A Territorial tort exception e seu uso pelos Estados: entre o costume internacional e as regras de coexistência

Abstract

State jurisdictional immunity constitutes a rule of customary international law, founded upon the principle of the sovereign equality of States. Throughout the development of this rule, however, exceptions have emerged to reconcile State sovereignty with other values protected under international law, among them the territorial tort exception, which allows civil claims for compensation against foreign States for damages or death occurring within the territory of the forum State. This article aims to investigate whether this exception is a rule of customary international law. To this end, it adopts a qualitative approach based on a literature review and documentary analysis, examining domestic legislations, international treaties, UN resolutions, documents of the International Law Commission (ILC) and decisions of domestic and international courts. The identification of customary international law is conducted according to the ILC's methodology established in the Draft Conclusions on Identification of Customary International Law (2018), through the analysis of State Practice and Opinio Juris. The findings are then interpreted in light of Hedley Bull's English School theory, seeking to determine whether the territorial tort exception may be understood as a shared norm among States, even if not yet consolidated as customary international law. The study concludes that, although the evidence reveals a significant expansion of the practice of the territorial exception, there is still insufficient uniformity to characterize it as a customary rule. Nevertheless, its expansion allows it to be understood as a rule of coexistence within International Society, reflecting an emerging norm aimed at protecting victims' right to reparation.