2.2 Absolute and restrictive immunity 2.3 The British position : The traditional doctrine of state immunity was absolute in that immunity attached to all actions of foreign states. With the rise of industrialisation during the 19th century, States became more involved in commercial activities, particularly in the area of railways, shipping and postal services. The emergence of the Communist states in the first half of the 20th century and the increasing

doi:10.4324/9781843143802-70

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2.2 Absolute and restrictive immunity 2.3 The British position

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ABSTRACT

The principle established by the Act is the classical one: it is the foreign13 state that is immune from the jurisdiction of the courts.14 The Act does not speak of a sovereign state. On the existence of a state (and of many other international facts) the Secretary of State’s certificate is conclusive evidence;15 the question whether an unrecognised state is entitled to immunity will, therefore, not come up for judicial decision and it is quite possible that in a given case the Secretary of State’s certificate may, in effect, be able to answer that question in the affirmative and thus, contrary to traditional learning, withdraw a point of law from judicial decision – an unfortunate and, possibly, objectionable16 result. The beneficiaries of immunity, however, comprise a number of defendants other than a state. Their definition invites a few comments. 1 The reference to a state includes, of course, its sovereign, ‘in his public

capacity’17 (who and whose family shall enjoy the benefit of the Diplomatic Privileges Act 196418 as well as the government and its departments.19 No serious difficulties are likely to arise in respect of these defendants.