700
i n t e r nat i o na l l aw
other hand, the principle of jurisdictional immunity asserts that in par-
ticular situations a court is prevented from exercising the jurisdiction that
it possesses. Thus, immunity from jurisdiction does not mean exemption
from the legal system of the territorial state in question. The two con-
cepts are distinct. In
International Association of Machinists & Aerospace
Workers
v.
OPEC
,
11
it was declared that the two concepts were similar in
that they reflect the need to respect the sovereignty of foreign states, but
that they differed in that the former went to the jurisdiction of the court
and was a principle of international law, whereas the latter constituted a
prudential doctrine of domestic law having internal constitutional roots.
Accordingly, the question of sovereign immunity is a procedural one and
one to be taken as a preliminary issue,
12
logically preceding the issue of
act of state.
13
In practice, however, the distinction is not always so evident and argu-
ments presented before the court founded both upon non-justiciability
and sovereign immunity are to be expected. It is also an interesting point
to consider the extent to which the demise of the absolute immunity
approach has affected the doctrine of non-justiciability.
As far as the act of state doctrine is concerned in particular in this
context, some disquiet has been expressed by courts that the application
of that principle may in certain circumstances have the effect of reintro-
ducing the absolute theory of sovereign immunity. In
Letelier
v.
Republic
of Chile
,
14
for example, Chile argued that even if its officials had ordered
See further above, p. 182. Note also that ‘a claim to state immunity is essentially a public
claim that demands open litigation’,
Harb
v.
King Fahd
[2005] EWCA Civ 632, para. 28,
per Thorpe LJ.
11
649 F.2d 1354, 1359; 66 ILR, pp. 413, 418. Reaffirmed in
Asociacion de Reclamantes
v.
The
United Mexican States
22 ILM, 1983, pp. 625, 641–2. See also
Ramirez
v.
Weinberger
23
ILM, 1984, p. 1274;
Goldwater
v.
Carter
444 US 996 (1979) and
Empresa Exportadora de
Azucar
v.
Industria Azucarera Nacional SA
[1983] 2 LL. R 171; 64 ILR, p. 368.
12
This has been reaffirmed by the International Court of Justice in its Advisory Opinion
in the
Difference Relating to Immunity from Legal Process
case, ICJ Reports, 1999, pp. 62,
88; 121 ILR, pp. 405, 432–3. Mance LJ stated in the Court of Appeal decision in
Jones
v.
Saudi Arabia
that ‘claims to state immunity should be resolved at an early stage in the
proceedings’, [2004] EWCA Civ 1394, para. 10; 129 ILR, p. 653. See also
Republic of the
Philippines
v.
Pimentel
553 US-(2008), US Supreme Court, 12 June 2008, Slip Opinion,
p. 11, holding that consideration of the merits of the case where sovereign immunity was
pleaded would itself constitute an infringement of sovereign immunity.
13
See e.g.
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