459 / 532
443
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
Firstly, the tort exception to State immunity is generally understood to extend
only to civil proceedings in respect of acts committed in the territory of the forum
State.
93
The exercise of jurisdiction is considered to be founded on the fact of the
injury being locally caused and on the forum’s right to deal with the consequences of
unlawful acts in its territory.
94
The character of the required territorial connection is
understood differently in different jurisdictions.
95
In most situations, the territorial
link issue will not arise because if the territorial nexus is absent, a court will typically
not have jurisdiction to hear the case in the first place.
96
Yet, it is importantly a discrete
element of the State immunity rule.
Secondly, neither the UN and European Conventions (Articles 12 and 11,
respectively) nor any of the national statutes which provide for a tort exception to
immunity expressly distinguish between
acta jure gestionis
and
acta jure imperii
.
97
The
distinction between
acta jure gestionis
and
acta jure imperii
is thus suggested to be
irrelevant and out of place with regard to jurisdiction over tortious conduct in the
territory of the forum State. It is the tortious result, injury or damage, not the nature
of the tortious act or omission, that re-endows the forum court with jurisdiction.
98
As such, torture at an embassy or a political assassination within the territory of the
93
Jurisdictional Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment of
2 February 2012, para. 64. In fact the ICJ titled the exception the “territorial tort exception” and the
territorial link was critical even according to Italy’s own position (para. 62).
94
Crawford J., ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’ (1984) 54
British Yearbook of International Law
75, 111; Crawford J.,
Brownlie’s Principles of Public International
Law
, 498.
95
See
Yang X.,
State Immunity in International Law
, 215-224; Stoll P-T, State Immunity, para. 40;
Crawford J.,
Brownlie’s Principles of Public International Law
, 498-499. The UN Convention in its
Article 12, similarly to Article 11 of the European Convention, requires cumulatively that both the act
or omission occurred in whole or in part on the territory of the forum State and that the author of the
act or omission was present in that territory at the time of the act or omission.
96
See
§ 37 of the 1963 Act (§ 6 of the 2012 Act) in connection with § 84 ff. of Act No. 99/1963 Coll.,
Civil Procedure Code, as amended.
97
This distinction was, for example, specifically rejected in the famous
Letelier v. Chile
case (when
interpreting the statutory provision domestically setting forth the tort exception and extending it to the
tortious acts of Chilean intelligence agents in the United States).
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.
The Supreme Court of Canada expressly rejected the suggestion that the exception in the Canadian
legislation was subject to such a distinction in
Schreiber v. Federal Republic of Germany and the Attorney
General of Canada
, [2002] Supreme Court Reports (SCR), Vol. 3, p. 269, paras. 33-36.
98
See
the full discussion in Yang X.,
State Immunity in International Law
, 207-215; Stoll P.-T., State
Immunity, para. 37; Hafner G., United Nations Convention on Jurisdictional Immunities of States
and Their Property (2004), para. 29; Crawford J.,
Brownlie’s Principles of Public International Law
,
498. However, the ICJ in the Jurisdictional Immunities of States left this question open.
Jurisdictional
Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment of 2 February
2012, para. 65.