International law, Sixth edition
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International Law MALCOLM N. SHAW
Jupiter [1924] P. 236, 3 AD, p. 136.
23 [1938] AC 485; 9 AD, p. 250. 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 703 of Lords accepted this in view of the requisition decree taking over the ship. However, two of the Lords criticised the Porto Alexandre decision and doubted whether immunity covered state trading vessels, 24 while Lord Atkin took more of a fundamentalist absolute approach. 25 In Krajina v. Tass Agency 26 the Court of Appeal held that the Agency was a state organ of the USSR and was thus entitled to immunity from local jurisdiction. This was followed in Baccus SRL v. Servicio Nacional del Trigo, 27 where the Court felt that the defendants, although a separate legal person under Spanish law, were in effect a department of state of the Spanish government. How the entity was actually constituted was regarded as an internal matter, and it was held entitled to immunity from suit. A different view from the majority was taken by Lord Justice Singleton who, in a Dissenting Opinion, condemned what he regarded as the ex- tension of the doctrine of sovereign immunity to separate legal entities. 28 There is some limitation to the absolute immunity rule to the extent that a mere claim by a foreign sovereign to have an interest in the con- tested property would have to be substantiated before the English court would grant immunity. Since this involves some submission by the for- eign sovereign to the local jurisdiction, immunity is not unqualifiedly absolute. Once the court is clear that the claim by the sovereign is not merely illusory or founded on a manifestly defective title, it will dismiss the case. This was brought out in Juan Ysmael v. Republic of Indonesia 29 in which the asserted interest in a vessel by the Indonesian government was regarded as manifestly defective so that the case was not dismissed on the ground of sovereign immunity. 30 American cases, however, have shown a rather different approach, one that distinguishes between ownership on the one hand and possession and control on the other. In two cases particularly, immunity was refused 24 See e.g. Lord Macmillan, [1938] AC 485, 498; 9 AD, p. 260. 25 [1938] AC 485, p. 490. See also Berizzi Bros. C. v. SS Pesaro 271 US 562 (1926); 3 AD, p. 186 and The Navemar 303 US 68 (1938); 9 AD, p. 176. 26 [1949] 2 All ER 274; 16 AD, p. 129. See also Cohen LJ, [1949] 2 All ER 274, 281. 27 [1957] 1 QB 438; 23 ILR, p. 160. 28 [1957] 1 QB 438, 461; 23 ILR, p. 169. 29 [1955] AC 72; 21 ILR, p. 95. See also USA and France v. Dollfus Mieg et Compagnie [1952] AC 582; 19 ILR, p. 163. 30 See Higgins, ‘Unresolved Aspects’, p. 273, who raises the question as to whether this test would be rigorous in an era of restrictive immunity. See also R. Higgins, Problems and Process, Oxford, 1994, chapter 5. 704 i n t e r nat i o na l l aw where the vessels concerned, although owned by the states claiming im- munity, were held subject to the jurisdiction since at the relevant time they were not in the possession or control of these states. 31 Since the courts will not try a case in which a foreign state is the de- fendant, it is necessary to decide what a foreign state is in each instance. Where doubts are raised as to the status of a foreign entity and whether or not it is to be regarded as a state for the purposes of the municipal courts, the executive certificate issued by the UK government will be decisive. The case of Duff Development Company v. Kelantan 32 is a good example of this point. Kelantan was a Malay state under British protection. Both its internal and external policies were subject to British direction and it could in no way be described as politically independent. However, the UK government had issued an executive certificate to the effect that Kelantan was an independent state and that the Crown neither exercised nor claimed any rights of sovereignty or jurisdiction over it. The House of Lords, to whom the case had come, declared that once the Crown recognised a foreign ruler as sovereign, this bound the courts and no other evidence was admissible or needed. Accordingly, Kelantan was entitled to sovereign immunity from the jurisdiction of the English courts. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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