International Law on State Immunity: The Critical Analysis of the International Court of Justice Case Germany Versus Italy and Greek Intervention

2012 ◽  
Author(s):  
Elidiana Shkira
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court

Case Analysis: The Gabčíkovo-Nagymaros Case Seen in Particular From the Perspective of the Law of International Watercourses and the Protection of the Environment

1998 ◽  
Vol 11 (2) ◽  
pp. 287-320 ◽  
Author(s):  
Johan G. Lammers
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Case Analysis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Rules And Principles ◽  
The Subject ◽  
State Succession ◽  
The Law

The subject-matter of this article is the Judgment of the International Court of Justice in the Gabčíkovo-Nagymaros case. Following an exposition of the relevant facts, it continues with a critical analysis of the Judgment of the Court. In addition to a brief analysis of the issues involving the law of treaties, the law of state responsibility, the law of state succession, and the treaty obligations of Hungary and Slovakia relating to the use of Danube water and the protection of its environment, it focuses on the rules and principles of general international law concerning the use of international watercourses and the protection of the environment that were applied by the Court in this case.

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.

Immunities and Criminal Proceedings; (Equatorial Guinea v. France)

2021 ◽  
Vol 191 ◽  
pp. 219-373
Keyword(s):  
International Law ◽  
Customary Law ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
International Court Of Justice ◽  
State Immunity ◽  
Optional Protocol ◽  
Court Of Justice ◽  
International Court ◽  
Settlement Of Disputes

International Court of Justice — Provisional measures — Diplomatic relations — Immunity of State officials and State property — Prima facie jurisdiction — United Nations Convention on Transnational Organized Crime, 2000 (“Palermo Convention”) — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Plausibility — Article 22 of Vienna Convention on Diplomatic Relations, 1961 — Inviolability of diplomatic premises — Whether building located at 42 Avenue Foch could plausibly be regarded as housing diplomatic mission of Equatorial Guinea — Irreparable prejudice — Urgency — Link between provisional measures requested and rights sought to be protected International Court of Justice — Jurisdiction — Palermo Convention — Whether references to customary international law incorporate those rules of customary law into the Convention — Sovereign equality of States — Whether dispute regarding alleged breach of customary law principle within jurisdiction of the Court under the Palermo Convention — Vienna Convention on Diplomatic Relations, Optional Protocol — Dispute regarding status of buildings claimed as premises of diplomatic mission International Court of Justice — Admissibility — Abuse of process — Abuse of rights — Whether reasons not to exercise jurisdiction under Optional Protocol to the Vienna Convention on Diplomatic Relations — Matter for preliminary objections — Whether exceptional circumstances existing — Whether Application inadmissible on that basis — Abuse of rights — Whether ground of inadmissibility when establishment of rights claimed properly a matter for merits Treaties — Palermo Convention — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Article 35(2) of Palermo Convention — Scope of jurisdiction ratione materiae under Palermo Convention — Article 4 of Palermo Convention — Incorporation of customary rules of international law on State immunity by reference to principles of sovereign equality, territorial integrity and non-intervention in internal affairs of other States — Alleged overextension of jurisdiction by France in implementing provisions of Palermo Convention 220Diplomatic relations — Vienna Convention on Diplomatic Relations, 1961 — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Articles II and III of Optional Protocol — Meaning of “premises of the mission” under Article 1(i) of Vienna Convention — Whether definition of “premises of the mission” falling within scope ratione materiae of Vienna Convention — Whether a dispute concerning inviolability of the building at 42 Avenue Foch State immunity — Jurisdictional immunity — Head of State immunity — Vice-President of State accused of misappropriation of funds and money laundering by authorities of another State — Whether entitled to immunity — Basis for any claim to immunity — Customary international law — Whether incorporated into Palermo Convention

The Immunity of Heads of States in US Courts after the Decision of the International Court of Justice

2003 ◽  
Vol 72 (3) ◽  
pp. 313-339 ◽  
Author(s):  
Simon de Smet
Keyword(s):  
International Law ◽  
The United States ◽  
International Court Of Justice ◽  
Customary International Law ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
The World ◽  
The U.S

AbstractThis article investigates the law of Head of State immunity in the United States in light of the recent decision by the International Court of Justice in the Arrest Warrant Case (DRC v. Belgium). It does so by analyzing the U.S. law and comparing it with the customary international law on Head of State immunity as laid out by the world court. The article demonstrates that there are two competing strands in the recent jurisprudence of U.S. courts, neither of which is in conformity with international law. The reasons for this discrepancy are examined and explained in light of the underlying debate about the role of customary international law in the U.S. constitutional system. In conclusion, the author suggests that the best solution to the current dilemma is for the U.S. courts to apply the rules on Head of State immunity as explained by the world court and avoid as much as possible interference by the executive.

The Effects of Framing International Legal Norms as Rules or Exceptions: State Immunity from Civil Jurisdiction

2013 ◽  
Vol 15 (2) ◽  
pp. 143-170 ◽  
Author(s):  
Katherine Del Mar
Keyword(s):  
International Law ◽  
Customary Law ◽  
International Court Of Justice ◽  
Underlying Assumption ◽  
Customary International Law ◽  
Legal Norms ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Alternative Understanding

Abstract The finding by the International Court of Justice in the case concerning Jurisdictional Immunities of the State that Italy violated its obligation to respect Germany’s immunity from civil jurisdiction comes as no surprise. The anticipated conclusion of the Court is the outcome of the powerful tradition of framing State immunity as a rule to which an exercise of jurisdiction by a domestic court is an exception expressly established under customary international law. As technically faultless as this finding may appear, it sits uncomfortably with deeper, structural developments in international law that challenge the very application of the ‘rule-exceptions’ framework of State immunity. This article questions the underlying assumption upon which the Court’s judgment is premised: that State immunity operates as a predominant rule, to which only exceptions that are established under customary law can apply, and it proposes an alternative understanding of the doctrine of State immunity.

IMMUNITY FOR INTERNATIONAL CRIMES: A REAFFIRMATION OF TRADITIONAL DOCTRINE

2002 ◽  
Vol 61 (2) ◽  
pp. 239-294 ◽  
Author(s):  
Xiaodong Yang
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
Republic Of The Congo ◽  
Head Of Government

InArrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decided on 14 February 2002, the International Court of Justice held that an incumbent Minister for Foreign Affairs was immune from criminal proceedings before a foreign domestic court, even if the charges involved crimes against humanity. Human rights advocates might well regard this decision as a serious setback. Decided against a widespread euphoria brought forth by, and largely due to a neglect of an important dictum in, the historic holding in Pinochet No. 3 [2000] 1 A.C. 147, the case serves further to clarify a crucial point of State immunity in current international law. The Pinochet case dealt with the immunity of a former, as opposed to a serving, Head of State. While the majority of the Law Lords only mentioned in passing that the immunity enjoyed by a serving Head of State ratione personae was absolute, the International Court of Justice stated, in unambiguous language, that: … in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.

Negotiating the Complex Interface between State Immunity and Human Rights: An Analysis of the International Court of Justice Decision in Germany v. Italy

2013 ◽  
Vol 15 (4) ◽  
pp. 415-436
Author(s):  
J. Craig Barker
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Alternative Vision ◽  
United Nations Convention ◽  
Human Rights Norms ◽  
The Relationship

Abstract One of the most controversial areas of contemporary international law is the interface between immunities and human rights. International immunities have been successfully challenged on human rights grounds in certain jurisdictions. However, to date, no international court tribunal has endorsed such challenges. In its judgment in Germany v. Italy the International Court of Justice re-asserted the conservative approach to the relationship between State immunity and human rights, which rejects the claim that State immunity is “trumped” by hierarchically superior human rights norms. This article examines the Court’s reasoning, before turning to consider the alternative vision of the interface between State immunity and human rights presented by Judge Cinçado Trindade. While persuasive, Trindade’s analysis must ultimately be rejected. The overtly positivist and formalistic approach of the Court, which is itself open to criticism, was, nevertheless, necessitated by the failure of States to provide for a human rights exception in the United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, signifying a strong opinio juris against the further limitation of State immunity at the present time. Nevertheless, the Court carefully sought to limit the effects of its judgment by limiting its focus to the specific questions before it.

Introductory Note

2017 ◽  
Author(s):  
John G. Merrills
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Introductory Note

In 2015 the International Court of Justice (ICJ) gave three judgments and made a number of orders. In various ways this jurisprudence, although modest in extent, contributed to the elucidation of international law on several procedural, as well as substantive matters. In that year no new cases were begun, but one case was discontinued. At the beginning of 2016 there were therefore ten cases on the Court’s docket. The Court’s work in 2015 demonstrates that through its decisions it continues to assist states to resolve their international disputes peacefully and at the same time to contribute to the clarification and development of international law.

Consolidation of Statehood through Membership in the UN: Some Remarks on Kosovo, Democracy and International Law

2018 ◽  
Vol 43 (3) ◽  
pp. 331-349
Author(s):  
Iliriana Islami ◽  
Remzije Istrefi
Keyword(s):  
Foreign Policy ◽  
United Nations ◽  
International Law ◽  
State Building ◽  
Former Yugoslavia ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Building Process

Kosovo declared its independence on 17 February 2008. Subsequently, one of the aims of Kosovo’s foreign policy was to further consolidate this position and to justify Kosovo’s prospective membership in the United Nations. This article examines the issue of recognition, elucidating how Kosovo is different from other countries and comparing it with the case of the former Yugoslavia. Other aspects in the state-building process such as ‘building constitutionalism’ will be presented as a step toward justifying recognition and membership. Furthermore, the Advisory Opinion of the International Court of Justice (ICJ) of 8 October 2008 will be presented as evidence of Kosovo’s strengthening international position in its quest for further recognition. Thus, the article will discuss and analyze the arguments in favor of Kosovo being admitted to the UN.

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