i m m u n i t i e s f r o m j u r i s d i c t i o n
699
The classic case illustrating the relationship between territorial juris-
diction and sovereign immunity is
The Schooner Exchange
v.
McFaddon
,
5
decided by the US Supreme Court. Chief Justice Marshall declared that the
jurisdiction of a state within its own territory was exclusive and absolute,
but it did not encompass foreign sovereigns. He noted that the:
perfect equality and absolute independence of sovereigns . . . have given rise
to a class of cases in which every sovereign is understood to waive the exercise
of a part of that complete exclusive territorial jurisdiction, which has been
stated to be the attribute of every nation.
6
Lord Browne-Wilkinson stated in
Ex parte Pinochet
(
No. 3
) that,
It is a basic principle of international law that one sovereign state (the forum
state) does not adjudicate on the conduct of a foreign state. The foreign
state is entitled to procedural immunity from the processes of the forum
state. This immunity extends to both criminal and civil liability.
7
Lord Millett in
Holland
v.
Lampen-Wolfe
put the point as follows:
State immunity . . . is a creature of customary international law and derives
from the equality of sovereign states. It is not a self-imposed restriction
on the jurisdiction of its courts which the United Kingdom has chosen to
adopt. It is a limitation imposed from without upon the sovereignty of the
United Kingdom itself.
8
Sovereign immunity is closely related to two other legal doctrines, non-
justiciability and act of state. Reference has been made earlier to the inter-
action between the various principles,
9
but it is worth noting here that the
concepts of non-justiciability and act of state posit an area of international
activity of states that is simply beyond the competence of the domestic
tribunal in its assertion of jurisdiction, for example, that the courts would
not adjudicate upon the transactions of foreign sovereign states.
10
On the
5
7 Cranch 116 (1812).
6
Ibid.
, p. 137. It therefore followed that, ‘national ships of war entering the port of a
friendly power open for their reception, are to be considered as exempted by the consent
of that power from its jurisdiction’. Such rules would not apply to private ships which are
susceptible to foreign jurisdiction abroad. See also
Republic of the Philippines
v.
Pimentel
553 US (2008), US Supreme Court, 12 June 2008, Slip Opinion, pp. 11–12.
7
[2000] 1 AC 147, 201; 119 ILR, p. 152.
8
[2000] 1 WLR 1573, 1588; 119 ILR, p. 367.
9
See above, chapter 4, p. 179.
10
See e.g.
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