State immunity

Introduction
The topic of sovereign immunity is one of the vast subjects of international law. It also
stands as a customary rule of international law which is commonly based and justified on
various general principles of international law. The principles of international law regarding
jurisdictional immunities of states have been derived mainly from the judicial practice of
individual nations.
Meaning of Immunity: Immunity means any exemption from a duty, liability, or service of
process. In general terms state immunity means immunity from civil suit afforded to entities
of sovereign status. The rules of state immunity lay down the extent to which a state is
protected from being sued in the courts of other states. A successful plea of immunity will
prevent a state being made a party to proceedings in the courts of a foreign state and will
protect its property from being seized to satisfy a judgment. Immunity can extend to legal
proceedings against the state itself, its organs and enterprises and its agents. It is
international law that determines the general rules of whether or not a state should be
accorded immunity by the courts of another state, but it is national law that interprets and
applies those rules.
Approaches to State immunity
There are two approaches to state immunity: (a) Absolute and (b) Restrictive. Although the
absolute immunity approach had been accepted in the initial stage, the restrictive immunity
approach has been widely accepted today mainly due to the difficulty of distinguishing
between private and public acts in the absolute immunity approach.
The Absolute Approach
Absolute immunity means a complete exemption from civil liability. At one time, states had
absolute immunity. Proceedings against foreign states were inadmissible without their
consent. The first major judicial decision on state immunity came from the supreme court of
the United States in the famous case of The Schooner Exchange v M Faddon where the
court held that, the perfect equality and absolute independence of sovereigns prohibits
one state to exercise the exclusive territorial jurisdiction which has been stated to be
attributed to every nation.
This approach caused injustice on private enterprises trading with government entities and
it was examined whether state immunity should be applied when states were involved in
economic spheres. Today the absolute immunity doctrine is not applied throughout the
entire world.
The Restrictive Approach
Under the restrictive approach, a state has immunity from the jurisdiction of a local court
only in respect of certain classes of acts. A distinction is to be drawn between acts of
sovereign nature and acts of commercial nature. Essentially the distinction is designed to
ensure that the state is treated as a normal petitioner when it behaves like one and as a
Sovereign when it exercises sovereign power. Today the restrictive approach has gained
worldwide acceptance and most countries have developed law in line with this approach.