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 GERMAN COURTS

CHAPTER I
HISTORICAL DEVELOPMENT

THE generally recognized principle of international law that a sovereign state may not be subjected against its will to the jurisdiction of a foreign court, and that its property is not liable to be attached or to be taken on execution has received very broad application in Germany. Although it owes its more liberal interpretation to recent times, the principle itself has found frequent expression not only under the Empire, but before that in the original German states.

The development of the doctrine may well be traced through the medium of Prussian laws and decisions. The General Statute Governing the Administration of Justice in the Prussian States,1 July 6, 1793, dealt at length with arrest and attachment,2 and provided (§ 76) that when personal arrest was exercised upon a foreigner of rank, the Department of Foreign Affairs must be notified.

General Statute 1793

Prussian Doctrine of Immunity

An order in council of April 14, 1795, specifically stated that princes of the German Reich were not subject to arrest, and that other princes might not be arrested without the previous decision of the cabinet ministers on the point.3

Order in Council 1795

The Declaration of September 24, 1798, in elucidation of such rules of the above-mentioned General Statute as applied to the relations of Prussia with foreign powers was more explicit. It reiterated the immunity from arrest enjoyed by ruling German princes of the Reich, but stated specifically

Declaration 1798

____________________
1
Allgemeine Gerichtsordnung für die Preussischen Staaten.
2
Idem, Pt. I, Tit. 29.
3
Kabinetsordre, April 14, 1795, Sammlung Preussischer Gesetze (Rabe) III, 50, 52.

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