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.