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Domestic Courts as Agents of Development of International Immunity Rules

Published online by Cambridge University Press:  31 July 2013

ROSANNE VAN ALEBEEK
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Abstract

This paper explores the role of domestic courts in the development of international immunity rules. It assesses how domestic immunity decisions take meaning in the process of law formation and law determination, and examines whether the distinct influence of domestic-court decisions (as compared to international-court decisions) in that process results in a different role, and concomitant different rules, in the process of interpretation of rules of international law. The paper argues that while domestic courts are as a matter of international law bound by the same rules of interpretation as international courts, they are particularly well placed to address access to court concerns raised by immunity rules and may play a prominent role in the development of international law in this field in the years to come.

Keywords

immunitydomestic courtsinterpretationaccess to court

Information

Type
INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 3 , September 2013 , pp. 559 - 578
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

1. Introduction

Immunity rules are by definition first and foremost invoked in domestic-court proceedings and are generally considered the textbook example of domestic courts playing a role in the application and development of international law.Footnote 1 Many widely accepted tenets of immunity law indeed find their basis in interpretative exercises by domestic courts, with the restrictive approach to state immunity as the most prominent example.Footnote 2 Through domestic-court practice, many of the initially skeleton principles of immunity law have over the years developed into a maze of detailed rules.Footnote 3 The development of international immunity rules, and the debate over the role of domestic courts in that development, were given new impetus by the 1999 judgment of the House of Lords in the Pinochet case.Footnote 4 The Lords’ denial of immunity to the former dictator of Chile in respect of allegations of torture committed during office fuelled the debate on the relation between the centuries-old classic inter-state immunity rules and relatively recent rules and principles stemming from international human rights law and international criminal law. For one, the scope of the immunity of the state itself in civil proceedings relating to jus cogens violations became a bone of contention.Footnote 5 Italian courts, initially together with Greek courts,Footnote 6 took on a harbinger role rejecting the immunity defence in a string of damages claims against Germany in relation to violations of international humanitarian law committed during the Second World War – with Ferrini v. Germany as leading case.Footnote 7 While the relevant judgments set out various arguments in favour of a so-called ‘jus cogens’ or ‘human rights’ exception to state immunity, the Italian Court of Cassation repeatedly underlined that it was aware that it was contributing to the ‘emergence’ of a new rule of customary international law,Footnote 8 and in the ensuing proceedings before the International Court of Justice (ICJ) Italy likewise

acknowledge[d] that in this area the law of State immunity is undergoing a process of change, [and] it also recognize[d] that it is not clear at this stage whether this process will result in a new general exception to immunity namely a rule denying immunity with respect to every claim for compensation arising out [of] international crimes.Footnote 9

It is not entirely clear what the argument is, but it seems to proceed at least from the proposition that under certain circumstances domestic courts may legitimately deny immunity even in the absence of a clearly established exception to that effect.Footnote 10 In this context the analogy is often drawn with early Italian cases espousing a restrictive approach to state immunity,Footnote 11 which with the benefit of hindsight are generally considered as ‘seeds’Footnote 12 of the modern-day customary rule.

This paper explores the role of domestic courts in the development of immunity rules from two distinct perspectives. The first perspective is a matter-of-fact one. It will be assessed how domestic immunity decisions take meaning in the process of law formation and law determination. Several attributes that distinguish domestic courts from international courts will be seen to influence the extent to which domestic courts (can) contribute to the development of international immunity rules (section 2). Subsequently, the perspective changes to a normative one. Does the distinct influence of domestic-court decisions (as compared to international-court decisions) in the process of law formation and determination result in a different role, and concomitant different rules, in the process of interpretation of rules of international law? The position will be taken that Scelle's classic theory of dédoublement fonctionnel, while arguably falling short as an explanatory model, retains its value as normative standard (section 3). The paper concludes with a caveat. The fact that domestic courts are as a matter of international law bound by the same rules of interpretation as international courts does not mean that their role is limited to the diligent perusing and mechanical counting of instances of state practice and evidences of opinio juris, as the ICJ intimated in its judgment in the Jurisdictional Immunities case.Footnote 13 While the ICJ persuasively dismissed the hierarchy-of-norms argument on the basis of the lack of a clash between the procedural state immunity rule and substantive jus cogens norms, the manner in which it dismissed the Italian arguments relying on the right to a remedy and the right of access to court of the victims of the Nazi crimes failed to convince. It is the task of the judiciary, also in international law, to establish the relationship between arguably competing rights and obligations. It will in this context be argued that domestic courts are particularly well placed to scrutinize international immunity rules in the light of arguably competing fundamental rights of individuals (section 4).

2. Domestic immunity decisions in the doctrine of sources: the capacity of domestic courts to develop international law

2.1. A general sketch . . .

In Certain German Interests in Polish Upper Silesia the Permanent Court of International Justice famously referred to domestic-court decisions as ‘merely facts which express and constitute the activities of States’.Footnote 14 However, even though the relation between the international legal order and domestic legal orders is from the perspective of international law a dualistic one, domestic-court decisions clearly do have legal relevance in the international legal order. First of all, the acts of all state organs are state practiceFootnote 15 or evidence of opinio juris Footnote 16 capable of contributing to the formation of custom.Footnote 17 While in theory this is true for all domestic-court decisions applying international law, so regardless of the authority of the decision,Footnote 18 in practice, the persuasiveness of a domestic decision will be a crucial factor for the influence the decision asserts over other domestic courtsFootnote 19 and hence for the development of a sufficiently ‘settled’ body of state practice necessary for the development of custom.Footnote 20 Decisions of domestic courts may, moreover, take on legal relevance in the context of treaty interpretation, as ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ in the sense of Article 31(3)(b) of the Vienna Convention on the Law of Treaties.Footnote 21

Immunity rules are a paramount example of the role of domestic court decisions in the formation and ascertainment of customary law. Sucharitkul, in his capacity as Rapporteur for the International Law Commission (ILC), noted that ‘customary international law on the subject of State immunities has grown principally and essentially out of the judicial practice of States on the matter’,Footnote 22 and it is generally agreed that the determination of the scope of all international immunity rules requires close inspection of domestic immunity decisions.Footnote 23 In this vein, the ICJ explicated in the Jurisdictional Immunities case that ‘State practice of particular significance is [inter alia] to be found in the judgments of national courts faced with the question whether a foreign State is immune’.Footnote 24

Of course, the practice of the judiciary may deviate from the practice of the executiveFootnote 25 – the acceptance of a jus cogens exception to state immunity by the Italian courtsFootnote 26 being a case in point. The Italian government opposed the actions of the courts in no unclear terms, formally expressing agreement with the German position at several occasions.Footnote 27 Whether one is of the opinion that for custom identification the practice of courts is more important than the practice of other state organs,Footnote 28 or whether one agrees with the ILA Committee on Formation of Customary (General) International Law that ‘since it is the executive which has primary responsibility for the conduct of foreign relations, that organ's formal position ought usually to be accorded more weight than conflicting positions of the . . . national courts’,Footnote 29 disagreement between the two branches of government must be taken into account in the process of law ascertainment.Footnote 30

The regard to domestic-court decisions in the process of determination of immunity rules can furthermore be explained by their status as subsidiary means for the determination of rules of law in the sense of Article 38(1)(d) ICJ Statute.Footnote 31 In fact, it is this legal relevance of domestic court practice that explains most instances of judicial dialogue on immunity questions between domestic courts.Footnote 32 Domestic courts rarely engage in a comprehensive examination of available foreign practice, but limit the discussion of foreign precedent to a handful of examples at most,Footnote 33 and transnational judicial dialogue on immunity questions generally does not serve the purpose of discovering the rule, but that of corroborating the preferred outcome with foreign precedent.Footnote 34

The fact that domestic-court decisions take on meaning in the doctrine of sources makes domestic courts ipso facto agents of development of international law since every application of a legal rule entails interpretation, and hence development.Footnote 35 This is arguably even more so in respect of international law, with its comparatively high degree of indeterminacy.Footnote 36 While every legal system imposes limits on the law-development capacity of courts through principles of interpretation, a rigid characterization of judges as bouche de la loi Footnote 37 does clearly not correspond to practical reality.Footnote 38 It is generally agreed that international courts contribute substantially to the development of international law;Footnote 39 and while the authority of domestic-court decisions as ‘subsidiary means’ may not always equal that of decisions of international courts in the process of custom ascertainment,Footnote 40 domestic courts in addition partake in the process of custom formation and their role in the development of international law is in that sense undisputed.

2.2. . . . with some caveats to it

The role of domestic court practice in the process of formation and determination of international law is not uncontroversial. While Lauterpacht wrote in 1929 that contrary to political state organs domestic courts are not ‘interested part[ies] eager to drive home an argument or to cloak a political claim with the garb of a legal rule’,Footnote 41 others have argued that ‘[t]he role of the national courts in the evolution of international law, is . . . severely limited and distorted by the predominance of national prejudice’.Footnote 42 In addition, it is sometimes questioned whether domestic courts have sufficient expertise to properly apply international law.Footnote 43 As a consequence, domestic courts are at times considered ‘sub-optimal international law-appliers’,Footnote 44 and domestic-court decisions evidence of what international law is not.Footnote 45

Most of the debates on the ‘desirability’ or ‘propriety’ of an increased application of international law by domestic courts are not directly pertinent in the context of immunity law since these rules are by definition applied in domestic proceedings; the problems identified in these debates do, however, transpire in domestic immunity decisions. There is no doubt that domestic immunity decisions often display a highly unsatisfactory knowledge of international law.Footnote 46 Furthermore, the ‘problem’ of the domestic outlook, or mixed loyalties of domestic courts, pervades domestic immunity decisions. This section explores the intricate interplay between the international and domestic legal orders in the field of immunity law. Both the consequences of the fact that the domestic legal order does not always allow domestic courts to give effect to the international immunity rule (section 2.2.1); and the consequences of domestic colouring of international immunity rules through application in the domestic context (section 2.2.2) will be analysed. The descriptive perspective on the role of domestic courts in the development of immunity rules will prove to be one of constraints and dynamics: the domestic legal order may act both as a brake and as a catalyst in the process of development of international immunity law.

2.2.1. Domestic immunity law over international immunity law

Domestic courts cannot always give effect to international immunity rules. Two distinct hurdles can be identified. In the first place, political control over judicial immunity decisions is not uncommon, with US court practice as notorious flag-bearer. While the US Foreign Sovereign Immunities Act (FSIA)Footnote 47 vested the power to apply the rule of state immunity exclusively in the courts, the practice of deference to executive ‘suggestions of immunity’ is still prevalent in the areas outside the scope of the act, like the personalFootnote 48 and functionalFootnote 49 immunities of foreign state officials. In India executive control over immunity decisions is codified in Article 86(1) of the Indian Code of Civil Procedure,Footnote 50 which provides that ‘[n]o foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government’.Footnote 51 In the UK, immunity law is independently applied by the courts, but they are obliged to follow the views expressed by the Secretary of State in a certificate (Foreign & Commonwealth Office (FCO) certificates) as to which entity qualifies as a state or head of state,Footnote 52 or which person is entitled to diplomatic immunity.Footnote 53 Hence, when in 2011 an FCO certificate declared that the former foreign minister of Israel Tzipi Livni was visiting the UK on a special mission, the director of public prosecutions blocked the prosecution for war crimes in the UK courts.Footnote 54

Second, the prevalent domestic-law conception of the relationship between the domestic and the international legal order may preclude the domestic court from giving effect to an international immunity rule. This is not the place for a comprehensive treatise on the various models devised to define the relationship between the domestic and the international legal order;Footnote 55 it suffices to identify the (possible) impact of a predominantly dualistic, but also moderately monistic, outlook on the relation between the international and the domestic legal order on domestic immunity decisions. There are two principal scenarios for the diverging of domestic and international law in domestic immunity decisions. In the first place, the domestic immunity rule may deviate from the international immunity rule; and second, a separate domestic rule may impede the application of the (international and domestic) immunity rule.

The risk of the loss of identity between the international and the domestic immunity rule first and foremost presents itself in case of codification of the immunity rule in domestic statute law.Footnote 56 In states with a dualistic outlook on the relation between the international and the domestic legal order, that is often the case with immunity rules that are laid down in a treaty. For example, the UK has given effect to the rules in the Vienna Convention on Diplomatic Relations (VCDR) through the enactment of the Diplomatic Privileges Act 1964. In addition, some states have moved to codify customary immunity rules. Since the enactment of the US Foreign Sovereign Immunities Act in 1976,Footnote 57 the UK, Singapore, Pakistan, South Africa, Canada, Australia, Argentina, Israel, and Japan have followed that lead.Footnote 58 In addition to these general state immunity statutes, more specific immunity provisions may be included in domestic legislation. For example, the Dutch International Crimes ActFootnote 59 provides in Article 16(a) that ‘[c]riminal prosecution for one of the crimes referred to in this Act is excluded with respect to . . . foreign heads of state, heads of government and ministers of foreign affairs, as long as they are in office’.Footnote 60

As long as the domestic rule is a blueprint of the international rule, or as long as the domestic rule can be interpreted consistently with the developments in international law, domestic-court decisions applying statute law do not apply domestic law over international law, but should be understood as an interpretation of the international rule itself.Footnote 61 This is most clear where the domestic statute explicitly refers to international law. For example, the Dutch International Crimes Act also excludes prosecution of ‘other persons in so far as their immunity is recognised under customary international law’.Footnote 62 Also the UK legislation that controlled the immunity question in the Pinochet case explicitly incorporated international law. Section 20(1) of the 1978 UK State Immunity Act (SIA) provides that ‘subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to . . . a sovereign or other Head of State . . . as it applies to the head of a diplomatic mission’. In turn, the Diplomatic Privileges Act gives effect to the VCDR. The Law Lords hence engaged in the interpretation of Article 39(2) of the VCDR and set out to construe the notion of ‘acts performed . . . in the exercise of his functions’ in accordance with international law. But also where a domestic immunity statute does not explicitly incorporate an international-law standard, judges will in general set out to interpret the domestic statute in accordance with international law.Footnote 63

The principle of consistent interpretation, however, has its limits. The US Supreme Court has emphasized that the 1976 FSIA provides ‘the sole basis for obtaining jurisdiction over a foreign state in our courts’,Footnote 64 and where the statute leaves no room for interpretation consistent with international law, statute law prevails. When the Ninth Circuit Court was asked to find that state immunity does not apply to violations of jus cogens norms, it held that ‘[a]s a matter of international law, the . . . argument carries much force. . . . Unfortunately, we do not write on a clean slate. We deal not only with customary international law, but with an affirmative Act of Congress, the FSIA’ and dismissed the claim.Footnote 65 In the Canadian Bouzari case the domestic court took the prevalence of domestic law over inconsistent international law even one step further, noting that the domestic statute would even prevail if international law obliged the exercise of jurisdiction in a given case. The argument that Canada had an obligation under Article 14 Convention against TortureFootnote 66 to provide an exception to state immunity for civil actions for torture committed abroad by a foreign stateFootnote 67 was dismissed on the merits but the court underlined in an obiter statement that ‘it is open to Canada to legislate contrary’ to its international obligations.Footnote 68 The possibility of prevalence of domestic law over international law is not limited to ‘dualistic’ states. Even though in the Netherlands international law is part of the domestic legal order, and treaties and binding decisions of international organizations prevail over conflicting domestic law, Dutch courts would, for example, not be able to give effect to a newly developed international-crimes exception to customary head-of-state immunity, in view of the unambiguous text of the above-mentioned Article 16(a) International Crimes Act, since customary international law does not prevail over conflicting statute law.Footnote 69

The loss of identity between the domestic rule and the international rule may, however, also come to pass when the international rule is not codified, but incorporated in domestic law. In many states customary international law is considered automatically incorporated in the domestic legal order.Footnote 70 However, on closer inspection, incorporation may actually mean transformation if the rule is considered incorporated in domestic law rather than in the domestic legal order. The difference is illustrated by the UK state immunity jurisprudence pre-dating the entry into force of the UK State immunity Act. For years, the domestic stare decisis principle debilitated the development and acceptance of a restrictive approach to state immunity in the UK. In seminal cases like Thai-Europe Footnote 71 or Trendtex Footnote 72 in the 1970s, judges refused to apply the restrictive doctrine because of earlier House of Lords precedents, and explicitly stated to stand ‘loyally but reluctantly on the old doctrine and the old decisions’.Footnote 73 As one judge explained:

[A] rule of international law, once incorporated into our law by decisions of a competent court, is not an inference of fact, but a rule of law. It therefore becomes part of our municipal law and the doctrine of stare decisis applies as much to that as to a rule of law with a strictly municipal provenance . . . I think therefore that it is not open to this court to apply a new rule or view developing in the international field if it be inconsistent with a rule already incorporated into our law by a decision of the Court of Appeal or the House of Lords.Footnote 74

In other words, when domestic courts in essence have to do with a domestic immunity rule, domestic rules of interpretation may cause a divergence of the international and the domestic rule over time, and the immunity rule applied by domestic judges may no longer have international quality.Footnote 75

A separate cautionary remark is in this respect warranted with regard to US court practice. While at the time of enactment of the FSIA it was uncontroversial that it concerned a codification of international law,Footnote 76 US courts have come to adopt the unilateralist position that the grant of immunity to foreign states is ‘a matter of grace and comity on the part of the United States’, instead of a right on the part of the foreign state.Footnote 77 According to the Supreme Court, state immunity provides foreign states ‘some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns’.Footnote 78 Also the 2010 decision of the US Supreme Court in the Samantar caseFootnote 79 evidenced the severing of US immunity law from its international-law roots: the question whether individuals are covered by the FSIA was answered without regard to international-law requirements.

Finally, as said, even if the domestic and international immunity rules retain identity, there is a second scenario in which domestic law may impede giving effect to the international immunity rule. It is not uncommon for plaintiffs to argue that a particular immunity rule violates constitutional due-process guarantees, and while there are not yet examples of where the immunity was set aside on this ground, the theoretical possibility is noteworthy.Footnote 80 In the beginning of the twentieth century Italian courts refused to accept an absolute diplomatic immunity because they felt such a comprehensive immunity to be contrary to justice;Footnote 81 in 1988 the Supreme Court of Chile ruled that diplomatic and consular immunities could no longer prevent the exercise of the constitutional right of access to court to safeguard rights and guarantees protected in the Constitution, but it was forced to amend its decision after an intervention of the Chilean Ministry of Foreign Affairs;Footnote 82 in that same year a US court refused to find a clash between constitutional due-process guarantees and diplomatic immunity, but on such limited grounds that it could be seen to in fact support the argument;Footnote 83 and finally, French courts have recognized that in exceptional circumstances the receiving state may have to indemnify the individual whose access to court was blocked by the application of the law of diplomatic immunity.Footnote 84

The severing of domestic from international immunity law has consequences for the role of domestic courts as agents of development of international law. If a domestic court expressly applies domestic law over (conflicting) international law the absence of opinio juris necessarily affects the status of the decision.Footnote 85 Notably, in its exhaustive listing of relevant domestic-court practice, the ICJ in Jurisdictional Immunities did not mention the US case law in which the human rights exception was dismissed on the basis of the strictures of the FSIA,Footnote 86 nor the decision of the Court of Appeal of New South Wales in Australia which was equally limited to the specific terms of the Australian immunity statute.Footnote 87 Moreover, domestic immunity statutes could, at least in theory, hinder the development of international immunity rules since domestic courts may be blocked from contributing to the emergence of changes to the international rule beyond the strictures of the statute. In practice the risk is mitigated by the limited number of states with domestic immunity legislation and, moreover, by the fact that domestic courts not seldom do ascertain the scope of the deviating international rule notwithstanding the conflicting domestic immunity statute.Footnote 88

2.2.2. Domestic colouring of international norms

Apart from the unwillingness or incapacity of judges to properly engage international immunity law, a domestic outlook is inherent in the intersection of the domestic and the international legal order whenever domestic courts apply international law. While according to some a domestic court ‘must search, untrammeled by notions of its national legal culture, for the true autonomous and international meaning of the treaty’,Footnote 89 in practice domestic decisions applying international law will often reflect domestic-law conceptions. In the first place, interpretation of the law involves choices and these choices will invariably also be influenced by factors unrelated to the law applied.Footnote 90 In the case of domestic judges, these factors are likely to include constitutional traditions, domestic legal concepts, and cultural and societal attributes. In addition, application of international law at the domestic level necessarily involves a process of translationFootnote 91 in order to make the international rule fit the domestic legal order.Footnote 92

The domestic application of the rule of state immunity may be considered an example par excellence. In fact, domestic courts have repeated time and again that reliance on domestic-law standards – or the lex fori – is inevitable in the absence of international consensus on all aspects of the qualification of acts as either acta jure imperii or acta jure gestionis. The Claim against the Empire of Iran case decided by the German Bundesverfassungsgericht in 1963 is often quoted in this respect. The Court considered that ‘the classification of a State's function (according to the legal nature of the act) as governmental or non-governmental must be determined according to current domestic law, as international law does not, as a rule, include criteria for such a delineation’.Footnote 93 In the words of the Israeli Supreme Court:

The distinction between sovereign and private acts is by no means clear-cut. . . . [P]ending the development of a standard international practice regarding this issue, it is inevitable that each state will apply its own locally accepted criteria in accordance with its existing national jurisprudence. . . . The qualification of state activity as sovereign or non-sovereign must in principle be made by national (municipal) law, since international law, at least usually, contains no criteria for this distinction.Footnote 94

The Court explained that when customary international law could be interpreted in more than one way, it could ‘choose the alternative most consistent with the basic principles of international law, on the one hand, and the basic values of Israeli Law on the other’.Footnote 95 While the contention that international law usually ‘contains no criteria’ for distinguishing sovereign from non-sovereign activity is arguably too pessimistic,Footnote 96 it is undeniable that the outer limits of the state immunity rule are frayed and it is there that domestic colouring of the rule is most likely to occur. The reliance on the inherently domestic concepts of ‘private’ and ‘public’ law in the application of the rule is a case in point.Footnote 97

Where the severing of domestic from international immunity law negatively affects the role of domestic courts in the development of international law, the domestication of international immunity law arguably pulls in the opposite direction. While some say the translation of international rules to the domestic level entails an element of distortion of the original rule,Footnote 98 it cannot be denied that the international rule is developed by the continuous process of interaction between the domestic and the international level and the dialectics that ensue from that.Footnote 99 The interaction of legal orders creates a dynamic that renders domestic courts particularly prone to act as agent of change.

3. Dédoublement fonctionnel as a normative rather than a descriptive model: international-law constraints on the development of international law by domestic courts

Domestic courts are clearly not always free to apply international law in complete isolation from their domestic legal order. This has led many scholars to cast doubts on Scelle's doctrine of dédoublement fonctionnel, gauging the doctrine against actual practice or assessing it in terms of feasibility. Developing his doctrine, Scelle took the fact that the international community lacked centralized legislative, judicial, and enforcement organs as a starting point and argued that domestic state officials therefore fulfil a dual role, acting either as domestic or as international agents. In 1964 Friedmann wrote that the theory ‘conceals the tension between the policy orientation of national courts . . . and the policy orientation of the international order, which requires at least some degree of subordination’,Footnote 100 and four decades later Benvenisti insisted that while domestic courts increasingly engage rather than skirt international-law questions,Footnote 101 they ‘continue to regard themselves first and foremost as national agents’ when applying international law.Footnote 102 Shany is slightly less pessimistic in his assessment, noting that ‘while Scelle's theory may have been detached from social reality at the time, it corresponds to some reality today’.Footnote 103

It is, however, dubious whether Scelle advanced the notion of role splitting primarily as an explanatory or realistic model;Footnote 104 arguably, the doctrine provides above all a normative framework.Footnote 105 While in practice the factors identified in section 2 above will often impede domestic courts in applying and interpreting international immunity law as if they were an international court, and while it could even be argued that domestic courts cannot be expected to shed their domestic outlook on international law since ‘[t]heir allegiance is first and foremost to their own demoi, and they must remain faithful to the domestic authorities in whose name they issue their judgments’,Footnote 106 the argument that as a matter of international law they are obliged to do so is highly convincing.Footnote 107 This applies to both primary and secondary rulesFootnote 108 since the latter ensure the compliance with the primary rule, and bind states in the same manner as primary rules.Footnote 109 While respect for secondary rules does not, and does not have to, ensure absolute uniform interpretation – different courts can come to different conclusions within the strictures of any legal system – these rules of interpretation do provide a valuable standard against which judicial interpretations can be assessed.

The fact that domestic courts applying international law act as agents of change, was recently given a provocative twist in the context of the Ferrini jurisprudence of the Italian Supreme Court.Footnote 110 Roberts put forward the contention that the Italian courts, while possibly formally violating international law, were nevertheless fulfilling ‘a “legitimate” function in pushing for a new interpretation of international law based on [their] role as a law creator rather than enforcer’.Footnote 111 To some extent, this position equally seems to underlie the Ferrini jurisprudence of the Italian courts and the Italian defence in the Jurisdictional Immunities case.Footnote 112 In Jones v. Saudi Arabia the UK House of Lords vehemently disagreed, with Lord Hoffmann insisting that ‘[i]t is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’.Footnote 113 According to Roberts, the sharp divide between the Jones and Ferrini courts mirrors the divide between the conception of domestic courts as objective enforcers of international law and that of domestic courts as law creators.Footnote 114 According to Roberts, domestic courts, just like any other state organ, ‘engage in a legitimate function when contributing to custom formation through breaches of existing rules’.Footnote 115 This boils down to the argument that as a matter of international law domestic judges can take off their judicial hat and mould and shape international law in defiance of generally accepted international rules on interpretation and advances a completely novel take on the ‘role splitting’ of domestic courts. Rather than a splitting between the domestic and the international legal order, a splitting of roles within the international legal order is proposed, detaching law creation from law enforcement altogether.Footnote 116

In section 2 of this paper it was noted that in theory the authority of a domestic-court decision is not relevant in the context of custom formation,Footnote 117 but this fact is not to be elevated to a norm. The process of change of custom through violation is not uncontroversial to begin with,Footnote 118 but it is in any case not an instrument that fits the judicial toolbox. As Jennings explained, if judges – international and domestic alike – do not pay heed to ‘the parameters of permissible interpretation’ they ‘lose their one ultimate source of authority’.Footnote 119 The fact that domestic court decisions do not only contribute to custom formation, but are also an important subsidiary means for the determination of international law,Footnote 120 reflects the strong assumption that these decisions accurately reflect international law and can only be seen to corroborate the different role of domestic judges as compared to other state organs in the international legal order.Footnote 121

4. The tension between international immunity rules and individual human rights: room for the development of international law by (domestic) courts

In February 2012 the ICJ gave judgment in the Jurisdictional Immunities case.Footnote 122 This is not the place for an in-depth analysis of the judgment, or of the underlying Italian jurisprudence, but since the judgment proceeds from a problematic assumption as to the judicial function in the development of immunity law, it calls for a brief consideration. While the Italian courts had arguably in essence rooted the denial of immunity to Germany in the normative-hierarchy theory,Footnote 123 the justifications advanced by Italy before the ICJ exceeded the jus cogens concept. For the purposes of this paper, it is especially relevant that Italy argued that its courts were the last resort for the Italian victims of the Nazi crimes to secure compensation, relying both on the right of access to court and on the right to a remedy.Footnote 124 The ICJ dismissed the argument, concluding that there is ‘no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress’.Footnote 125 In other words, the ICJ refused to assess the relation between the rule of state immunity and arguably competing individual rights, intimating that that relationship could only emerge through a change in state practice. The ICJ therewith arguably underplays its role – and that of other (international and domestic) courts – in the international legal order. With the maturing of the international legal system, judges will increasingly be asked to establish the relationship between various (sets of) international rules.Footnote 126 ‘Although’, as the the Fragmentation Report of the International Law Commission (ILC) notes in this regard, ‘there may be disagreement among lawyers about just how the systemic relationship between the various decisions, rules and principles should be conceived, there is seldom disagreement that it is one of the tasks of legal reasoning to establish it’.Footnote 127 This criticism of the ICJ is not novel. In his Separate Opinion in Armed Activities on the Territory of the Congo, Judge Ad Hoc Dugard argued that in the Arrest Warrant case the ICJ was merely asked, ‘in the exercise of its legitimate judicial function, to exercise its choice between competing sources in a manner which gives effect to a norm of jus cogens’.Footnote 128 While courteously implicit, the remark was an unmistaken expression of disagreement with both the methodology and the outcome of that case. It is in this respect noteworthy that the European Court of Human Rights (ECtHR) did not similarly hide behind state practice when the question of the relation between the law of state immunity and the right of access to courtFootnote 129 was put to it. Instead, it ruled that the boundary between the two rules was determined by the law of state immunity: the public international-law rule of state immunity was seen as an inherent limit to the right of access to court.Footnote 130 While the particular balance struck can no doubt be criticized,Footnote 131 it does acknowledge that the establishment of the relationship is an interpretative exercise. Just like the House of Lords in the Pinochet case set out to establish the relationship between the functional immunity rule and the obligation to prosecute suspected torturers in the Convention against Torture even though there was practically no state practice,Footnote 132 the ICJ should have engaged the alleged competition of international rules on the merits.

Without developing an argument as to what the relation between immunity rules and allegedly competing fundamental rights of individuals is, it is submitted here that that question should be properly addressed in future cases – and arguably domestic courts have a particular role to play in this respect. The protection of individual rights comes naturally to domestic courts, as evidenced by early restrictive immunity decisions that reflected a sensitivity to the interests of individuals that was absent from the practice of other state organs at the time. Domestic courts held, in more or less equivalent terms, that the restrictive approach was ‘more consonant with justice’.Footnote 133 The rigid insistence of the ECtHR that all international immunity rules automatically outweigh the right of access to court deserves rethinking. It has in this respect been argued that the balance struck between the right of access to court and immunity rules should in any case be conditioned on the provision of ‘reasonable alternative means’ to settle the dispute in the courts of the (home) state, on analogy with the ECtHR's approach to the immunity of international organizations.Footnote 134 While this would not have helped the Italian victims in the Ferrini-type cases – their claims have been heard in the German courtsFootnote 135 – it would mitigate the injustice that is inherent in immunity rules, and it would confirm that the right to immunity comes with the duty and responsibility to ensure access to an independent judiciary in one's own legal order.

5. Conclusion

Scholars have often emphasized that the principle of reciprocity has operated as a motor for the development of the restrictive theory of state immunity, and the spreading of the theory across the globe has been referred to as a ‘ripple effect’.Footnote 136 This ‘ripple effect’ requires, however, a first stone.Footnote 137 Reciprocity may operate as a motor when an immunity rule is moving towards a more restrictive interpretation, but since states do not stand to gain much from a further restriction of immunity rules, it may be seen to operate as a powerful brake to the start of this process. The descriptive perspective on the role of domestic courts in the development of immunity rules explored in this paper evidenced that domestic courts are capable of throwing that first stone. Domestic-court decisions take on meaning in the doctrine of sources as relevant state practice or evidence of opinio juris in the context of custom ascertainment, as subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation, and as subsidiary means for the determination of the rules of law. Since every application of a legal rule entails interpretation, and hence development, domestic courts have the ability to act as agents of change of international immunity rules. Of course, the fact that domestic courts operate within a domestic legal order may constrain the impact of their decisions on the international rule, but at the same time the interaction of legal orders creates a particular dynamic conducive to development. From a normative perspective, the paper argued that domestic courts are, as a matter of international law, bound by both primary and secondary rules of international law when applying international immunity rules. Within the strictures of this latter perspective, it was argued that the particular sensitivity of domestic courts to the right of individuals makes them an obvious candidate for the much-called-for reconsideration of both the ECtHR and the ICJ perspectives on the relation between immunity rules and the right of access to court. Now that a maze of detailed immunity rules is in place, the focus of judicial reasoning on the scope of these rules will increasingly shift to the relationship between immunity rules and arguably competing fundamental rights of individuals (or, for that matter, obligations to prosecute under international criminal law). The ECtHR insists on viewing public international law immunity rules as inherent limits to individual rights under the Convention; while the ICJ even refuses to recognize that the determination of a systemic relationship between various (sets of) international rules is a judicial task at all. It is to be hoped that domestic courts will not be blinded by the undisputed authority of these venerable international institutions, but undertake an independent assessment of the relationship between immunity rules and fundamental rights under international law.

References

1 See Friedmann, W., The Changing Structure of International Law (1964), 146–7Google Scholar; Higgins, R., Problems and Process: International Law and How We Use It (1994), 208–9Google Scholar; Jennings, R. Y., ‘The Judiciary, International and National, and the Development of International Law’, (1996) 45 ICLQ 1CrossRefGoogle Scholar, at 2; Reinisch, A., ‘The International Relations of National Courts: A Discourse on International Law Norms on Jurisdictional and Enforcement Immunity’, in Reinisch, A. and Kriebaum, U. (eds.), The Law of International Relations – Liber Amicorum Hanspeter Neuhold (2007), 289Google Scholar at 309; H. Fox, The Law of State Immunity (2008), 20; A. Nollkaemper, National Courts and the International Rule of Law (2011), 10; Roberts, A., ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’, (2011) 60 ICLQ 57CrossRefGoogle Scholar, at 69.

2 This approach was first espoused in early Italian and Belgian state immunity decisions. See, for Belgium, L'Etat du Pérou v. Kreglinger PB 1857-2-348 (Tribunal de commerce d'Anvers and Cour de Bruxelles, 1857); Rau, Vanden Abeele et Cie v. Duruty PB 1879-2-175 (Commercial Tribunal Ostend, 1879); S.A. des Chemins de Fer liégeois-luxembourgeouis v. l'Etat néerlandais PB 1903-I-294 (Cour de cassation, 1903). For Italy see Morellet v. Governo Danese Giu. It. 1883-I-125 (Corte di Cassazione di Torino, 1882); Guttieres v. Elmilik 11 F.It. 1886-I-913 (Corte di Cassazione di Firenze, 1886); Typaldos, Console di Grecia a Napoli v. Manicomio di Aversa Giu. It. 1886-I-1-222 (Corte di Cassazione di Napoli, 1886).

3 Notably, most of the immunity issues listed by Lauterpacht to corroborate his argument that domestic courts have an important role to play in the development of international law have in the meantime been clarified. See Lauterpacht, H., ‘Decisions of Municipal Courts as a Source of International Law’, (1929) 10 BYIL 65, at 87–8Google Scholar.

4 R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte, [1999] 1 All ER 577; ILR, Vol. 119, 136 (Pinochet No. 3).

5 This issue had already been discussed in a couple of US and UK cases and in a considerable body of scholarly opinion. See, for an overview, R. van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (2008), 316–62.

6 Greece, Supreme Court Germany v. Prefecture of Voiotia, Representing 118 Persons from Distomo Village, Petition on Cassation Against Default, No. 11/2000, 4 May 2000, ILDC 287 (GR 2000). The Greek Special Supreme Court, however, halted this development with its judgment in Germany v. Margellos, 17 September, 6/2002, 2002, ILDC 87 (GR 2002).

7 E.g., Italy, Court of Cassation, Ferrini v. Germany, Appeal Decision, No. 5044/4, 11 March 2004, ILDC 19 (IT 2004); Italy, Court of Cassation, Germany v. Mantelli and Others, Preliminary Order on Jurisdiction, No. 14201/2008, 29 May 2008, ILDC 1037 (IT 2008) one of 12 identical decisions issued on the same day. (No. 14201/2008, No. 14202/2008, No. 14203/2008, No. 14204/2008, No. 14205/2008, No. 14206/2008, No 14207/2008, No. 14208/2008, No. 14209/2008, No. 14210/2008, No. 14211/2008, and No. 14212/2008); Italy, Court of Cassation, Germany v. Amministrazione regionale della Vojotia, Grecia, Case No. 14199, 29 May 2008, Rivista di Diritto Internazionale 92 (2009), 594; Italy, Court of Cassation, Criminal Proceedings against Milde, Appeal judgment, Case No. 1072/2009, 13 January 2009, ILDC 1224 (IT 2009); Italy, Court of Cassation, Germany v. Autonomous Prefecture of Vojotia, Final Appeal Judgment, No. 11163/2011, 20 May 2011, ILDC 1815 (IT 2011).

8 E.g., Mantelli, supra note 7, at para. 11.

9 Jurisdictional Immunities of the State (Germany v. Italy, Greece Intervening), Judgment of 3 February 2012, para. 86 (not yet published) (hereafter Jurisdictional Immunities case).

10 See also, for this argument Roberts, supra note 1, at 70; Pavoni, R., ‘Human Rights and the Immunities of Foreign States’, in de Wet, E. and Vidmar, J. (eds.), Hierarchy in International Law: The Place of Human Rights (2012), 71CrossRefGoogle Scholar at 75.

11 See supra note 2.

12 ‘Each deviation contains the seeds of a new rule’. D'Amato, A., The Concept of Custom in International Law (1971), 98Google Scholar.

13 See supra note 9.

14 Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits, Judgment of 25 May 1926, PCIJ Rep. [Series A] No. 7, at 19. See also Frontier Dispute (Benin v. Niger), Judgment of 12 July, [2005] ICJ Rep. 90, at 110, para. 28.

15 International Law Association (ILA), Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report (2000), Principle 9, at 17; B. Conforti, International Law and the Role of Domestic Legal Systems (1993), 50–1. See in this sense also Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February, [2002] ICJ Rep. 3, at 24, para. 58; Jurisdictional Immunities case, supra note 9, para. 55.

16 Lauterpacht supra note 3, at 82–3; Lauterpacht, H., The Development of International Law by the International Court (1958), 20Google Scholar; Francioni, F., ‘International Law as a Common language for National Courts’, (2001) 36 Texas International Law Journal 587Google Scholar, at 593. Cf. Nollkaemper, supra note 1, at 268: ‘In principle, national case-law can qualify as both state practice or as opinio iuris’.

17 See Art. 38(1)(b) Statute of the International Court of Justice (annexed to the Charter of the United Nations), 26 June 1945, UNCIO 15, 355.

18 Nollkaemper, supra note 1, at 269.

19 In the sense of ‘subsidiary means’ discussed below, ibid., at 270.

20 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 44, para. 77.

21 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331. See Gardiner, R. K., Treaty Interpretation (2008), 228–9Google Scholar.

22 Preliminary Report by Mr Sompong Sucharitkul, Special Rapporteur, on the topic of jurisdictional immunities of states and their property, UN Doc. A/CN.4/323 (1979), para. 23.

23 See, e.g., Friedmann, supra note 1, at 147. Cf. more in general the Resolution of the Institut de droit international on The Activities of National Judges and the International Relations of Their State (1993), Art. 4.

24 Jurisdictional Immunities case, supra note 9, para. 55. See also McElhinney v. Ireland, Decision of 21 November 2001, ECHR App. No. 31253/96, para. 27. In many other immunity-related cases the European Court of Human Rights, however, does not discuss domestic-court decisions when assessing the scope of state immunity under customary international law, but refers to the relevant international conventions instead (1962 Vienna Convention on Diplomatic Relations, 500 UNTS 95; but also the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, UN Doc. A/RES/59/38, still to enter into force). See e.g., Manoilescu and Dobrescu v. Romania and Russia, Decision of 3 May 2005, ECHR App. No. 60861/00; Treska v. Albania and Italy, Decision of 29 June 2006, ECHR App. No. 26937/04; Sedelmayer v. Germany, Decision of 10 November 2009, ECHR App. No. 30190/06; Cudak v. Lithuania, Judgment of 23 March 2010, ECHR App. No. 15869/02; Guadagnino v. Italy and France, Decision of 18 January 2011, ECHR App. No. 2555/03; Sabeh El Leil v. France, Decision of 29 June 2011, App. No. 34869/05; Wallishauser v. Austria, Decision of 17 July 2012, ECHR App. No. 156/04.

25 I. Brownlie (Rapporteur Institut de droit international), Contemporary Problems Concerning the Jurisdictional Immunity of States, Preliminary Report (1987), (1987) 62-I AIDI 13, at 16. In the context of treaty interpretation see Gardiner, supra note 21, at 229.

26 Cases cited at note 7 supra.

27 See Pavoni, R., ‘A Decade of Italian Case Law on the Immunity of Foreign States: Lights and Shadows’, (2009) 19 IYIL 73Google Scholar, at 81; Gattini, A., ‘The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?’, (2011) 24 LJIL 173CrossRefGoogle Scholar, 176.

28 Lauterpacht, supra note 3, at 83; Nollkaemper, supra note 1, at 221 and 271.

29 ILA Statement of Principles, supra note 15, at 18. See also Oppenheim, L., ‘The Science of International Law: Its Task and Method’, (1908) 2 AJIL 313CrossRefGoogle Scholar, at 339.

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31 Fox, supra note 1, at 175; Higgins, supra note 1, 208; Lauterpacht, supra note 16, at 20; ILA Statement of Principles, supra note 15, at 18. Judge Keith wrote in his Separate Opinion in the Jurisdictional Immunities case, supra note 9, para. 4: ‘I do of course appreciate that it is unusual in the practice of this Court and its predecessor to draw on the decisions of national courts. But, as appears from the Judgment in this case, the Court, for good reason, does give such decisions a major role. In this area of law it is such decisions, along with the reaction, or not, of the foreign State involved, which provide many instances of State practice. Further, the reasoning of the judges by reference to principle is of real value.’ (emphasis added).

32 See on judicial dialogue on immunity law A. Reinisch, supra note 1. See on transnational judicial dialogue in general Slaughter, A.-M., ‘A Typology of Transjudicial Communication’, (1994) 29 University of Richmond Law Review 99Google Scholar; Slaughter, A.-M., ‘A Global Community of Courts’, (2003) 44 Harvard International Law Journal 191Google Scholar; Waters, M. A., ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’, (2005) 93 Georgetown Law Journal 487Google Scholar; Young, K. G., ‘The World, through the Judge's Eye’, (2009) 28 Australian Year Book of International Law 27Google Scholar.

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34 See Roberts, supra note 1, at 91.

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42 Friedmann, supra note 1, at 147. See esp. Benvenisti, E., ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts’, (1993) 4 EJIL 159CrossRefGoogle Scholar; Benvenisti, E., ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’, (2008) 102 AJIL 241CrossRefGoogle Scholar; Benvenistis, E. and Downs, G. W., ‘National Courts, Domestic Democracy, and the Evolution of International Law’, (2009) 20 EJIL 59CrossRefGoogle Scholar. Brownlie wrote in this respect that ‘the value of [domestic court] decisions varies considerably, and many present a narrow national outlook or rest on a very inadequate use of the sources’. See I. Brownlie, Principles of Public International Law (2008), 23.

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46 The examples are countless. During the colloquium this author discussed three: Canada, Quebec Superior Court, Kazemi and Hashemi v. Islamic Republic of Iran and Others, 25 January 2011, in which the personal immunity of a head of state was disregarded; Italy, Tribunal of Milan, Public Prosecutor v. Adler and Others (‘Abu Omar’ case), First Instance Judgment, No. 12428/09, 1 February 2010; ILDC 1492 (IT 2010), in which Art. 41 of the 1963 Vienna Convention on Consular Relations (596 UNTS 261) was misinterpreted; Netherlands, Court of Appeal The Hague, Stichting Mothers of Srebrenica, 30 March 2010, LJN: BL8979, in which the ‘reasonable alternative means’ doctrine of the ECtHR was given a disconcerting twist.

47 United States: Foreign Sovereign Immunities Act of 1976, Public Law 94–583, 90 Stat. 2891, reproduced in (1976) 15 ILM 1388.

48 Cf. Yelin, L. S., ‘Head of State Immunity as Sole Executive Lawmaking’, (2011) 44 Vanderbilt Journal of Transnational Law 911Google Scholar.

49 In Samantar v. Yousuf and Others, 560 US (2010); ILDC 1505 (US 2010) the US Supreme Court ruled that individual state officials are not covered by the FSIA. This decision arguably reinforces the controlling force of executive suggestions of immunity in respect of all (former) government officials.

50 1908 Code Of Civil Procedure (Act No. 5 of 1908).

51 The or other staff of a same applies to ‘rulers’ and ambassadors or envoys foreign state (Art. 86(4)). Cf., however, India, Supreme Court, Harbhajan Singh Dhalla v. Union of India, 5 November 1986, 92 ILR 530, for the possibility of judicial scrutiny of the executive refusal to consent.

52 Art. 21(1) State Immunity Act 1978 c. 33; see, e.g., HRH Sultan of Pahang v. SSHD [2011] EWCA Civ. 616, [2011] All ER (D) 243.

53 Diplomatic Privileges Act 1964 (c. 81). See Khurts Bat v. The Investigating Judge of the German Federal Court and The Government of Mongolia and The Secretary of State for Foreign and Commonwealth Affairs [2011] EWCH 2029 (Admin).

54 See www.cps.gov.uk/news/press_statements/_cps_statement_in_relation_to_ms_livni_s_visit.

55 See for recent thinking on the relationship between the international and domestic legal orders Nijman, J. and Nollkaemper, A. (eds.), New Perspectives on the Divide between National and International Law (2007)CrossRefGoogle Scholar; and for an examination of the practice of 27 states Shelton, D. (ed.), International Law and Domestic Legal Systems; Incorporation, Transformation, and Persuasion (2011)Google Scholar.

56 Shany, supra note 43, at 62, refers in this respect to the ‘incorporation paradox’.

57 United States: Foreign Sovereign Immunities Act of 1976, supra note 47.

58 UK, State Immunity Act 1978; Singapore, State Immunity Act 1979; Pakistan, State Immunity Ordinance 1981; South Africa, Foreign States Immunity Act 1981; Canada, State Immunity Act 1982; Australia, Foreign Sovereign Immunities Act 1985; Argentina, La Ley 24.488, Inmunidad Jurisdiccional de los Estados Extranjeros ante los Tribunalos Argentinos 1995; Israel, Foreign States Immunity Law 2008; Japan, Act on the Civil Jurisdiction of Japan with Respect to a Foreign State 2009. See also Section 86(1) of the Indian Code of Civil Procedure and the interpretation thereof in India, Supreme Court, Mirza Ali Akbar Kashani v. United Arab Republic, 1965, 64 ILR 489.

59 Wet Internationale Misdrijven, Staatsblad (Official Gazette) 2003, 270.

60 Ibid., Art. 16(a). See in similar terms Art. 1 bis(1) of the Belgian Code de procédure pénal.

61 See e.g., Fang and Others v. Jiang and Others, (2007) NZAR 420; ILDC 1226 (NZ 2006), where the High Court of New Zealand emphasized that the House of Lords in the Jones case applied international law, even though their examination took place in the context of UK immunity legislation, at para. 31.

62 Art. 16(a) Wet International Misdrijven.

63 Cf. Shelton, supra note 55, at 18–20.

64 Argentine Republic v. Amerada Hess Shipping Corporation, 488 US 428 (1989) 434.

65 Siderman de Blake v. Republic of Argentina, 965 F 2d 699 (9th Cir. 1992) 718. See also United Kingdom, Court of Appeal, Al-Adsani v. Government of Kuwait, (1996) 107 ILR 536, 548 (per Lord Ward).

66 1984 Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85.

67 Bouzari and Others v. Iran, 71 OR (3d) 675 (Ont CA); ILDC 175 (CA 2004). See also Quebec Court of Appeal, Islamic Republic of Iran v. Hashemi, 15 August 2012, 2012 QCCA 1449, paras. 41–42.

68 Islamic Republic of Iran v. Hashemi, supra note 67 at paras. 66–67.

69 Art. 94 Dutch Constitution; Supreme Court, 18 September 2001, LJN: AB1471, NJ 2002, 559.

70 See for examples D. Shelton, ‘Introduction’, in Shelton supra note 55, 1 at 13–14.

71 Thai-Europe Tapioca Service Ltd v. Government of Pakistan, [1976] 1 LR 1.

72 Trendtex Trading Corporation v. Central Bank of Nigeria, [1977] QB 529.

73 Ibid., 572.

74 Thai-Europe Tapioca Service Ltd v. Government of Pakistan [1976] 1 LR 1, at 8.

75 See also Nollkaemper, supra note 1, at 218–19.

76 See HR Rep. 94–1487, 1976 USCCAN 6604, at 6606; 15 ILM (1976) 1398, at 1402.

77 Verlinden BV v. Central Bank of Nigeria, 461 US 480 (1983) 486. See in this sense, Caplan, L. M., ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’, (2003) 97 AJIL 741CrossRefGoogle Scholar; and more in general Finke, J., ‘Sovereign Immunity: Rule, Comity, or Something Else?’, (2010) 21 EJIL 853CrossRefGoogle Scholar.

78 Dole Food Co. v. Patrickson, 538 US 468 (2003) 479.

79 Supra note 49.

80 See Italy, Constitutional Court, Soc. Immobiliare Soblim v. Russel 62 RDI 797 (1979); Italy, Court of Cassation, Cargnello v. Italy, 20 June 2005, ILDC 557 (IT 2005).

81 See Italy, Court of Cassation, Comina v. Kite, 1922, (1924) 16 RDI 173, at 174.

82 Chile, Supreme Court, Walter Szurgelies Hoyer et al. v. First Counsellor of the Embassy of the Federal Republic of Germany and Manfred Gerhard Skrabs et al. v. Consul of the Federal Republic of Germany, 1988, discussed in Vicuña, F. Orrego, ‘Diplomatic and Consular Immunities and Human Rights’, (1999) 40 ICLQ 34CrossRefGoogle Scholar.

83 US, Supreme Court of Connecticut, Fernandez v. Fernandez, 19 July 1988, 545 A2d 1036 (Conn 1988), ILDC 1385 (US 1988).

84 France, Conseil d'état, Dame Burgat et autres, 1976, 104 (1977) JDI 630; Tizon et Millet, 1984, 31 (1985) AFDI 928; Administrative Court of Appeals of Paris, 16 July 1992, (1992) RGDIP 238. See in this sense also Schermers, H. G., ‘Diplomatic Immunity in Modern International Law’, in Denters, E. and Schrijver, N. (eds.), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998), 156 at 162Google Scholar; A. Tanzi, L'immunità dalla giurisdizione degli agenti diplomatici (1991), 189.

85 See Prosecutor v. Furundžija, Judgement, Case No. IT-95–17/1, T.Ch., 10 December 1998, para. 196: ‘the law applied was domestic, thus rendering the pronouncements of the British courts less helpful in establishing rules of international law on this issue’.

86 See note 65 and accompanying text supra.

87 Court of Appeal of New South Wales, Zhang v. Zemin, 5 October 2010, [2010] NSWCA 255.

88 See example in note 65 supra. Another example is provided by House of Lords, Jones v. Ministry of the Interior of Saudi Arabia and Aziz, 14 June 2006, Appeal Judgment, [2006] UKHL 26, ILDC 521 (UK 2006), where the reliance on Art. 6 ECHR forced the court to have regard to the scope of the rule under customary law.

89 R v. Secretary of State for the Home Department, ex parte Adan [2001] All E.R. 593, 617 (Steyn LJ).

90 Knop, K., ‘Here and There, International Law in Domestic Courts’, (1999) 32 New York University Journal of International Law and Politics 501, at 503Google Scholar.

91 See ibid., at 506, for the term translation. Also Nollkaemper, supra note 1, at 218.

92 Nollkaemper, ibid., at 219.

93 Federal Republic of Germany, Federal Constitutional Court, Claim against the Empire of Iran Case, (1963) 45 ILR 57, at 80. See also Federal Republic of Germany, Federal Supreme Court, Church of Scientology Case (1978), 65 ILR 193, 196–7.

94 Israel, Supreme Court, Canada v. Edelson, 3 June 1997, 131 ILR 279, ILDC 577 (IL 1997), para. 29.

95 Ibid., para. 23.

96 See Claim against the Empire of Iran Case, supra note 93, at 80: ‘National law can only be employed to distinguish between a sovereign and a non-sovereign activity of a foreign State insofar as it cannot exclude from the sovereign sphere, and thus from immunity, such State dealings as belong to the field of State authority in the narrow and proper sense, according to the predominantly-held view of States. In this generally recognizable field of sovereign activity are included transactions relating to foreign affairs, and military authority, the legislature, the exercise of police authority, and the administration of justice’.

97 See esp. the practice of France where regard is had to the domestic-law division of competence between civil and commercial courts on the one hand and administrative tribunals on the other. Discussed in Fox, supra note 1, at 507–8.

98 See ‘International Law in National Courts: Discussion’, in Crawford, J. and Young, M. (eds.), The Function of Law in the International Community: An Anniversary Symposium (2008)Google Scholar, Proceedings of the 25th Anniversary Conference of the Lauterpacht Centre for International Law, contribution by C. Greenwood. Available at http://www.lcil.cam.ac.uk/25th_anniversary/book.php.

99 See e.g. Knop, supra note 90; Waters, supra note 32; P. Berman, ‘A Pluralist Approach to International Law’, (2007) 32 Yale Journal of International Law 301, at 311.

100 Friedmann, supra note 1, at 148.

101 See Benvenisti, ‘Judicial Misgivings’, supra note 42; Benvenisti, ‘Reclaiming Democracy’, supra note 42.

102 Benvenisti, ‘Reclaiming Democracy’, supra note 42, at 242.

103 Shany, Y., ‘Dédoublement fonctionnel and the Mixed Loyalties of National and International Judges’, in Fontanelli, F., Martinico, G., and Carrozza, P. (eds.), Shaping Rule of Law through Dialogue: International and Supranational Experiences (2010), 29 at 36Google Scholar.

104 See Cassese, A., ‘Remarks on Scelle's Theory of “Role-Splitting” (dédoublement fonctionnel) in International Law’, (1990) 1 EJIL 210CrossRefGoogle Scholar, at 218–19 on the link between the doctrine and reality, and at 215–17 on the ideological underpinnings of the doctrine.

105 Cf., for a similar finding on the other side of the coin, Berman, supra note 99, at 327: ‘Pluralism is thus principally a descriptive, not a normative, framework’.

106 Benvenisti, E., ‘Comments on the Systemic Vision of National Courts as Part of International Rule of Law’, (2012) 4 Jerusalem Review of Legal Studies 42, at 45CrossRefGoogle Scholar.

107 See Resolution of the Institut de droit international on The Activities of National Judges and the International Relations of Their State (1993), Art. 1(2); Nollkaemper, supra note 1, at 225; Shany, supra note 103, at 41.

108 The notion of secondary rules is used here in the sense of Hart, supra note 35, at 92: ‘secondary rules . . . specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’.

109 Franck, T. M., ‘Legitimacy in the International Legal System’, (1988) 82 AJIL 705CrossRefGoogle Scholar, at 758; Charney, J. I., ‘Universal International Law’, (1993) 87 AJIL 529CrossRefGoogle Scholar, at 533–4; Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760Google Scholar, at 779; Nollkaemper, supra note 1, at 226.

110 Cases cited at note 7 supra.

111 Roberts, supra note 1, at 70. Cf., in similar terms, Pavoni, supra note 10, at 75–7.

112 See notes 8 and 9 and accompanying text supra.

113 Jones, supra note 88, para. 63. See also Bouzari, supra note 67, para. 95.

114 Roberts, supra note 1, at 64.

115 Ibid., at 70.

116 While Roberts herself argues against ‘rigidly separating’ the law-creation and law-enforcement functions of domestic courts. Ibid., at 68.

117 In fact, many authors arguing that the Ferrini case violates international law admit that it may trigger a change in the law of state immunity. See Focarelli, C., ‘Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision’ (2005) 54 ICLQ 951, at 957CrossRefGoogle Scholar; Gattini, A., ‘War Crimes and State Immunity in the Ferrini Decision’, (2005) 3 Journal of International Criminal Justice 224CrossRefGoogle Scholar, at 241–2; Fox, supra note 1, at 156–7.

118 See, e.g., Akehurst, M., ‘Custom as a Source of International Law’, (1974–5) 47 BYIL 1Google Scholar, at 8; van Hoof, G. J. H., Rethinking the Sources of International Law (1983), 100Google Scholar; Bederman, D. J., Custom as a Source of Law (2010), 160CrossRefGoogle Scholar.

119 Jennings, R. Y., ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 ICLQ 1CrossRefGoogle Scholar, at 3.

120 See note 31 supra.

121 Interestingly, Roberts concedes that ‘national court decisions are often given greater weight than the practice of a single State would suggest because they are treated as a subsidiary means of identifying international law rather than as State practice per se’. Roberts, supra note 1, at 63.

122 Jurisdictional Immunity case, supra note 9.

123 See case law mentioned in note 7 supra.

124 Jurisdictional Immunity case, supra note 9, paras. 98–104.

125 Ibid., para. 101.

126 Lowe, V., ‘The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?’, in Byers, M. (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000), 207Google Scholar at 214.

127 See ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by M. Koskenniemi, UN Doc A/CN.4/L.682 (2006), para. 36 et seq.

128 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, [2006] ICJ Rep. 3, 86 (Judge Ad Hoc Dugard, Separate Opinion), para. 13, see also para. 12.

129 Art. 6 ECHR has been interpreted to guarantee the right of access to court. Golder v. United Kingdom, Decision of 21 February 1975, ECHR App. No. 4451/70, paras. 28–36.

130 Al-Adsani v. United Kingdom, Judgment of 21 November 2001, ECHR App. No. 35763/97, paras. 55–56: ‘The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity. . . . It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1’. Only Judge Rozakis dissented from this approach, which has since been consistently followed by the Strasbourg court. See, e.g., Kalogeropoulou and Others v. Greece and Germany, Decision of 12 December 2002, ECHR App. No. 59021/00. In later cases the ECtHR has indeed confirmed that the grant of state immunity beyond the requirements of international law does violate Art. 6: see Cudak, supra note 24; Guadagnino, supra note 24; Sabeh El Leil, supra note 24; Wallishauser, supra note 24.

131 See e.g., Nordeide, R., ‘The ECHR and Its Normative Environment: Difficulties Arising from a Regional Human Rights Court's Approach to Systemic Integration’, in Fauchald, O. K. and Nollkaemper, A. (eds.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (2012), 117 at 133–4Google Scholar; Van Alebeek, supra note 5, at 397–406. See also the text accompanying note 31.

132 Supra note 4.

133 The Privy Council, The Philippine Admiral 1975, 64 ILR 90, at 109. Cf. also UK, High Court of Admiralty, The Charkieh, 1873, (1872–1875) LR 4A & E.59; Egypt, Cour d'appel mixte d'Alexandrie, Hall v. Bengoa, 1920, 48 JDI 1921 270, at 272: ‘l'immunité de juridiction dans ce cas serait la négation de la justice puisqu'elle priverait du secours de celle-ci les individus dont les intérêts se trouvent en conflit avec les intérêts privés du dit Etat’; US, 2nd Cir. Court of Appeals, Victory Transport Inc. v. Comisaria Gen. De Abestecimientos y Transportes, 1964, 336 F. 2d 354, at 357; Canada, Quebec Court of Queen's Bench, Venne v. Democratic Republic of the Congo, 1968, 5 DLR (3d) 128, at 143–4: ‘`an absolute and universal immunity could be a source of injustice’; Canada, Quebec Court of Appeal, Zodiak International Products Inc. v. Polish People's Republic, 1977, 64 ILR, at 58; UK, House of Lords, I Congreso del Partido, [1983] 1 AC 244, at 262 (per Lord Wilberforce); India, Supreme Court, Harbhajan Singh Dhalla v. Union of India, 1986, 92 ILR 530.

134 See esp. Waite and Kennedy v. Germany, Decision of 18 February 1999, ECHR App. No. 26083/94, para. 68: ‘a material factor in determining whether granting [an international organization] immunity from . . . jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’. See, e.g., Tomonori, M., ‘Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means’, (2008) 71 Modern Law Review 734CrossRefGoogle Scholar; Fox, H., ‘State Immunity and other Norms of International Law: Possible Methods of Accommodation’, in Erauw, J., Tomljenović, V., and Volken, P. (eds.), Liber Memorialis Petar Šarčević; Universalism, Tradition and the Individual (2006), 545 at 563Google Scholar.

135 Germany, Federal Constitutional Court, Italian Military Internees Case, Joint Constitutional Complaint, 28 June 2004, BVerfG, 2 BvR 1379/01, ILDC 438 (DE 2004).

136 Badr, G. M., State Immunity: An Analytical and Prognostic View (1984), 135CrossRefGoogle Scholar.

137 Van Alebeek, supra note 5, at 96.