Sovereign Immunity and the International Court of Justice: The State System Triumphant

Abstract

This paper, presented to the 25th Sokol Colloquium on Private International Law in April 2012, and slated for publication in a forthcoming book resulting from the Colloquium, discusses the International Court of Justice’s judgment in Jurisdictional Immunities of the State (Germany v. Italy). It locates the decision in the context of an ongoing debate over the exclusive role of states in the creation of international law. It argues that the decision provides a strong endorsement of the monopoly of states over the production of international law and speculates as to why an international tribunal such as the Court is more likely to take this stance than is a national court, such as Italy’s Corte Suprema di Cassazione.

Keywords: sovereign immunity, international court of justice, human rights, customary international law