State Immunity from Jurisdiction and Execution in Spain

General Principle of State Immunity

General immunity from jurisdiction is a principle of international law that excludes the possibility that a State may be subject to the jurisdiction of another State. States can act abroad; however, the foreign State must comply with the law of the State in whose territory it operates. If a State violates that law, domestic courts cannot entertain claims against it. This concerns the scope and regulation of immunity from jurisdiction of the State, its organs and their property.

The doctrine of absolute immunity from jurisdiction is the classic doctrine: it affects all acts of State. By contrast, the doctrine of relative (or restrictive) immunity distinguishes between acts performed as sovereign functions and those of management, and understands that the former can never be tried by foreign courts. The first doctrine is clear. The second is where the problem arises: distinguishing whether the act to be prosecuted belongs to one group or the other.

For this, there are two approaches with different results:

• Nature of the act: an act is sovereign if it can only be performed by the State; if an individual could perform it, it is not sovereign. This reduces the number of acts considered sovereign.
• Object and purpose of the act: an act is sovereign when performed in pursuit of a State function, and managerial when carried out in the exercise of an economic or private activity. This reduces the acts considered managerial.

The law tends to favor the view of nature, and the ILC combines both approaches to determine the scope and regulation of immunity from execution of the State and its property. If States enjoyed absolute immunity from jurisdiction, they could never be judged. However, when they enjoy relative immunity from jurisdiction, they may be heard for management acts.

Spanish Law on State Immunity

Currently the regulation of State immunity is expressed in Spanish law, covering both active immunity and passive immunity. Article 117.3 of the Spanish Constitution (CE) contains the general framework; it does not deal with particular cases in which immunity applies or not, but relies on international standards and the LOPJ.

The current LOPJ (2003) does not alter the system provided by its predecessor, which exempted alleged immunity from legal process and enforcement. The LEC 2000 provides that the Spanish civil courts shall not know matters referred to them when the claims or enforcement seek subjects or goods enjoying immunity from jurisdiction or execution.

The Royal Decree (RD) of 1980 states that the State Attorney should, in trials abroad, invoke immunity from jurisdiction where appropriate. Regarding immunity from execution, the RD provides that if the competent Spanish authorities refuse to enforce a foreign ruling, the State Attorney will ensure maximum immunity from execution for the Spanish State.