제한적 국가면제론 하에서의 국가면제와 외교적 면제 간의 관계

초록

When considering the historic fact that in the nineteenth century when it was necessary to first determine the existence of the sovereign immunity the diplomatic immunity were resorted to as a useful analogy by national courts, it seemed that the state immunity and diplomatic immunity had the similar origins. Both immunities, however, have basically belonged to the separate legal system and should be distinguished in that they have different aspects in areas of the foundations of existence, the historic development process, the contents of the regulations, and their exceptions in the application. Diplomatic missions and their diplomats have been considered to be included in the category of the ‘state’ concept because they perform the functions to represent their own state. Therefore, the entities that perform the diplomatic functions of the state and the persons connected with them have enjoyed not only the diplomatic immunities but also the state immunities. Especially, under the absolute theory of state immunity the diplomatic entities and persons had enjoyed jurisdictional immunities in the courts of receiving state irrespective of the application of the diplomatic immunity or that of the state immunity. However, nowadays, under the restrictive theory of state immunity the diplomatic entities and persons can still enjoy the diplomatic immunity while the state that the diplomatic entities and persons acted to represent cannot invoke the state immunity in the courts of foreign state. Article 22(3) or any other provisions in the Vienna Convention on Diplomatic Relations 1961 do not expressly provide that the sending state can enjoy the jurisdictional immunity with regards to the acts of diplomatic entities or their premises. Modern international law draws a clear distinction between inviolability and immunity from jurisdiction of the courts of receiving state. According to the general interpretation on the basis of non-existence of the relevant provisions in treaties and judicial decisions of most countries, nowadays, the restrictive theory of state immunity allows a foreign state to be sued in respect of immovable property located in the forum state. In doing so, there is only one priviso that the foreign state do not hold the immovable property for the purposes of the diplomatic mission. A foreign state cannot deny in the forum state the right to adjudicate on the legal issues of ownership, rent, servitudes, and rectification of land registry, and other similar matters, as long as the foreign state’s possession of the premises is not disturbed. These matters, especially property ownership is not an inherently sovereign acts. In most states, the courts of forum state shall not make a decision for the recovery of land, the delivery of state property, or specific performance against foreign state, but may in lieu thereof make a decision declaring that the aggrieved party is entitled to the said land or property. The relief therefore generally sought is monetary in nature. Even if the aggrieved party wins the lawsuit and get the favorable judgement, the judgment cannot be enforced because the property or land in question is the diplomatic property which enjoys the inviolability in the receiving country.

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