State Immunity and Human Rights: Is There a Future after Germany v. Italy?

Abstract

This article considers whether the recent decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) definitively draws the line under the question whether states enjoy jurisdictional immunity in cases involving allegations of human rights violations. The article first submits that the judgment is likely to foreclose the development of an exception to state immunity on the basis of the nature of the allegations alone. However, it argues that the Court's rejection of the so-called 'forum of last resort' exception to immunity may not be determinative. Rather, such an exception may still emerge in national and international courts mandated to assess the impact of the lack of alternative means available to address a claim on the right of access to a court. The article concludes with an assessment of the impact of the judgment on the availability of immunity ratione materiae to individuals in such cases. It offers analysis as to why immunity ratione materiae can be considered separately from that of the state in civil proceedings and explores whether the recognition of individual civil responsibility in international law could form a basis for an exception to immunity ratione materiae. © The Author (2012). Published by Oxford University Press. All rights reserved.