CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ forum would be covered by the tort exception, 99 and a claim regarding that conduct could be heard before a domestic court. 100 Yet, courts in many States without immunity legislation have applied the acta jure imperii/acta jure gestionis analysis to virtually all actions against a foreign State, including tort cases, 101 and the torts exception would thus presumably be confined only to acta jure gestionis . 102 In reality, however, much depends on which aspect of the facts (the act/omission or the injury) the court sees as the core element of the tort and how it characterizes the act. 103 Further, the tort exception to State immunity is generally thought to apply only to physical and not moral injuries. While it covers death or physical harm to a person such as assault and battery, it does not cover damage to reputation, loss of amenity, interference with privacy, defamation or nuisance, for example. 104 Finally, under the UN Convention, the tort exception does not apply to the extent that the claimant seeks a non-compensatory remedy or a declaratory judgment. 105 The Czech Supreme Court’s recital of the facts of the Denied Entrance in the Austrian Cultural Forum Case does not elaborate on what specifically happened when the claimant was denied access to the literary hearing. We know that the alleged tortious conduct and its effects happened in the Czech Republic ( i.e. there is no doubt that there was a clear territorial link) and that the remedy sought was an apology, which would rather indicate that physical injury was not involved. This would suggest that any type of injury and any type of remedy might be covered by the tort exception in Czech courts, which is at odds with the international law standard. It is impossible to 99 Crawford J., Brownlie’s Principles of Public International Law , 498; Letelier v. Republic of Chile and Linea Aerea Nacional-Chile, United States, Court of Appeals, 748 F.2d 790 (2 nd Cir. 1984); 79 ILR 561. 100 It is, however, important to note, that certain types of activities are altogether excluded from the immunities regimes, most importantly military activities. Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012; for a more measured assessment, see O’Keefe R. et al., The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary , 19. ff. 101 See , e.g. , Belgian State v. Dahlen , Belgium, 91 ILR 239, 241; Hunting Rights Case , Austria, 86 ILR 564 , 569; Nuclear Power Plant Case , Austria, 86 ILR 575, 577; Garden Contamination Case , Germany, 80 ILR 377, 381-382. 102 See , e.g. , the judgment of the Supreme Court of Austria in Holubek v. Government of the United States of America (Juristische Blätter (Vienna), Vol. 84, 1962, p. 43; 40 ILR 73). In fact, Germany advocated this position in the Jurisdictional Immunities case ( Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, para. 63) and other States, including China and the United States, criticized the draft of Article 12 of the UN Convention precisely for expanding the exception to acta jure imperii . See, UN doc. A/C.6/45/SR.25, p. 2; UN doc. A/C.6/59/SR.13, p. 10, para. 63). 103 Yang X., State Immunity in International Law , 210. 104 Yang X., State Immunity in International Law , 200-201; Article 12 of the UN Convention; O’Keefe R. et al., The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary , 217-218. 105 O’Keefe R. et al., Ibid , 216-217. The word ‘pecuniary’ was added on second reading precisely to remove from the scope of Article 12 any proceedings in which compensation other than damages is claimed.

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