Abstract
The paper offers a de lege lata and de lege ferenda analysis of State immunity from civil jurisdiction in cases related to environmental transboundary damage, including climate change litigations. De lege lata, the analysis focuses on the customary exceptions to State immunity, namely the restrictive doctrine and the forum tort exception. De lege ferenda, the contribution firstly discusses the recent domestic case law lifting jurisdictional immunity for acts jure imperii which amount to serious violations of human rights and/or humanitarian law. Secondly, it seeks to open the discussion on a possible reform of the forum tort exception on the model of the European discipline of private international law in matters of tort, in order to ensure better protection of the individual right to an effective remedy.
1 Introduction
In the case of Chiara Sacchi and others v. Argentina and four other concurrent complaints filed against Brazil, France, Germany and Turkey at the UN Committee on the Rights of the Child, the authors of the applications – all of them minors, nationals of 12 different States – claimed that the respondent States’ failures to adequately prevent and mitigate climate change violated their rights to life, health and culture under the Convention on the Rights of the Child.1 The applicants had invoked sovereign immunity as a barrier to the jurisdiction of the respondent States’ domestic courts to justify the prior non-exhaustion of domestic remedies.2 They argued that, due to sovereign immunity, access to justice before domestic courts was impossible for claims related to the States’ failures to cooperate at the international level to address climate change, filed simultaneously against foreign States and the forum State.3 In their own words, “State immunity vitiates any possible remedy for transboundary harm caused by other States”.4 The Committee, however, rejected the argument, stating that “the issue of foreign sovereign immunity may arise only in relation to the particular remedy that the authors would aim to achieve by filing a case against other respondent States parties together with the State party in its domestic court”.5 The Committee thus found that the applicants had not exhausted domestic remedies.
From the decision of the UN Committee stems the curiosity to understand whether State immunity from civil jurisdiction is actually an obstacle to transboundary environmental litigations before domestic courts. The term ‘transboundary environmental litigation’ is used here to include both actions for damages against foreign States for the typical cases of transboundary harm – where a limited number of States, geographically close to the place of the harmful conduct, is significantly impacted – and climate change litigations. Of course, these are not the only scenarios of transnational litigation against foreign States in environmental matters. A foreign State could cause environmental damage in the forum State also by acting directly in the territory of the latter. Alternatively, a State could cause environmental damage on its own territory, and then be sued by victims in the courts of another State. However, in the light of the increasing significance of climate change lawsuits, the analysis will be limited to cases where both the legal action and the environmental damage are of a transboundary nature.
Environment-related civil lawsuits against foreign States for transboundary harm are rare in domestic case law.6 This trend is in line with States’ scarce recourse to judicial means for environmental disputes.7 It is, however, in stark contrast with the increasingly frequent recourse to environmental litigation against the government of the forum State before national and international judicial (or quasi-judicial) bodies, especially to make States accountable and to propel action concerning climate change.8 One possible explanation might be that victims refrain from pursuing transboundary environmental litigations against foreign States due to procedural obstacles, including State immunity from civil jurisdiction.
This paper offers a de lege lata and a de lege ferenda analysis of State immunity from civil jurisdiction in environmental cases. De lege lata, the analysis focuses on the customary exceptions to State immunity, namely the restrictive doctrine and the forum tort exception, in order to understand whether they give some leeway for victims who intend to sue foreign States before domestic courts for transboundary environmental damage. De lege ferenda, the paper takes into account recent domestic case law lifting jurisdictional immunity for acts jure imperii which amount to serious violations of human rights and/or humanitarian law. In the last section, the contribution opens the discussion on a possible reform of the forum tort exception on the model of the European discipline of private international law in matters of tort, in order to better protect the individual right to an effective remedy.
2 States’ Obligations in Matters of Transboundary Environmental Harm: a Short Overview
To establish whether an act or omission of a foreign State is immune from the jurisdiction of the forum in litigations concerning transboundary environmental damage, it is necessary to briefly recall the conduct that is expected from States in such matters. With no pretence to cover all States’ environmental obligations, this section focuses only on general obligations under international law – in particular, the principle of prevention – and their interplay with human rights law.
The guiding principle on transboundary environmental damage, affirmed for the first time in the Trail Smelter arbitration,9 is the no-harm principle, which prescribes that States cannot use, or allow the use of their territory, so as to cause damage to the territory or to the properties of individuals in another State when there are serious consequences and the damage is ascertained in a clear and convincing manner.10 The no-harm principle was further expanded through soft law, treaties and international case law into what is nowadays the customary principle of prevention.11 The latter, differently from the no-harm principle, is more concerned with States’ due diligence obligations to protect the environment as such – including within States’ jurisdictions and in the global commons – than with reparations for transboundary damage.12 Besides the general duty to proactively take measures to prevent damage to the environment, it entails two main procedural obligations: the duty of cooperation with other States, including through notification and consultation, and the duty to conduct environmental impact assessments.13
By referring to international environmental law (and/or its applications at the domestic level), international human rights courts and quasi-judicial bodies have been able to substantiate human rights provisions as encompassing States’ duty to protect the environment within their own jurisdiction, even in absence of a specific treaty provision enshrining the right to a healthy environment.14 In parallel to this development, recourse to human rights arguments is increasingly frequent also in purely domestic environmental cases, adding to tortious claims and/or claims for violations of statutory provisions on the duty of care.15
With specific reference to transboundary environmental harm, international (quasi)judicial bodies have recently interpreted human rights treaties as implying States’ obligation not to damage the environment of other States. This extra-territorial obligation implies a broader notion of ‘effective control’ than the one usually upheld under human rights treaty regimes.16 According to the Inter-American Court of Human Rights, in cases of transboundary damage, the exercise of jurisdiction by a State of origin is based on the understanding that it is the State in whose territory or under whose jurisdiction the activities were carried out that has the effective control over them and is in a position to prevent them from causing transboundary harm that impacts the enjoyment of human rights of persons outside its territory.17
The Committee on the Rights of the Child likewise stated that, in cases of transboundary environmental damage, children are subject to the jurisdiction of the State of origin of the greenhouse gas emissions if there is a causal link between the acts or omissions of that State and the negative impact on the rights of children who live outside its territory, when the State of origin exercises effective control over the polluting activities.18
3 State Immunity from Civil Jurisdiction: Applicable Regime
In the context of international environmental law, some treaties relating to civil liability for environmental damage, aimed at standardizing liability rules within the domestic legal systems of contracting parties, directly regulate immunity issues.19 For instance, the so-called ‘nuclear liability conventions’ provide for the renunciation of States to their immunity, except for immunity from measures of execution.20 A further example is the Convention on Civil Liability for Oil Pollution Damage,21 which excludes immunity from the jurisdiction of the courts of contracting parties for oil pollution caused by State-owned vessels if the latter are used for commercial purposes, but not for damage caused by warships or vessels otherwise used for non-commercial purposes.22 Besides these specific provisions, however, State immunity in environmental cases is regulated by the general State immunity regime, therefore by customary international law. Indeed, the United Nations Convention on Jurisdictional Immunities of States and their Property (uncsi), despite its adoption by consensus by the United Nations General Assembly, has not yet entered into force.23 Likewise, regional instruments on State immunity have not been successful.24 Therefore, this section will examine whether the actions or omissions of foreign States in case of transboundary harm are immune from the jurisdiction of forum courts under customary international law. To this end, the relevant provisions of uncsi will be recalled, discussing their customary status.
3.1 The Restrictive Doctrine of State Immunity
Most States today adhere to the restrictive doctrine of State immunity, which is generally regarded as customary international law.25 On the basis of the doctrine, only jure imperii acts, i.e. acts of the foreign State which are expressions of its sovereign functions, are immune from the jurisdiction of the forum, to the exclusion of jure gestionis acts, that is acts undertaken by the foreign State “in a private capacity as a legal person subject to private law”.26 The existing international instruments and national legislation on State immunity do not explicitly recall the distinction between jure imperii and jure gestionis acts, but they substantially codify it in the so-called ‘commercial exception’ to jurisdictional immunity.27
State practice points to two criteria for the classification of State conduct as jure imperii or jure gestionis: the nature or the purpose of the act. The lack of homogeneity in State practice is reflected in the compromise solution introduced in uncsi.28 Although the nature of the act is the primary criterion, the Convention affirms that the purpose of the act “should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction”.29 However, since every act or omission of a State can be interpreted as having a public purpose, the analysis will take into account only the nature of the foreign State’s conduct.
With reference to violations of the no-harm rule, the transboundary damage might be caused either by the authorities of the foreign State itself – for instance, through State-owned enterprises – or by private parties, whose harmful activities are allowed by the foreign State. The first scenario is exemplified in the Chernobyl nuclear accident, which originated from a power plant owned by the Soviet Union. According to the German courts which ruled over the actions for damages related to the harm caused in Germany, the assessment of the Soviet Union’s immunity had to be based on the nature of the activities that took place in the power plant. They concluded that, although the nuclear plant was a property of the foreign State, the latter was not immune from the jurisdiction of the forum because the production of electricity for civilian purposes was an activity that could have been carried out also by a private enterprise, and was therefore to be classified as jure gestionis.30 This reasoning can be criticized on the ground that the failure to prevent the nuclear accident and to promptly inform German authorities does not strictly relate to a commercial activity, rather constituting a violation of non-contractual obligations. Taking into account the restrictive definition of commercial transaction espoused by uncsi, which excludes torts,31 the alleged conduct of the then Soviet Union should have been excluded from the definition of commercial activities.
Moreover, the German case law on Chernobyl does not consider the level of responsibility of the foreign State in the fulfilment of its due diligence obligations, which require the imposition of adequate safety standards, both for the public and the private sectors. Since the regulatory activity is typically sovereign, the actions or omissions of the foreign State in this regard would qualify as acts jure imperii, therefore immune from the jurisdiction of the forum. Victims could nonetheless sue the private entities allegedly responsible for the damage if private international law rules permit to do so.
As regards, instead, States’ procedural obligations, the duties to notify other States, to share information and to negotiate, as well as to cooperate internationally, require action at the international level. As the conduct of international relations is a function typically pertaining to the sphere of sovereignty, any action or omission by a foreign State in this respect would thus be immune from the jurisdiction of the forum courts.
Lastly, the failure of a foreign State to fulfil obligations of result under international environmental law – such as the reduction of gas emissions – depends on the adoption of internal policies and regulations (or lack thereof), which is a typically sovereign function. States’ actions or omissions in this respect would thus fall within the category of jure imperii, immune acts, implying that domestic courts could not exercise their scrutiny over the governmental policies of the foreign State.
3.2 The Forum Tort Exception
Based on the forum tort exception, a foreign State is not immune from the jurisdiction of the forum courts for acts or omissions alleged to be attributable to it which caused death or injury to a person, or damage to or loss of tangible property, provided that such acts or omissions take place in the forum State, and give rise to liability under the lex loci delicti commissi.32 The rationale of this exception is to grant access to justice to individuals before their natural judge when the locus commissi delicti is the State of the forum.33 Indeed, in such circumstances “a court foreign to the scene of the delict might be considered as a forum non conveniens”.34 The forum tort exception transcends the distinction between jure imperii and jure gestionis acts.35 According to the International Law Commission, the jure imperii acts covered by this exception include road accidents, as well as “intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination”.36 The exception is provided for by national laws governing the immunities of foreign States and in the international conventions on the subject,37 and can cautiously be considered as corresponding to customary international law.38
In cases of environmental damage caused by the foreign State directly on the territory of the forum, the tort exception would be straightforwardly applicable.39 In contrast, the main difficulty in extending the forum tort exception to cases of transboundary harm is the requirement of a sufficient nexus with the State of the forum. According to the case law of the few States that foresee this exception in their national legislation, it is necessary that the tortious conduct itself, and not only the damage deriving from it, takes place in the territory of the forum.40 Furthermore, State practice suggests that the entire conduct must occur in the forum State, and not just a part of it, for it to fall into the category of forum torts.41 Transboundary environmental harm, as it does not originate in the State of the forum – albeit damaging the latter’s territory – would thus not be covered by the forum tort exception.
uncsi accommodates a different, but equally restrictive, definition of forum torts.42 Unlike the above-mentioned jurisprudence of common law countries, the Convention admits that the forum tort exception can apply also to acts or omissions that occurred only in part in the State of the forum, but requires the presence in the forum State of the perpetrator of the tortious conduct at the time when it took place. This requirement was introduced into the Convention precisely to exclude from the category of forum torts cases of transboundary damage.43 Assuming that the definition of the Convention corresponds to customary law,44 the tort exception so defined would not apply to cases of transboundary harm, because such harm typically originates in the responsible State due to the actions or omissions of State bodies located therein.
4 De lege ferenda Analysis
4.1 Domestic Exceptions to State Immunity for Serious Violations of International Law
In the case Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice (icj) denied the existence of a customary exception to State immunity from civil jurisdiction in cases of serious violations of human rights and/or humanitarian law in breach of jus cogens norms, whose victims have no alternative remedy.45 Despite this authoritative ruling, some domestic courts have nonetheless refused to grant State immunity from civil jurisdiction on the basis of one or more of the arguments rejected by the icj. This is obviously the case of Italy following judgment No. 238/2014 of the Constitutional Court,46 but recently also the courts of South Korea,47 Brazil,48 and Ukraine49 lifted State immunity from civil jurisdiction with respect to actions from damages brought by victims of serious violations who had no alternative remedy.50 The development of customary law in the sense of the emergence of a human rights exception to immunity is thus not entirely unlikely. Without entering into the details of this case law and the related (vast) literature, only the prospect of future domestic environmental litigations for transboundary harm in those countries will be considered.
Although the courts of Italy, South Korea, Brazil and Ukraine attributed different weight to the circumstance that the forum State was the locus commissi delicti – an aspect which still needs clarification51 –, it is not excluded that they may lift State immunity from civil jurisdiction in future cases relating to transboundary environmental harm whose victims have no alternative remedy available. For instance, State immunity could be denied in case of transboundary armed attacks causing “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”, which amount to war crimes under the Statute of the International Criminal Court.52 Moreover, provided that domestic courts accepted the notion of extra-territoriality of human rights discussed in Section 2, State immunity from civil jurisdiction could be denied if the foreign State’s acts or omissions caused such serious environmental damage in the forum State to jeopardize the enjoyment of fundamental human rights – in particular, the right to life, a fundamental principle of the international legal order.53
4.2 An Extended Tort Exception?
Based on the analysis above, customary international law does not leave much room for manoeuvre to plaintiffs willing to sue a foreign State for transboundary environmental damage. Foreign States’ actions or omissions would mostly be immune from the civil jurisdiction of the forum, unless domestic courts accept a human rights exception to State immunity. It would therefore not be possible for individuals to recur to the judge of the place where the damage arose. This compression of the individual’s right to access to justice can result in a protection vacuum, when there are no alternative effective remedies for the victims of environmental damage. It is therefore considered appropriate to carry out a de lege ferenda analysis on how to reform the State immunity regime, at least as far as transboundary harm is concerned, while waiting that a human rights exception to State immunity finally develops under customary international law.
In this respect, it must be noted that Rossi and Amoroso & Pavoni proposed to reframe such a human rights exception within existing exceptions to State immunity, in particular within an enlarged forum tort exception.54 I take up this suggestion – albeit limiting it to environmental cases – to argue that the applicability of the forum tort exception should be extended to cases of transboundary environmental harm, either by means of treaty or through legislation and/or courts’ interpretation.
Private international law rules on civil jurisdiction are taken here as a point of reference. In particular, this section takes into account EU private international law rules on civil jurisdiction in matters of tort, delict or quasi-delict. I find the parallel between the forum tort exception and private international law rules in matters of tort fitting, because both are an expression of territorial jurisdiction, namely of the forum State’s interest in exercising adjudicative jurisdiction over the harmful events that occurred in its territory. Moreover, while immunity and jurisdiction are often regarded as separate issues,55 they can both be conceptualized as fulfilling the function of diverting dispute settlement from one place to another, from one court to another.56
According to the Court of Justice of the European Union, EU private international law rules of jurisdiction in matters of tort are applicable to transboundary environmental damage caused by private parties (or by States when acting jure gestionis).57 The first provision interpreted in this sense, Article 5(3) of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (now Article 7(2) of the Brussels I bis Regulation)58 establishes that, in the event of a tort, delict or quasi-delict, the responsible person may be sued before the jurisdictional authority of the place where the harmful event occurred or may occur. In the historical precedent Bier c. Mines de Potasse d’Alsace, which concerned the pollution of the waters of the Rhine by a company based in France, causing damage to the economic activities of a farm located in the Netherlands, the Court of Justice provided a broad interpretation of the concept of “place where the harmful event occurred or may occur”, to the inclusion of both the place where the damage occurred and of the place of the event which gave rise to it. According to the Court, based on Article 5(3) of the Brussels Convention, “the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it”.59
Although the Court emphasized the usefulness of maintaining two alternative fora from the point of view of the evidence and the conduct of proceedings,60 this interpretation, clarified in subsequent jurisprudence,61 in fact favors victims, who may recur to domestic courts rather than to the courts of the State of domicile of the defendant.62 It is worth noting that the alternative jurisdictional criteria of the place of the event giving rise to the damage and of the place where the damage occurred are explicitly admitted also in conventional regimes relating to civil liability for transboundary environmental damage, which, however, have not been successful.63
As illustrated in section 3.2, the forum tort exception to State immunity has hitherto been interpreted and applied restrictively by domestic courts. On the model of the aforementioned rules of private international law, it is suggested that States should adopt an extended tort exception depriving the foreign State of immunity from civil jurisdiction not only when both the harmful conduct and the consequent damage take place in the territory of the forum State – that is, the typical situation covered by this exception – but also when only the damage occurs in the forum State. By applying the tort exception in the light of private international law rules on jurisdiction in matters of tort, delict or quasi-delict, States would grant access to justice to victims by ensuring that they have access to courts in the place where they suffered the transboundary environmental damage. This exception to State immunity from civil jurisdiction may not be unwelcome to States, given that many adopt the jurisdictional criterion of the place of the damage in their national private international law rules in matters of non-contractual obligations.64 Since private international law rules on adjudicatory jurisdiction apply when the foreign State is not immune – inter alia, under the forum tort exception – it also makes sense to align the definition of ‘forum tort’ under the forum tort exception with the definition under private international law rules on jurisdiction.
It should be noted that such extended tort exception would guarantee access to justice to individuals who have suffered transboundary environmental damage whether or not they have exhausted any remedies available in the State (allegedly) responsible for the damage. It would thus offer an avenue to grant access to justice to victims, as an alternative to the doctrine of equivalent protection. The latter, firstly developed by the European Court of Human Rights in the context of employment disputes against international organizations,65 and recently affirmed in the above-mentioned case law of Italy, South Korea, Brazil and Ukraine, binds the denial of immunity to the unavailability of alternative effective remedies for victims. In order for the proposed extended tort exception to be, in perspective, accepted by States at least with reference to environmental matters, such exception could be further limited through coordination with the said doctrine. In concrete terms, priority would be given to the jurisdiction of the State where the harmful event takes place. In the cases currently covered by the tort exception, the place of the damage would coincide with the place of the event giving rise to it, maintaining, in fact, the application of the tort exception unchanged. In contrast, in cases of transboundary harm, the jurisdiction of the State in which the damage occurs would be asserted only if the State allegedly responsible for the damage did not provide an effective remedy to victims.
Not even such an extension of the tort exception, however, might necessarily guarantee the success of civil actions for damages brought against foreign States for transboundary environmental damage. For instance, the collection of evidence in the foreign State where the event giving rise to the damage took place might be difficult, as that foreign State might not be cooperative if its immunity from civil jurisdiction is lifted. Another difficult aspect particularly apparent in climate change litigations, even in absence of immunity, is the establishment of a certain causal link between the action and omission of the foreign State and the damage – a link required by domestic legal systems to establish liability.66 It is true that, as stated by the UN Committee on the Rights of the Child, “the collective nature of the cause of climate change does not absolve the State party of its individual responsibility”.67 However, in climate litigations the co-liability of many other States makes it more difficult to ascertain the responsibility of the sued foreign State and the exact extent of the damage caused by it.
All in all, the lifting of State immunity from civil jurisdiction in transboundary environmental litigations through an extended interpretation of the forum tort exception would thus not be a panacea. Still, it might be worth exploring it.
Committee on the Rights of the Child (“crc”), Chiara Sacchi and others v. Argentina, Decision of 21 September 2021; crc, Chiara Sacchi and others v. Brasil, Decision of 21 September 2021; crc, Chiara Sacchi and others v. France, Decision of 21 September 2021; crc, Chiara Sacchi and others v. Germany, Decision of 21 September 2021; crc, Chiara Sacchi and others v. Turkey, Decision of 21 September 2021.
See e.g.: crc, Chiara Sacchi and others v. Argentina, cit. supra note 1, para. 5.5.
Ibid.
Ibid.
Ibid., para. 10.19.
Research on domestic case law on databases such as Oxford Reports in International Law has proved fruitless. The only civil litigation against a foreign State for transboundary environmental damage of which I am aware is a German case against the Soviet Union concerning the Chernobyl nuclear accident: Amtsgericht Bonn (Germany), Schadensersatzklage gegen UdSSR v. Tschernobyl-Kernreaktorunfalls, Judgment of 29 September 1987, Neue Juristische Wochenschrift, 1988, p. 1393 ff., available at: <https://beck-online.beck.de/?vpath=bibdata/zeits/NJW/1988/cont/NJW.1988.H22.NAMEINHALTSVERZEICHNIS.htm>; Landgericht Bonn (Germany), Schadensersatzklage gegen UdSSR v. Tschernobyl-Kernreaktorunfalls, Judgment of 14 December 1987, Neue Juristische Wochenschrift, 1989, p. 1225 ff., available at: <https://beck-online.beck.de/?vpath=bibdata/zeits/NJW/1989/cont/NJW.1989.H19.NAMEINHALTSVERZEICHNIS.htm>.
bodansky, brunnée and rajamani, International Climate Change Law, Oxford, 2017, p. 16; cordini, fois and marchisio, Diritto ambientale. Profili internazionali, europei e comparati, 3rd ed., Torino, 2017, p. 57.
An example is the recent decision of the Human Rights Committee, Daniel Billy and others v. Australia, Adoption of Views of 22 September 2022. Several climate change cases are also pending before the European Court of Human Rights: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application No. 53600/20; Carême v. France, Application No. 7189/21; Duarte Agostinho and Others v. Portugal and 32 Other States, Application No. 39371/20.
Trail Smelter Case (United States v. Canada), 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards, 2006, p. 1905 ff.
cordini, fois and marchisio, cit. supra note 7, p. 4.
On the origins and customary nature of the principle of prevention, see: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, icj Reports, 2010, p. 14 ff., para. 101.
dupuy and viñuales, International Environmental Law, Cambridge, 2018, p. 67. Dupuy and Viñuales list, among the sources leading to the development from the no-harm principle to the principle of prevention: Stockholm Declaration and Action Plan for the Human Environment (1972), Principle 21; United Nations Convention on the Law of the Sea (unclos), 10 December 1982, entered into force 14 November 1994, Art. 192–194, as interpreted, for instance, in: In the matter of the South China Sea Arbitration before an Arbitral Tribunal constituted under Annex vii to the 1982 United Nations Convention on the Law of the Sea (Republic of the Philippines v. People’s Republic of China), pca Case No. 2013-19, Award of 12 July 2016, para. 940.
dupuy and viñuales, cit. supra note 12, p. 69.
According to the Human Rights Committee, “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (General Comment No. 36 on Article 6: right to life, 3 September 2019, ccpr/c/gc/36, para. 62). The same Committee, in the above-mentioned case Daniel Billy and others v. Australia (cit. supra note 8), found that the State’s failure to mitigate and adapt to climate change violated the applicants’ rights to private and family life and to enjoy their minority’s culture under the Covenant. Likewise, the European Court of Human Rights held States’ failure to protect the environment and health of the population to be in breach of the right to private and family life (see, ex multis: Cordella and others v. Italy, Application Nos. 54414/13 e 54264/15, Judgment of 24 January 2019). Another instance is the case law of the Inter-American Court of Human Rights on indigenous peoples, which relied on States’ duty to conduct environmental impact assessments to substantiate indigenous collective property rights (see, ex multis and most recently: Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, Judgment of 6 February 2020, para. 174).
peel and osofsky, “A Rights Turn in Climate Change Litigation?”, Transnational Environmental Law, 2018, p. 37 ff.
On the notion of effective control over a person or a territory developed, for instance, in the case law of the European Court of Human Rights, see, ex multis: Al-Skeini and others v. The United Kingdom, Application No. 55721/07, Judgment of 7 July 2011, paras. 134–140.
Inter-American Court of Human Rights, Advisory Opinion of 15 November 2017, para. 102.
Chiara Sacchi and others v. Argentina, cit. supra note 1, para. 10.7.
cordini, fois and marchisio, cit. supra note 7, pp. 48–49.
Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, entered into force 1 April 1968, Art. 13(j); Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, entered into force 12 November 1977, Art. xiv.
International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, entered into force 19 June 1975, Art. xi.
Ibid., Art. xi. This provision recalls the general rule according to which ships used for commercial purposes are not immune from the jurisdiction and executive measures of the forum State, codified in Art. 16 of the United Nations Convention on the Immunities of States and Their Property (uncsi), 2 December 2004, not yet in force.
To date (20 April 2023), only 23 of the 30 States needed for its entry into force have ratified the Convention. Nonetheless, in its quality of codification convention approved by the UN General Assembly, uncsi remains “a significant current source of international law” (fox, “The Restrictive Rule of State Immunity – The 1970s Enactment and Its Contemporary Status”, in ruys, angelet and ferro (eds.), The Cambridge Handbook of Immunities and International Law, Cambridge, 2019, p. 19 ff., p. 31.
The European Convention on State Immunity (ecsi), 16 May 1972, entered into force 11 June 1976, has been ratified by only eight States, whereas the Draft Convention of the Organization of American States has never been adopted by member States.
Even China, which still applies the absolute immunity doctrine (see: Hong Kong Court of Final Appeal, Democratic Republic of the Congo and Others v. fg Hemisphere Associates llc, Judgment of 8 June 2011, [2011] 14 H.K.C.F.A.R. 395) might now embrace the restrictive doctrine, as its Draft Law on Foreign State Immunity includes an exception to State immunity from civil jurisdiction for commercial activities (Art. 7). See: dodge, “China’s Draft Law on Foreign State Immunity Would Adopt Restrictive Theory”, Conflict of Laws, available at: <https://conflictoflaws.net/2023/chinas-draft-law-on-foreign-state-immunity-would-adopt-restrictive-theory/>. Also Russia, a strong supporter of the absolute doctrine of State immunity, in 2016 introduced by law a commercial exception to State immunity from civil jurisdiction, albeit based on the principle of reciprocity. See: shan and wang, “Divergent Views on State Immunity in the International Community”, in ruys, angelet and ferro (eds.), cit. supra note 23, p. 61 ff., p. 64.
cassese, International Law, 2nd ed., Oxford, 2005, p. 100.
See e.g.: uncsi, Art. 10; ecsi, Art. 7; 28 U.S. Code § 1605(a)(2); UK State Immunity Act 1978, Art. 3; Canada State Immunity Act 1985, Art. 5; Australia Foreign States Immunities Act 1985, Art. 11.
The purpose test was introduced to respond to the preoccupations of developing countries. See: International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, 1991, Commentary to Art. 2, para. 26.
uncsi, Art. 2(1).
Amtsgericht Bonn (Germany), Schadensersatzklage gegen UdSSR v. Tschernobyl-Kernreaktorunfalls, cit. supra note 6, p. 1394.
wittich, “Article 2(1)(c) and (2) and (3)”, in o’keefe and tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property. A Commentary, Oxford, 2013, p. 59.
International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, 1991, Commentary to Art. 12, para. 2.
Ibid., para. 3.
Ibid.
Ibid., para. 8.
Ibid., para. 4.
ecsi, Art. 11; uncsi, Art. 12. The introduction of the forum tort exception in the codification works of the International Law Commission was contested by some States (including China and the then Soviet Union) because it was based only on the legislation of a few common law countries (see: fox and webb, The Law of State Immunity, 3rd ed., Oxford, 2015, p. 465). However, as stated by ad hoc judge Gaja in Germany v. Italy, the general absence of protest by States with respect to this exception cannot be regarded as an implicit criticism indicating its alleged unlawfulness. See: Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge ad hoc Gaja, icj Reports, 2012, p. 309 ff., para. 3.
In the past, the jurisprudence of States without legislation on the matter tended not to recognize the tort exception as customary law (see: foakes and o’keefe, “Article 12”, in o’keefe and tams (eds.), cit. supra note 31, p. 211). In contrast, more recent case law affirms the customary nature of the tort exception. See e.g.: Supreme Court (Poland), Natoniewski v. Federal Republic of Germany, Decision of 29 October 2010, No. iv csk 465/09, Polish Yearbook of International Law, 2010, p. 300; District Court (Luxembourg), Judgment of 27 March 2019, 2019talch01/00116, p. 46.
However, this might not be the case if the damage was caused by the armed forces of the foreign State, based on the reasoning of the icj in Germany v. Italy. In critical terms, see: Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge ad hoc Gaja, icj Reports, 2012, p. 309 ff., paras. 6–9.
See e.g.: Supreme Court (United States), Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989); Court for Appeal of Ontario (Canada), Bouzari v. Islamic Republic of Iran (2004), 2004 CanLII 871 (on ca).
See e.g.: Court of Appeals for the District of Columbia (United States), Doe v. Republic of Ethiopia, Order of 14 March 2017, No. 16-7081 (D.C. Cir. 2017); England and Wales High Court (United Kingdom), Heiser, Estate of & Others v. The Islamic Republic of Iran & Another, Judgment of 31 July 2019, [2019] ewhc 2074 (qb).
uncsi, Art. 12.
International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, 1991, Commentary to Art. 12, para. 7.
This is far from uncontested, given that the requirement of presence in the territory has no precedent in national legislation pre-existing the Convention, and has been criticized by some States as excessively restrictive. See: el sawah, “Jurisdictional Immunities of States and Non-commercial Torts”, in ruys, angelet and ferro (eds.), cit. supra note 23, p. 142 ff., p. 156.
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, icj Reports, 2012, p. 99 ff.
With no attempt of being exhaustive, suffice it here to remind that Italian courts, since 2014, have been denying Germany both immunity from civil jurisdiction and, more recently, from measures of execution. The latter circumstance prompted Germany to bring a new dispute against Italy before the icj: International Court of Justice, Certain Questions of Jurisdictional Immunity and Enforcement of Judgments (Federal Republic of Germany v. Italian Republic), Application Instituting Proceedings and Request for Provisional Measures of 29 April 2022. The Italian Court of Cassation lifted also the immunity from civil jurisdiction of Serbia, Corte di Cassazione (Sez. I penale), Criminal proceedings against Opačić Dobrivoje, 15 September 2015, No. 43696 and of Iran, Corte di Cassazione (Sez. I civile), Havlish v. Islamic Republic of Iran, 10 December 2021, No. 39391, this latter in an exequatur proceeding related to a U.S. judgment. In both cases, the Court of Cassation did not take into account the ‘last resort’ argument, but explicitly affirmed, in the Dobrivoje case, that the unavailability of alternative remedies for victims is only an aggravating circumstance for the purpose of the lifting of immunity (para. 5.2.1, p. 31).
A section of the Seoul District Court denied immunity to Japan for crimes against humanity committed against ‘comfort women’ at the time of colonial rule over the Korean peninsula: Seoul Central District Court (34th Civil Chamber) (South Korea), Judgment of 8 January 2021, Korean Comfort Women v. State of Japan, available at: <https://womenandwar.net/kr/wpcontent/uploads/2021/02/ENG-2016_Ga_Hap_505092_23Feb2021.pdf?ckattempt=2> (see, in particular, pp. 28–29 on the absence of alternative remedies for victims). A few months later, another section of the same Court recognized Japan’s immunity in a similar case (<https://www.reuters.com/world/china/skorea-court-dismisses-comfort-women-lawsuit-contradicts-earlier-ruling-2021-04-21/)>, but as the first decision was not appealed it is now final.
The Supreme Federal Tribunal denied immunity to Germany for war crimes committed in Brazilian territory during the Second World War, namely the sinking of Brazilian fishing vessels: Supreme Federal Tribunal (Brazil), Recurso Extraordinário com Agravo 954.858, Judgment of 1 March 2021 (on the absence of alternative remedies, see pp. 18–19).
Civil Court of Cassation (Ukraine), Judgment of 14 April 2022, No. 308/9708/19; Judgment of 18 May 2022, No. 760/17232/20. The arguments relied on by the Court are expressed in an official position paper: <https://court.gov.ua/eng/supreme/pres-centr/news/1282788/>. Concerning the unavailability of alternative remedies, the Court noted that there is “no reasonable ground to assume that the plaintiff’s violated right could be protected by filing a claim with a Russian Court”.
Whether only access to a court amounts to an alternative effective remedy for the purpose of the ‘forum of last resort’ test is disputed in literature. The Seoul District Court suggested that an inter-State settlement might have provided a remedy to victims had these victims been properly involved in the negotiation process (Judgment of 8 January 2021, cit. supra note 47, p. 29). In the case of Brazil, the Supreme Federal Tribunal relied on Germany’s failure to provide reparations for the crimes committed on Brazilian territory, not even in the form of a global inter-State solution, as a determining argument for the denial of immunity (Judgment of 1 March 2021, cit. supra note 48, pp. 18–19). This case law suggests that also inter-State schemes, and not only judicial remedies, might constitute alternative effective remedies. In this sense, see e.g.: marongiu, buonaiuti, “Art. 3 della risoluzione dell’Institut de Droit International su Human Rights and Private International Law: la disciplina della giurisdizione in materia civile e la sua incidenza sul diritto di accesso alla giustizia”, Diritti umani e diritto internazionale, 2022, p. 283 ff., p. 302. With specific reference to diplomatic protection as an alternative remedy, see also: palchetti, “Judgment 238/2014 of the Italian Constitutional Court: In search of a way out”, Questions of International Law, 2014, p. 43 ff.
For instance, the Brazilian Supreme Federal Tribunal and the Supreme Court of Ukraine insisted on the harmful conduct having taken place on the territory of the forum. This does not seem to be a stringent requirement in the case law of Italy and in the judgment of the Seoul District Court, but the issue has not been entirely clarified. With specific reference to Italian case law, see: pavoni, “Germany versus Italy reloaded: Whither a human rights limitation to State immunity?”, Questions of International Law, 2022, p. 21 ff., p. 27.
Rome Statute of the International Criminal Court, 17 July 1998, entered into force on 1 July 2002, Article 8(2)(b)(iv).
The right to life might even be considered as jus cogens. In this sense, see: International Law Commission, Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, UN Doc. a/cn.4/727, 31 January 2019, paras. 128 ff.
rossi, “Italian courts and the evolution of the law of State immunity: A reassessment of Judgment no 238/2014”, Questions of International Law, 2022, p. 41 ff., p. 55; amoroso and pavoni, “Stergiopoulos v. Iran. Order No. 39391/2021. 105 Rivista di diritto internazionale 620 (2022)”, The American Journal of International Law, 2023, p. 315 ff., p. 319.
According to the icj, “jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction”, Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, icj Reports 2002, p. 3 ff., para. 59.
fox, “Why the UN Convention on State Immunity Is Important”, International and Comparative Law Quarterly, 2006, p. 399 ff., p. 405; krieger, “Between Evolution and Stagnation – Immunities in a Globalized World”, Goettingen Journal of International Law, 2014, p. 177 ff., p. 204.
Case 21/76, Bier c. Mines de Potasse d’Alsace, Judgment of 30 November 1976.
Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). As is well known, the interpretation given by the Court of Justice to Art. 5(3) of the Brussels Convention applies also to Art. 7(2) of the Brussels I bis Regulation.
Case 21/76, Bier c. Mines de Potasse d’Alsace, Judgment of 30 November 1976, para. 19.
Ibid., para. 17. On the issue, see: carbone, Il nuovo spazio giudiziario europeo dalla Convenzione di Bruxelles al Regolamento ce 44/2011, 4th ed., Turin, 2002, p. 83.
See e.g., even if not with reference to environmental damage: Case 68/93, Shevill, Judgment of 7 March 1995, paras. 23–30; Case C-364/93, Marinari v. Lloyd’s Bank, Judgment of 19 September 1995, paras. 14–15; Case C-189/08, Zuid-Chemie bv v. Philippo’s Mineralenfabriek, Judgment of 16 July 2009, paras. 27–28 and 32. On this case law see, ex plurimis: mosconi and campiglio, Diritto internazionale privato e processuale, 7th ed., Milan, 2015, Vol. 1, p. 85 ff. The interpretation of “place of the harmful event” given by the Court of Justice has been adopted also by Italian courts, for example in: Tribunale di Udine, Banco Ambrosiano Veneto s.p.a. v. Industrial and Commercial Bank Ltd. and others, 21 July 2000, published in pocar, Il nuovo diritto internazionale privato italiano, 2nd ed., Milan, 2002, p. 308 ff.
In this sense, see: hertz, Jurisdiction in Contract and Tort under the Brussels Convention, Copenhagen, 1998, p. 245; and also pocar, “Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere”, Rivista di diritto internazionale privato e processuale, 2021, p. 5 ff., p. 17, who affirms that the position of victims is weakened if the jurisdictional criterion of the place where the damage occurs is not foreseen alongside that of the place of the event giving rise to it (as in the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, 2 July 2019, not yet in force, Art. 5(j)).
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 21 June 1993, not yet in force, Art. 19(1); Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents, 21 May 2003, not yet in force, para. 13(1).
Besides EU Member States, for instance Argentina, Australia, Canada and Serbia adopt this criterion. See this study of the Hague Conference on Private International Law, available at: <https://assets.hcch.net/docs/03c39e9f-878b-400d-a359-e70b7937edde.pdf>.
Waite and Kennedy v. Germany, Application No. 26083/94, Judgment of 18 February 1999; Beer and Regan v. Germany, Application No. 28934/95, Judgment of 18 February 1999.
dupuy and viñuales, cit. supra note 12, p. 397.
crc, Chiara Sacchi and others v. Argentina, cit. supra note 1, para. 10.10.
