Some Theoretical Considerations

Abstract

In any analytical approach to the question of state immunity, it will soon become evident that there has been a certain lack of semantic clarity which has tended to hamper the development of international law and make it lag behind that of the internal laws of all countries with mature legal systems. This was mainly due to the inadequacy of the conceptual apparatus used in addressing the subject. These semantic and conceptual deficiencies center around the use of the word “state”. The concept “state” covers both the government and the people of a certain territorial entity. In considering the foreign state and not merely the executive branch of its government the party to the litigation before the local court, immunity seems to follow naturally since all states are co-equally sovereign and one state appears, therefore, to have no jurisdiction over another state without the latter’s consent. The fact is, however, that in all litigations, whether national or transnational in character, the claim is made not against the state but against the government or more precisely the executive branch of government or an agency or instrumentality thereof. In most such cases the government or its agency or instrumentality appears not as a sovereign power but as the subject of private rights and obligations.