Part III.—Who may sue and be sued.
19
Sect. 4.
Foreign Sovereigns and Governments.
their will. As a consequence of that principle of international law which regards every sovereign State as absolutely independent, and of the international comity which induces every sovereign State to respect the independence and dignity of every other sovereign State, it is a well settled rule of our law that our Courts will not exercise by their process jurisdiction over the person of any independent ruler of even the smallest State or country (t). This is so even if he is within their territorial jurisdiction perfectly incognito (u). The public property of a sovereign State (a) and the private property of a sovereign ruler (b) are protected by the same principle from arrest in an action in rem.
May sue and be counterclaimed against.
It would seem, however, that where a foreign Sovereign is the plaintiff a defendant may file a cross-claim of a character consistent with our practice (c); and a foreign Sovereign may be named as defendant in order to give him notice of a claim which the plaintiff makes to funds in the hands of a third party or trustee over whom the Court has jurisdiction (d).
Waiver of right.
The privilege may be waived (e), but only by an intentional sub-mission to the jurisdiction, as, for example, by entering an appearance with knowledge of the facts (f); and it has been said that, even though there has been a submission, a foreign Power does not waive the right of removing its property (g).
Sect. 5.—Diplomatic Officers.
Diplomatic privilege.
25. Diplomatic and consular officers may sue in our Courts as private individuals (h). An ambassador cannot, however, be sued
- Austria v. Day (1861), 30 L. J. (CH.) 690; Hullett v. King of Spain (1828), 2 Bli. (N. S.) 31, affirmed (1833), 1 Cl. & F. 333; King of the Two Sicilies v. Willcox (1851), 1 Sim. (N. S.) 301; The Colombian Government v. Rothschild (1826), 1 Sim. 94.
- (t) The Parlement Belge (1880), 5 P. D. 197. A certificate from the Foreign or Colonial Secretary as to the independence of the foreign ruler is conclusive with respect thereto (Mighell v. Sultan of Johore, [1894] 1 Q. B. 149, disapproving The Charkieh (1873), L. R. 4 A. & E. 59).
- (u) Mighell v. Sultan of Johore, supra.
- Though a king be in a foreign country, yet he is judged in law to be a king there (Calvin's Case (1609), 7 Co. Rep. 15 b).
- (a) Public property, e.g., public ships of war, whether armed (The Prins Frederik (1820), 2 Dods. 451) or unarmed (The Thomas A. Scott (1864), 10 L. T. 726), shells (Vavasseur v. Krupp (1878), 9 Ch. D. 351), mail ships (The Parlement Belge, supra), and all public vessels belonging to foreign rulers in their public capacity (The Constitution (1879), 4 P. D. 39; The Jassy, [1906] P. 270), even if partly used for trading purposes (The Parlement Belge, supra).
- (b) The Parlement Belge, supra ; Vavasseur v. Krupp, supra.
- (c) South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord, [1897] 2 Ch. 487; Strousberg v. Republic of Costa Rica (1881), 44 L. T. 199; Prioleau v. United States of America (1867), 36 L. J. (CH.) 36; Rothschild v. Queen of Portugal (1839), 3 Y. & C. Eq. 594; Wadsworth v. Queen of Spain (1851), 17 Q. B. 171; Duke of Brunswick v. King of Hanover (1844), 6 Beav. 1; Hettihewage Siman Appu v. Queen's Advocate (1884), 9 App. Cas. 571.
- (d) See note (c), supra.
- (e) Mighell v. Sultan of Johore, supra. See also Gladstone v. Musurus Bey (1862), 32 L. J. (CH.) 155.
- (f) Mighell v. Sultan of Johore, supra. An unauthorised appearance by an agent is not sufficient (The Jassy, supra).
- (g) Vavasseur v. Krupp, supra.
- (h) Penedo v. Johnson (1873), 29 L. T. 452; Schneider v. Lizardi (1845), 9 Beav. 461.
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