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 THE COURTS OF OTHER STATES

Whereas it is not possible to trace in all states a definite course of judicial opinion as to the position of foreign states before national courts, there are nevertheless groups of cases and even isolated decisions which throw valuable light upon the general problem. The very fact that the courts of a given country are not often called upon to deal with the issue and that they have no precedents of their own to follow, may result in a freshness of point of view or a novel method of approach very welcome among the somewhat hacknied decisions of the courts frequently called upon to handle such cases.


AUSTRIA

THE cases decided in Austria illustrate the development from the strict doctrine of immunity which prevailed in early times to the distinction between sovereign and private acts of a state, which appeared with the World War. Specifically, the decisions afford unusually satisfactory material on counterclaims and on the status of real property within the state of the forum. As to the entity which was permitted to enjoy the immunity, Austrian courts applied about the same criteria as did their sister courts. Thus immunity was denied the Maltese Order of the Knights of Saint John, on the ground that there was no international-law basis for assuming it to be extraterritorial, and this status had not otherwise been accorded it.1 On

Knights of St. John

____________________
1
Decision of the Supreme Court, March 7, 1888. Entscheidungen des k. k. Obersten Gerichtshofes in Civilsachen, III ( 1888 [ 1889]), p. 128, pt. III, No. 56. For the method of according extraterritoriality to personages not entitled to claim it by international law, see the Ordinance of the Minister of Justice, August 10, 1851, by which the Prince of Lichtenstein residing with his wife and family in Austria were to be deemed extraterritorial and subject only to the Obersthofmarschall- Amt for all litigation involving them or their movable property.

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