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 ITALIAN COURTS

ITALY is usually associated with Belgium as one of the states whose courts have taken the lead in differentiating between the public and private acts of sovereign states. They do not refuse to assume jurisdiction even over foreign states when the latter are engaged in acts belonging to the second category. In Italy, as in Belgium, the treatment of foreign states is but a reflection of the position of the local sovereign before his own courts. Both countries have experienced a reaction from the over-zealous insistence upon the. "separation of powers" of French revolutionary doctrinaires. Thus prior to 1865, when the great work of unifying the legislation of Italy was accomplished, differences between the state and individuals were of the exclusive competence of administrative tribunals. At that time, however, the doctrine of the immunity of the state gave way to the principle that all violations of civil rights were of the competence of the judiciary, whether the malfeasor was the state or an individual. The administrative tribunals were suppressed, and the state became subject to the jurisdiction of the ordinary courts whenever a violation of the rights of an individual by the state was claimed,1 irrespective of whether the act giving rise to the claim was a "public" or a "private" act.

Separation of Powers

The application of this general theory to foreign states, however, is qualified by concepts of sovereignty, equality and independence, so that the foreign state can be subjected to the local courts only for its "private" acts. The first courts to assume jurisdiction over foreign sovereign states seem to have disregarded this principle and to have assimilated foreign states with foreigners in general, witness the decision of the Civil Tribunal of Brussels of June 20, 1840.2 By 1878, how-

____________________
1
Law of March 20, 1865, Annex E.
2
Société Générale pour favoriser l'Industrie Nationale v. Le Syndicat d'Amortissement, le Gouvernement des Pays-Bas, et le Gouvernement Belge, Pasicrisie, 1841-2-33, 34, and supra, p. 191.

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