Sovereign Immunity
Sovereign Immunity is a principle of public International Law as per which a state and its instrumentalities ( its officials, organs or agents) cannot be sued before courts of a foreign state, in other words, court of one state cannot sit in judgment on another state. This immunity was granted to the State to enable it to carry out its public functions effectively and maintain international relations. Under the principles of International Law all states are equal and sovereign, thus a need was felt to immune the actions of such sovereigns from the jurisdiction of courts of other nations. The principle evolved through case laws developed by Municipal Courts, national legislations and treaties and eventually became a part of the customary international law and state practice. Customary international law admits as a general rule that a foreign state cannot be sued. (Oppenheim’s International Law, 9th Edn. )
The case titled Schooner Exchange v. McFaddon , wherein the US Courts had refused jurisdiction over a military vessel of a friendly State which had entered the port of USA, was arguably the first judicial decision to interpret the customary rules of international law and conclude that all states enjoy equal sovereignty and thus can only be sued in their own local forums. It is often referred to as the official recognition to the doctrine of “Absolute Sovereign Immunity” . As the name suggests absolute sovereign immunity is the application of the doctrine without any qualifications or restrictions. Up till the 2nd World War Sovereign Immunity was granted, by the common law countries, in absolution as a gesture of comity between states. While on the other hand, the practice of civil law countries such as France and Italy was to grant sovereign immunity only if the same was granted by the state in question i.e. in reciprocity. However, with the expansion of trade and commerce and increase in the commercial transactions between the Sovereign States and nationals
The case titled Schooner Exchange v. McFaddon , wherein the US Courts had refused jurisdiction over a military vessel of a friendly State which had entered the port of USA, was arguably the first judicial decision to interpret the customary rules of international law and conclude that all states enjoy equal sovereignty and thus can only be sued in their own local forums. It is often referred to as the official recognition to the doctrine of “Absolute Sovereign Immunity” . As the name suggests absolute sovereign immunity is the application of the doctrine without any qualifications or restrictions. Up till the 2nd World War Sovereign Immunity was granted, by the common law countries, in absolution as a gesture of comity between states. While on the other hand, the practice of civil law countries such as France and Italy was to grant sovereign immunity only if the same was granted by the state in question i.e. in reciprocity. However, with the expansion of trade and commerce and increase in the commercial transactions between the Sovereign States and nationals