Freedom with Their Exception

Abstract

The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts cannot exercise such jurisdiction over another sovereign’s acts. This latter rule has its own exceptions, namely that a state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.