scholarly journals Jurisdictional Immunities of the State in International Law

2019 ◽  
pp. 227-250
Author(s):  
Paul Gragl
Keyword(s):  
International Law ◽  
The State ◽  
Humanitarian Law ◽  
Foreign National ◽  
International Court Of Justice ◽  
National Courts ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Substantive Law

This chapter discusses the main and most pressing legal issues concerning jurisdictional immunities of the state in international law, specifically looking at the most recent international decision on the scope of state immunity—the Jurisdictional Immunities case of the International Court of Justice (ICJ). The 2012 judgment by the ICJ in the Jurisdictional Immunities case has reinvigorated the debate surrounding the question whether states enjoy immunity before the courts of other states in questions of grave human rights violations and violations of international humanitarian law. Jurisdictional immunity is not absolute anymore, and it is now accepted that private law acts of states can be subjected to adjudication before foreign national courts, whereas public law acts cannot. This raises the question of whether the plea for immunity still is a purely procedural principle or whether it is now also shaped by questions of substantive law.

Identifying Conflicts of Norms: The ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 25 (4) ◽  
pp. 1003-1012 ◽  
Author(s):  
FRANÇOIS BOUDREAULT
Keyword(s):  
International Law ◽  
The State ◽  
Humanitarian Law ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
German Reich

AbstractThe potential for conflicts of norms is particularly great in modern international law. Yet until now, the International Court of Justice has said very little as to what it considers a conflict of norms. The opportunity to do so arose in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). There, it was argued that granting Germany sovereign immunity in proceedings before Italian courts involving civil claims for violations of international humanitarian law (IHL) committed by the German Reich between 1943 and 1945 would come in conflict with prevailing peremptory (jus cogens) norms of international law. In its 3 February 2012 Judgment, the ICJ rejected this argument. In the present article, the author argues that the conceptions of conflict of norms underlying the Court's judgment and the dissent of Judge Cançado Trindade both have weaknesses. The author suggests an alternative framework to ascertain conflicts of norms. He then applies this framework to the rules of state immunity and the IHL rules breached by Germany, agreeing in the end with the conclusion reached by the majority of the ICJ that these rules did not conflict.

A HISTORIC DECISION OF THE ITALIAN CONSTITUTIONAL COURT ON THE BALANCE BETWEEN THE ITALIAN LEGAL ORDER’S FUNDAMENTAL VALUES AND CUSTOMARY INTERNATIONAL LAW

2015 ◽  
Vol 24 (1) ◽  
pp. 37-52
Author(s):  
Giuseppe Cataldi
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Constitutional Court ◽  
Customary International Law ◽  
National Courts ◽  
State Immunity ◽  
Italian Law ◽  
The Icj ◽  
Fundamental Values

In judgment No. 238 of 22 October 2014, the Italian Constitutional Court ruled on the legitimacy of certain norms of the Italian legal order which relate to the implementation of the International Court of Justice’s (ICJ) judgment in theJurisdictional Immunities of the State case. In this case the Court found that customary international law concerning State immunity for war crimes and crimes against humanity could not enter the Italian legal order, as it was incompatible with the basic principles of the Italian Constitution. Judgment No. 238/2014 thus reveals a key connection between domestic fundamental values and internationally recognized values. If this connection exists, national courts should decline to give effect to an international decision if it contravenes a fundamental obligation under national as well as international law. Thus, domestic courts may play the role of defenders of the international rule of law from international law itself. According to international law, as well as Italian law, there is no doubt that enforcement of an ICJ decision is mandatory for the State to which the decision is directed. In the case under review, however, the requirement to implement the ruling of the ICJ was set aside in order to defer to the requirement to respect the fundamental values of the Italian legal system, in accordance with the theory of “counter-limits” as developed by the Constitutional Court. This conclusion appears also consistent with the German order, which renders quite weak any possible reaction, or protest, by that State.

scholarly journals Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law

2021 ◽  
pp. 337-342
Author(s):  
Andreas L. Paulus
Keyword(s):  
International Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
International Court Of Justice ◽  
State Immunity ◽  
International Court ◽  
The 1960S ◽  
The One ◽  
Substantive Law ◽  
Domestic Law

AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.

scholarly journals State Immunity Before the International Court of Justice: Jurisdictional Immunities of the State (Germany v Italy)

2013 ◽  
Vol 44 (1) ◽  
Author(s):  
Matthew McMenamin
Keyword(s):  
World War Ii ◽  
Armed Forces ◽  
The State ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
German Armed Forces ◽  
Court Of Justice ◽  
International Court ◽  
Jus Cogens

The International Court of Justice recently gave judgment in Jurisdictional Immunities of the State. The case concerned German state immunity from civil claims brought in Italian courts by victims of serious violations of international humanitarian law committed by German armed forces during World War II. The Court offered a valuable clarification of the relationship between state immunity and jus cogens norms at customary international law. The conservative reasoning was thorough and extensive and the decision is likely to ossify the evolution of state immunity.

State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State

2012 ◽  
Vol 13 (6) ◽  
pp. 773-782 ◽  
Author(s):  
Paul Christoph Bornkamm
Keyword(s):  
Human Rights ◽  
The State ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Legal Proceedings ◽  
State Immunity ◽  
Court Of Justice ◽  
European Court ◽  
International Court

The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

The International Court of justice: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2012 ◽  
Vol 51 (3) ◽  
pp. 563-605
Author(s):  
Ben Love
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
German State ◽  
Commercial Property ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
German Reich

On February 3, 2012, the International Court of Justice (‘‘ICJ’’ or ‘‘Court’’) issued a widely-anticipated judgment in a dispute over state immunity between Italy and Germany. The Court found that Italy violated its international law obligation to respect the jurisdictional immunity of the German state by: (i) allowing individuals to bring civil claims against Germany in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945; (ii) declaring Greek judgments finding similar international law violations by Germany enforceable in Italy; and (iii) taking measures of constraint against public and non-commercial property owned by Germany in Italy. The Court accordingly found that Italy must ensure that the decisions of its courts infringing upon Germany’s immunity cease to have effect.

The Judgement of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks

2003 ◽  
Vol 16 (2) ◽  
pp. 253-267 ◽  
Author(s):  
JAN WOUTERS
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
International Criminal Law ◽  
International Court Of Justice ◽  
Great Opportunity ◽  
Customary International Law ◽  
Arrest Warrant ◽  
National Courts ◽  
International Court ◽  
The Icj

The author critically analyzes the judgement rendered by the ICJ on 14 February 2002, in the Arrest Warrant of 11 April 2000 case. The Court's reasoning is criticized for both its poor motivation in acknowledging the existence of a rule of customary international law, providing for absolute inviolability and immunity for incumbent ministers for foreign affairs before the national courts of other states, and for the rather theoretical manner in which the Court asserts that immunity does not amount to impunity. It is also regretted that the Court did not pronounce on the issue of universal jurisdiction, thereby missing a great opportunity to clarify a controversial but increasingly important issue of international (criminal) law.

Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice (ICJ) of 3 February 2012 inJurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)

2013 ◽  
Vol 14 (9) ◽  
pp. 1817-1850 ◽  
Author(s):  
Hermann-Josef Blanke ◽  
Lara Falkenberg
Keyword(s):  
Human Rights ◽  
War Crimes ◽  
The State ◽  
Federal Republic Of Germany ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Compensation Claims

On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.

On membership of the United Nations and the State of Palestine: A critical account

2021 ◽  
pp. 1-24
Author(s):  
Ardi Imseis
Keyword(s):  
United Nations ◽  
International Law ◽  
The United States ◽  
The State ◽  
International Court Of Justice ◽  
International Court ◽  
Main Driver ◽  
The Icj ◽  
Judicial Proceedings ◽  
The United Nations

Abstract Against the context of pending judicial proceedings between the State of Palestine and the United States of America (US) at the International Court of Justice (ICJ), this article critically examines the United Nations (UN) commitment to the international rule of law through an examination of its consideration of Palestine’s 2011 application for membership in the organization. The universality of membership of the UN is a foundation upon which the organization rests. The international law governing UN admission has accordingly been marked by a liberal, flexible and permissive interpretation of the test for membership contained in the UN Charter. In contrast, an assessment of the UN’s consideration of Palestine’s application for membership demonstrates that it was subjected to an unduly narrow, strict and resultantly flawed application of the membership criteria. An examination of the contemporaneous debates of the Council demonstrates that the main driver of this was the US, which used its legal authority as a permanent member of the Council to block Palestine’s membership. The principle argument used against membership was the US’s view that Palestine does not qualify as a state under international law. Notwithstanding, the State of Palestine has been recognized by 139 member states of the UN and has acceded to a number of treaties that furnish it with access to the ICJ. While a number of articles have been written about Palestine’s statehood, little has been written on the UN’s consideration of Palestine’s 2011 application for membership. Palestine v. USA provides a renewed opportunity to do so.

Il rapporto fra norme di ius cogens e la regola sull'immunitŕ degli Stati: alcune osservazioni critiche sulla sentenza della Corte internazionale di giustizia del 3 febbraio 2012

2012 ◽  
pp. 310-326
Author(s):  
Mazzeschi Riccardo Pisillo
Keyword(s):  
International Law ◽  
War Crimes ◽  
The State ◽  
Crimes Against Humanity ◽  
Access To Justice ◽  
Progressive Development ◽  
State Immunity ◽  
International Court ◽  
The Icj ◽  
The Individual

The ICJ judgment concerning jurisdictional immunities of the State (Germany v. Italy) is disappointing both for its general approach and for its legal grounds. It shows a traditional, positivistic, conservative and state-centered conception of international law and does not offer any opening towards a progressive development of such law. Moreover some legal arguments of the Court are not convincing. In particular, the Court does not deepen the main issue of the dispute, that is, the possible conflict between the customary norm on foreign State immunity and the customary norms on prohibitions of war crimes and of crimes against humanity by all States, which belong to ius cogens. But the Court avoids dealing with the problem of ius cogens, by simply stating that there is no conflict between the former and the latter norms, because "the two sets of rules address different matters". This argument is quite formalistic and is not convincing, because the procedural character of the rule on immunity does not prevent the judge from dealing with the merits of the dispute, by establishing the nature of the State conduct and the possible existence of an exception to immunity. In any case, the argument of the Court could have been overcome by maintaining that: 1) contemporary international law provides for two customary rules giving the individual victim a right of access to justice and a right to obtain reparation when he suffered war crimes and crimes against humanity committed by a State; 2) these rules do not have, usually, a peremptory character, but they become peremptory when they are absolutely the only means to redress the breach of a ius cogens rule, such as the prohibition of war crimes and of crimes against humanity; 3) in such a case, there is a true conflict between the instrumental and peremptory rules on access to justice and reparation and the rule on State immunity; 4) this conflict cannot be avoided by saying that the two sets of rules address different matters; 5) the conflict should be solved through the predominance of the rules on access to justice and reparation over the rule on State immunity, because customary norms of ius cogens prevail over simple customary norms. Perhaps the International Court of Justice was not ready to accept these arguments, which aim at strengthening the role of human rights, of the individual and of ius cogens in contemporary international law. But the Court could, at least, have dealt more closely with them and paid some attention to the progressive development of international law.

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