Sovereign immunity

Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.

In its older sense, sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without his or her approval to the jurisdiction of another.

There are two forms of sovereign immunity:

  • immunity from suit (also known as immunity from jurisdiction or adjudication)
  • immunity from enforcement.

Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to a lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages.

Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find themselves without means of enforcement. Separation of powers or natural justice coupled with a political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws) and judicial review.

Furthermore, sovereign immunity of a state entity may be waived. A state entity may waive its immunity by:

  • prior written agreement
  • instituting proceedings without claiming immunity
  • submitting to jurisdiction as a defendant in a suit
  • intervening in or taking any steps in any suit (other than for the purpose of claiming immunity).

In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.[citation needed] This rule was commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong".[1]