National court litigation in Greece and Italy prompted Germany to bring suit before the International Court of Justice ('ICJ'), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ's judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state's executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce 'outlier' decisions that challenge or undermine existing international law when the forum state's executive branch fails to take a position in the litigation? This commentary explores these two questions and explains their significance in light of current developments in immunity and universal jurisdiction cases.
II Customary International Law, National Courts and Executive Branches
III Theoretical Frames: International Law in Domestic Courts and the
IV Executive Branch Control of Transnational Litigation: A Global
It is a tumultuous time for the international law of state immunity. The traditional, sovereignty-based law of immunity that protects states from suit in foreign national courts has come under pressure generated by the logic and normative underpinnings of international human rights law, which demands accountability for egregious violations of human dignity. Despite the calls for change and the uncertainty they have produced, the International Court of Justice ('ICJ') recently reaffirmed, in strong and certain terms, the immunity of states from human rights claims made in foreign national courts. (1) The Jurisdictional Immunities of the State case was accordingly a landmark decision for the law of state immunity. It was also, however, an important decision in another respect. The ICJ case itself was based on national court litigation in Italy and Greece that applied international law but concluded that it did not afford immunity to Germany. Thus the impetus for the case was a much-discussed
development in the production and application of international law over the past few decades: the growth of international law in domestic courts. (2)
The decision itself relies more extensively on national court cases as evidence of state practice than any prior ICJ decision, confirming the important role for domestic courts in the development of customary international law, especially that of immunity. The underlying litigation in Italy and Greece, as well as the subsequent national court cases that rejected those decisions, also shed light on how and when national court decisions upset, and potentially change, settled norms of international law. This commentary considers these two aspects of the Jurisdictional Immunities of the State case: the use of national court decisions to show state practice and opinio juris and the process of domestic litigation that produces these national court decisions. It argues that both aspects raise questions about the relationship between courts and executive branches that have implications well beyond doctrinal developments in immunity.
Part II of this commentary discusses how the ICJ in the Jurisdictional Immunities of the State case relied upon national court cases to show state practice and opinio juris. The judgment does not fully explain how state practice should be determined in the face of national court cases and potentially conflicting practice by the forum state's executive branch, which has long posed difficulties in evaluating national court decisions. The same problem may arise in other immunity contexts and with respect to the extraterritorial application of the Alien Tort Statute ('ATS'), (3) where decisions of United States courts may be at odds with the views of the executive branch. …