States benefit from immunity which protects them and their property. Immunity from jurisdiction permits a state to avoid prosecution before a court of law, whilst immunity from execution of judgement shields it from seizure of its property and assets. According to widely accepted practice, state immunity applies to acts performed whilst exercising sovereign authority, as opposed to acts performed as a private person.
- The European Convention on State Immunity of 16 May 1972 regulates the protection of the property of foreign states. The Convention entered into force in Switzerland on 7 October 1982. Few states have ratified it.
- The United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the United Nations on 2 December 2004 is open to all states. Switzerland ratified it on 16 April 2010. It shall enter into force after the 30th ratification.
- Switzerland does not have any law that specifically governs state immunity.
Federal Supreme Court jurisprudence
Since 1918 the Federal Supreme Court has been developing its jurisprudence on the basis of a restrictive interpretation of state immunity, by virtue of which state immunity is not an absolute. The Federal Supreme Court has thus clarified the conditions upon which a foreign state can be summoned before a Swiss court (immunity from jurisdiction). It has also clarified when Switzerland is entitled to take enforcement measures against a foreign state (immunity from execution). It has adopted the distinction between the acts of a foreign State performed whilst exercising sovereign authority (“acta iure imperii”) and the acts performed in a private capacity as if a private person (“acta iure gestionis”).
The Federal Supreme Court ruled that a state may exclusively invoke immunity from jurisdiction for acts performed whilst exercising sovereign authority. A foreign state may therefore be summoned before a Swiss court for acts performed as a private person, provided there is a sufficient connection between the civil law matter and Swiss territory. The Federal Supreme Court has reached the same conclusion in respect of immunity from execution .i.e. that it can only be invoked in respect of the property and assets of a state which are to be used for official sovereign purposes. Consequently, the property and assets of a state which are to be used for purposes for which the state acts as a private person may be seized.
The concept of state immunity followed by the Federal Supreme Court corresponds with the jurisprudence developed by most states and is considered to be based on customary international law. The United Nations Convention on Jurisdictional Immunities of States and Their Property of 2 December 2004 is based on the same distinction between “acta iure gestionis” and “acta iure imperii”.
A state may choose to waive its immunity from jurisdiction and execution. Immunity may be waived before legal proceedings or during the dispute. For the waiver from immunity from jurisdiction or execution to be valid, the state must expressly issue consent for the Swiss courts to exercise jurisdiction over the dispute. Furthermore, according to Swiss jurisprudence and doctrine, and in accordance with customary international law, certain state property and assets are automatically presumed to be for official sovereign purposes (notably property and assets used for the operations of diplomatic and consular representations, as well as those of the state central bank or of another monetary authority). Hence any waiver of immunity of execution over such property or assets must contain an explicit reference thereto.