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4 Colum. J. Transnat'l L. 119 (1965-1966)
The Effectiveness of the Restrictive Theory of Sovereign Immunity

handle is hein.journals/cjtl4 and id is 121 raw text is: The Effectiveness of the Restrictive Theory of Sovereign Immunity BY LAWRENCE A. COLLINS * I. INTRODUCTION: THE APPLICATION OF THE RESTRICTIVE THEORY. The restrictive theory of sovereign immunity was introduced as a matter of general policy by the United States Department of State in 1952, in what has become known as the Tate Letter. According to the newer or restrictive theory of sovereign immunity, the immunity of the soverign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gesti- onis). . . It will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.1 Historically, the immunity of the foreign sovereign had been linked with that of the domestic sovereign. However, the gradual fall from favour of absolutist theories of sovereignty,2 which led to the allowance of suits against the sovereign in his own courts,3 together with the decline of laissez-faire economic theories, which led to increased governmental participation in economic activities and eventually to widespread state trading activities,4 led to, in Lauterpacht's words, the realization that the principle of immunity . . . 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 *B.A., LL.B. (Cantab.). 1. Letter from Jack B. Tate, Department of State Acting Legal Adviser, to Attorney General Perlman, May 19, 1952, in 26 DEP'T STATE BuLL. 984-85 (1952). 2. See Reeves, Leviathan Bound-Sovereign Immunity in A Modern World, 43 VA. L. REv. 529 (1957). 3. See Setser, Immunities of the State and Government Economic Activi- ties, 24 LAw & CONTEMP. PROB. 291, 301 (1959); STREET, GOVERNMENTAL LIABiLITY (1953). 4. Cf. Fensterwald, Sovereign Immunity and Soviet State Trading, 63 HARV. L. REv. 614, 627-34 (1950) ; SUCHARITKUL, STATE IMMUNITIES AND TRADING ACTIVITIES 14-19 (1959).

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