Immunity of foreign States from jurisdiction in civil matters as a customary rule automatically incorporated into the Italian legal order by virtue of Article 10, paragraph 1, of the Italian Constitution – Compensation for victims of gross human rights violations committed during World War II – Human rights exception to immunity from jurisdiction – Tort exception to immunity from jurisdiction – Abuse of sovereignty theory – Normative hierarchy theory – Generally recognised norms of international law protecting the liberty and the dignity of every human being as jus cogens – Gross violations of human rights as international crimes – Effects of international judgments within national proceedings. Corte di Cassazione (Sez. I civile), 20 May 2011, No. 11163. Germany v. Prefecture of Voiotia (Greece)

2011 ◽  
Vol 21 (1) ◽  
pp. 357-365
Author(s):  
Daniele Amoroso
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Legal Order ◽  
Hierarchy Theory ◽  
Human Being ◽  
World War ◽  
International Crimes ◽  
Jus Cogens ◽  
Italian Constitution

La sentenza della Corte internazionale di giustizia relativa al caso Germania c. Italia: profili di diritto intertemporale

2012 ◽  
pp. 335-349
Author(s):  
Fabrizio Marongiu Buonaiuti
Keyword(s):  
World War Ii ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
World War ◽  
International Crimes ◽  
State Immunity ◽  
The Icj ◽  
The Law ◽  
Jus Cogens

The author comments on the judgment delivered by the ICJ on 3rd February 2012 in the case of Germany v. Italy, concerning jurisdictional immunity of the State against actions for compensation in respect of crimes committed during World War II. The article focuses on the intertemporal law aspects of the case, commenting that the ICJ, while correctly identifying State immunity rules as having a procedural nature, failed in clarifying that whenever their application requires a qualification of the relevant facts, this is to be performed pursuant to the law in force at the time they were committed. Arguably, at the time of the conflict, the category of jus cogens norms had not yet been sufficiently established, nor had a special regime of State responsibility for international crimes or for serious breaches of peremptory rules of general international law developed yet. Therefore, the supposed prevalence of the breached norms on State immunity rules, which the ICJ has correctly excluded due to the different nature of either set of rules, arguably was to be excluded for intertemporal reasons altogether.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

scholarly journals Jews or Germans? Nationality Legislation and the Restoration of Liberal Democracy in Western Europe after the Holocaust

2013 ◽  
Vol 31 (2) ◽  
pp. 391-422
Author(s):  
David Fraser ◽  
Frank Caestecker
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
World War I ◽  
Western Europe ◽  
Legal Status ◽  
The State ◽  
Legal Order ◽  
World War ◽  
International Convention ◽  
Paradoxical Situation

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntaryHeimatlos,precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewishapatridesdiscovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.

The Evolving International Human Rights System

2006 ◽  
Vol 100 (4) ◽  
pp. 783-807 ◽  
Author(s):  
Thomas Buergenthal
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
World War I ◽  
International Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
World War ◽  
International Human Rights ◽  
International Human ◽  
American Society

Few, if any, branches of international law have undergone such dramatic growth and evolution as international human rights in the one hundred years since the founding of the American Society of International Law. This branch of international law did not really come into its own until after World War II. Before then, what today we would broadly characterize as human rights law consisted of diffuse or unrelated legal principles and institutional arrangements that were in one way or another designed to protect certain categories or groups of human beings. Included in this mix prior to World War I were state responsibility for injuries to aliens, international humanitarian law (as we know it today), the protection of minorities, and humanitarian intervention.

Gli effetti della sentenza internazionale nell'ordinamento italiano: il caso Germania c. Italia

2012 ◽  
pp. 350-370
Author(s):  
Francesco Salerno
Keyword(s):  
World War Ii ◽  
Access To Justice ◽  
World War ◽  
Diplomatic Protection ◽  
Legal Effect ◽  
Primary Rule ◽  
The Icj ◽  
Jus Cogens ◽  
Right Of Access ◽  
Italian Constitution

Article 10, para. 1, of the Italian Constitution ensures respect, within the Italian legal order, of the Judgment rendered by the ICJ on the 3rd of February 2012, in the Germany v. Italy case. By condemning Italy, the ICJ prevented those damaged by the wrongful acts perpetrated by Germany during World War II to claim compensation before the Italian courts. According to the ICJ, States can rely on immunity even for acts jure imperii in violation of jus cogens rules on armed conflict. Although this conclusion seems at variance with Articles 40-41 of the ILC Draft Articles on State Responsibility, national judges are bound by it. This obligation arises both from the primary rule Italy has violated, and from the obligation of reparation the ICJ placed upon Italy, calling on it to deprive of any legal effect all national judgments delivered so far against Germany. The Italian Constitution - under Article 10, para. 1, - allows for derogations on the constitutionally protected right of access to justice (Article 24) only insofar as equivalent remedies exist. Since there is no judicial alternative readily available to private individuals damaged by Germany during World War II, such individuals have a constitutionally protected right to call on Italy to exercise its diplomatic protection against Germany.

Introduction: Trumping International Law?

2018 ◽  
Author(s):  
Harold Hongju Koh
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Global Governance ◽  
Islamic State ◽  
World War ◽  
Legal Process ◽  
Spheres Of Influence ◽  
Transnational Legal Process

How to resist President Donald Trump’s assault on international law? This introduction sketches the tripartite plan of this book. First, it discusses a counterstrategy of resistance based on transnational legal process. Second, it illustrates that counterstrategy with respect to immigration and refugees, and human rights; the Paris Climate Change Agreement, the Iran Nuclear Deal, and trade diplomacy; with countries of concern such as North Korea, Russia, and Ukraine; and with respect to America’s wars: Al Qaeda, Islamic State, Afghanistan, and Syria. Third, it reviews what broader issues are at stake in the looming battle between maintaining the post-World War II framework of Kantian global governance versus shifting to an Orwellian system of authoritarian spheres of influence.

scholarly journals The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime

2019 ◽  
Vol 18 (3) ◽  
pp. 551-643
Author(s):  
Matthew Garrod
Keyword(s):  
World War Ii ◽  
International Law ◽  
Universal Jurisdiction ◽  
World War ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Crimes ◽  
Court Of Justice ◽  
International Court ◽  
State Practice

Abstract Since the 1980s, the idea that piracy is the “original” and “paradigmatic” universal jurisdiction crime in customary international law has been increasingly supported by weighty scholarship. In the wake of the unprecedented surge in Somali piracy, this view is gaining ground among various powerful actors in international law. Yet, remarkably little empirically grounded scholarship exists in support of universal jurisdiction. This Article provides the first comprehensive empirical analysis of state practice in response to Somali piracy in a ten-year period since 2006. Additionally, the data on Somali piracy are compared with the empirical findings of state practice regarding international crimes, which are more “heinous” than piracy, since the end of World War II to 2016. In so doing, this Article brings new insight and the first thorough critique of what most scholars, governments, the UN and even the International Court of Justice have said on universal jurisdiction, its purpose and the basis for it in international law. In view of inter-state tensions and conflict caused by universal jurisdiction and a move towards law codification, there is now a pressing need for a paradigm shift in the concept of universal jurisdiction for both piracy and international crimes, a step away from conventional scholarly accounts, and the grand narratives from which they proceed, to a position that has a solid basis in the actual practice of states. Empirically and historically informed, it is proposed that “universal jurisdiction” for both categories of crime provides a basis in international law permitting the exercise of national criminal jurisdiction over offences involving foreign nationals abroad that have a close nexus between the case over which jurisdiction is asserted and the state asserting jurisdiction. Common and traditionally held assumptions that universal jurisdiction is based solely on the grave nature of crimes and is applied by states absent any nexus to offences and in the interest of the international community are unfounded.

Do Religion and Human Rights Interact?

2008 ◽  
Vol 15 (2-3) ◽  
pp. 403-411
Author(s):  
Natan Lerner
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Significant Contribution ◽  
Critical Examination ◽  
Islamic State ◽  
World War ◽  
Considerable Part ◽  
Individual Contributions ◽  
The Subject

AbstractThe two reviewed books belong to a series of “Studies in Religion, Secular Beliefs and Human Rights” published by Martinus Nijhoff. Both constitute a significant contribution to the literature on religion and human rights that developed in the last decade, after many years of neglect of the subject. Both are collective books and the outcome of international conferences. They deal with diverse aspects of the interaction between religion and human rights and international law. A recurrent question is to what extent has religion influenced human rights or if these are a post World War II and post-Holocaust phenomenon, strictly secular. Does God Believe in Human Rights? contains an introduction and 14 essays. The volume Religion, Human Rights and International Law is subtitled A Critical Examination of Islamic State Practices, a subject to which a considerable part of the volume is devoted. It contains 18 individual contributions, in addition to introductory reflections by the editors.

scholarly journals Reconciling State Immunity with Remedies for War Victims in a Legal Pluriverse

2021 ◽  
pp. 3-35
Author(s):  
Anne Peters ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Human Rights Violations ◽  
World War ◽  
State Immunity ◽  
Modest Proposal ◽  
War Victims ◽  
Domestic Law

AbstractThe chapter explains the threefold aspiration of the book as an academic, societal, and diplomatic project. It introduces the three interwoven themes of international law arising in the German-Italian saga: state immunity, reparation for serious human rights violations committed during World War II, and the interplay between international and domestic law, notably the role of courts therein. The chapter proposes an approach of ‘ordered pluralism’ to coordinate this interplay, and finally tables a ‘modest proposal’ for a way out of the current impasse.

Coordination of Different Principles and Values in International Law

2019 ◽  
Vol 61 (1) ◽  
pp. 209-250
Author(s):  
Riccardo Pisillo Mazzeschi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Legal Order ◽  
Transition Phase ◽  
Access To Justice ◽  
A Value ◽  
International Legal Order ◽  
Jus Cogens ◽  
Ideological Change

The theme of coordination between different principles and values is becoming central to contemporary international law. This is because the latter has become a broad and complex legal system and is going through a phase of profound transformation. This also implies a paradigmatic and ideological change of the international legal order, which tends to shift from a law of rules to a law of values. In this transition phase, conflicts occur especially between the principles of ‘old’ international law and the principles of ‘new’ international law. In this paper it is claimed that, in international law, three different methods are used to try to resolve the antinomies between conflicting principles: a) a ‘traditional positivist’ method; b) a ‘modern positivist’ method; c) a ‘value-based’ method. These three methods are strictly linked to three different conceptions on the sources of general international law and on the means for identification of that law. This article examines separately the three methods and the practical results to which they arrive, using as a main example the conflict between principles on international immunities and principles on fundamental human rights. The conclusion is that the interpreter should today avoid the ‘traditional positivist’ method, because it is now unsuitable for the reality of contemporary international law. Instead, he should use both the ‘modern positivist’ method and the ‘value-based’ method, coordinating them among themselves. Keywords: Conflicting Principles, Antinomies, Sources of International Law, Jus Cogens, Immunities, Fundamental Human Rights, Access to Justice, Balancing

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