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.

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.

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.

The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?

2013 ◽  
Vol 26 (1) ◽  
pp. 105-125 ◽  
Author(s):  
MATTEO SARZO
Keyword(s):  
International Law ◽  
The State ◽  
Dark Side ◽  
Individual Rights ◽  
Sensitive Questions ◽  
International Jurisdiction ◽  
State Immunity ◽  
Procedural Rule ◽  
The Icj ◽  
Definition Of

AbstractThe following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

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.

BOOK REVIEWSBOOK REVIEWSVicuñaFrancisco OrregoProfUniversity of Chile081990372286290KwiatkowskaB., The 200 Mile Exclusive Economic Zone in the New Law of the Sea, M. Nijhoff Publ., Dordrecht 1989, XXVIII + 397 pp. (Publications on Ocean Development 14), Dfl. 195/$ 105/£ 60.Copyright © T.M.C. Asser Press 19901990T.M.C. Asser PresspdfS0165070X00006628a.pdfdispartBook Reviews1.ExtavourW.C., The Exclusive Economic Zone, A Study of the Evolution and Progressive Development of the International Law of the Sea (1979).2.GundlingL., Die 200 Seemeilen – Wirtschaftszone, Entstehung eines neuen Regimes des Meeresvolkerrechts (1983).3.AttardD., The Exclusive Economic Zone in International Law (1987).4.VecchioA. Del, Zona Económica e stati constieri (1984).5.KwiatkowskaB., ‘The ICJ Doctrine of Equitable Principles Applicable to Maritime Boundary Delimitation and its Impact upon the International Law of the Sea’, in BloedA. and van DijkP., eds., Forty Years of the International Court of Justice: Jurisdiction, Equity and Equality(1988) pp. 119–158.6.VicuñaF. Orrego, ‘La Zone economique exclusive: regime et nature juridique dans le droit international

1990 ◽  
Vol 37 (02) ◽  
pp. 286
Author(s):  
Francisco Orrego Vicuña
Keyword(s):  
International Law ◽  
Exclusive Economic Zone ◽  
Law Of The Sea ◽  
Progressive Development ◽  
International Court ◽  
Maritime Boundary ◽  
The Icj ◽  
Economic Zone ◽  
Droit International ◽  
Maritime Boundary Delimitation

Italy’s Compliance With ICJ Decisions vs. Constitutional Guarantees: does the “Counter-limits” Doctrine matter?

2013 ◽  
Vol 22 (1) ◽  
pp. 185-200 ◽  
Author(s):  
Fulvio Maria Palombino
Keyword(s):  
International Law ◽  
The State ◽  
Access To Justice ◽  
Basic Principles ◽  
Constitutional Order ◽  
Res Judicata ◽  
International Legal Order ◽  
The Icj ◽  
The Right ◽  
Right Of Access

One of the most common obstacles to the domestic enforcement of international decisions is represented by the presence of a constitutional impediment. Indeed, most national constitutions, though open to international law, can prevent the implementation of an international decision, insofar as the latter conflicts with the basic principles of the constitutional order. This article argues that in such cases it is necessary to preserve a space where the State continues to retain full sovereignty and whose protection acts as an unbreakable “counter-limit” to the limitations deriving from the international legal order (“counter-limits” doctrine). Yet recent judicial and legislative practice in Italy concerning the implementation of the ICJ decision in Jurisdictional Immunities of the State seem to overlook the need to preserve this “space”. As a consequence, certain fundamental constitutional guarantees, such as the right of access to justice, the rule of res judicata and the principle of non-retroactivity of the law, have inescapably ended up being compromised.

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.

Jus CogensafterGermanyv.Italy: Substantive and Procedural Rules Distinguished

2012 ◽  
Vol 25 (4) ◽  
pp. 979-1002 ◽  
Author(s):  
STEFAN TALMON
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Rights Violations ◽  
Limited Effect ◽  
State Immunity ◽  
The Icj ◽  
Jus Cogens ◽  
The Relationship

AbstractIn the case concerningJurisdictional Immunities of the State, the ICJ held that rules ofjus cogensdid not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of ajus cogenscharacter generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules ofjus cogensand procedural rules of immunity are involved.

scholarly journals Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 4-8 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
War Crimes ◽  
The State ◽  
Crimes Against Humanity ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

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