International Law in Domestic Courts and the Jurisdictional Immunities of the State Case

20 Pages Posted: 15 Mar 2013

See all articles by Ingrid B. Wuerth

Ingrid B. Wuerth

Vanderbilt University - Law School

Date Written: March 14, 2013

Abstract

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the forum state’s executive branch fails to take a position in the litigation? This commentary explores these two questions and explains their significance in light of current developments in immunity and universal jurisdiction cases.

Keywords: immunity, universal jurisdiction, customary international law, jurisdictional immunities of the state case

Suggested Citation

Wuerth, Ingrid B., International Law in Domestic Courts and the Jurisdictional Immunities of the State Case (March 14, 2013). Melbourne Journal of International Law, Vol. 13, No. 2, 2012; Vanderbilt Public Law Research Paper No. 13-10. Available at SSRN: https://ssrn.com/abstract=2233376

Ingrid B. Wuerth (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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