Herausgabeansprüche aus dinglichen Rechten an Grundstücken und der Grundsatz der Staatenimmunität im zivilrechtlichen Erkenntnis- und Vollstreckungsverfahren

The rule of state immunity as derived from the principle of sovereign equality of states is one of the fundamental principles of the international legal order. Notwithstanding, there is a range of recent cases in which national courts have curtailed or even disregarded the principle of state immunity, most notably with regard to enforcement measures that affect foreign state property. In this context, a particularly problematic category of cases concerns the enforcement of property titles. Customary international law has long recognized an exception to the principle of state immunity removing disputes over immovable property from its scope of protection. However, a closer analysis of the purpose and development of this exception reveals that it was never intended to deny foreign states protection from enforcement measures affecting their property rights. While acknowledging that states have a legitimate interest in regulating immovable property located on their territory, this interest has to be balanced with the legitimate interest of foreign states to fulfill their diplomatic and sovereign tasks which include acquisition and possession of property for these purposes. The principle of state immunity thus also has to be duly accounted for in the context of property disputes. Whenever legal proceedings or enforcement measures disproportionately hinder states from exercising their sovereign tasks, the principle of state immunity should prevail. This particularly applies with regard to enforcement measures since the seizure of property which is employed for sovereign purposes will render the fulfillment of these sovereign tasks impossible. Even in the context of property disputes, the principle of state immunity therefore protects against enforcement measures if the property in questions serves a sovereign purpose.