The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?

Abstract

AbstractThe pending dispute at the ICJ between the Federal Republic of Germany and the Republic of Italy on jurisdictional immunities of states bears on the hotly debated question of whether a state having committed a violation of jus cogens loses its immunity from civil jurisdiction abroad, as maintained by the Italian Court of Cassation. The article aims to demonstrate the untenability of the position of the Italian Court of Cassation, not only under current international customary law, but also under a prospective de lege ferenda. Nevertheless, different options are open to the ICJ to adjudicate the case, without impinging on possible future developments of state practice. The article closes by pointing at the risks that, in a strict dualist/pluralist perspective, not even an ICJ's decision in favour of Germany would eventually ensure compliance by Italian domestic judges.