Smooth Runs the Water Where the Brook is Deep: The Obscured Complexities of Germany v. Italy

Cambridge Journal of International and Comparative Law (1)1: 153–168 (2012), (DOI: 10.7574/cjicl.01.01.33)

16 Pages Posted: 14 Jul 2012  

Alex Mills

University College London, Faculty of Laws

Kimberley Natasha Trapp

Faculty of Laws, UCL

Date Written: 2012

Abstract

This article examines and critiques the February 2012 decision of the International Court of Justice in the case of Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The focus is on three issues: first, the Court’s analysis of the ‘territorial tort’ exception to immunity, and dismissal of its applicability to the conduct of armed forces in the context of an armed conflict; second, Italy’s arguments based on the ius cogens status of the norms which had been violated by Germany and the lack of alternative means of enforcing those norms, rejected by the Court through its assertion of a decisive substance/procedure distinction; and third, the perhaps curious absence (in either the Court’s judgment or Italian pleadings) of the argument that any violation of immunity might be justified as a lawful countermeasure. The Court found in favour of Germany on all counts, and by a clear majority. The decision was widely anticipated, and on first read the conclusions and reasoning of the Court appear inevitable, obvious, and even banal. But the apparent simplicity of the issues presented to and analysed by the Court is deceptive..

Keywords: State immunity, jurisdiction, state responsibility, International Court of Justice, territorial tort exception, ius cogens, substance/procedure distinction, countermeasures

Suggested Citation

Mills, Alex and Trapp, Kimberley Natasha, Smooth Runs the Water Where the Brook is Deep: The Obscured Complexities of Germany v. Italy (2012). Cambridge Journal of International and Comparative Law (1)1: 153–168 (2012), (DOI: 10.7574/cjicl.01.01.33). Available at SSRN: https://ssrn.com/abstract=2105613

Alex Mills (Contact Author)

University College London, Faculty of Laws ( email )

Bentham House, Endsleigh Gardens
London, WC1H OEG
United Kingdom

HOME PAGE: http://www.laws.ucl.ac.uk/people/alex-mills/

Kimberley Natasha Trapp

Faculty of Laws, UCL ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

Paper statistics

Downloads
490
Rank
45,324
Abstract Views
1,630