Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights
MAX PLANCK YEARBOOK OF UNITED NATIONS LAW, Vol. 16, pp. 1-34, A. von Bogdandy, R. Wolfrum, eds., 2012
34 Pages Posted: 16 Sep 2012 Last revised: 29 Oct 2012
Date Written: September 16, 2012
Abstract
The present essay critically analyses the ICJ’s ruling in Jurisdictional Immunities of the State (Germany v. Italy). To contextualize the Court’s judgment the essay begins with a brief reflection on the law of state immunity and recalls the historical and factual background of the case. The essay then discusses the ICJ’s analysis of the claims of the parties. The main focus is not a challenge of the conclusions of the Court based on a positivist approach to customary international law. Instead, it is argued that faced with a methodological challenge and an institutional dilemma concerning the determination of customary international law, the Court opted for an approach which did not serve the progressive development of international law well.
Keywords: ICJ, state immunity, human rights, customary international law
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