Sovereign Immunity: The Exception for Intellectual or Industrial Property

The doctrine of sovereign or state immunity exempts a state and its property from the judicial jurisdiction of any other state. The domestic courts of various nations have developed this doctrine over the years through cases in which private citizens have attempted to sue foreign states. Courts\u27 enunciations of the principle of state immunity and their reasons for granting or denying the immunity are almost as numerous as the countries whose courts have faced this issue. The current work of the International Law Commission (the Commission) on the codification and the progressive development of the jurisdictional immunities of states and their property greatly assists the international legal community. The Commission\u27s work on state immunity has produced a number of draft articles designed to provide a basis for the first comprehensive, universal convention on this important aspect of international law. The Commission has provisionally adopted an exception to state immunity for intangible property in draft article 16. This exception to state immunity with respect to patents, trademarks, and copyrights is of particular interest, because of the increasing commercial activities of states and the importance of industrial and intellectual property rights in an age of sophisticated technology. Questions have been raised concerning the implications for developing countries of such an exception. This article will examine state immunity for industrial or intellectual property in relation to the work of the International Law Commission, the general principles and existing state practice, and the interests of the international community, including developed and developing countries. This issue is not specifically addressed in either the Foreign Sovereign Immunities Act of 1976 or the proposed amendments to the Act. This omission may have a significant impact on the development of this particular aspect of international law