THE JUDGMENT OF THE INTERNATIONAL COURT OF JUSTICE ON THE IMMUNITY OF FOREIGN STATES: A MISSED OPPORTUNITY

Abstract

According to the author, the immunities of foreign States (or their organs) are becoming increasingly unacceptable in a world which does not tolerate privileges or the impossibility for individuals to assert their rights. In the decision under review, the ICJ was not able to give any signal in the direction of the progressive development of international law, at least with regard to disputes on gross violations of human rights, as it had done in other occasions (see, for instance, the obiter dictum on erga omnes obligations in the decision of 1970 in the case of the Barcelona Traction). In particular, no signal was given as far as the last resort argument advanced by Italy was concerned, i.e. that under the circumstances of the case, the denial of immunity to Germany was justified since no remedy alternative to Italian courts was available to the victims of the Nazi crimes in question. This notwithstanding the existence of some State practice which could be used to support that argument. The author hopes that the Italian judgments which led to the dispute between Italy and Germany will convince the courts of other jurisdictions to abandon the attitude favoring State immunity in cases relating to serious violations of human rights, similarly to what occurred in the 1920s, when Italian courts advocating the distinction between acts jure imperii and jure gestionis were gradually followed by the courts of other States. The matter is very much in the hands of domestic courts and it is up to them to overcome the excessive conservatism of the ICJ.