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particular conduct may constitute part of the definition of the act itself
in some cases, while in others the nature or quality of the act performed
might not be ascertainable without reference to the context within which
it is carried out. The Court also made the point that a relevant factor was
the perception held or policy adopted in each particular country as to the
attributes of sovereignty itself.
76
The point that ‘unless we can inquire into
the purpose of such acts, we cannot determine their nature’ was also made
by the US Court of Appeals in
De Sanchez
v.
Banco Central de Nicaragua
and Others
.
77
69
See e.g. Sinclair, ‘Sovereign Immunity’, pp. 210–13, and the
Empire of Iran
case, 45 ILR,
pp. 57, 80. See also article 7 of the European Convention on State Immunity, 1972.
70
See e.g. Crawford, ‘International Law’, p. 88, and Lauterpacht, ‘Problem’, pp. 220, 224–6.
71
[1983] AC 244, 267; 64 ILR, p. 318.
72
[1983] AC 244, 272; 64 ILR, p. 323.
73
(1992) 91 DLR (4th) 449; 94 ILR, p. 264.
74
[1992] 91 DLR (4th) 463; 94 ILR, p. 278.
75
[1993] 1 VR 251; 101 ILR, p. 193.
76
[1993] 1 VR 253; 101 ILR, pp. 195–6.
77
770 F.2d 1385, 1393 (1985); 88 ILR, pp. 75, 85.
712
i n t e r nat i o na l l aw
The particular issue raised in the
Congreso
case was whether immunity
could be granted where, while the initial transaction was clearly commer-
cial, the cause of the breach of the contract in question appeared to be
an exercise of sovereign authority. In that case, two vessels operated by a
Cuban state-owned shipping enterprise and delivering sugar to a Chilean
company were ordered by the Cuban government to stay away from Chile
after the Allende regime had been overthrown. The Cuban government
pleaded sovereign immunity on the grounds that the breach of the con-
tract was occasioned as a result of a foreign policy decision. The House
of Lords did not accept this and argued that once a state had entered the
trading field, it would require a high standard of proof of a sovereign act
for immunity to be introduced. Lord Wilberforce emphasised that:
in order to withdraw its action from the sphere of acts done
jure gestionis
,
a state must be able to point to some act clearly done
jure imperii
78
and that the appropriate test was to be expressed as follows:
it is not just that the purpose or motive of the act is to serve the purposes
of the state, but that the act is of its own character a governmental act, as
opposed to an act which any private citizen can perform.
79
In the circumstances of the case, that test had not been satisfied. One of
the two ships, the
Playa Larga
, had been owned at all relevant times by the
Cuban government, but the second ship, the
Marble Islands
, was owned
by a trading enterprise not entitled to immunity. When this ship was on
the high seas, it was taken over by the Cuban government and ordered to
proceed to North Vietnam, where its cargo was eventually donated to the
people of that country. The Court was unanimous in rejecting the plea of
immunity with regard to the
Playa Larga
, but was split over the second
ship.
Two members of the House of Lords, Lord Wilberforce and Lord
Edmund-Davies, felt that the key element with regard to the
Marble Is-
lands
, as distinct from the
Playa Larga
, where the government had acted
as owner of the ship and not as governmental authority, was that the
Republic of Cuba directed the disposal of the cargo in North Vietnam.
This was not part of any commercial arrangement which was conducted
by the demise charterer, who was thus responsible for the civil wrongs
78
[1981] 2 All ER 1064, 1075; 64 ILR, p. 320.
79
Ibid.
, quoting the judge at first instance, [1978] 1 All ER 1169, 1192; 64 ILR, p. 179.
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
713
committed. The acts of the government were outside this framework and
accordingly purely governmental.
80
However, the majority held that the Cuban government had acted in
the context of a private owner in discharging and disposing of the cargo
in North Vietnam and had not regarded itself as acting in the exercise
of sovereign powers. Everything had been done in purported reliance
upon private law rights in that the demise charterers had sold the cargo
to another Cuban state enterprise by ordinary private law sale and in
purported reliance upon the bill of lading which permitted the sale in
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