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

By Eleanor Wyllys Allen | Go to book overview

CHAPTER II
ANALYSIS OF THE DOCTRINE OF IMMUNITY

IN so far as immunity from suit and attachment of property is based not upon domestic enactment but directly upon international law, it is usually considered to result from the mutual independence and equality of sovereign states.1 However fundamental such a conception may be, as a rule of law to apply to actual cases it has proved somewhat indefinite, with the result that a body of custom and precedent has grown up defining and modifying the application of the general principle in specific instances.

In the matter of jurisdiction, certain exceptions are commonly recognized.2 In view of the intimate incorporation of real property with the domain of the state, due to its immovable nature, jurisdiction in rem over such property, i.e., over questions of ownership, boundaries, partitions, possession, etc., is exclusively within the competence of the forum rei sitae.3 Logically, the use of the word "exclusive" could be explained as limiting the choice of jurisdiction afforded the claimant.4 It has, however, been projected into the realm of international relations. Thus § 20 of the Judiciary Act of 1877 specifically subjects the immunity of foreign ambassadors to the operation of this clause, and it is held that this provision is likewise controlling in suits involving foreign states.5

Real Property

Exceptions

____________________
1
Entscheidungen des Reichsgerichts in Zivilsachen, LXII ( 1906), 167; Prussian Court of Conflicts, June 25, 1910, Deutsche Juristen-Zeitung, XV ( 1910), col. 810; Kammergericht, February 19, 1919, Rechtsprechung der Oberlandesgericht, XXXVIII ( 1919), 227.
2
Entscheidungen des Reichsgerichts in Zivilsachen, LXII ( 1906), 167.
3
Zivilprozessordnung, § 25.
4
Idem, § 24.
5
Prussian Court of Conflicts, January 14, 1882, Droop, Gruchots Beiträge, XXVI, 300; Reichsgericht, December 12, 1905, Entscheidungen des Reichsgerichts in Zivilsachen, LXII, 167; Prussian Court of Conflicts, June 25, 1910, Zeitschrift für Internationales Recht, XX ( 1910),

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