The Position of Foreign States before National Courts: Chiefly in Continental Europe

By Eleanor Wyllys Allen | Go to book overview

THE POSITION OF FOREIGN STATES BEFORE DUTCH COURTS

CHAPTER I
EARLY PRACTICE

A STUDY of the attitude of Dutch courts toward suits involving foreign states has less significance for the international problem than for the domestic. The cases on the whole present clear-cut, familiar issues, the difficulty being that of adjusting the Dutch procedure to fit the requirements of the law of nations. There are few border-line cases, and until quite recently no attempt seems to have been made to differentiate between acts of the state attributable to an exercise of jus imperii and those involving jus gestionis. The simplicity of the international problem is not reflected in the constitutional one, however. An attempt to condemn a foreign state for an act of war committed in territory under military occupation engaged the judiciary of Holland for eight years, occasioned a legislative amendment, and involved the laity in prolonged and acrimonious criticism of the handling of the affair by the government. In dealing with this case of de Booij v. the German Reich, where the constitutional issues are so involved with the international-law problem of the amenability of states to the authority of the judiciary of other states, no attempt has been made to differentiate between its two aspects. The case itself has been treated comprehensively, but in tracing its influence upon subsequent decisions regard has been had only for its international implications.

Bynkershoek, in his De Foro Legatorum1 observes that one is rendered subject to the jurisdiction of a judge not only by one's physical presence, but by that of one's property as well.

Bynkershoek

____________________
1
Chapter IV, Principis bona in alterius Imperio, an per arrestum forum tribuant, edition of 1721, p. 23.

-103-

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