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Published online by Cambridge University Press: 20 January 2017
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.
* This text was reproduced and reformatted from the text available at the International Court of Justice website (visited June 5, 2012) http://www.icj-cij.org/docket/files/143/16883.pdf.
1 Jurisdictional Immunities of the State (Ger. v. It., Greece intervening) Judgment, 51, ¶ 139 (Feb. 3, 2012), http://www.icj-cij.org/docket/files/143/16883.pdf [hereinafter Judgment].
2 Ferrini v. Federal Republic of Germany, Decision No. 5044/2004 (Mar. 11, 2004), 87 Rivista di diritto internazionale 539 (2004), 128 Google Scholar I.L.R. 658; Giovanni, Mantelli & Others, Order No. 14201 (May 29, 2008), 134 Foro italiano 1568 Google Scholar; Liberato, Maietta, Order No. 14209 (May 29, 2008), 91 Rivista di diritto internazionale 896 (2008)Google Scholar.
3 Judgment, supra note 1, ¶ 76. The tension between the decision of the Greek courts and the position Greece took when intervening in Jurisdictional Immunities is notable. See also Prefecture of Voiotia v. Germany, Case No. 11/2000, 129 I.L.R. 513 (Distomo case); Margellos v. Germany, Case No. 6/2002, 129 I.L.R. 52 (Margellos case); Italian Court of Cassation, Judgment of 6May 2008, 92 Rivista di diritto internazionale 594 (2009).
4 Kalogeropoulou & Others v. Greece & Germany, 2000-X Eur. Ct. H.R. 417.
5 Judgment, supra note 1, ¶ 41.
6 Id. ¶ 17.
7 Jurisdictional Immunities of the State (Ger. v. It., Greece intervening), Order, at 2 (July 6, 2010), http://www.icj-cij.org/ docket/files/143/16027.pdf [hereinafter Order].
8 Id. at 11.
9 Judgment, supra note 1, ¶ 44.
10 Id. ¶ 50.
11 European Convention on State Immunity, May 16, 1972, 11 I.L.M. 470 (1972); United Nations Convention on the Jurisdictional Immunities of States and their Property, Dec. 2, 2004, U.N. Doc. A/59/49, 44 I.L.M. 803 (2005) (not yet in force) [hereinafter UN Convention on State Immunity].
12 Judgment, supra note 1, ¶ 61.
13 Id. ¶ 61.
14 Id. ¶¶ 66-69.
15 Id. ¶ 78.
16 Id. ¶ 97.
17 Id. ¶ 82.
18 Id. ¶ 83.
19 Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 101, ¶ 61; Kalogeropoulou, supra note 4, at 537.
20 Judgment, supra note 1, ¶ 93.
21 Id. ¶ 95.
22 Id. ¶ 103.
23 Id. ¶¶ 101-102.
24 Id. ¶ 105.
25 Id. ¶ 106.
26 Id. ¶ 109.
27 UN Convention on State Immunity, supra note 11, art. 19. Article 19, ‘‘State immunity from post-judgment measures of constraint,’’ states:
No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or
(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or
(c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.
28 Judgment, supra note 1, ¶¶ 121-33.
29 Id. ¶ 132
30 Id. ¶ 127.
31 Id. ¶ 130.
32 Judgment, supra note 1 (dissenting opinion of Judge Cancado Trindade), http://www.icj-cij.org/docket/files/143/16891.pdf; id. (dissenting opinion of Judge Yusuf), http://www.icj-cij.org/docket/files/143/16893.pdf; id. (dissenting opinion of Judge Gaja), http://www.icj-cij.org/docket/files/143/16895.pdf.
33 See, e.g., Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty, 18 Eur. J. Int’l L. 903, 911 (2007).
34 Hazel Fox, The Law of State Immunity 151 (2d. ed. 2008)
35 See, e.g., Al-Adsani v. United Kingdom, 2001-XI. Before the ICJ decided Jurisdictional Immunities, a U.K. national named Sulaiman Al-Adsani filed an application with the ECtHR against the United Kingdom for denying him access to justice in English courts for jus cogens human rights abuses allegedly committed by Kuwait after the First Gulf War. Al-Adsani argued that the ECtHR should find that the U.K. courts had denied him justice and failed to protect his right not to be tortured by not dispensing with Kuwait’s jurisdictional immunity to hold it accountable for the jus cogens violations. The ECtHR rejected Al-Adsani’s application by a vote of nine to eight, distinguishing the application of immunity in civil and criminal claims.
36 Judgment, supra note 1, ¶ 104.
37 See Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 48, in Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), available at http://www.un.org/law/ilc.
38 See, e.g., Oil Platforms (Iran v. U.S.)1996 I.C.J. 803, 856, ¶ 32 (separate opinion of Judge Higgins).
39 See, e.g., Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), reprinted in 15 I.L.M. 1388 (1976) (providing that foreign states which have expropriated property in violation of international shall not enjoy immunity for such actions in U.S. courts).
40 Judgment, supra note 1, ¶ 82.
41 Id. ¶ 53 (‘‘[T]he Court is not called upon to decide whether these acts were illegal, a point which is not contested’’).
42 Hersch Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 Brit. Y.B. Int’l L. 220 (1951).
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