Arab Republic of Syria v Arab Republic of Egypt
| Data | 14 Abril 1982 |
| Órgão | Supreme Court (Brazil) |
(Xavier de Albuquerque, President; Soares Munoz, Reporting Judge; Djaci Falcao, Cordeiro Guerra, Moreira Alves, Decio Miranda, Firmino Paz, Cloves Ramalhete, Neri da Silveira, Judges)
State immunity Jurisdictional immunity Dispute between two foreign States concerning ownership of immovable property in third State Competence of courts of State where property located Scope of entitlement of defendant State to jurisdictional immunity Restrictive theory of immunity Acquisition or lease of premises for diplomatic use Whether performed jure gestionis Dispute arising in context of dissolution of Union of States and raising issues of public international law Whether absolute entitlement to jurisdictional immunity in such circumstances
States Union of States Legal nature Distinction between personal and real Union United Arab Republic Whether constituting fusion or succession in relation to constituent States Dissolution of Union Legal consequences Dispute concerning ownership of immovable property in third State Appropriate forum for settlement of dispute
State succession Union of States United Arab Republic Whether both establishment and dissolution of Union constituting cases of State succession Succession to property rights
Jurisdiction Territorial Situs of property Dispute between two foreign States concerning ownership of immovable property in third State Whether courts of State of situs of property competent to exercise jurisdiction Relevance of fact that no other country's courts competent to exercise jurisdiction Whether defendant State entitled to claim jurisdictional immunity in such circumstances Dispute involving questions of public international law Appropriate forum for settlement of dispute
Diplomatic relations Diplomatic property Embassy building Dispute between two foreign States concerning ownership following dissolution of Union of States Appropriate forum for settlement of dispute
Relationship of international law and municipal law Customary international law Fundamental rights under State Constitution Action to enforce property rights against foreign State Claim to immovable property Whether foreign State entitled to invoke jurisdictional immunity to prevent effective safeguarding of fundamental rights
Human rights Procedure for enforcement Fundamental rights under Brazilian Constitution Right to property Claim against foreign State for return of immovable property Whether jurisdictional immunity may be invoked as a bar to claim The law of Brazil
Summary: The facts:In 1951 the Government of Syria purchased property in Rio de Janeiro which was subsequently used for its diplomatic service. In 1958 Syria and Egypt merged to form the United Arab Republic (UAR), which replaced them at the international level. The UAR was represented by a single ambassador to Brazil. At the time of the dissolution of the UAR in 1961, an Egyptian diplomat was serving as the ambassador of the UAR in Brazil and the property at issue was being used as the embassy premises. The diplomatic mission of the UAR having ceased to exist, Syria reclaimed the property on the basis of its having been the original owner registered in the land registry, no subsequent entry ever having been made. The Egyptian diplomat in question refused to return the premises to Syria and they continued to be used, initially as the seat of the re-established Egyptian embassy and later as Egyptian consular premises.
In 1981 the Syrian Ambassador to Brazil instituted original proceedings before the Brazilian Supreme Court against the Egyptian Ambassador and Consul, claiming repossession of the premises. A writ was issued and service was attempted through the offices of the Brazilian Ministry of Foreign Affairs, which sent a Note Verbale to the Egyptian Ambassador, requesting him to acknowledge the claim and give notice of his intention to defend. The Egyptian Ambassador replied by Note Verbale stating that his country
enjoyed jurisdictional immunity pursuant to international law and that the Brazilian courts were not competent to pronounce in a dispute between two sovereign foreign StatesSyria argued that the defendants in the case were the Ambassador and Consul of Egypt so that, since the case involved a real action relating to immovable property situated in the receiving State and held unlawfully by the defendants, Article 31(1)(a) of the Vienna Convention on Diplomatic Relations, 1961, precluded any claim to jurisdictional immunity. Syria argued that the Egyptian Ambassador had acted in bad faith in taking possession of the property and that mala fides applied to his successors in possession including the present occupant. Even if the Egyptian State was the real defendant, Syria maintained that jurisdictional immunity should not be granted in accordance with the almost universally accepted theory of restrictive immunity whereby acts performed jure gestionis, such as the acquisition or possession of immovable property, did not give rise to any entitlement to immunity since they could be performed by any private individual.
Neither of the defendants named in the writ nor the Egyptian State entered a defence. The Deputy Attorney-General made submissions on behalf of the Brazilian Government, arguing that the real defendant in the proceedings was the Egyptian State. He accepted that the proceedings were correctly instituted before the Supreme Court, even though the Constitution of Brazil did not expressly grant original competence to the Court over disputes between two foreign States. He saw no reason why the courts should not exercise jurisdiction, provided both States submitted to it, since the dispute related to immovable property situated on Brazilian territory. However, since Egypt had expressly refused to submit itself to the jurisdiction of the Court, he argued that Egypt was entitled to jurisdictional immunity.
The Court considered the issues of its competence and the entitlement of Egypt to jurisdictional immunity as preliminary questions.
Held (by five votes to four):The Supreme Court was not competent to exercise jurisdiction and the proceedings should be quashed.
Per Judge Ramalhete (Judges Miranda, Alves, Guerra and Falcao concurring): (1) The Union of Egypt and Syria had been a real, rather than a personal, Union of States. Whilst each State retained its own legal order and domestic administration, at the international level they had dealt with other States as a single legal person with single diplomatic representation. The UAR therefore substituted for its member States in international relations. It was generally acknowledged that such a Union derived its sovereignty at the international level from being the successor of previously separate States (pp. 3034).
(2) The acts which established and subsequently dissolved a Union of States were sovereign acts carried out by the individual States concerned, which were by definition immune from the municipal jurisdiction of a third State by reason of the principle of judicial equality between States. Those acts could create practical problems (of which the dispute at issue was an example) which could only be solved by the adoption of appropriate procedures in the bilateral relations between the States concerned. In the absence of specific arrangements governing a particular problem, the efforts by the States concerned to solve it acquired the legal nature of an international dispute arising directly from the sovereign acts dissolving the Union(p. 305).
(3) State succession had occurred both when the UAR was granted sovereign powers to act in international relations and later when it was dissolved. The present dispute concerned the scope and limits of the law of State succession in a property dispute. There was no legal justification for the courts of a third State to exercise jurisdiction, even where the subject matter of the dispute was property situated in that State. It was for the States concerned, which were the real parties to the dispute rather than their diplomatic envoys, to reach their own peaceful settlement of their international dispute, either by means of direct negotiations on the diplomatic plane, or through mediation or arbitration, or by submission of the dispute to the International Court of Justice, the Permanent Court of Arbitration or the Council of the League of Arab States (of which they were both members) (pp. 3056).
Per Judge Alves (concurring): (1) Jurisdictional immunity could not normally be asserted in an action concerning real property situated in the forum State. The situation was different, however, where, in order to decide a dispute concerning immovable property, it was necessary also to decide questions of public international law arising in a dispute between two foreign States. In such circumstances one State was not entitled to exercise jurisdiction over another (pp. 31011).
(2) The claim at issue raised questions of international law whose solution could not be assumed. In particular it would be necessary to decide whether or not this was a case of State succession. There was some doubt as to whether the establishment of the UAR was a case of succession or fusion between the two States. There was doubt as to whether the demise of the Union was to be regarded as a secession (by Syria), since Egypt had retained the title of UAR, or whether succession had again taken place (pp. 31113).
(3) These problems were closely related to the right of ownership and possession of the immovable property at issue. The resolution of the international dispute in question and the enforcement of any solution required the consent of the States concerned. Public international law had not yet reached the stage of municipal law according to which the parties to an action were subject to the compulsory jurisdiction of the courts and bound to accept their decisions (p. 314.)
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