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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 Barker
One 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 Review

ISSN

1871-9740

Publisher

Brill Academic Publishers

Issue

4

Volume

15

Page range

415-436

Department affiliated with

  • Law Publications

Full text available

  • No

Peer reviewed?

  • Yes

Legacy Posted Date

2014-03-04

First Compliant Deposit (FCD) Date

2014-03-04

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