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State Responsibility and Tort Proceedings against a Foreign State in Municipal Courts*

Published online by Cambridge University Press:  07 July 2009

H. Fox
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Extract

There has been an undoubted increase since the Second World War in the legal accountability of States in municipal courts. The comparative lawyer, G. Eörsi, discussing the position of the State in relation to the private law of tort writes:

‘Governmental liability is a relatively new phenomenon … A considerable number of States have eliminated the immunity of the State and have introduced direct liability of the State, even though in many countries enforcement of claims against the State is not allowed’.

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Articles
Information
Netherlands Yearbook of International Law , Volume 20 , December 1989 , pp. 3 - 34
Copyright
Copyright © T.M.C. Asser Press 1989

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References

1. Eörsi, G., XI International Encyclopaedia of Comparative Law Torts, Tunc, A.., ed. (1975)Google Scholar chap. 4, ‘Private and Governmental Liability for the Torts of Employees and Organs’, p. 83 para. 166.

2. Crown Proceedings Act 1947, see generally Fleming, J.G., The Law of Torts, 7th edn. (1986) p. 142Google Scholar; Harlow, C., Compensation and Government Torts (1982) p. 17Google Scholar. In the Netherlands, Van der Vis v. The Netherlands (1978) provides an instructive case where a court imposed a duty of care on the State with respect to unexploded depth charges dropped in the high seas, 10 NYIL (1979) p. 506, NJ (1979) No. 108.

3. See Bouchez, L.J., ‘The Nature and Scope of State Immunity from Jurisdiction and Execution’, 10 NYIL (1979) p. 3CrossRefGoogle Scholar; Sinclair, I., ‘The Law of Sovereign Immunity. Recent Developments’, 167 Hague Recueil (1980) part II p. 121Google Scholar; Schreuer, C.H., State Immunity: Some Recent Developments (1988)Google Scholar. Austria, Belgium, Cyprus, Luxembourg, the Netherlands, Switzerland and the United Kingdom (7 out of a possible 21 States) have ratified the European Convention on State Immunity.

4. 23 January 1989, 638 F. Supp. 73 (SDNY 1986) 830 F 2d 421 (2nd Cir.), reversed 102 Sup. Ct. Ed. 2d 818. The District and Appeals Courts' decisions are reported in 79 ILR p. 1.

5. 630 F 2d 876 (2nd Cir. 1980).

6. Incidents of interception or shooting down of civilian aircraft, hijacking of merchant ships, damage caused from nuclear incidents, personal injuries from mob violence, or denial of justice involving detention, trial on espionage charges, or expulsion are the subject of protest and espousal of claims directly between governments with, on occasion, some pecuniary compensation being paid. See the Digest and Supplement of the decisions of international tribunals relating to State Responsibility prepared by the UN Secretariat, ILC Yearbook 1964 vol. II p. 132, 1969 vol. II p. 101; Nuclear Tests case, ICJ Rep. 1973 p. 99; Case concerning US Diplomatic and Consular Staff in Tehran, ICJ Rep. 1980 p. 3; Case concerning Military and Para-Military Activities in and against Nicaragua (Merits), ICJ Rep. 1986 p. 14; Iran's application to the ICJ dated 17 May 1989 on the shooting down of the Iranian airline by the US warship Vincennes on 3 July 1988 claiming compensation from the USA.

7. Harris v. Intourist, National Hotel and USSR, 481 F. Supp. 1056 (EDNY 1979), 63 ILR p. 318 (hotel fire); Upton v. Empire of Iran, 459 Supp. 264 (DDC 1978) aff'd 607 F 2d 494 (DC Cir. 1979), 63 ILR p. 211 (airport building); Tucker v. Whitaker Travel Ltd., 620 F. Supp. 578 (ED Pa. 1985); Sugarman v. Aero Mexico, 626 F 2d 270 (3rd Cir. 1980); Martin v. South Africa, 836 F 2d 91, cf., pre FSIA case, Vicente v. State of Trinidad and Tobago, 385 N.Y.S. 2d 83 (NY Sup. Ct. 1976) (medical malpractice in hospitals).

8. In re Korean Air Lines disaster of 1 September 1983, Misc. No. 83 0345 (DDC 1985).

9. Von Dardel v. USSR, 623 F. Supp. 246 (DDC 1985).

10. McKeel v. Islamic Republic of Iran, 722 F 2d 582 (9th Cir. 1983); Persinger v. Islamic Republic of Iran, 729 F 2d 835 (DC Cir. 1984), cert. denied 105 Sup. Ct. 247.

11. UN Secretary General's Ruling pertaining to differences between France and New Zealand arising from the Rainbow Warrior Affair, 16 July 1986, 74 ILR 256. Two earlier incidents in 1972 and 1973 relating to Greenpeace III owned by a Canadian national, David McTaggart, in respect of the nuclear testing zone round the French possession of Muroroa Atoll, resulted in proceedings in the French courts against the French Government. IIIYates, G.T., ‘State Responsibility for Non-Wealth Injuries to Aliens in the Post War Era’, in Lillich, R.B., ed., International Law of State Responsibility for Injuries to Aliens (1983) p. 263.Google Scholar

12. An application for the release of the aircraft as property of a foreign State immune from Spanish jurisdiction was successfully made to the Spanish maritime courts and the claims settled by arbitration held in London. 66 BYIL (1985) pp. 462–467.

13. Australian International Law News (1989) pp. 128–134Google Scholar, cf., also the St. James' Square incident in 1984 when a shot fired from the Libyan People's Bureau killed WPC Fletcher who was on duty controlling a crowd, Cameron, I., ‘First Report of the Foreign Affairs Committee of the House of Commons’, 34 ICLQ (1985) p. 610.CrossRefGoogle Scholar

14. ILC Yearbook 1974 vol. I, 1253rd Meeting, Reuter p. 15, Kearney p. 14, 1256th Meeting, Ushakov p. 25.

15. Reported under the name X v. The Government of the United States, Austrian Supreme Court, 10 February 1961, UN Legis. Series St. Leg. Ser. B. 20, p. 203, 40 ILR p. 73.

16. See also Anzilotti, D., ‘La responsabilité internationale des états’, 13 RGDIP (1906) pp. 5–29, 285–309Google Scholar; Borchard, E.M., The Diplomatic Protection of Citizens Abroad or the Law of International Claims (1915)Google Scholar; Eagleton, C., The Responsibility of States in International Law (1928)Google Scholar; Triepel, H., Volkerrecht und Landesrecht (1899)Google Scholar; Strupp, K., Elements du droit international public, 2nd edn. (1930) chap. VIIGoogle Scholar; de Visscher, C., Theories et realites en droit international public (1970) p. 307.Google Scholar

17. ILC Yearbook 1969 vol. II p. 127 para. 6; ILC Yearbook 1973 vol. II p. 170, para. 42.

18. ILC Yearbook 1986 vol. II part 1, p. 8, proposed revision of part 1 Art. 3.

19. Art. 1, Third Committee of the Hague Conference for Codification of International Law, ILC Yearbook 1956 vol. II p. 225, 1973 vol. II p. 174 para. 3.

20. For the texts, see ILC Yearbook 1956 vol. II p. 227, 1969 vol. II p. 141. The discussions in the Third Committee of the Hague Conference of 1930 for the Codification of International Law, convened under the auspices of the League of Nations, also provide evidence of contemporary State practice. Law of Nations Publications, Legal Bases of Discussion (1929) Minutes of 3rd Committee Legal V. 17; 24 AJIL (1930) Suppl. p. 46.

21. Revised draft on international responsibility of the States for injuries caused in its territory to the person or property of aliens, prepared by Special Rapporteur F.V. García Amador, ILC Yearbook 1961 vol. II p. 46.

22. Draft Convention on the International Responsibility of States for Injuries to Aliens 1961, 55 AJIL (1961) p. 548, ILC Yearbook 1969 vol. II p. 142.

23. ILC Yearbook 1969 vol. II p. 135 para. 61.

24. British Claims in the Spanish Zone of Morocco (1925), Report of Judge Max Huber on State Responsibility, 2 RIAA p. 615 at p. 641.

25. Neer Claim (United States v. Mexico) (1926), 4 RIAA p. 60 at pp. 61–62.

26. A. Tune, ‘Introduction to Tort’, in op. cit. n. 1, pp. 9–14, paras. 11, 15, 19, 20. See Fleming, op. cit. n. 2, p. 142.

27. The Parlement Belge (1880) 5 P.D. 197; The Ice King (1921), 1 AD (1919–22) No. 102; F. Advokaat v. I. Schuddink & den Belgische Staat (1923) W No. 11088, noted by H. Lauterpacht in a case note in 28 BYIL (1951) p. 263 (all cases relating to claims arising out of collisions with government ships in commercial use); Epoux Perevostchikoff v. State of Canada (1934), 9 AD (1938–40) No. 85; Slomnitzky v. Trade Delegation of USSR (1932), 6 AD (1931–32) No. 86; Krol v. Bank Indonesia (1958), 26 ILR p. 180 (wrongful dismissal claims in connexion with contracts of employment. The court entertained the claim provided the claimant was not in public service).

28. Egyptian Government v. Palestine State Railways Administration (1942), AD Supp. (1919–42) No. 78; Neger v. Governement du Land de Hesse (1969) UN Leg. Ser. B/21, p. 266 (claim for damage to the painting ‘Plaisir’ by Bonnard); Szezesniak v. Backer (1955), 65 ILR p. 23 (Polish sailors' claim for wages for enforced labour).

29. Art. 11 of the draft articles on Jurisdictional Immunities of States and their Property reads: ‘Commercial contracts. If a State enters into a commercial contract with a foreign natural or juridical person and by virtue of the applicable rules of private international law, differences relating to the commercial contract fall within the jurisdiction of a court of another State, the State is considered to have consented to the exercise of that jurisdiction in a proceeding arising out of that commercial contract and accordingly cannot invoke immunity from jurisdiction in that proceeding’, ILC Yearbook 1986 vol. II pt. 2 p. 7, reproduced in 26 ILM (1987) p. 625.

30. Sogerfin SA v. State of Yugoslavia (1938), 10 AD (1941–42) No. 61; Feldman v. Etat de Bahia (1908) II Pasicrisie Belge p. 55 (public loans); Brasseur and Associates v. Republic of Greece (1932), 6 AD (1931–32) No. 85; De Froe v. USSR (1932), 6 AD (1931–32) No. 87 (bonds); Martin v. Bank of Spain (1952), 19 ILR p. 202; Bengkalis v. Bank of Indonesia (1963), 65 ILR p. 348 (banks).

31. Jurisdiction over the Yugoslav Military Mission (Germany) case (1962), 38 ILR p. 162 (immovables)Google Scholar; Limbin Hteik Tin Lat v. Union of Burma (1954), 32 ILR p. 124, UN Leg. Ser. B/21, p. 339; Dralle v. Republic of Czechoslovakia (1950), 17 ILR p. 155 (trademarks).

32. Mahe v. Agent judiciare du tresor francais (1965), 40 ILR 80, UN Leg. Ser. B/21, p. 342 (encroachment onto private land to make parking space for embassy; claim immune).

33. Little v. Riccio and Fischer (1934), 7 AD (1933–34) No. 68.

34. Foreign Status (Legation Buildings) Immunities case (1928), 4 AD (1927–28) No. 113Google Scholar, cf., Stapledon v. First Lord of the Admiralty (1923), 2 AD (1923–24) No. 74 (accident causing death of Egyptian national on merchant ship chartered for transport of troops; claim immune).

35. De Roover v. The State of Belgium and France (1920), 1 AD (1919–22) No. 81 (requisitioned hotel); Henon v. Egyptian Government and British Admiralty (1947), 14 AD (1947) No. 28 (requisitioned villa); Princess Paley Olga v. Weisz [1929] 1 KB 728, 5 AD (1929–30) No. 60 (requisitioned palace); X v. Federal Republic of Germany (1963), 65 ILR p. 10 (claim for compensation for loss suffered on resettlement after war); Kingdom of Greece v. Garnet (1959), 28 ILR p. 153 (alternative treaty remedy), but see Halig Ltd. v. Polish State (1928), 4 AD (1927–28) No. 104 (installation of State insignia alleged as damage to building).

36. American Restatement of the Law, 3rd edn., 1987, The Foreign Relations Law of the United States II, Chap. 2, s. 712.

37. Clunet (1934) p. 641 at p. 645.

38. 65 ILR p. 287 at pp. 300, 302–303.

39. Supra, wrongful dismissal cases cited at n. 27.

40. In re Toebinte, Theuns, US Government ex parte Procureur du Roi (1920), 1 AD (1919–22) No. 82Google Scholar; Amrane v. John (1932), 6 AD (1931–32) No. 90; French Consulate in Cracow case (1958), 26 ILR p. 178; Aboutebout v. Etat Hellenique (1948), 1 Rev. Hellenique p. 279, 44 AJIL (1950) p. 420 (motor vehicle accidents); Polish State Railways case (1931), 6 AD (1931–32) No. 88.

41. In re Danish State Railways (1953), 20 ILR p. 178Google Scholar; Ciniglio v. Indonesian Embassy (1966), 65 ILR p. 268.

42. (1968), 65 ILR p. 41.

43. Gehrekens v. Jarnuagstyrelsen, 1925 Harvard Research on Competence of Courts in regard to Foreign States, 26 AJIL (1932) Supp. p. 621.

44. 5th Report of Sucharitkul, Special Rapporteur on Jurisdictional Immunities of States and their Property, ILC Yearbook 1983 vol. II pt. 1 p. 41 para. 76, doc. A/CN4/363 Add. 1.

45. I Sirey (1985) p. 53, cited in Manuel v. Ministère Public infra n. 48.

46. Hague Court Rep. (1909) p. 110; 11 RIAA 119.

47. [1939] AC 160.

48. Public Prosecution v. Tronoso (1938), AD Supp. (1919–42) No. 81 (attempted theft of foreign submarine); In re AF (1945), 12 AD (1943–45) No. 43 (burglary of shop by British soldiers); Manuel v. Ministère Public (1943), 12 AD (1943–45) No. 42 (Spanish national serving in French Foreign Legion charged with attempted homicide); Triandafilou v. Ministère Public, 39 AJIL (1945) p. 345 (Greek sailor charged with striking with dagger).

49. 40 ILR p. 73 at p. 77, see n. 14 supra.

50. ILC Yearbook 1984 vol. II part 2 pp. 66–67, paras. 4, 7.

51. Supra n. 43, para. 53. Art. 13 reads: ‘Unless otherwise agreed between the States concerned, the immunity of a State cannot be invoked before a court of another State which is otherwise competent in a proceeding which relates to compensation for death or injury to the person or damage to or loss of tangible property if the act or omission which is alleged to be attributable to the State and which caused the death, injury or damage occurred in whole or in part in the territory of the State of the forum and if the author of the act or omission was present in that territory at the time of the act or omission’.

52. Fleming, op. cit. n. 2, p. 142.

53. Bonne and Company X v. Company Y (1970), 69 ILR p. 280; La Hausse de la Louvière v. Brouard (1972), 71 ILR p. 562 (Insurer of negligent claim not immune from claim by reason of driver's immune status).

54. Reproduced in 15 ILM (1976) p. 1398 at p. 1409.

55. The Pakistani State Immunity Ordinance 1981 omits the express tort exception but impliedly includes torts within the ‘commercial transaction’ exception in s. 5(3)(c).

56. House Report, supra n. 53 at p. 140.

57. The relevant part of s. 3 of the SIA reads:

‘(1) A State is not immune as respects proceedings relating to

(a) a commercial transaction entered into by the State …

(3) In this section “commercial transaction” means …

(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;…’

58. Amalgamated Metal Trading Ltd. and ors. v. The Dept. of Trade and ors; Australia and New Zealand Banking Group Ltd. and ors. v. Commonwealth of Australia and ors. Transcript of Judgment of Evans J. (21 February 1989) at p. 53. The case has gone to appeal.

59. 621 F 2d 1371 (5th Cir. 1980).

60. J.H. Rayner Ltd. v. The Department of Trade and ors. [1988] 3 WLR 1033, an appeal to the House of Lords is pending.

61. Supra n. 57 at pp. 38, 41–42.

62. This limitation to physical loss originates in the European Convention on State Immunity; para. 48 of the Explanatory Report to the Convention states ‘where there has been injury to the person or damage to property, the rule of non-immunity applies equally to any concomitant claims for non-material damage resulting from the same acts, provided of course that a claim for such damage lies under the applicable law (e.g., in respect of pretium doloris). Where there has been no physical injury and no damage to tangible property, the article does not apply. This is the case, for example, as regards unfair competition (subject to the applicability of other articles of the Convention, such as Art. 7) and deprivation’; Misc. No. 31 (1972) Cmnd. 5081, at p. 34.

63. Krajina v. lass Agency [1949] 2 All ER 274, 16 AD (1949) No. 37.

64. Yessenin Volpin v. Novosti Press Agency, Tass et al, 443 F Supp. 849 (SDNY 1978), 63 ILR 127.

65. Church of Scientology v. Head of Scotland Yard (1978) UN Leg. Ser. B/21, at p. 321, 65 ILR 193; Church of Scientology in the Netherlands Foundation v. Herold and Heinrich Bauer Verlag (1980), 65 ILR 380.

66. Heaney v. Government of Spain, 10 ILM (1971) p. 1038; Gerritsen v. de La Madrid, 819 F 2d 1511.

67. United Euram Company v. USSR, 461 F Supp. 609 (SDNY 1978).

68. In re Sedco, 543 F. Supp. 561 (S.D. Tex 1982); Harris v. Intourist National Hotel, supra n. 7, and cases cited at n. 10.

69. Distillers Co. (Biochemicals) Ltd. v. Thompson [1971] AC 458.

70. Art. 11 of the European Convention on State Immunity and Art. 13 of the ILC's Draft on Jurisdictional Immunities put the matter beyond doubt by restricting the jurisdiction of the forum State to torts where the tortfeasor was present in the territory of the State of the forum at the time of Commission. The Commentary to Art. 11 notes the exclusion of ‘transboudary injuries or transfrontier torts which constitute clear violations of the territory of a neighbouring State under public international law’.

71. 488 F Supp. 665 (DDC 1980).

72. 729 F 2d 641 (9th Cir. 1984), cert. denied 105 Sup.Ct. 295 (1984).

73. Castro v. Saudi Arabia, 510 F. Supp. 309 (W.D. Tex 1980); s. 1605(a)5 of the FSIA reads: ‘Not otherwise encompassed in paragraph 2 above in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occuring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to —

(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B)any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights’.

74. Dalehite v. US, 346 US 15 (1953).

75. Supra n. 71 at p. 645.

76. United States v. S.A. Emperes de Viarao Aera Rio Grandese (Varig Airlines), 104 Sup. Ct. 2755 (1984).

77. McArthur Area Citizens Association v. Republic of Peru, 809 F 2d 918 (DC Cir. 1987) at 920.

78. Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004; Anns v. Merton London Borough [1978] AC 728.

79. [1988] 1 AER 163 at 172; see also Yuen Kun-yeu v. AG of Hong Kong [1987] 3 WLR 776.

80. Riphagen, W., ‘State Responsibility. New Theories of Obligation in Interstate Relations’, in Macdonald, R.St.J. and Johnston, D.M., eds., The Structure and Process of International Law (1983) p. 581 at p. 585.Google Scholar

81. Sucharitkul, in noting government objections to the proposed tort exception in the ILC draft articles on Jurisdictional Immunities discusses the local remedies rule: ‘If the liability or responsibility of a State flows from an act which may be qualified as jure imperii, it may be questioned whether the courts of the forum offer the best means to settle the dispute. It is arguable that the requirement of exhaustion of local remedies may oblige the forum State to exercise jurisdiction and deny immunity thereby avoiding any implication of denial of justice, particularly if the forum State is in fact also the locus delicti commissi. The question may be validly asked whether the territorial or local courts should refrain from exercising jurisdiction in the case of injuries suffered by their own nationals at the hands of a foreign Government. A balanced approach is vital to a meaningful solution to this problem’. 8th Report, ILC Yearbook 1986 vol. II pt. 1 p. 27, para. 17.

82. Part I, Art. 22 (as adopted in 1978) reads: ‘Exhaustion of local remedies. When the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens, whether natural or juridical persons, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the aliens concerned have exhausted the effective local remedies available to them without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment’.

83. ILC Yearbook 1977 vol. II, pt. 2 p. 44, para. 40.

84. ILC Yearbook 1986 vol. II pt. 1 p. 19, para. 11. The full text of the revised Art. 22 reads: ‘When the conduct of a State within its jurisdiction is not in conformity with what is required of it by an international obligation concerning the treatment to be accorded to aliens, whether natural or juridical persons, there is a breach of an obligation only if the alien concerned has exhausted the effective local remedies available to him without obtaining the treatment called for by the obligation or, where that is not possible, an equivalent treatment’.

85. E.g., Arab Republic of Libya v. Imprese Marittime Frassinetti (1979), 78 ILR p. 90.

86. UN International Convention on Civil and Political Rights 1966, Art. 7; European Convention on Human Rights 1950, Art. 3; UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984; European Convention on Torture 1986.

87. 488 F. Supp. 665 (DDC 1980) at 673.