Negotiating the complex interface between state immunity and human rights: an analysis of the international court of justice decision in Germany v Italy

Barker, J Craig (2013) Negotiating the complex interface between state immunity and human rights: an analysis of the international court of justice decision in Germany v Italy. International Community Law Review, 15 (4). pp. 415-436. ISSN 1871-9740

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Abstract

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.

Item Type: Article
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law > KZ Law of Nations
Related URLs:
Depositing User: Craig Barker
Date Deposited: 04 Mar 2014 09:08
Last Modified: 08 Mar 2017 08:51
URI: http://sro.sussex.ac.uk/id/eprint/47663

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