International Law and the International Court of Justice's Decision in Jurisdictional Immunities of the State

By Bastin, Lucas | Melbourne Journal of International Law, November 2012 | Go to article overview

International Law and the International Court of Justice's Decision in Jurisdictional Immunities of the State


Bastin, Lucas, Melbourne Journal of International Law


CONTENTS

I    Introduction
II   The Background
       A The Factual Background
       B The Contested Doctrinal Background
III  The Proceedings before the Court
       A Incidental Proceedings
       B The Pleadings of the Parties in the Main Proceedings
       C The Decision of the Court
IV   International Law and the Decision of the Court
V    Conclusion

I INTRODUCTION

On 3 February 2012, the International Court of Justice ('ICJ' or 'Court') handed down its judgment in Jurisdictional Immunities of the State, (1) effectively ending a clear and persistent schism that had arisen between domestic courts on the question of state immunity for civil tort claims arising out of wartime atrocities.

On the one hand, some of the basic assumptions of international law had been challenged when courts in Greece and Italy held that the law of state immunity could not preclude a state from being sued before the civil courts of another state where the allegations concerned a serious breach of international human rights or humanitarian law or a breach of jus cogens norms. The rush of scholarly commentary following these decisions was voluminous and, in some instances, suggested that an exception to a state's immunity from civil suit in foreign courts was emerging in cases concerning breaches of jus cogens norms.

On the other hand, other jurisdictions had already rejected the argument that such an exception existed, at least in so far as their domestic legal systems would allow, although some courts also held that international law was similarly bereft of a jus cogens exception. In decisions criticised by some for their strict adherence to doctrine, these courts held that, unless an exception to the immunity of states had been prescribed in the governing legislation, it did not matter that the civil suit brought against the state concerned a peremptory norm of international law. This view of the issue also had scholarly support.

With the line in the sand having been drawn, the ICJ delivered its decision. This case note explains in detail the background, substance and ramifications of this decision. It first explains the background to the decision, summarising the facts leading to the case and the contested doctrinal issues before the Court. The case note then reviews the proceedings before the Court and the Court's decision itself, before lastly commenting on the decision's key points of significance for international law.

II THE BACKGROUND

A The Factual Background

The origins of the dispute are of historical notoriety. In September 1943, during the Second World War, Italy surrendered to the Allied Forces and declared war on Germany. Having previously been allied with Germany, much of Italy was occupied by German forces. From October 1943, German forces committed atrocities against Italian nationals in Italy. These atrocities included the mass killing of civilians and the deportation of both civilians and members of the Italian armed forces for use as forced labour in German-occupied territories. (2)

Shortly after the end of the Second World War the Treaty of Peace with Italy (3) was concluded between Italy and the Allied Forces. A number of issues were covered in the Treaty of Peace with Italy, including war reparations, minorities' rights and territorial adjustments. (4) Importantly, art 77(4) provided that Italy waived 'on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945', (5) with the exception of a limited category of claims and without prejudice to certain other rights acquired by Italy as part of the settlement (such as restitution of identifiable property). (6)

Following the Treaty of Peace with Italy, Germany took several other steps to compensate those who suffered during the National Socialist period, two of which were specific to Italy and its nationals. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

International Law and the International Court of Justice's Decision in Jurisdictional Immunities of the State
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.