Whether sovereign immunity can be claimed after death of the sovereign
The novel issue in dispute in this case is whether, where a sovereign ceases to be head of state on death, his immunity from suit continues to extend to everything which he did when he was head of state, whether of an official or private nature. There is no prior caselaw involving a claim made against the estate of a head of state who has died in office. It is, however, an established principle that when a head of state ceases to hold office during his lifetime, his on-going immunity from suit is thereafter limited to acts which constituted the performance of his official functions during his period in office.
Having reviewed prior caselaw, Rose J identified a principle that “a state is to be regarded as intolerably affronted by a foreign court asserting jurisdiction over the private affairs of its head of state on one day and then not so affronted if that court asserts jurisdiction the next day, the head of state having stood down or been deposed in the interim. This is not because the high esteem and affection in which that head of state is held by his subjects instantly evaporates the moment he steps down from office but rather because their esteem and affection is nothing to the point”. Applying this principle to the present case, the judge did not accept that a sovereign who dies in office remains the embodiment of the state once deceased. A new head will take the sovereign’s place and there is no room for two embodiments of the state to exist at the same time. Furthermore, there was no justification for treating a head of state who dies in office in a more favourable way than a former head of state who dies some time after leaving office.
Here, an agreement entered into between the head of state and the claimant was a private matter rather than an exercise of the head of state’s official functions. Accordingly, the defendant was not entitled to immunity from suit to defeat the claimant’s action.