Historical Background

Abstract

The genesis of the doctrine of state immunity is not readily discernible and its historical evolution does not follow a clearly defined course. The classical writers on international law during its formative stage did not deal with the notion that a foreign state enjoys immunity from the jurisdiction of the courts of another state. Only the personal immunities of foreign sovereigns and ambassadors are mentioned by, for example, Gentili (1552–1608), Grotius (1583–1645), Bynkershoek (1673–1743) and Vattel (1714–1767). It is interesting and worthy of note, however, that a distinction was already drawn between a foreign sovereign’s or an ambassador’s public acts and property and his private acts and property. Bynkershoek even went to the extent of holding that the goods of a sovereign, however acquired, whether of a public or private nature, were liable to process to compel an appearance.³ The same author expressly states that the property of the sovereign, public and private, is subject to the authority of the judge of the place.⁴ Vattel distinguishes between the sovereign’s private acts and his acts as sovereign, and between his private and his public property.⁵