scholarly journals The Illusion of Perfect Justice

2021 ◽  
pp. 55-70
Author(s):  
Christian Tomuschat
Keyword(s):  
World War Ii ◽  
International Law ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
German Occupation ◽  
International Court ◽  
The World ◽  
The Icj ◽  
The Right ◽  
Italian Constitution

AbstractThe judgment of the Italian Constitutional Court (ItCC) of 22 October 2014 has set a bad precedent for international law by denying the implementation, within Italy, of the judgment of the International Court of Justice (ICJ) of 3 February 2012. The ICJ found that Italian courts and tribunals had violated German jurisdictional immunity by entertaining suits brought by Italian citizens against Germany on account of damages caused by war crimes committed during World War II by German occupation forces. According to a well-consolidated rule of general international law, no state may be sued before the courts of another state with regard to acts performed in the exercise of its sovereign power. In contravention of Article 94 of the UN Charter, the ItCC deemed it legitimate to discard that ruling because of the particularly grave character of many of the violations in question. It proceeded from the assumption that the right to a remedy established under the Italian Constitution was absolute and must apply even where the financial settlement of the consequences of armed conflict is at issue. However, it has failed to show the existence of any individual reparation claims and has omitted to assess the issue of war reparations owed by Germany in their broader complexity. The judgment of the ItCC might be used in the future as a pretext to ignore decisions of the World Court.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

scholarly journals Teaching the World Court Makes a Bad Case: Revisiting the Relationship Between Domestic Courts and the ICJ

2021 ◽  
pp. 259-280
Author(s):  
Raffaela Kunz
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
International Courts ◽  
International Court ◽  
Domestic Courts ◽  
The World ◽  
Effective System ◽  
The Icj ◽  
International Adjudication ◽  
The One

AbstractSentenza 238/2014 once more highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court (ItCC) also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. Sentenza 238/2014 suggests that domestic courts, in times of global governance and increased activity of international courts, see the role they play at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This chapter does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the International Court of Justice, in reality, more often than not, they have refused to do so, arguing that its judgments are not self-executing and thus deferring the implementation to the political branches. Assessing this practice, the chapter argues that domestic courts should take a more active stance and overcome the purely interstate view that seems at odds with present-day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the chapter cautions that there is a considerable risk of setting dangerous precedents by openly defying international judgments. Domestic courts should carefully balance the different interests at stake, namely an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand. The chapter finds that the ItCC’s attempt to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo

2011 ◽  
Vol 39 (1) ◽  
pp. 1-11 ◽  
Author(s):  
James Ker-Lindsay
Keyword(s):  
International Law ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Parent State ◽  
International Court ◽  
Narrow View ◽  
The Icj ◽  
The Right ◽  
Key Questions

For 60 years, the international community has limited the right of territories to gain independence without the permission of the “parent state.” Such limits were, however, challenged when Kosovo unilaterally declared independence from Serbia, in February 2008. As a result, Belgrade referred the matter to the International Court of Justice (ICJ). On 22 July 2010, it came back with its long-awaited decision. Taking a narrow view of the question, the majority argued that, in general, declarations of independence, as mere statements, do not violate international law unless stated otherwise by the Security Council. Thus, Kosovo's declaration of independence cannot be considered as being wholly “unique” – as those states that supported its statehood have claimed. On the key questions of whether Kosovo's secession is legal, or if it is even a state, they chose to avoid controversy. On these points, the international community is no clearer now than it was before the case.

scholarly journals A Story of ‘Trials and Errors’ That Might Have No Happy End

2021 ◽  
pp. 119-142
Author(s):  
Jörg Luther†
Keyword(s):  
World War Ii ◽  
Cultural Context ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Forced Labour ◽  
To Come

AbstractThe International Court of Justice (ICJ) and Italian Constitutional Court (ItCC) have created a deadlock between two diverging res iudicatae on state immunities and judicial remedies as well as a tension between two republics that do not share the same constitutional and international identities. In order to avoid a further spiralling of decisions, judges tried to promote the negotiation of ‘a happy outcome’ for a category of victims of war crimes that risk dying without being entitled to any compensation. This chapter analyses the general cultural context of ‘academic diplomacy’. Both state sovereignty and human solidarity could be maintained through a voluntary compensation for moral damages to the victims of massacres, deportation, and forced labour during World War II. The moral-responsibility approach suggested by the ICJ could be stronger than the legal-liability threat backed by the ItCC. A belated common solidarity funded by both German and Italian citizens and employers could be the best way out, but considering that many of the now elderly victims are approaching the end of their lifespans, it might be cynically too late. This could, paradoxically, help to remind the world of the injustices they suffered. Yet, on grounds of this tragic end, state immunity and fundamental rights might further be delegitimized in possible wars to come.

The History of Article 38 of the Statute of the International Court of Justice

2018 ◽  
Author(s):  
Ole Spiermann
Keyword(s):  
International Law ◽  
Case Law ◽  
Historical Records ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
The Icj ◽  
History Of

This chapter takes a look at Article 38 of the International Court of Justice (ICJ) Statute. This article intends to define so-called sources or origins of international law to be used by the World Court. The text dates back to 1920, before the predecessor of the ICJ, i.e. the PCIJ, took up its activities. The chapter notes that since 1920, Article 38 has featured prominently in the theory on so-called sources of international law, while the provision has been of little relevance in the case law of the International Court of Justice (ICJ) and its predecessor. Based mainly on historical records, the chapter seeks an explanation, which in turn may shed new light on sources theory.

The Principle of Proportionality from a Jus Ad Bellum Perspective

2016 ◽  
Author(s):  
Theodora Christodoulidou ◽  
Kalliopi Chainoglou
Keyword(s):  
International Law ◽  
Use Of Force ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Jus Ad Bellum ◽  
International Court ◽  
Legal Opinions ◽  
The Icj ◽  
Principle Of Proportionality ◽  
The Right

This chapter analyses the principle of proportionality from a jus ad bellum perspective and its application in the exercise of the right of self-defence, in the use of force to protect human rights, and against terrorism. It first gives an overview of the contemporary law of the use of force as codified in the UN Charter, followed by a discussion on proportionality in customary international law. It then considers the measures by which double proportionality is calculated and, in particular, how proportionality can be measured when it seeks to meet the general objective of the use of force. Finally, the chapter examines the concept of proportionality as reflected in the judicial decisions of the International Court of Justice (ICJ) and in the legal opinions of the ICJ judges.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

Simoncioni v. Germany

2015 ◽  
Vol 109 (2) ◽  
pp. 400-406
Author(s):  
Riccardo Pavoni
Keyword(s):  
Human Rights ◽  
Crimes Against Humanity ◽  
Access To Justice ◽  
Constitutional Court ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
The Right ◽  
Right Of Access

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

scholarly journals Criminal Proceedings Against Albers

2013 ◽  
Vol 107 (3) ◽  
pp. 632-638
Author(s):  
Filippo Fontanelli
Keyword(s):  
World War Ii ◽  
International Law ◽  
World War ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Court Of Appeal

In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.

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