State Trading and the Rule of Law
Nationalism, the patriotic spirit, class and race consciousness, are all ways of the self, and therefore separative. After all, what is a nation but a group of individuals living together for economic and self-protective reasons? Out of fear and acquisitive self-defense arises the idea of my country, with its boundaries and tariff walls, rendering brotherhood and the unity of man impossible.
— J. Krishnamurti, Education and the Significance of Life (1978)
There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.
— Lassa Oppenheim, International Law (1928)
What is National Sovereignty?
Sovereignty is a concept that describes the scope of power of rulers, sovereigns, heads of state or governments; it came upon us from the Romans who expressed it as the idea that the Emperor exercised an absolute reign; the same idea reigned in old Egypt where the Pharaoh had absolute power over the land and the people.
The ancient peoples did not yet talk about sovereignty in the conceptual sense we know it, but the idea was basically the same. It has to be seen that the monarchs of the feudal aristocracy during the Middle-Ages were not sovereigns in that quality as their rulership was limited, and not absolute.
The feudal system however was rather the exception, while absolute sovereignty was later established as the rule in international law. There was nonetheless a continuity in the basic concept of sovereignty, while its scope and its possible limits were a matter of scholarly debate, from the time of the Romans through to the present day. This is how the concept changed in its definition, scope, and application, until a certain uniformity and consensus was reached during the Age of Enlightenment.
The current notion of state sovereignty was laid down in the Treaty of Westphalia (1648), which marked the end of the Thirty Years War (1618–1648) and which, in relation to states, codified the basic principles of territorial integrity, border inviolability, and supremacy of the state, as opposed to the authority of the Church. It was from that time also that international law described a sovereign is a supreme lawmaking authority.
After the centuries of the abusive regime of the Church, with all their witchhunts and the holocaust perpetrated by the Inquisition in Europe, sovereignty reemerged as a concept in the late 1500s, a time when civil wars had created a craving for stronger central authority, when monarchs had begun to gather power into their own hands at the expense of the nobility, and the modern nation state was emerging. Jean Bodin and Thomas Hobbes presented theories of sovereignty calling for strong central authority in the form of absolute monarchy.
In his treatise On Sovereignty (1576/2009), Jean Bodin argued that it is inherent in the nature of the state that sovereignty is absolute and perpetual. This modern conceptualization of sovereignty later led to what is called absolutism, and what became the leading version of rulership for the French kings. In fact, the strange thing is that when the Church began to lose its absolute power in Europe, the sovereign power of the monarch was defined with religious overtones. Bodin and other scholars wrote that the doctrine of sovereignty is conferred by divine law; this is how the idea came up that kings enjoyed some form of divine right.
Thomas Hobbes, in his book Leviathan (1651/2006), introduced an early version of the social contract, a theory later taken up and developed by Jean-Jacques Rousseau (1712–1778). Hobbes deduced from the definition of sovereignty that it must be absolute and indivisible. The idea that the ruler’s sovereignty is in effect conferred to him by the people in return for his maintaining their safety, led him to conclude that if the ruler fails to do this, the people are released from their obligation to obey him, which can as a hypothesis be seen verified later on with the French Revolution (1789–1799).
Niccolò Machiavelli, Thomas Hobbes, John Locke, and Montesquieu are key figures in the unfolding of the concept of sovereignty. The second book of Rousseau’s Social Contract (1762/1997) deals with sovereignty and its rights.
Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws.
In the third book, he argued that ‘the growth of the state will give the trustees of public authority more and means to abuse their power,’ which is exactly what was going to be seen on the political arena later on. And here we can see one of the reasons why the French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.
West’s Encyclopedia of American Law (2008) defines sovereignty as ‘the supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.’
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws, imposing and collecting taxes, making war and peace and forming treaties or engaging in commerce with foreign nations.
The individual states of the United States do not possess the powers of external sovereignty, such as the right to deport undesirable persons, but each does have certain attributes of internal sovereignty, such as the power to regulate the acquisition and transfer of property within its borders. The sovereignty of a state is determined with reference to the U.S. Constitution, which is ‘the supreme law of the land.’
State Trading and Restricted Sovereignty
The Restriction of Foreign Sovereign Immunity
An area where a clear restriction of national sovereignty was occurring is international trade, particularly with regard to commercial contracts where one party of the agreement is a private trader, and the other party, a foreign state.
While still two hundred years ago, governments hardly entered the marketplace for purchasing goods, and manufactured themselves all the goods and materials needed for their governmental purposes, this changed with the emergence of world trade during the 19th century. As a result, international law has widely changed from about the beginning of the 19th century. Against the opinion of many skeptical international law experts, international law has stood trial as to its ability to flexibly adapt to paradigm changes in socioeconomic conditions as well as to the psychology of nations’ behavior on the international stage.
Are we dealing with a law of sovereigns, or with a law of nations? How did sovereigns behave in the past, and how do our modern nation states behave?
When we look at these questions, we can observe a tremendous shift in international jurisdiction from about the last decade of the nineteenth century. This paradigm shift was subtly prepared by incidental precedents such as The Schooner Exchange (1812) and culminated in a thorough reform of international procedural law. Let me explain.
Before the 19th century, sovereigns, or rulers, were considered immune from any jurisdiction other than their own. This was historically and politically a sound concept until the moment when, from about the middle of the 19th century, the young nation states engaged in the growing international market and behaved, as such, like traders. In my doctoral thesis, I elucidated the procedural questions, the evidence problems and the burden of proof in such litigations against foreign states and their agencies and instrumentalities.
The fact that the nation states entered the international marketplace for buying and selling goods set a novelty event on the timeline of human history. International law was not prepared to deal with that novelty at first, and could not protect private traders from losing huge sums of money because they had contracted with a foreign government; what namely happened quite regularly in these cases was that the foreign government would invoke ‘foreign sovereign immunity’ in order to escape its liability under the contract.
The consequence of the immunity claim was namely that the forum state had to deny jurisdiction over the foreign state, and dismiss the claim because of a ‘procedural handicap.’ When a claim is dismissed on procedural grounds, the court will not enter the substance matter of the case, and thus not rule over the transaction that was at the basis of the claim. The lawyer would in such a case reason their client that ‘the case cannot be won because of lacking jurisdiction.’
Thus what the new situation created was rampant injustice, and heavy financial losses of large trading companies around the world as a result of having contracted not with a private trading company but with a foreign state, or an agency or instrumentality of a foreign state.
One can figure that in the beginning courts were reluctant to affirm jurisdiction over foreign states, while they were well aware of the blatant cynicism of the situation. The novelty was overwhelming and they found international law had no instrument to deal with the problem. And as the topic was a sensitive one because the principle of national sovereignty was in play, judges tended to be very careful. They did not want to step on the feet of some or the other foreign government, and still less did they want to offend their state department or department of foreign affairs.
Some however were conscious that a historical break was about to happen and that it was more or less blunt injustice done to the private claimants to grant immunity to a state who voluntarily engaged in the market place and then pleaded sovereign immunity as a defense in an action that did not concern sovereign but commercial activities of that state.
As the business volume of most of those cases was considerable, judges soon found a way to avoid such injustice. They argued that it was not the nature of the person involved, speak the private individual or sovereign ruler or state, that was decisive for the granting or not of immunity, but the nature of the activity in question.
That was after all a clever strategic move to go around the intricate sovereignty question. ‘We are not going to touch the sovereignty of the state. We look what states are doing, and upon their acting they are judged, not upon their nature; their sovereignty thus remains untouched.’
The reasoning was brilliant and efforts of highly qualified international defense lawyers who worked pro immunitatem eventually failed. At that point, the law was changing, and nobody could prevent that tremendous paradigm shift from happening. International law was going to get a new face! It was almost a revolution, despite the fact that people other than government consultants and international lawyers had (and have) hardly an idea of these affairs, as they are not catchy topics for the international mass media.
The lawyers who worked on the side of the private merchants argued that if the activity in question was by its nature commercial, the state was to be denied immunity and the foreign court had to affirm jurisdiction. If, however, the act or activity was sovereign, then immunity had to be granted and jurisdiction was to be denied. That was indeed a handy rule that was quickly to become a sort of standard for judging sovereign immunity questions before national tribunals.
And the change of international law in this respect demonstrates that international law is well flexible and open to change, when change is needed to uphold justice and avoid flagrant injustice! International conferencing, while it’s today a popular topic in the international media, is not the primary lever for change in matters of international law. International law changes rather incrementally, and this most of the time through case law. This is exactly what happened with the development of the restrictive immunity concept.
This concept evolved from the end of the 19th century until today, and this process is still ongoing, and all the details and modifications of this concept were worked out by case law in agreement with international law experts and scholars, international lawyers and consultants, not, or only to a minor extent, by international agreements.
One may imagine, even as a lay person, how important it is to know the allocation of the burden of proof in matters of sovereign immunity litigation, for it often is crucial for winning the case. If, for example, the plaintiff bears the full procedural and substantial burden of proving the essentials of his claim, as it is under general civil law, and common law, then the restrictive immunity theory would not have gained much value in practice, as in most cases foreign states could go away with dishonoring commercial agreements, thus causing immense financial losses to the private sector.
Accordingly, among the array of questions I was essentially discussing in my doctoral thesis, the problem who bears the burden of proof in litigations where foreign sovereign immunity is claimed, was by far the most important.
The question of the burden of proof is originally not a matter of international law, but of the applicable national substantive law.
Needless to add that a case must have the necessary minimal contacts so that a national tribunal can affirm jurisdiction.
While under the United States’ Foreign Sovereign Immunities Act of 1976, this question is stuck together with the question of the burden of proof, as a matter of legislative wording, minimal contacts is quite a different problem.
The interesting question comes up if, as a result of a quite homogenous national range of immunity laws, international law was formed in a way so as to encompass today an evidence rule in the field of sovereign immunity?
In my doctoral thesis, I came to an affirmative conclusion, and time has given me right, as now twenty-one years after my public thesis presentation, the International Law Commission has codified the matter along the lines of my thesis conclusions, in the United Nations Convention on Jurisdictional Immunities of States and their Property (2004).
To begin with, let me present an example for the interplay between national substantive law and jurisdictional immunity, as a matter of international law, with respect to the burden of proof.
Let’s suppose a private merchant claims damages for the repudiation of a contract signed with a foreign state. In such a case, there is today no question that the claimant bears the burden to proof as to the existence of the title, the contract. But who bears the burden of proof for the facts that determine the outcome of the question of sovereign immunity?
Obviously, it would be easy if the burden here would also be on the claimant. It would simplify the evidence procedure. Unfortunately, things are not that simple. Even though often the two burdens may coincide, this is not always so, especially not under the Foreign Sovereign Immunities Act of 1976 (FSIA) of the United States.
Theoretically, there are two options to design the burden of proof for substantiating the sovereign immunity claim:
- i) the burden is on the plaintiff for demonstrating the commercial character of the transaction;
- ii) the burden is on the foreign state to prove that the nature of the transaction was exceptionally governmental.
I shall in the following summarize the main results of my analysis, without being too explicit; in fact in my doctoral thesis and my recent monograph I have effected a detailed comparative law analysis of all six immunity statutes that at the time were prevalent for assessing the content of international law on the matter. Here only the general principle is of importance; when we see how, and how thoroughly, national sovereignty has been restricted, even if only in commercial matters, we see that the future is open for the creation of a world government.
The crucial condition for this to happen is lucid awareness of the malignant cancer of national sovereignty, a concept that hopefully will eventually be confined to safe boundaries.
A first and decisive step on this way were the following legal instruments, that were created between 1976 and 1982, and that are in my view important legal codifications regarding world democracy, in the true sense.
And interestingly so, once again the old insight was confirmed that commercial law and fair trade are the cornerstones for our world legal system to improve and evolve, because trading is communication, and as such it requires the respect of human values like free will, contractual freedom, pacta sunt servanda and legal predictability. In the absence of these values, no world trade is possible; without world trade to function smoothly, the mere idea of world government would appear grotesque and nonsensical. These statutes are:
- The Foreign Sovereign Immunities Act, 1976 (United States)
- The State Immunity Act, 1978 (United Kingdom)
- The State Immunity Act, 1979 (Singapore)
- The State Immunity Ordinance, 1981 (Pakistan)
- The Foreign States Immunities Act 87, 1981 (South Africa)
- The State Immunity Act 1982 (Canada)
My scrutiny and comparison of these different national statutes on foreign sovereign immunity revealed common principles on the allocation of the burden of proof with regard to both immunity from jurisdiction and immunity from execution.
Before going more in detail, let me shortly explain the difference between ‘jurisdictional’ and ‘executional’ immunities. It’s in fact something so basic and common-sense that a lay reader can easily understand it.
When you sue a foreign state in your national jurisdiction, and the state invokes the sovereign immunity claim, we are dealing with ‘jurisdictional’ immunity; if however you are a judgment creditor of that state, having already received a judgment against the foreign state that entitles you to receiving payment or indemnities, and you seek satisfaction, then we are dealing with ‘executional’ immunities.
In addition, there is an important variation of the latter constellation; for example you have done repairs of a foreign state’s embassy in your country, and they don’t pay the bill after you finished the work. Even before having a judgment against them, you want to secure your interests by seizing, by act of law, one of the embassy’s bank accounts for your satisfaction; in such a case we are equally dealing with ‘executional’ immunities.
Immunity from Jurisdiction
With regard to immunity from jurisdiction, the burden of proof is in principle on the foreign state to show some factual basis of its immunity claim by establishing a prima facie case of immunity. This means the state must provide some evidence, not a full proof, for the court to affirm immunity and deny jurisdiction. When forwarding evidence for establishing this prima face case, the foreign state is not obliged to disprove all immunity exceptions, but only the one(s) the plaintiff relies on. If the plaintiff does not specify exception(s) he relies on, the foreign state can generally affirm, by affidavit or otherwise, that it falls under the range of the statute, and thus:
- that it is a foreign state within the definition of the statute, and
- that the act or activity in question was of a public, governmental nature.
Once the foreign state has made its case, the evidential burden shifts to the plaintiff to prove the applicability of the exception(s) he relies on. If the plaintiff fails to establish an exception to immunity, immunity has to be granted since the prima facie evidence provided by the foreign state erects a ‘presumption of immunity’. If, on the other hand, the foreign state fails to show some prima facie basis of immunity, the ultimate burden or persuasive burden would be with the foreign state and immunity would have to be denied.
This is however only so if the plaintiff, in his pleadings, has given convincing proof for the court to qualify the activity in question as commercial. Since, in this case, no presumption has been erected, and international law does not contain any presumption in favor of immunity or in favor of jurisdiction, the court cannot, without endangering the sovereignty of the foreign state, deny immunity without further enquiry and only on the basis of the burden of proof. In this case, the court must namely qualify the activity in question on the basis of all the evidence the parties have submitted.
The court is notably not allowed to refuse immunity only because the foreign state has not entered an appearance or otherwise failed to defend itself. The fact that the restrictive immunity doctrine imposes a certain rule of the burden of proof does not mean that the court is liberated from its obligation to rule sua sponte (ex officio) on the question of immunity.
The statutes slightly differ in the provisions concerning agencies or instrumentalities or separate entities of the foreign state.
Whereas the American and Canadian statutes assimilate agencies and instrumentalities, for jurisdictional immunity purposes, the British and related statutes split separate entities from the foreign state and erect a presumption of non-immunity to their effect.
Under the American and Canadian immunity statutes, the burden of proof, without presumption, is the same for agencies or instrumentalities of the foreign state. In practice the results of the two different approaches however hardly differ as to the burden of proof, for the foreign state must, in its prima facie evidence, join some proof that the agency or instrumentality in question belongs to the foreign state, rather than being an entity distinct from it.
It is logical that the privilege of sovereign immunity is not granted to legal entities distinct from foreign states. That is why, in practice, the American and Canadian statutes can also be said to contain presumptions of non-immunity with regard to such distinct legal entities, despite the fact that the text of these statutes, as to the burden of proof, is less clear than the other enactments on foreign sovereign immunity.
Immunity from Execution
With regard to immunity from execution, the old rule that is called absolute rule of sovereign immunity has not been altered. It stayed intact as a true general rule of sovereign immunity, despite the fact that the statutes concede some exceptions to this rule, notably the absence of immunity if the property in question was used, by the foreign state, for (exclusively) commercial purposes.
Since the rule of immunity from execution is not only a residual concept, as is the rule of immunity from jurisdiction, no prima facie evidence is necessary from the side of the foreign state to erect this immunity rule into a true presumption. Only the British, Pakistani and Singapore acts require to this effect a special ambassadorial certificate. But this requirement is no onus for foreign states and has not to fulfill the standards of a prima facie case. It is more of a formality, easily to be rendered by the head of the foreign state’s embassy — a simple statement to the effect that the assets in question did not serve commercial purposes, but were used for the daily running of the embassy. Its effect is the erection of a presumption of immunity for the property in question.
The burden of proof for overcoming this presumption is squarely put in the lap of the judgment creditor, as it is the case under the statutes which do not contain such a certificate provision.
The normal evidence procedure, as the persuasive burden clearly remains with the judgment creditor, is such that the latter begins to present proof by submitting prima facie evidence that the property in question was used, by the foreign state, for commercial purposes.
If the judgment creditor succeeds in establishing this prima facie case, the foreign state, by simply contradicting this proof, can be granted sovereign immunity, since the general rule of immunity from execution is on its side. Even if the foreign state is not able to contradict the prima facie evidence of the judgment creditor, the latter must prove, by a preponderance of the evidence, the applicability of an exception to immunity from execution.
This is notably the consequence of ordinary rules of statutory construction that put the burden of proof on the one who struggles against a general rule contained in a statute. This burden is not met by prima facie evidence, but only by a plain proof overcoming the presumption established under the general rule.
Thus, the immunity risk in matters of immunity from execution is clearly on the judgment creditor. In other words, the judgment creditor bears the legal or persuasive burden of proof. In any case of doubt (non liquet), the court must grant immunity. In other words, in matters of immunity from execution, the rule is in dubio contra immunitatem.
For certain types of property (military property or property of a foreign central bank), the statutes tend to be even more severe. They only differ in either refusing any execution (thus granting absolute immunity in the true sense) or permitting a very limited range of executory measures.
The Signal Function of Restricted Sovereignty
We have seen in our detailed analysis of the restrictive foreign sovereign immunity doctrine that the transition from the paradigm of ‘absolute’ immunity to the new standard of ‘restrictive’ took more than a hundred years.
That seems to be a very long time but is compared to the whole of human history a tiny event on the timeline of human evolution. And while as such it may have interest only for specialized lawyers, the signal function of this restriction of national sovereignty cannot be underestimated.
Notably, in English, a restriction connotes something being ‘restrained’ in its scope, power or expression. We have seen that the once unlimited national sovereignty of a nation state today is restrained for the domain of jurisdictional immunities, when the activity in question was of a private, commercial nature.
When such a trend is to be traced, and corroborated by case law, and when the general idea has been accepted that sovereignty is not per se an ‘absolute’ power, but can well be restrained, and must be restrained when it brings harm to people, companies and to national economies, then we have a situation where, as lawyers say, a ‘precedent was set.’
When a precedent was set, there is a likelihood that a similar constellation or situation will be judged along the same lines because of the similarity of interests or because the values to be protected are of a similar nature.
On the same line of reasoning, the text of the European Convention on State Immunity, 1972, states in its Preamble, that it takes into account ‘the fact that there is in international law a tendency to restrict the cases in which a State may claim immunity before foreign courts.’
The United Nations Convention on Jurisdictional Immunities of States and their Property (2004), contains a similar clause. These clauses are of course very general and have a mere declaratory character, but they are nonetheless important because of their signal function.
We have to keep in mind that only a hundred years ago such a clause in an international treaty would have been unthinkable as such an international convention wouldn’t have been agreed upon; the majority of states would have thought of such a clause as ‘offending their sovereignty.’
The concept of sovereignty has to be seen historically; the coming up of nation states was a Renaissance endeavor, and would again have been unthinkable during the Middle-Ages because of the Church’s absolute power. But when the Church’s power was restrained, the nation states took over the sacrosanct nature of the Church’s absolute domain, and by creating the idea of ‘national sovereignty’ expressed their claim of almost divine ‘untouchability’, and a set of absolute powers connected with it.
This is actually a good example for showing how cyclic human history is, and how nonlinear. It is cyclic in the sense that the same problems are put on the same stage but in the disguise of different actors, until humanity has gained enough consciousness to tackle the problem itself, instead of addressing the actor that embodies it. Not the Church was bad but the concept of total dominion over subjects treated as vassals; not the nation states are bad but again the concept of absolute, and sacrosanct, sovereignty because it does harm to people, and to the smoothness of international trade, and the communication between peoples.
Thus, we can say that humanity has recognized ‘the problem’ twice, first in identifying the human rights abuses committed by the Church, second by realizing that absolute sovereignty, to mention only the commercial sector, brings heavy losses to private traders and a possible scenario of ‘total injustice’ into international trade, which cannot reasonably be tolerated.
As the problem of national sovereignty is larger, and does harm also in other ways than commercially, especially when we think that it is the single most dangerous trigger for wars between nation states, resulting in heavy loss of human life, the signal function given from the commercial sector is not to be overlooked and needs to be carefully analyzed by international law scholars and world peace organizations!
For me, in my quality of an international lawyer, the slow but steady erosion of national sovereignty is a fact that cannot be overlooked. Currently, we are in a transition period until about the year 2020 during which the concept of national sovereignty is going to do even more harm, but also where human consciousness will considerably rise to acknowledging the perilous nature of the very construct of sovereignty.
This, then, will open the door to a modification and further restriction of sovereignty in the sense of restraining it by multilateral agreement, and giving a large part of sovereign national power over to a supranational body called ‘world government’ or otherwise.
Behold, this is not a utopian idea but already now a process and dynamics that cannot be overlooked! The fact that in the international media little is to be heard about it, has to do with the fact that the matter is politically sensitive because national pride, and a whole bunch of chauvinist values are connected and associated with it.
In sensible matters of this kind, international diplomacy has developed a careful approach of incremental and careful progress that doesn’t offend the main sandbox players, as so doing would in the long run only result in regional and international setbacks.
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