The Historical Development of the Jurisdictional Immunity of Public Ships

Research Project

Project/Area Number	06620021
Research Category	Grant-in-Aid for General Scientific Research (C)
Allocation Type	Single-year Grants
Research Field	International law
Research Institution	KYOTO UNIVERSITY
Principal Investigator	SUGIHARA Takane Kyoto University, Faculty of Law, Professor, 法学部, 教授 (30004154)
Project Period (FY)	1994 – 1995
Project Status	Completed (Fiscal Year 1995)
Budget Amount *help	¥1,600,000 (Direct Cost: ¥1,600,000) Fiscal Year 1995: ¥500,000 (Direct Cost: ¥500,000) Fiscal Year 1994: ¥1,100,000 (Direct Cost: ¥1,100,000)
Keywords	Sovereign Immunity / Jurisdictional Immunity / Government Ship / Warship / Absolute Immunity / Restrictive Immunity / 制限免除主義 / 制度免除主義 / 国家免除 / 公船の免除 / 政府船舶の免除
Research Abstract	The present research has examined the historical development of jurisdictional immunity of State-owned ships. As to warships, a principle has firmly maintained since the classical decision of the Schooner Exchange v.McFaddon in 1812(11U.S.(7 Cranch) 116) that a warship benefits the absolute immunity from the jurisdiction of any State other than the flag State. The principle has, up to date, never questioned by any national or international court. This principle used to be equally applied, in former times, to State-owned vessels other than warships, including those used for the purpose of ordinary trade. As the commercial activities of governments by using their vessels largely developed after the First World War, a serious question arose whether the jurisdictional immunity should still be extended to such government ships, which were engaged in commerce. The purpose of the immunity of State-owned vessels was, originally, to safeguard the equality and dignity of a foreign State, and not to put it into an economic advantage in a competition with private shipowners. Thus, after the Second World War there is a wide-spread tendency both in the decisions of courts and in the views of international lawyers to deny immunity to State-owned or operated ships when the ships are engaged in ordinary trade. It is submitted that the development of the immunity of public ships has exerted a considerable impact upon that of the general principle of sovereign immunity under international law : the latter's main trend also moved from the classical or absolute theory to the newer or restrictive one after the Second World War.