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28 Brit. Y.B. Int'l L. 220 (1951)
The Problem of Jurisdictional Immunities of Foreign States

handle is hein.journals/byrint28 and id is 226 raw text is: THE PROBLEM OF JURISDICTIONAL IMMUNITIES OF FOREIGN STATES By PROFESSOR H. LAUTERPACHT, Q.C., LL.D., F.B.A. Whewell Professor of International Law in the University of Cambridge THE reasons for the tendency, which has been on the increase since the end of the First World War, to do away with the doctrine of jurisdictional immunity of foreign states have been repeatedly stated. It is unnecessary, in this essay, to elaborate them in detail. The main-and articulate-source of the opposition to it has been the realization that the principle of im- munity as originally applied by courts was intended to cover the political activities of the state as a sovereign entity in the strict sense of the word and that it has become obsolete and productive of injustice and inconvenience at a time when the operations of the state are increasingly extending into the commercial, industrial-and similar,-spheres. However, the growing opposition to the jurisdictional immunities of foreign states has drawn its strength from factors more significant than modern developments in the economic sphere. These factors arise to a large extent from the challenge to the prerogatives of the sovereign state which denies to the individual legal remedies for the vindication of his rights as against the state in the matter both of contract and of tort, and which asserts a privileged position for the state in the procedural sphere. That challenge has been largely successful in most states under the rule of law. In France, a country which has led the way in the recognition of the responsibility of the state, occasionally even to the point of making it accountable for the acts of its legislative organs, the connexion between the denial of the immunity of the state and the ideas of the Declaration of 1789 has been conscious and acknowledged-though for reasons peculiar to that country these prin- ciples failed to secure full recognition in relation to the immunities of foreign states.2 In Great Britain the immunity of the Crown, which was a survival of the personal immunity of the Sovereign, continued to assert itself with some tenacity. It yielded substantially, in the contractual sphere, even before the Crown Proceedings Act of 1947, to the dual impact of the implications of the rule of law and of the growing activities of the state in the economic and social spheres. The Crown Proceedings Act completed that process for most-though not all-purposes. Similar changes have ' For, as was shown in the case of Krajina v. The Toss Agency (see below, p. 271), the problem is not limited to purely commercial and contractual relations. In the Conclusions of the Rapporteur of the relevant sub-committee of the League of Nations Committee on Codification there was enumerated among the questions requiring elucidation in connexion with implied waiver of immunity the question of 'actions for damages for a tort or quasi-tort committed in the territory' (Doc. A, 1928, V, p. 54). ' See below, p. 234.

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