File(s) under permanent embargo
Negotiating the complex interface between state immunity and human rights: an analysis of the international court of justice decision in Germany v Italy
journal contribution
posted on 2023-06-08, 16:48 authored by J Craig BarkerOne of the most controversial areas of contemporary international law is the interface between immunities and human rights. International immunities have been successfully challenged on human rights grounds in certain jurisdictions. However, to date, no international court tribunal has endorsed such challenges. In its judgment in Germany v. Italy the International Court of Justice re-asserted the conservative approach to the relationship between State immunity and human rights, which rejects the claim that State immunity is “trumped” by hierarchically superior human rights norms. This article examines the Court’s reasoning, before turning to consider the alternative vision of the interface between State immunity and human rights presented by Judge Cinçado Trindade. While persuasive, Trindade’s analysis must ultimately be rejected. The overtly positivist and formalistic approach of the Court, which is itself open to criticism, was, nevertheless, necessitated by the failure of States to provide for a human rights exception in the United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, signifying a strong opinio juris against the further limitation of State immunity at the present time. Nevertheless, the Court carefully sought to limit the effects of its judgment by limiting its focus to the specific questions before it.
History
Publication status
- Published
File Version
- Published version
Journal
International Community Law ReviewISSN
1871-9740Publisher
Brill Academic PublishersExternal DOI
Issue
4Volume
15Page range
415-436Department affiliated with
- Law Publications
Full text available
- No
Peer reviewed?
- Yes
Legacy Posted Date
2014-03-04First Compliant Deposit (FCD) Date
2014-03-04Usage metrics
Categories
No categories selectedKeywords
Licence
Exports
RefWorks
BibTeX
Ref. manager
Endnote
DataCite
NLM
DC