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attributable to the foreign state, provided the act occurred in the territory of the forum state and the
author of it was there at the time. This follows Article 11 of the European Convention and the
general trend of state practice. Under the UN Convention, the European Convention and the UK and
US Acts, the tort exception applies even when the act was ostensibly performed in exercise of
sovereign authority. The exception does not include non-tangible loss, such as economic loss or
damage to reputation. Nor does it include loss that is not actionable under the law of the state where
the act was committed, which would include acts of foreign armed forces during an armed conflict
or any other non-insurable risks.
31
In other words, Article 12 cannot put the claimant in a better
position than he would be in if no issue of state immunity arose.
Section 5 of the UK Act goes slightly further in not requiring the author to be in the United
Kingdom when the act was committed. Thus proceedings against Libya for compensation for the
sabotage of the Pan Am aircraft over Lockerbie in 1988 could be brought in Scotland even though
the perpetrator of the crime was not in the United Kingdom at the time. In Al-Adsani, a person who
claimed to have been tortured abroad by local officials was held not able to sue in the United
Kingdom on the basis that he had received medical treatment there for his injuries.
32
Section
1605(5) of the US Act is similar to the UK Act, but includes also non-tangible loss (except for
defamation and similar matters and loss or damage caused by the exercise of a ‘discretionary
function’). But, if the act is criminal (say, murder), there would be no immunity since there can be
no discretion for a state to commit such an act.
33
Ownership, possession and use of property
Article 13 of the UN Convention provides no immunity from proceedings relating to a foreign
state’s right or interest in, or possession or use of, or any obligation arising out of (a) immovable
property (land) in the forum state; (b) a right or interest in movable or immovable property arising
by way of succession, gift or bona vacantia; or (c) a right or interest in the administration of
property, such as trust property, a bankrupt’s estate or a company in liquidation. Articles 9 and 10 of
the European Convention
31. See the ILC Commentary to the final draft of Article 12, in Watts, The International Law Commission
1949–1995, Oxford, 1999, vol. , pp. 2068–71, and A/C.6/59/SR13.
32. [1996] 1 LLR 104; 107 ILR 536.
33. Liu v. Republic of China, 101 ILR 519.