
person, to whom allegiance was due. As an integral part of this mys-
tique, the sovereign could not be made subject to the judicial processes
of his country. Accordingly, it was only fitting that he could not be sued
in foreign courts. The idea of the personal sovereign would undoubtedly
have been undermined had courts been able to exercise jurisdiction over
foreign sovereigns. This personalisation was gradually replaced by the ab-
stract concept of state sovereignty, but the basic mystique remained. In
addition, the independence and equality of states made it philosophically
as well as practically difficult to permit municipal courts of one coun-
try to manifest their power over foreign sovereign states, without their
consent.
3
Until recently, the international law relating to sovereign (or
state) immunity relied virtually exclusively upon domestic case-law and
latterly legislation, although the European Convention on State Immu-
nity, 1972 was a notable exception. However, in 2004 the UN adopted the
Convention on Jurisdictional Immunities of States and Their Property.
4
State Immunity
, The Hague, 1984; S. Sucharitkul,
State Immunities and Trading Activities
in International Law
, Leiden, 1959, and Sucharitkul, ‘Immunities of Foreign States before
National Authorities’, 149 HR, 1976, p. 87; I. Sinclair, ‘The Law of Sovereign Immunity:
Recent Developments’, 167 HR, 1980, p. 113; A. Aust, ‘The Law of State Immunity’, 53
ICLQ, 2004, p. 255; UN Legislative Series,
Materials on Jurisdictional Immunities of States
and Their Property
, New York, 1982; 10 Netherlands YIL, 1979; J. Candrian,
L’Immunit´e
des ´
Etats face aux Droits de l’Homme et `a la Protection des Biens Culturels
, Zurich, 2005;
Droit des Immunit´es et Exigencies du Proc`es ´
Equitable
(ed. I. Pingel), Paris, 2004; H. Lauter-
pacht, ‘The Problem of Jurisdictional Immunities of Foreign States’, 28 BYIL, 1951, p. 220;
R. Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’, 29 NILR, 1982,
p. 265; J. Crawford, ‘International Law of Foreign Sovereigns: Distinguishing Immune
Transactions’, 54 BYIL, 1983, p. 75; C. J. Lewis,
State and Diplomatic Immunity
, 3rd edn,
London, 1990; C. H. Schreuer,
State Immunity: Some Recent Developments
, Cambridge,
1988; Nguyen Quoc Dinh, P. Daillier and A. Pellet,
Droit International Public
, 7th edn,
Paris, 2002, p. 450, and
Oppenheim’s International Law
(eds. R. Y. Jennings and A. D.
Watts), 9th edn, London, 1992, p. 341. See also the cases on sovereign immunity collected
in ILR, volumes 63–5; ILA, Report of the Sixtieth Conference, 1982, p. 325 and Report of
the Sixty-sixth Conference, 1994, p. 452;
Do'stlaringiz bilan baham: