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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 (2nd 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.