Stubbornness of the Territorial Tort Exception as Tech Develops
State immunity is no longer absolute. Even many States that have held on to immunity without limits, like China and India, have conceded to a model of restrictive immunity, like most of the world.[i] The “restrictive” nature of the model refers to the existence of exceptions that would require States to submit to suit.[ii]The most established and popular exceptions include terrorism, commercial activity, and extraterritoriality.[iii] Extraterritoriality, or the “Territorial Tort Exception,” has a simple definition: the act or omission needs to have occurred in whole or in part in the forum state, and the author needs to have presence in the forum state.[iv] But, how does this two-pronged test fit into the times of advanced technology and artificial intelligence?
Drafting History
The United Nations Convention on Jurisdictional Immunities of States and Their Properties (“UNCJISP) was first drafted in 1991.[v] At the time, it was unforeseeable the way that technology would advance. In the Draft Articles of the Convention, the International Law Commission considered the implications of transnational and cross-territorial torts.[vi] It stated that the second condition, the presence of the author/actor, be present in the forum state in order for a submission to suit, had exceptions and exclusions in applications.[vii] What they listed seems ridiculous in its limits today: “transboundary injuries or trans-frontier torts or damage, such as export of explosives, fireworks or dangerous substances which could explode or cause damage through negligence, inadvertence or accident.”[viii] Today, hearing of a tort in which the author was outside of the requesting forum state, with damages and affects in the forum state would lead to one thinking: “digital attacks.” For example, the most recent case of Iran’s cyberattack on medical hub, Stryker.[ix] Again, this was still not in the minds of the original drafters.
Another version of UNCJISP was published in 2004.[x] Although only thirteen years after the original, the advances in technology and the growth of the internet were exponential. Still, the requirements for Article 12, “personal injuries and damages to property,” stayed the same.
Court Opinions
Consideration of where the author really was located and whether it ultimately comports with new technology is up to the courts and their interpretations of treaties and laws of state immunity. Only 24 States have ratified UNCJISP, but individual nations still often have their own acts where they include the framework in “whole or in part” and/or the author’s presence.[xi] For example, the U.S.’s 28 U.S. Code § 1605(a)(5) states an entity does not have immunity if there is “damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state.”[xii] This language may be just as confusing for U.S. courts as the UNCSJIP’s is internationally.
In Doe v. Federal Democratic Republic of Ethiopia,[xiii] “Kildane,” a citizen of the United States, sued Ethiopia for surveillance technology, FinSpy, downloaded on his computer, and pleaded with the United States District Court of the District of Columbia to find this to be a classic application of an extra-territorial tort.[xiv] Kildane was unsuccessful.[xv] The Court found that Ethiopia was not immune: the “author” of the surveillance technology was not in the United States.[xvi] This decision conflicted with interpretations by European courts, as well as that Court’s opinions in prominent cases like Letelier v. Republic of Chile where there was no immunity in a bombing case.[xvii]
Solutions
The “Kildane” case was decided in 2017.[xviii] The world is drastically different in terms of cyberattacks. There exist a few possible solutions for fixing the dilemma of the extraterritorial tort. 1) Adjusting the UNCSJIP articles to cover technological changes. This poses obstacles as not every State is bound, and as noted in drafting history, adjustments to the Convention can take decades. 2) Urge courts to evaluate just how much cyberattacks, AI, and remote damages change the “author” aspect. Many courts maintain immunity to prevent conflict between states. However, States should consider the even greater dangers of unchecked immunity due to author location.
The world is changing, and the Territorial Tort Exception should, too.
Katherine Federer is a staff member of Fordham International Law Journal Volume XLIX.
[i] See Lori Fisler Damrosch, The Sources of Immunity Law – Between International and Domestic Law 42, The Cambridge Handbook Of Immunities And International Law, Tom Ruys, Nicolas Angelet & Luca Ferro (Eds.), Cambridge University Press (2019).
[ii] See State immunity and international arbitration, Norton Rose Fulbright, (June, 2017), https://www.nortonrosefulbright.com/en/knowledge/publications/1f4d07b1/state-immunity-and-international-arbitration.
[iii] Wenhua Sha & Pen Wang, Divergent Views on State Immunity 62-67, in The Cambridge Handbook of Immunities and International Law (Camb. Univ. Press 2019).
[iv] See United Nations, Convention on Jurisdictional Immunities of States and Their Property, art. 12 (2004).
[v] Int’l Law Comm'n, Rep. of the International Law Commission on the work of its forty-third session 45, U.N. Doc. A/46/10 (1991).
[vi] Id.
[vii] Id at 45, “(6) The existence of two cumulative conditions is needed for the application of this exception. The act or omission causing the death, injury or damage must occur in whole or in part in the territory of the State of the forum so as to locate the locus delicti commissi within the territory of the State of the forum. In addition, the author of such act or omission must also be present in that State at the time of the act or omission so as to render even closer the territorial connection between the State of the forum and the author or individual whose act or omission was the cause of the damage in the State of the forum.”
[viii] Id.
[ix] See Andrea Fox, Iran-linked medical device cyberattack is contained, says Stryker, HealthcareITNews, (March 23, 2026), https://www.healthcareitnews.com/news/iran-linked-medical-device-cyberattack-contained-says-stryker.
[x] United Nations, Convention on Jurisdictional Immunities of States and Their Property (2004).
[xi] See Lucas Moreira Alcici, The Impact Of New Technologies On The Law Of State Immunity: Time For a Reassessment Of The Scope Of The Territorial Tort Exception, Studies in Law: Research Papers No. 2,35 (2024).
[xii] 28 U.S.C. § 1605(a)(5)(2024).
[xiii] Doe v. Federal Democratic Republic of Ethiopia, 851 F.3d 7 (D.C. Cir. 2017), reh’g denied, 2017 U.S. App. LEXIS 10084 (D.C. Cir. June 6, 2017).
[xiv] See id at 3
[xv] See Id.
[xvi] See Id at 8.
[xvii] See, e.g., Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980); Isabel Morel De Letelier, et al. v. The Republic of Chile, et al., International Crimes Database (2013), “Marcos Orlando Letelier del Solar was a Chilean economist, socialist politician, diplomat and foreign minister during the presidency of the socialist President Salvador Allende. He became a refugee in the United States following the military dictatorship of General August Pinochet (1973-1990). On 21 September 1977, together with Ronni Moffitt, his American aide, they were assassinated by DINA (the Chilean secret police under Pinochet) agents after an explosive device was detonated under Orlando Letelier’s automobile. In 1978, their relatives sued Chile and several individuals allegedly involved in the case. The District Court of Washington D.C. found that it had jurisdiction over the action and found the defendants to have killed Letelier and Moffitt while acting within the scope of their employment. The Court awarded more than $5,000,000 to the families of the two victims.”
[xviii] Supra note xiv.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.