Актуальные проблемы российского права, 1994-1471, 2 342-351, Россия, Москва
ИММУНИТЕТ ИНОСТРАННОГО ГОСУДАРСТВА, ВЕРХОВНЫЙ ИММУНИТЕТ, ДОКТРИНА США ОБ ИММУНИТЕТЕ ГОСУДАРСТВА, ЗАКОН США «О ВЕРХОВНОМ ИММУНИТЕТЕ ИНОСТРАННОГО ГОСУДАРСТВА» 1976Г., and ФОРМЫ ВЕРХОВНОГО ИММУНИТЕТА
Sovereign immunity or crown immunity this is the name in legal science and practice in America the special feature of sovereign's power, appeared when connecting with jurisdiction of foreign state. The American doctrine marks out four types of sovereign immunity: federal immunity, state immunity, Indian tribe immunity and immunity of foreign state. Immunity conception constantly criticized by scientists, but the sovereign immunity itself plays important role in American law. The conception of foreign stаtе immunity was taken by American doctrine and law from Britain's common law. The first discussion about foreign state immunity was initiated in the US in connection with Supreme Court decision of 1812 on case Scooner Exchange vs МсFaddon. In that case the judge Marshall, considered, that jurisdiction of US courts did not enough to investigate such case, because states sovereignty (in that case France) according to the existing principles of international law the immunity is supposed from raising a case in the court of foreign state. From that moment the executive branch of governmental power in the US recommended to take into consideration the immunity of foreign state in respect of amicable monarchy. But in 1952 acting legal advisor Jack B. Tate proposed to pay attention on legal term «limited territory» of the immunity of foreign state and the state can be protected from public, not private cases. To clarify this point the US Congress in 1976 adopted the United States Foreign Sovereign Immunity Act (The Law), which fixed the limiting theory of sovereign immunity and restricted the role of executive power and indicated the authority of courts in relation to foreign sovereign immunity of the state. The Law states terms, in particular «political subdivisions», «foreign state establishments» and contains criteria for courts of the US to define the quality of the immunity of the foreign state in each separate case. In 1998 the amendments to The Law were accepted and general exceptions relating to foreign state immunity extended. According to the Law the foreign state has the same responsibility as private person in obtaining judicial protection. But representatives of American judicial science notify some shortcomings of The Law. The confusion is in the name of The Law, because according to the contents the immunity should be presented in the framework of the US jurisdiction, but at the same time the real aim of the document is to codify the exceptions from immunity. The estimation of applying the document shows, that courts faced the difficulty when using the term commercial activity of foreign state, excepted from immunity protection. The Law leaves unsolved question about how to identify private subjects, which fulfils so-called quasi-immunity functions of foreign sovereign objects. The investigation comes to the conclusion that among main features of modern conception of sovereignty of foreign state in doctrine and practice of the US must be mentioned. Scientists and practitioners differentiate many types of sovereign immunity depending on bearer: federal immunity, state immunity, tribe immunity and immunity of foreign states. At the same time appeared trend of parallel development these types of immunity and acceptance and development in doctrine and in practice like single phenomenon sovereign immunity. There is the special law in the USA controlling the questions of withdrawal from immunity of foreign states on suits of compensation of damage presenting to the US courts. This law matches with American law doctrine «principle of long hand» when any question belonging to the US is under US jurisdiction. The law is not completely proper and is needed to be corrected. The historic analyses the US development of sovereign immunity and it's practical application from the beginning of the XIX century till nowadays gives opportunity to conclude about evolution of these process from the point of view of regulating foreign immunity by separate state and deserve attention and further studying.