Jurisdictional Immunities of the State and Exequatur of Foreign Judgments: A Private International Law Evaluation of the Recent ICJ Judgment in Germany v. Italy

Abstract

AbstractThe article comments 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. It addresses the private international law aspects of the case, which are touched by the Court when dealing with the question whether Italian courts violated international rules on sovereign immunity by declaring enforceable judgments rendered by the Greek courts against Germany in respect of claims arising from the Distomo massacre. The article closely examines the reasoning of the ICJ, starting from the analysis of the historical and factual background of the decision in relation to proceedings involving Greek nationals. In evaluating the correctness and weakness of the reasoning made by the ICJ the author comments that while the Court correctly identifying exequatur proceedings as an exercise of jurisdictional power, it failed in qualifying the conduct of Italian courts as being inconsistent with the doctrine of sovereign immunity. On the one hand, from the public international law point of view, it did not take adequately into account the recent developments of this doctrine with regard to actions amounting to a grave violation of humanitarian law or to crimes against humanity. On the other hand, the Court of Justice rejected all the private international law reasoning followed by the various national courts confronted with the issue of the jurisdictional immunity of a third State which is allegedly responsible for acta jure imperii in violation of international jus cogens rules, by imposing the preliminary nature of State immunity from jurisdiction. As such it leads to the negative effects of preventing national courts from assessing the merits of the claims and from moving the international law of State immunity towards a more responsive direction to contemporary international law that demands a growing recognition of the rights of individuals vis-à-vis States. As such it could also have a negative impact on the practice of other international courts when facing similar issues.KeywordsNational CourtBrussels ConventionForeign JudgmentPeremptory NormSovereign ImmunityThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.