The Position of Foreign States before National Courts: Chiefly in Continental Europe

By Eleanor Wyllys Allen | Go to book overview

THE POSITION OF FOREIGN STATES BEFORE BELGIAN COURTS

CHAPTER I
BASIS AND GENERAL APPLICATION OF PRINCIPLE OF IMMUNITY

BELGIAN courts, although formerly sharing the common conception of complete immunity for foreign states from the jurisdiction of domestic tribunals, have shown a marked tendency recently to differentiate between public and private acts of the state, and to recognize their incompetence only in suits involving the former. Over litigation concerning the latter, they have frequently assumed jurisdiction. This change in point of view is a tardy reflection of a change in attitude toward certain provisions of the Belgian Constitution: Articles 25-31, establishing the principle of the "separation of powers," and Article 92, providing that litigation involving civil rights belongs to the exclusive competence of the courts. The early construction placed upon Article 92 was that it precluded the possibility of leaving to administrative determination questions arising from the violation by the state of private civil rights, despite the general provision for separation of powers.1 Later, however, a distinction began to be made between acts of the state in its sovereign and in its civil capacity. For the former, the principle of the separation of powers became fundamental, and for many years there was a strong tendency to preclude the possibility of the courts taking cognizance of any litigation between an individual, on the one hand, and the state, as the incarnation of the executive power,

Separation of Powers

____________________
1
Cassation, December 3, 1842 Pasicrisie, 1842-1-358, 361. See also Cassation, September 5, 1856, ibid., 1856-1-455; idem, December 23, 1865, ibid., 1866-1-7.

-187-

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