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Publisher: Westlaw
Languages: English
Types: Article
Subjects: K1
Prior to the State Immunity Act 1978, the doctrine of state immunity applied in English courts as a matter of common law and precedent. The doctrine is a rule of customary international law and requires a domestic court to respect the immunity of a foreign state from the court's jurisdiction both with respect to suit and enforcement. It is a derogation from the court's jurisdiction justified on the basis of the sovereign equality and independence of states. The late 20th century saw a shift from an absolute to a restrictive doctrine and the arguments today are about the limits of the restrictions. In essence, a state is no longer immune in respect of its commercial activities (acte jure gestionis) but remains immune from domestic litigation for almost all else (acte jure imperii), which may include war crimes and acts of torture (unless classified as a tort and committed in the jurisdiction). Enforcement action against states is limited to the pursuit of assets in use for commercial purposes. The law distinguishes between states as such and separate state entities whose immunity is more restricted. State and diplomatic immunity (the immunity of the individual diplomat or diplomatic premises) must also be distinguished. This article does not cover diplomatic immunity. The immunity of states with respect to criminal proceedings is absolute.
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