Ministry of Foreign Affairs v Federici and Japanese State [Italy, Tribunal of Rome.]

• Jurisdiction: Italia
• Judgment Date: 28 Novembre 1968
• Court: Regional Tribunal (Italy)
• Date: 28 Novembre 1968

Italy, Tribunal of Rome.

Ministry of Foreign Affairs

and

Federici and Japanese State1

Sovereign immunity Foreign States Second World War Japanese occupation of China Requisition of property of foreign nationals by occupying troops Claim for payment of debt recognised Japanese authorities Whether Japan entitled to jurisdictional immunity Acts iure imperii and iure gestionis Principles of diplomatic protection of individuals by their national State The law of Italy

Summary: The facts:After the armistice between Italy and the Allied Powers signed on 8 September 1943 Federici, an Italian subject resident in China, refused to swear allegiance to the Italian Republica Sociale which was successor to the Fascist government in Northern Italy and allied to Germany and Japan. For this reason the Japanese military authorities occupying Shanghai interned him in a concentration camp. They entered his business offices and removed gold, money and goods of considerable value. After the surrender of Japan on 17 January 1946 Federici managed to obtain, from the Japanese Liaison Office with the Commission for the Settlement of Allied Claims in Shanghai, a declaration recognising his right to claim US$638,050 from the Japanese State. At Federici's request the Tribunal of Rome held on 8 July 1983 that the State of Japan, tried in absentia, was liable to pay the debt. On 30'May 1967 the Italian Ministry of Foreign Affairs brought third party opposition proceedings against this judgment.

Held:The opposition proceedings were admissible and the original judgment of the Tribunal of Rome was quashed.

(1) The recognition of the debt in question by the Japanese Liaison Office was not sufficient to confer a private nature on the relationship between the Japanese military authorities and Federici but merely served to prove the existence of this relationship. The actual legal nature of the relationship itself

was the sole deciding factor in determining whether the Italian State had jurisdiction in the matter. Foreign States only ceased to be entitled to jurisdictional immunity where they did not make use of their sovereign powers but rather performed acts of a purely private nature on the same footing as private individuals. The activities of foreign occupying troops during military operations, however, constituted acts of sovereignty of the foreign State concerned

(2) The relationships and obligations arising from such acts were the exclusive concern of the States themselves, even where damage had been suffered by private individuals. In such cases international law entrusted the protection of the rights of individuals to their national State.

The following is the text of the relevant part of the judgment of the Tribunal:

The petition is founded on two points, firstly the proposition that this Tribunal was wrong to...