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Rabu, 19 September 2012

Sovereign Immunity

State Sovereignty in the relations between countries often appear in court practices abroad, namely the issue whether a State's sovereign immunity sovereignty still get right before the foreign court forum.

Courts in the United States was the first to formulate the doctrine of absolute immunity. Judge Marshall's decision in the case of The Schooner Exchange opponent Mc Faddon in 1812 have repeatedly made reference stance absolute judicial immunity doctrine. In the case Justice Marshall among others, states that:

"The jurisdiction of the nation within its own territory is necessary exclusive and absolute. Any restriction upon it, deriving validity an external source, would imply a dimunation of its sovereignty to the extent of the restriction, and an investment of that sovereignty to file same extent in that power which would impose such restriction.”

Furthermore, Marshall stated that:

“The world being composed of district sovereignties, processing equal lights and equal independence, whose mutual benefit as promoted by intercourse with each other, and by an interchange of those good offers which humanity dictates and its wants require, all sovereign have consented to a relaxation, in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.”

“This consent may, in some instances, be tested common usage, and by common option, growing out of that usage.”

“This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being in capable of confering extra-territorial power, would not seem to contemplate foreign sovereign nor their sovereign rights as its objects.”

“This perfect equality and absolute independence of sovereigns, and this common interest impelling then to mutual intercourse, and an exchange of good offices with each other, have given rise to a close of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial  jurisdiction, which has been stated to be the attribute of every nations.”

Source : Yudha Bhakti Ardhiwisastra, Hukum Internasional, Bandung: Alumni, 2003