“Sovereign immunity is in the nature of an affirmative defense; (a) it does not go to jurisdiction and (b) it can be waived.”
How later courts described this case
- “Sovereign immunity is in the nature of an affirmative defense; (a) it does not go to jurisdiction and (b) it can be waived.”
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Justice Jones:
I join in the result reached in the majority opinion.
The so-called “Tate Letter” of May 19, 1952, indicating a change of policy of the Department of State concerning the grant of sovereign immunity to foreign goverments, simply stated that thereafter, when the Department of State was considering requests of foreign governments for a grant of sovereign immunity, a more restrictive policy would be followed. We must assume that the Department of State is still pursuing that restrictive theory ; there is nothing to the contrary indicated.
*163 In the ease at bar, the Department of State, after considering the request of Venezuela for the grant of sovereign immunity in this litigation, has taken the position that Venezuela’s request should be honored and granted. The Department of State, through the appropriate channels, intervened in the court below and made known to that court that the Department of State recognized the validity of Venezuela’s request for sovereign immunity in this litigation. Under such circumstances, the decisional law of the United States Supreme Court 1 requires that the court below should have granted recognition to and should have allowed the request of Venezuela for a grant of sovereign immunity. On such ground alone this matter should be determined.
These decisions are to be found in the majority opinion.