The Jurisdictional Immunities case 10 years on: doctrinal enthusiasm not matched in practice

Ten years have passed since the International Court of Justice has delivered its judgment on Jurisdictional Immunities (Germany v Italy). As I explained earlier here, here, here, and here, the Court’s reasoning was deficient on legal as well as on moral grounds. More specifically, the Court has distorted the meaning of acts jure imperii, took a rather loose approach to the criteria of identification of the existence of customary rules of international law, and further denied that immunity should be refused to a foreign State when their grant violates peremptory norms of general international law. Substantive peremptory norms do not, according to the Court, conflict with State immunity which is merely of procedural character; even though, the same Court used in the same case the same immunity as substantive rules providing the cause of action to Germany against Italy. When it came to overriding effect of jus cogens, the same rules experienced an awkward metamorphosis and became procedural rules.

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