Points of law

The Republic of the Philippines had lodged an objection with the Bonn Local Court claiming sovereign immunity. The Federal Constitutional Court upheld the objection and stated that:

“5. The fact that general customary international law contains the minimum obligation for contentious proceedings to grant immunity in relation to sovereign acts (acta iure imperii) does not by itself mean that, even as regards execution, it requires only limited immunity. [...]

7. At present there is no practice of States that would as yet be sufficiently general and supported by the necessary legal conviction as to establish a general rule of intern[ation]al law whereby the State having jurisdiction would be barred from execution against a foreign State absolutely.

8. There is a general rule of international law that execution by the State having jurisdiction on the basis of a judicial writ of execution against a foreign State, issued in relation to non-sovereign action (acta iure gestionis) of that State upon that State’s things located or occupied within the national territory of the State having jurisdiction, is inadmissible without assent by the foreign State, insofar as those things serve sovereign purposes of the foreign State at the time of commencement of the enforcement measure.

9. In the case of measures by way of security or execution against a foreign State, international law objects, at the time concerned serving its diplomatic representation in carrying out its official functions, may not be seized (ne impediatur legatio).

10. Because of the problems of demarcation in assessing endangerment of that functionality and because of the latent possibilities of abuse, general international law draws the area of protection in favour of the foreign State very broadly and focuses on the typical, abstract danger, not on the specific endangerment of the functionality of the diplomatic representation.

11. Receivables from a current ordinary bank account of the embassy of a foreign State existing in the forum State and intended to cover the embassy’s expenses and costs are not subject to execution by the forum State.

12. It would constitute interference contrary to international law in the exclusive affairs of the sending State for the enforcement agencies of the receiving State to demand that the sending State, without its assent, give details of the existence or of the earlier, present or future uses of credits on such an account.

13. The question remains open whether and on what criteria claims and other rights on other accounts of a foreign State with banks in the forum State, for instance special accounts in connection with procurement purposes or issues of loans or on accounts without special earmarking, are to be treated as sovereign or non-sovereign assets and which limits in international law are accordingly to be taken into account as appropriate for the law of evidence. [...]

14. The principle of the sovereign equality of States is a constitutive principle of contemporary general international law, which, at any rate within the sphere of the diplomatic transactions of States, requires far-reaching formal equality of treatment. Differential treatment of States in the sphere of diplomatic immunity according to their respective economic capacity would be incompatible therewith.“

Summary of the case

The landlord had rented a house to the Republic of the Philippines which used it as an office for its Embassy in Germany. After the end of the tenancy agreement, the landlord secured a default judgment against the Philippines concerning arrears of rent and expenses for necessary repair work. To execute this judgment, he seized a current bank account used by the Philippine Embassy.

The Republic of the Philippines lodged an objection with the Bonn Local Court claiming sovereign immunity.

Sources

Germen original in Entscheidungen des Bundesverfassungsgerichts Vol. 46, p. 342 et seq.

English extracts in Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Volume I/1: International Law and Law of the European Communitites 1952-1989 (published by the Members of the Court), 1992, p.358 et seq.

Additional information (explanations, notes, etc.)

n/a