The exception to immunity in UNCSI, Article 12 for compensation for non-contractual personal injuries and tangible loss to property (known as ‘the territorial tort exception’) opens the way, even if supporters of human rights would have it go further, to calling States to account under national law for damage resulting from governmental acts performed in exercise of sovereign authority. Whilst initially intended to cover one limited consequence of tortious State conduct in another State, namely the negligent use of motor vehicles by State officials, whether for a public purpose or otherwise, this territorial tort exception has subsequently been extended by ECSI, Article 11 and in some nine jurisdictions without any restriction to commercial or contractual acts only. The ILC Special Rapporteur in proposing this exception described its main purpose as ‘the protection of the injured parties, whether they happen to be nationals or residents of the State of the forum, or indeed aliens or tourists temporarily in the territory, which is nevertheless bound to afford a reasonable measure of legal protection for the safety and security of their persons as well as their tangible belongings’, but emphasized that the justiciability of such loss was by reason that the tortious liability of a foreign State should be locally justiciable if the damage to property, death or personal injuries have occurred in the territory of the forum.1
The International Court of Justice (ICJ), however, has now made clear that in customary international law any territorial exception to State immunity does not extend to acts committed by the armed forces and other organs of the State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State, and ruled that
the Court considers that customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict.2
In the same case the ICJ also made plain that a procedural requirement applies in customary international law in respect of all the exceptions to State immunity, so as to exclude all questions as to responsibility of the defendant State or to legality of the conduct alleged. ‘The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State’.3 The plea in consequence is stated to bar all consideration of the acts of which complaint is made as to the gravity of the offence,4 or whether the claim is made in respect of a tort which ‘derogates from substantive rules which possess jus cogens status’5 or ‘where no alternative redress is available’.6 Any consideration of the claim based on a balance or comparison of the loss to the claimant and of the sovereign interests of the foreign State is excluded by the immunity bar.7
The exclusion of all these aspects of a claim by the ICJ’s declared procedural nature of the immunity plea is of particular relevance to the present tort exception for loss arising from non-commercial activity which, as the ILC Rapporteur stated above, is based on the moral obligations of a territorial State to provide legal protection for the safety and security of persons and their possessions coming within its territory. UNCSI operates on a general rule of immunity applicable to proceedings in national courts but accepts an exception in UNCSI, Article 12 for acts causing personal injuries provided they are committed within the territory of the State in the court of which the claim against the foreign State is brought. And further does so without any reservation either express or implied in the wording of the article that acts in the exercise of sovereign authority are excluded.
This general rule of State immunity declared by the ICJ, with its complete exclusionary effect on the national courts’ jurisdiction in respect of all other aspects arising from the commission of such acts by the State, undermines the legal validity of the territorial exception to immunity. Read at its narrowest, the ICJ has ruled that any claim in national courts relating to the acts of armed forces in time of armed conflict committed in the territory of another State is barred by this plea of immunity. Thus a challenge arises as to the continued legal validity of an exception as in UNCSI, Article 12 for delictual loss based on tortious acts of a State committed within the forum State territory. Both on moral and on legal grounds the International Court’s ruling would seem to challenge the continued acceptance of the validity of the tort exception to State immunity as set out in UNCSI.
By limiting the impact of this ruling it may be possible to defeat this effect. To do so, it will be necessary to examine the elements of which the ICJ’s decision is composed. The acts on which the immunity is based are specified by reference to their commission: on the territory of the forum State; in time of armed conflict; and by the armed forces of a State; and in respect of claims for which the defendant foreign State has admitted responsibility. By taking account of these elements, some accommodation may be found between the scope of the territorial tort exception as formulated in UNCSI and the requirements of the ICJ ruling, making possible a resolution of the challenge stated above.
Accordingly, Part One of this chapter will examine critically the territorial tort exception in Article 12. With some understanding of its reach and any areas of inconsistency, it should then be possible to evaluate the effect of the Jurisdictional Immunities judgment on this tort exception to State immunity. Part Two will make such an evaluation of the ICJ judgment, referring to the aspects mentioned above as they apply to a tort exception and apply it briefly to three well-known controversial areas of non-contractual delictual loss—loss arising from armed conflict, environmental loss, and loss resulting from violation of a procedural fundamental human right (violation of substantive human rights being barred by the ICJ ruling). At the end of Part Two it should then be possible to state whether the territorial tort exception continues today to represent a restriction on the bar of State immunity.
Personal injuries and damage to property
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.
The first authoritative formulation of the territorial tort exception is to be found in the ECSI, although the 1891 Resolution of the Institut de Droit International foreshadowed such a development in its proposed exception for delictual or quasi-delictual acts committed within the forum State.8 Although originally formulated more narrowly to remove immunity in respect of personal injuries resulting from traffic accidents caused by a foreign State within the territory of the forum State,9 ECSI, Article 11 in its final form was much wider, rendering non-immune ‘proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred’.10 UNCSI follows this precise formulation of the exception for delictual acts in its Article 12.
In the course of discussions in the ILC and consultation with governments, objection was made to the inclusion of a non-contractual damage exception to immunity since it was based on the legislation of a few States and such cases could be settled through the diplomatic channel with deletion being recommended.11 Russia and Byelorussia considered the draft exception unacceptable as relating either to matters regulated by national law which were outside the scope of the Draft Articles, and/or to State responsibility, ‘the illegality of the behaviour is determined by rules of international law, with the help of international proceedings and cannot be established by national courts’. A proposal to restrict the application of the exception solely to pecuniary compensation for traffic accidents involving State-owned or operated means of transport was not adopted. Governments in support of the exception objected to the requirement of the presence of the author of the delictual act at the time of its commission as too restrictive and likely to prevent the applicability of the exception to transborder injuries or damage.12 A second paragraph, inserted at the instance of Spain, which expressly stated that the exception in paragraph 1 did not affect any rules concerning State responsibility under international law, was later deleted.13
The jurisdictional conditions of the occurrence of the act (or omission) and presence of the author of the act within the territory of the forum State are discussed later in this chapter. It is to be noted that the possibility of such an exception removing immunity when such conduct occurred outside the territory of the forum State was never discussed by the ILC and would certainly have been treated as out of order. Their discussions and UNCSI only address the application of immunity in respect of proceedings where the forum State exercises undisputed jurisdiction, that is, in respect of acts performed within its territory. The ILC did not include in its 1986 or 1991 Drafts any exception for loss caused by acts outside the forum State territory. Indeed, the first occasion when the ILC took notice of the contention that State immunity should not bar suit was in 1999 in respect of human rights violations causing personal injuries. In response to the UNGA Sixth Committee’s invitation to reconsider the Draft Articles in the light of the deliberations of the Working Group, the ILC, commenting on the revision of the ILC 1991 Draft Articles, referred in an Annex to the development of an argument ‘increasingly put forward that immunity should be denied in the case of death or personal injury resulting from acts of a State in violation of human rights norms having the character of jus cogens, particularly the prohibition of torture’.14 Reference was made to cases cited in the 1994 ILA Report of State Immunity, the UK cases of Al-Adsani and Pinochet, and the amendment of the FSIA by the Anti-Terrorism and Effective Death Penalty Act of 1996. The ILC stated that while the development should not be ignored, in most cases the plea of immunity had continued to be upheld in national courts. On consideration of this report the UNGA Sixth Committee Working Group agreed that, though of current interest, ‘the existence or non-existence of immunity in the case of violation by a State of jus cogens norms of international’ law did not really fit into the present draft nor did it seem ‘ripe enough … to engage in a codification exercise’.15 The Chairman of the Working Group, Gerhard Hafner, in commenting on the UN Convention after its adoption by the UN General Assembly agreed saying that ‘any attempt to include such a provision would certainly have jeopardized the conclusion of the Convention’.16
The connection of the act causing the personal injury or tangible loss with the territory of the forum State is an essential requirement for the application of this exception to immunity. UNCSI, Article 12 sets out clearly two conditions which have to be satisfied for the removal of immunity-physical damage and a jurisdictional connection with the forum territory. Whilst some uncertainty continues as to the acts which come within or are excluded in the first requirement of physical damage (see below), the second requirement that the acts are to have a connection with the forum territory is stated in clear terms.
… a State cannot invoke immunity from jurisdiction before a court of another State … which is otherwise competent…
The territorial tort exception like all the other exceptions to immunity from adjudication in UNCSI is made subject to the private international law requirements relating to jurisdiction of the forum State but in addition, as with the employment exception, makes its application conditional on the act the subject of the complaint having additional connection with the forum State’s territory.
… if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.
As the ILC Commentary notes, the application of Article 12 requires two cumulative conditions: (6) The act or omission causing the death, injury or damage must occur in whole or in part in the territory of the State of the forum so as to locate the locus delicti commissi within the territory of the State of the forum. In addition, the author of such act or omission must also be present in that State at the time of the act or omission so as to render even closer the territorial connection between the State of the forum and the author or individual whose act or omission was the cause of the damage in the State of the forum.
In this formulation, the required twofold jurisdictional connection that the commission of ‘the act or omission’ and ‘the author of the injury or damage’ to be within the forum State territory, are derived from the same required connection in the personal injuries exception in ECSI, Article 11, which in turn derives the requirement from the general rules of private international law as set out in the 1971 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial matters.17 This jurisdictional connection is stricter than that required as the basis of jurisdiction for claims in tort recognized in the Brussels Convention on Jurisdiction and Enforcement of Judgments18 which is given effect in English law.19 The English rules relating to service of proceedings out of the jurisdiction (CPR Rule 6.20(8), replacing Order 11, Rule 1(1)(f)) provide for service in respect of a claim in tort where (a) damage was sustained within the jurisdiction or (b) the damage resulted from an act committed within the jurisdiction.20
This first condition—that the act causing the damage is to be performed within the territory of the forum State—is broadly applied by all jurisdictions in which the restrictive doctrine of immunity is accepted, such as in UK SIA, section 5, and in the legislation of the common law countries which introduced legislation following the UK model.21 In Al-Adsani v Government of Kuwait and Ors allegations of human rights violations committed against a British national abroad in a foreign State’s prison were dismissed by the English court for lack of jurisdiction by reason that no wrongful act was committed within the forum territory; the decision was upheld by the ECtHR.22
The US FSIA, section 1605(a)(5) by removing immunity for ‘personal injury or death, or damage to or loss of property occurring in the United States and caused by the tortious act or omission of the foreign State’, broadly requires a similar nexus with the forum State, but subsection (7)b added by the Anti-Terrorism and Effective Death Penalty Act 1996 (AEDPA) removes the nexus requirement allowing proceedings wherever committed for specified terrorism offences but solely against States designated by the President as sponsors of terrorism (see Chapter 8). The Canadian SIA, section 6(a) requires the occasioning of the physical injury in Canada, as illustrated by Kazemi (Estate of) v Islamic Republic of Iran, where a son’s claim against Iran in his personal capacity was allowed because he suffered psychological trauma inside Canada when he learned of the torture and death of his mother in Iran; the claim brought by the mother’s estate against Iran, however, was disallowed, the tort exception being inapplicable by reason that her injuries were suffered outside of Canada.23 Recent amendments to the Canadian SIA 2012 follow the US model of designating ‘State sponsors of terrorism’24 and introduce an even broader jurisdictional basis, allowing Canadian nationals and permanent residents who are victims of terrorism, as well as others if the action has a ‘real and substantial connection to Canada’, to seek redress by way of a civil action for terrorist acts committed anywhere in the world on or after 1 January 1985.25 Such claims, however, may only be brought against a defendant State who has been listed by the Cabinet in Ottawa, following a recommendation by the Minister of Foreign Affairs in consultation with the Minister of Public Safety and Emergency Preparedness.26
The second restriction requiring the presence of its author within the forum State territory at the time of the act or omission has been criticized as unnecessarily narrow. But it is to be noted that it was retained by the ILC which, alert to the extent to which sovereign concerns of the foreign State might be affected by the tort exception, deliberately employed this restriction as a limitation while at the same time widening the scope of the ways in which the personal injuries might be inflicted.27 Indeed, all aspects of the jurisdictional restriction to the forum State territory have been criticized as too rigid, and proposals have been made for some incremental reform that would soften the harshness of the present operation of the personal injuries exception by applying to a State the same jurisdictional requirements as apply for extraterritorial tort claims made by private parties (see further Chapter 4).28
In the Al-Adsani case the ECtHR in addressing Article 6(1) ECHR on procedural right of access to a national court of a claimant who has suffered personal injuries dealt with proposals for extension of an exception to immunity by stating that it did not find as ‘yet any acceptance in international law for the proposition that States are not entitled to immunity in relation to civil claims for damages for alleged torture committed outside the forum State’.29
Whilst in accordance with the general rule the plea of immunity takes effect at the time of the presentation of the claim,30 express provisions in ECSI, the US and UK legislation and UNCSI provide that these codes are not retrospective in their effect. Any change resulting from the coming into force of UNCSI will not therefore be retrospective. In the US, the Supreme Court has held that the FSIA may be applied with retrospective effect to allow claims to be brought despite the fact that at the time the losses were sustained State immunity was absolute;31 but the application of the tort exception is subject to the State Department filing a statement of interest in any particular case.
The requirement as to a jurisdictional connection with the forum territory is necessarily constant, being determined by the moment in time when the act is committed; it follows that the link between the delictual act and the presence of the actor who commits it within the forum territory is also constant, the latter being required to take place at the same moment in time as the act was committed.
‘an act or omission which is alleged to be attributable to the State’
ILC Commentary (3) … Since the damaging act or omission has occurred in the territory of the State of the forum, the applicable law is clearly the lex loci delicti commissi and the most convenient court is that of the State where the delict was committed. A court foreign to the scene of the delict might be considered as a forum non conveniens. The injured individual would have been without recourse to justice had the State been entitled to invoke its jurisdictional immunity.
By itself, without express words or without national legislation transforming the specified acts into municipal delicts,32 it is not clear whether the Article 12 exception purports by removal of immunity solely to confer jurisdiction on the national court or whether it also seeks to make the specified acts actionable under municipal law as well as in international law. Whilst killings and assaults may perhaps constitute actionable wrongs in both systems, it is less certain, without express national legislation, how a violation of international law such as an international crime becomes a municipal cause of action.33 In general, a tort in national law does not of itself involve State responsibility, unless there is some additional element such as denial of justice, constituting as against the forum State itself a violation of an international norm by the defendant State. An act of a State official resulting from a motor vehicle accident or the negligent conduct of a business enterprise causing personal injuries within the forum territory does not of itself ground a claim of State responsibility against the defendant State. As the recent case-law on the FSIA terrorist amendment has shown,34 such a provision which confers jurisdiction is not to be construed as the grant of a substantive cause of action under municipal law. Possibly the ICJ’s recent clear affirmation that the plea of immunity goes solely to the procedural stage rules out any consequence of its removal by UNCSI, Article 12 of an effect on the substantive national law of liability (see further Chapter 2).
The distinction generally works in that national law torts with sufficient nexus to the forum territory are adjudicated in a national court and breaches of international law are made subject to exhaustion of local remedies (a condition which the bar of immunity from taking proceedings in other States’ courts supports) and dealt with by diplomatic negotiation or with the consent of the defaulting State to an international tribunal. Not being expressly excluded from UNCSI, Article 12, however, some international incidents involving the use of force within the forum State would come within wording of the territorial tort exception as civil law delict or common law tort, as for example Israel’s abduction of Eichmann from Argentinian territory, and the State-sponsored assassinations in Letelier and Liu. Strictly this dispenses with the usual requirement in State responsibility to defer consideration until local remedies have been exhausted. Such incidents occurring on another State’s territory have been fairly rare and the removal of immunity, although depriving the forum court of an alternative method of disposal by State responsibility, will not prevent the defendant State from pleading in the forum court non-justiciability and in respect of the substantive law, UN authorization, self-defence, or humanitarian intervention (see Chapter 3 on Non-justiciability).
The FSIA restricts the liability of the State in tort to acts performed by officials in the course of their employment and an appeals court has held the federal common law choice of law rules apply to identify the applicable law. In Liu Californian law relating to respondeat superior was held to be the applicable law, but it has been suggested that rather than apply municipal criteria national courts would be better advised to apply the international rules of attribution of State responsibility.35
Tortious conduct expressly within the exception
The tortious conduct covered by this exception is confined to acts causing physical damage to the person or property; damage resulting from words, spoken or written, remains immune.36
‘death or injury to the person …’
ILC Commentary in Article 12
(1) This article covers an exception to the general rule of State immunity in the field of tort or civil liability resulting from an act or omission which has caused personal injury to a natural person or damage to or loss of tangible property.
As paragraph 4 of the Commentary states
… the physical injury to the person or the damage to tangible property … appears to be confined principally to insurable risks. The areas of damage envisaged in article 12 are mainly concerned with accidental death or physical injuries to persons or damage to tangible property involved in traffic accidents, such as moving vehicles, motor cycles, locomotives or speedboats. In other words, the article covers most areas of accidents involved in the transport of goods and passengers by rail, road, air or waterways. Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals. In addition, the scope of article 12 is wide enough to cover also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination …
The UNCSI Article 12 exception extends to ‘an act or omission which might be intentional, accidental or caused by negligence attributable to a State’ (ILC Commentary, paragraph 3).
UNCSI, Article 12, like Article 11 of the ECSI on which it is based, is notable for its omission of any requirement that the delictual act be one which a private person might commit or of a commercial character. Neither the US nor the UK Acts distinguish between intentional or negligent acts as coming within the exception (the ECSI makes no express reference).
Another further element is illustrated by the civil law decision of the Austrian Supreme Court, which rejected a plea of immunity by the US for a claim arising out of a motor vehicle accident caused by the negligence of a US embassy driver. On behalf of the US government it was contended that all means used by a State, including the collection of mail for the air attaché, were acts in exercise of sovereign authority. However, the Supreme Court laid stress on the operation of a motor car by the defendant and the latter’s action as a road user. By operating a motor car and using public roads, the defendant moves in spheres in which private individuals also move. In these spheres, the parties face one another on a basis of equality, and there can be no question here of any supremacy and subordination.37 The Court thus used the restrictive doctrine to permit non-contractual delictual acts to be subject to the jurisdiction of the national court. Loss sustained in everyday accidents in transport and employment are such situations in which State officials as well as private individuals ‘face one another on a basis of equality’.
Mental pain and suffering is not expressly mentioned as included in the injury recoverable under this exception. In Schreiber v Germany the Canadian Supreme Court held that the territorial tort exception in the Canadian SIA, section 6(a) ‘signals the presence of a legislative intent to create an exception to state immunity which would be restricted to a class of claims arising out of a physical breach of personal integrity, consistent with the Quebec civil law term “préjudice corporel”. This type of breach could conceivably cover an overlapping area between physical harm and mental injury, such as nervous stress … ’. Thus, its inclusion, particularly where the exception is incorporated into national law by legislation may depend on the wording of the municipal law cause of action relied upon in the civil proceedings rendered non-immune by the exception.38
The US FSIA’s formulation achieves broadly the same result but with different wording in allowing non-tangible damage to be recoverable. Notably, the FSIA retains immunity for claims based on a ‘discretionary function, and claims arising out of abuse of process, deceit, or misrepresentation, interference with contract rights, libel, malicious prosecution, or slander’. Thus some ‘protection for the “uniquely governmental” torts is provided by preserving immunity for “discretionary functions,” not by limiting the tort exception to “non-public acts”’.39
The description ‘physical’ is to be contrasted with economic loss and more remote types of loss such as spoken or written defamatory matter which do not come within the exception. The FSIA defines the acts within the tort exception more precisely and, as already stated, excludes claims based on malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights (exception B), as are claims based on the defendant’s discretionary functions (exception A). Broadly, therefore, torts requiring proof of malice or committed by word rather than act are excluded.40
Whilst UNCSI, Article 12 omits any reference that the personal injuries or tangible loss should be supported by any underlying commercial transaction to compensate their occurrence the Commentary suggests that the tort exception covers loss resulting from commercial insurable risks.
(4)… the physical injury to the person or the damage to tangible property … appears to be confined principally to insurable risks. The areas of damage envisaged in article 12 are mainly concerned with accidental death or physical injuries to persons or damage to tangible property involved in traffic accidents, such as moving vehicles, motor cycles, locomotives or speedboats. In other words, the article covers most areas of accidents involved in the transport of goods and passengers by rail, road, air or waterways. Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals. In addition, the scope of article 12 is wide enough to cover also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination …
Although the exception was initially designed to cover insurable loss for motor vehicle accidents, its formulation and application by national courts establishes that UNCSI, Article 12 may also remove immunity for non-insurable acts. Indeed, damage caused by the negligent driving of a State official, which if he was a diplomat would not be recoverable personally against him, has, regardless of whether the State had insured the consequences of such negligence, been accepted by the courts as within the exception.
The fortuitous nature of the occurrence makes a distinction based on a State’s acceptance of liability by entering the market or engaging in business as a private person somewhat artificial, and the UK legislation followed ECSI in allowing the exception for tortious acts, whether performed de jure imperii or de jure gestionis. Accordingly, unless the parties have ‘otherwise agreed’ as provided in the opening phrase of UNCSI, Article 12, the absence of any expressed restriction to acts relating to a commercial transaction for the loss recoverable for the personal injuries or physical damage makes possible the construction of Article 12 exception to apply to public acts performed in exercise of sovereign authority as well as private law acts; in Schreiber v Germany the Canadian Supreme Court has expressly so found.41 Hence the territorial tort exception can be taken to include personal injuries or physical loss caused by the acts of State officials, the police, and secret service with the consequent award of damages (subject to compatibility with the ICJ’s Jurisdictional Immunities judgment, see Part Two below). The Article 12 exception provides a new means of obtaining redress for injury sustained by reason of the exercise of sovereign authority; a direct means of redress by such proceedings, without the need for diplomatic protection of a State, which is available to all injured persons, whether nationals of the forum State or the nationals of other States. The removal of immunity, however, is confined to acts of the State which themselves cause physical injuries; commission of violations of human rights such as arrest and illegal detention are not included: ‘the mere deprivation of freedom and the normal consequences of lawful imprisonment, as framed by the claim, do not allow the appellant to claim an exception to the State Immunity Act’.42
The width of the implicit extension of the tort exception including acts in exercise of sovereign authority is well illustrated by the US cases allowing claims for personal injuries caused by assassination of political opponents carried out on State orders. In the Letelier case damages were awarded against the Republic of Chile for the murder by agents of its intelligence agency of a former Chilean ambassador when in the US;43 although the US District Court held the decision to cause personal injury to someone to be classifiable as a discretionary act involving policy, in its judgment and decision it held there was no ‘discretion’ to commit an illegal act and that a foreign country has no discretion to perpetrate conduct designed to result in the assassination of an individual. Accordingly, the discretionary act exemption in the tort exception for personal injuries in FSIA, section 1605(a)(5)(A) had no application. Similarly, in Liu v Republic of China44 neither State immunity nor act of State barred a US federal court from awarding damages for the assassination of a journalist carried out on orders of the security forces of the ROC.
In the Jurisdictional Immunities Judgment, the ICJ declined to answer the question ‘whether there is in customary international law a “tort exception” to State immunity applicable to acta jure imperii in general’ (para 65); this statement can be read as implicitly admitting a possibility that such an exception might exist and hence that public acts as well as private acts might come within this exception.
The ILC Commentary and State practice, however, on occasion seem to suggest a possible basis for treating certain categories of acts differently: it may be that, on review of the circumstances, some qualification or narrowing of the type of public acts covered by the tort exception in UNCSI, Article 12 may still permit the imposition of immunity.
In respect of certain acts of special heinousness, as with international crimes, the exception to immunity stands (possibly because of the neglect of common humanity or of the ‘basis of equality’ which should restrain such acts). But it may be possible to envisage, in other situations of personal injuries or tangible loss lacking such moral offensiveness, a certain ‘exception to the exception’, as seen in the US FSIA discretionary act exemption discussed above.45
Interestingly, Judge Gaja in his dissent seems to have had a similar but reverse possibility in mind by referring, as set out in Article 41 of the ILC Articles on State Responsibility, to some consequences of a serious breach by a State of an obligation under a peremptory norm of general international law additional to those following from an ordinary wrongful act. He suggests that
While the issue of jurisdictional immunity has not been mentioned either in the text of the article or in the related commentary, a restriction of immunity could well be regarded as an appropriate consequence which would strengthen the effectiveness of compliance with the obligation to make reparation. This would contribute to removing doubts about the lawfulness for a State of exercising its jurisdiction in the ‘grey area’ of injury caused by military activity of a foreign State on the territory of the forum State. In other words, even if immunity covered in general claims regarding damages caused by military activities in the territory of the forum State, it would not extend to claims relating to massacres of civilians or torture in the same territory.46
Also, in a review of practice47 in connection with an alleged assault by a soldier of the UK while within the territory of the forum State, the ECtHR upheld the Irish court in accepting the immunity of the foreign State in respect of its armed forces. The Strasbourg Court observed:
there appears to be a trend in international and comparative law towards limiting State immunity in respect of personal injuries caused by an act or omission within the forum State. Further it appears from the materials referred to above, that the trend may primarily refer to ‘insurable’ personal injury, such as incidents arising out of ordinary road traffic accidents, rather than matters relating to the core area of State sovereignty such as the acts of a soldier on foreign territory which, of their very nature, may involve sensitive issues affecting diplomatic relations between States and national security. Certainly, it cannot be said that Ireland is alone in holding that immunity attaches to suits in respect of such torts committed by acta jure imperii or that, in affording this immunity, Ireland falls outside any currently accepted international standards. The Court agrees with the [Irish] Supreme Court in the present …that it is not possible, given the present state of the development of international law, to conclude that Irish law conflicts with its general principles.48
A similar type of ‘exception to exception’ seems to have occurred in Fogarty v United Kingdom where, although the bar of immunity was removed regarding employment issues in respect of the applicant, it was restored with regard to the narrower exercise of sovereign authority in respect of the right of appointment.49
The words ‘unless otherwise agreed’ provide States with a necessary safeguard of their regulatory jure imperii powers. Three activities particularly associated with the exercise of sovereign authority are excluded from the application of the tort exception in Article 12: immunities of diplomatic and consular posts and of heads of State ratione personae (UNCSI, Article 3(1) and (2)); the immunities of aircraft and space objects which are the subject of special treaty and agreements (see Chapter 5). Whilst there is no express exclusion in respect of acts of armed forces, it is now clear from the ICJ Jurisdictional Immunities judgment that the territorial tort exception to immunity has no application to acts performed in the course of international armed conflict by armed forces (see Part Two below).50 The Chairman of the Sixth Committee Ad Hoc Working Group, Mr Hafner’s statement on the adoption of UNCSI by the UN General Assembly and the International Court’s survey of State practice also make clear that, without consent of the forum State, there is no customary international law which confers immunity on visiting armed forces of another State.51 In practice, as reviewed in Chapter 19, the immunities in peacetime of visiting armed forces of one State to the territory of another State are set out in Status of Forces Agreements or UN and EU Status of Mission Agreements, with the latter even on occasion extending to situations of non-international armed conflict in the territory of States consenting to the posting of such forces.
The first part of this chapter has examined the scope of the territorial tort exception in Article 12 and the State practice which exists in support of a non-contractual exception to State immunity for acts committed by a State not only in respect of commercial acts but also for acts committed in exercise of sovereign authority. There is a considerable body of State practice in support of the territorial exception to immunity, with the Canadian Supreme Court on record to that effect.52 As stated in the introduction to this chapter, the ICJ in its Jurisdictional Immunities judgment has declared a general rule of customary international law that a State enjoys immunity from proceedings in the national courts of other States with a complete exclusionary effect on the courts’ jurisdiction in respect of all other aspects arising from the commission of such acts by the State. The Court’s ruling may undermine the legal validity of the territorial exception to immunity.53
A full and detailed examination of the Court’s decision is required, but here the discussion will be confined to a brief reference to the elements derived from the facts in the claim on which it was based and an indication of the ways in which the decision may be shown to be less comprehensive than a first reading might suggest. The acts for which no exception to the immunity of a foreign State is allowed in a national court of another State are specified in relation to their commission: on the territory of that other State; in time of armed conflict; and by the armed forces of a State, in respect of claims which the defendant foreign State has admitted responsibility. Confining a reading of the ICJ decision to one or more of these aspects may preserve the validity of the tort exception in its present form in UNCSI, Article 12.
A number of lines of argument would seem to be available. First, by treaty States may provide for a regime relating to State immunity that accommodates a tort exception to cover both sovereign and commercial acts, although a narrower scope of the types of loss to be covered might be specified than in UNCSI, Article 12. Secondly, the international customary rule of State immunity can be construed as relating solely to relations between States in peacetime and not to those relations in a time of armed conflict. Other lines of attack could be directed to the nature of the acts committed within the territory of the forum State. Although the ICJ ruling overrides the territorial exception as it relates to acts committed by foreign State officials serving in the armed forces as well as to other officials performing civilian-type duties, when the allegation against such an official, whatever his duties, is of a particularly heinous nature, the immorality of the act, such as the massacre of the entirety of a civilian population of a village, may constitute ‘an exception to the exception’ and remove the bar to national proceedings so as to override the sovereign aspect of the official’s acts. Or further in situations where the defendant State admits responsibility and where, after a reasonable period of time, no settlement has been achieved, the Court will propose heads of settlement which, failing some acceptance or agreement between the parties, the Court may rule as a fair settlement.
All of these and other lines of attack require elaboration. The first two lines—a solution by treaty or a limitation of the ICJ ruling to State immunity as it applies solely at a time of armed conflict—may prove the most promising, but the other lines are not to be ruled out.
This section will apply the UNCSI tort exception, in the light of the Jurisdictional Immunities judgment, to three well-known controversial areas of non-contractual delictual loss—loss arising from armed conflict, environmental loss, and loss resulting from violation of a procedural fundamental human right (violation of substantive human rights being barred by the ICJ ruling).
Prior to the Jurisdictional Immunities judgment of the ICJ, the application of the exception for personal injuries to the acts of foreign armed forces committed on the territory of the forum State was uncertain.
On one view, where the forum State’s territory is occupied by force by another State the principles of independence and equality are set aside and the law of armed conflict rather than the law of peace applies; alternatively operations conducted by armed forces are to be regarded as immune as the exercise of public powers on the part of the State—being ‘one of the characteristic emanations of state sovereignty, in particular inasmuch as they are decided upon in a unilateral manner by the competent public authorities and appear as inextricably linked to states’ foreign and defence policy’.54 The State practice on this question was mixed. The ICJ judgment has now clarified that customary international law requires that a State be accorded immunity in proceedings for torts allegedly committed on the territory of the forum State by its armed forces and other organs in the course of conducting an armed conflict.55 As to the application of Status of Forces Agreements and the issue of exclusion of acts of armed forces, see above under Exclusions and Chapter 19.
The inadequacy of a territorial connection is of itself sufficient to prevent environmental loss resulting in physical injuries, as in the Chernobyl nuclear disaster in 1986, from falling within the UNCSI tort exception. The general tendency of national courts has been to treat the head of loss as unregulated by law and the issues arising as ones essentially for political settlement by governments; thus, when proceedings were brought in a number of countries for damage resulting from the nuclear fall-out from Chernobyl, the failure of claimants to succeed in proceedings was attributed to the lack of incorporation of the States’ international obligations relating to the environment into municipal law and the non-conformity with a whole range of procedural and substantive law requirements. A German court ruled that the activity, ‘energy production’, according to forum State law was a commercial activity but that the responsibility was not with the USSR but with the operator AES, which under the law of the foreign State was a separate legal entity. As neither the USSR nor the operator had assets in Germany there was no basis for jurisdiction and the case was dismissed.56 Cases brought before the Austrian Supreme Court were equally unsuccessful.57 Initially an injunction was granted by this Court against Czechoslovakia to prevent the construction of a nuclear power plant too close to the applicant’s factory. The Austrian Court held that ‘the construction as well as operation of a power plant for production of electricity is to be classified as belonging to the sphere of jure gentium rather than jure imperii’ and, there being no remedy in Czech law as the activity was there treated as a public act, granted an injunction.58 But at a second hearing the order was withdrawn on the ground that: ‘Municipal enforcement of an order to desist from a certain act would be a deliberate attempt at transfrontier judicial interference and an infringement of foreign sovereignty’.59 The Court stated that the matter was to be taken up by inter-State representations and that claims by individuals were not the appropriate instrument. Environmental damage today remains a head of loss that lacks developed rules of international law other than that provided in treaty and applied by State Parties in their national law. In the absence of legal obligation in respect of such loss, the procedural bar of immunity is irrelevant.
Within the territorial jurisdictional requirements set out in Article 12, UNCSI does comply with such a procedural right of access to court in removing immunity for personal injuries and physical damage to property resulting from a violation of fundamental human rights by a foreign State and to that extent permits proceedings in the national court of the State where the injuries or damage were committed by the foreign State with the State official as the author of the tort also present. Admittedly even in such situations, with regard to torts committed within the territory of the forum State, as in the McElhinney case discussed earlier, the ECtHR has on occasion refused to give effect to such a right of access, holding that the frontier duties of a member on sentry duty in ‘their very nature involves sensitive issues relating to diplomatic relations between States and national security’ as to justify the retention of the foreign State’s immunity.
In addition, in respect of tortious acts arising out of commercial transactions the exception in UNCSI, Article 10 might be applicable. UNCSI does not spell out the relationship between Articles 10 and 12. Both the US and the UK Acts envisage the possibility that proceedings in tort may be brought within the commercial exception; ‘activity’ as defined in the FSIA is broad enough to remove immunity from torts arising out of commercial activity and the inclusion of ‘activity in which the State engages’ in the residuary clause of subsection 3 of the commercial transaction exception in the SIA embraces and has been held to embrace tortious activity. Where such ‘commercial tortious conduct’ can be alleged, the more relaxed jurisdictional requirements of the commercial exception may apply, with the result that claims for economic loss resulting from tortious conduct may be claimed. As regards tortious acts constituting non-commercial violations of human rights committed by a State outside the forum State territory or within its own territory, UNCSI retains the immunity of the foreign State. This retention of immunity has in the past attracted criticism, with it being argued that the ratification of UNCSI would place an additional barrier to obtaining reparation for victims of such violations.60 Similar criticism would seem likely now to be directed to the procedural exclusionary effect of immunity declared in the ICJ’s Jurisdictional Immunities judgment.61
Although the ICJ included in its survey of State practice a reference to the French Cour de Cassation decision in Reunion Aerienne v Libya,62 as supporting the rejection by national courts of the effect of jus cogens displacing the law of State immunity, it did so without any discussion or further explanation of that decision (paragraph 96). The ECtHR’s requirements of legitimate aim and proportionality as qualifications on the application of the bar of immunity may in the future be less easy to avoid. It may be that the ‘legitimate aim and proportionality test’ could provide a route for breaking down the procedural/substantive distinction. See further Chapter 2.
In sum, unless the acts resulting in the personal injuries or tangible loss satisfy the stipulated jurisdictional connection with the forum State territory and also come within the heads of loss now recognized by State practice as within the tort exception in UNCSI, Article 12, State immunity will continue to bar any recovery for loss. In addition, the procedural nature of the immunity plea as now particularly emphasized by the ICJ will exclude loss for which claims are made more on the basis of moral outrage than reduction into well-defined heads of legal liability.
The above discussion has demonstrated how the present jurisdictional limitations on the tort exception to State immunity serve as a substitute for the commercial or private law criterion which the restrictive doctrine employs as a determinant of the removal of State immunity for the contractual conduct of a foreign State. If they are widened or removed to permit proceedings for non-commercial loss committed outside the forum State territory to be brought in a national court, a substantial new area of internal administration of a foreign State will be made reviewable by national courts.