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The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?

Published online by Cambridge University Press:  05 February 2013

MATTEO SARZO
Rights & Permissions [Opens in a new window]

Abstract

The following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

Keywords

immunityindividual rightsinternational obligationsjurisdiction

Information

Type
HAGUE INTERNATIONAL TRIBUNALS
Information
Leiden Journal of International Law , Volume 26 , Issue 1 , March 2013 , pp. 105 - 125
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013

1. Introduction

The judgment of the International Court of Justice of 3 February 2012 in the case concerning the immunity of Germany from Italian civil jurisdiction undoubtedly marks an important step towards a better clarification of the rule of immunity. However, probably because of multiple handwritings, the arguments of the Court seem sometimes contradictory and need a special effort of interpretation in order to become a coherent whole. In particular, the Court seems to endorse the widespread view of the exclusive procedural character of immunity but, at some strategic junctures, it lets appear a link between the issue of jurisdiction and the individual rights at stake. The scope of the present contribution is to make this link more evident and to propose an alternative or ‘substantive’ construction of immunity. At first sight, this different approach could not seem anything but a doctrinal attempt to unveil the rationale behind domestic courts’ actual practice when dealing with a foreign state's immunity. On the contrary, as we will see, the substantive approach could well lead to significant practical consequences in terms of the affirmation or denial of international jurisdiction. Just to stay within the case at hand, had the ICJ endorsed the substantive construction, it would probably have ended up dismissing the case because of its own lack of jurisdiction.

The article is structured as follows. In section 2 the reasoning of the Court in relation to the rationale behind immunity will be briefly exposed, and in section 3 it will be shown that, on the basis of the ICJ's judgment, two different readings of the immunity rule could be envisaged. In the two following sections we will further explore the ‘substantive’ approach of the immunity rule, distinguishing two different scenarios, one in which the individual right at stake is granted by the forum state solely (section 4), and the other in which the individual right is the object of an international rule (section 5). Finally, section 6 will be concerned with the consequences in terms of jurisdiction stemming from this different approach.

2. Fundamentals on immunity: the holding of the Court

Aware of the several theories explaining the function of immunity, the Court attempts to harmonize them in a consistent way. The starting point of its reasoning is that immunity is an expression of the ‘sovereign equality’ between states.Footnote 1 However, in the same paragraph, the Court combines this statement with the principle that states are free to regulate their adjudicative jurisdiction ‘over events and persons within that territory’. Therefore, while ‘immunity may represent a departure from the principle of territorial sovereignty’, the exceptions are ‘a departure from the principle of sovereign equality’.Footnote 2

It may seem curious that the Court frames immunity and its exceptions not as rules grounded on a common principle of international law but as expressions of different and separate values, territorial sovereignty on the one hand, and sovereign equality on the other hand. By this choice, perhaps, the Court points out that territorial sovereignty and sovereign equality are two rules placed at the same level in international law, no hierarchical order existing between them. To put it in other words, the Court suggests that no conflict could exist between the freedom of the state to regulate the extent of its jurisdiction and the fact that immunity restricts this power. This understanding, not fully convincing, is tainted by an inescapable contradiction. In fact, either states do not enjoy an absolute ‘sovereign’ power of jurisdiction, because immunity limits it or they are still sovereign in this sphere and, consequently, immunity is a sort of waiver to exercise jurisdiction made by the territorial state in favour of the defendant state.Footnote 3 This last argument has indeed been advanced over and again by those scholars who deny the customary nature of immunity, notably among them Lauterpacht.Footnote 4

However, this last interpretation of the passage cannot reflect the actual idea of the Court. In its construction, immunity is not a waiver of jurisdiction made by the forum state, but as the evidence that the forum state recognizes the defendant state as a sovereign entity and, consequently, that it lacks the power of adjudicating over a matter involving it. This recognition is not constitutive, but declaratory, because the right to be immune from jurisdiction is inherent in the fact that an entity is a ‘state’.Footnote 5 Therefore, cases in which immunity is not applied are ‘derogations’ from the principle of equality between states. This means that the defendant state, acknowledging progressively the power of the forum state of governing a precise dispute, has implicitly consented to be subjected to its jurisdiction and to be eventually bound by its laws.Footnote 6

By giving up the idea of setting a hierarchical order between the different principles at stake, and by refraining from investigating the reasons behind the exceptions to state immunity, the Court succeeds in finding a solution by keeping its analysis at a minimal conceivable theoretical level. In the Court's opinion, immunity and its exceptions are a matter of customary international law, and everything relies on the evidence of a specific derogation: in the case at hand, whether the territorial tort exception extends to the activities of the armed forces of the foreign state.Footnote 7

However, and indeed not surprisingly, the Court is not able to apply consistently this self-restraint throughout the whole judgment. In dealing with the several arguments presented by Italy, the Court at first endorses the procedural view of state immunity. In fact, when discussing the relationship between jus cogens and the rule of state immunity, it holds that ‘[t]he rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State’.Footnote 8 But soon after, in the same context, the Court remarks its difficulty in finding, in international law, ‘a rule requiring the payment of full compensation to each and every individual victim’,Footnote 9 thus leaving open the question whether this difficulty concerns only the jus cogens nature of such a rule or its very existence in customary international law.

3. The link between domestic jurisdiction and individual rights

The fact that the consent of the defendant state allows the forum state to assert its jurisdiction and to apply its domestic rules (or possibly its own conflict-of-law rules) over a precise transaction reflects the historical evolution of the rule of immunity.

In the past, immunity was construed in a purely subjective manner, in the sense that an individual could not sue a state as ‘a state’.Footnote 10 In this view, the only relevant element of the rule was the particular status of the defendant, a state.Footnote 11 Problems arose since, at the end of the nineteenth century, some domestic courts (notably, the Italian and Belgian ones) had not been applying the rule of immunity over some commercial transactions. Dealing with the topic of immunity in 1891, the Institut de droit international endorsed the distinction between acts jure imperii and jure gestionis. In this project, the link between jurisdiction and immunity is particularly evident. In fact, the resolution, focusing on the issue of jurisdiction, drew a list of specific causes of action over which the courts of the forum state should assert or decline jurisdiction. This point is rather evident in the passage holding that ‘il n'y a pas de compétence (ratione materiae)’ when the courts are faced with sovereign acts of the defendant state.Footnote 12 From this angle, the subject matter of the domestic lawsuit in the forum state becomes part of the rule of immunity, along with the subjective criterion (the status of the defendant). In addition, the second resolution of the Institut on the same matter, adopted in 1954, confirmed that no state should assert jurisdiction over an act that is the expression of the ‘puissance publique’ of the defendant state.Footnote 13

The difficulty in distinguishing neatly between activities jure imperii and jure gestionis has occupied for a large part the international scholars of the twentieth century. In light of the somewhat confused judicial practice and of scant theorization, it is, however, surprising that so little attention has been paid to those alternative theories, which explained the derogations from immunity taking into account the lack of individual rights or the non-justiciability of the dispute.Footnote 14

With regard to the first argument, Lauterpacht looked at immunity as a rule grounded on the domestic rules of responsibility of the forum state. In fact, what domestic courts do actually is to apply analogically to the defendant foreign state the rules that provide for the responsibility vel non of the domestic authorities towards their citizens.Footnote 15 Despite its major bias, i.e., as we have previously seen, the its denial of the customary nature of state immunity, this interpretation has the merit of highlighting a feature not particularly noticed until then; that is, the tie between immunity and the existence of individual rights. It is interesting to recall that in the English case law of the nineteenth century, the rationale of granting immunity to the defendant state was grounded on the application to the defendant state of the domestic rules providing for the irresponsibility of the Crown towards its subjects.Footnote 16

As for the second argument, based on the non-justiciability of the transaction, the rule of immunity would be just a doppelgänger of the actual lack of jurisdiction of the forum state. This happens because the transaction at stake in the domestic lawsuit is an international relationship between states or a relationship in which the defendant state exercised its public power over an individual. In other words, this transaction would not fall within the jurisdiction of the forum state, because it cannot be properly regulated by the law of the forum state.Footnote 17 According to a distinct, but quite similar, opiniom, by applying immunity in these cases, it courts show the impossibility of dealing with a specific transaction, because the falls outside the power of the judiciary in light of the principle of non-interference in the internal affairs of foreign states. However, the non-justiciability of the action would not prejudice any right of the individual, because there is always a more appropriate forum, that of the defendant state or, alternatively, recourse to diplomatic protection.Footnote 18 In contrast, immunity is lifted when the court in which the actor has filed the lawsuit turns out to be the appropriate forum to settle the dispute.Footnote 19

If for the International Court of Justice, the rule of immunity entirely relies on the kind of transaction at stake in the domestic trial, this transaction becomes itself part of the rule of immunity and, as such, can and must be ascertained through an analysis of practice. At this juncture, one could just leave it, as the Court did, or proceed further, to understand why domestic courts apply the rule of immunity in some matters and, they do not in others. To this end, it is useful to draw a twofold distinction, which will be developed in the next two sections, depending on whether the alleged relationship is bilateral or trilateral.

4. Immunity and domestic law: the relationship between the defendant state and individuals

In a first set of situations, it is possible to imagine a twofold relationship between the individual and the defendant state (a horizontal relationship) and between the individual and the forum state (a vertical relationship). The right which the individual claims against the defendant state is not the object of an international obligation binding the defendant state and the forum state and, its granted by the forum state solely.Footnote 20 The conduct of the defendant state, which violated such a right, usually took place, or at least had some effects, within the territory of the forum state.

The several international and domestic codifications of the rule of immunity, confirm that its lifting results from the type of conduct carried out within the territory of the forum state, appropriate as such to assert the jurisdiction of the courts of the 1st one. For instance, Articles 5 to 12 of the 1972 European Convention on State Immunity have been phrased in such a way to assert the jurisdiction ratione materiae and ratione loci of the forum state over some specific circumstances. In fact, each article refers to transactions that have so close a link with the forum state that the law of this one is assumed to be the most conveniens to regulate the transaction at issue and to grant accordingly a right to the an individual client.Footnote 21 From a different point of view, the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property envisages the close link between the absence of immunity on the one hand and the jurisdiction and application of the law of the forum state on the other hand. This consideration stems clearly from the commentaries to Article 10 (the commercial exception) and 12 (the tort exception).Footnote 22 In addition, some domestic statutes confirm a similar approach. For instance, Article 3(1) of the UK State Immunity Act 1978 provides that the defendant state is not immune if the contract whose breach is alleged by the plaintiff has to be partially or totally performed within the territory of the UK. The same happens in case of a contract of employment and in case of torts, when the relevant facts occurred within UK territory.Footnote 23 In all these cases, the individual brings a lawsuit against the defendant state alleging the violation of a right granted by the forum state.

In its concise arguments devoted to the distinction between activities jure imperii and jure gestionis, the Court maintaineds that the term jure gestionis identifies ‘non-sovereign activities of a state, especially private and commercial activities’. The Court, however, does not specify whether the rules which permit one to identify these acts belong to the international or the domestic legal order.Footnote 24 Two hypotheses could explain this issue.

At first sight, the rules which qualify a transaction as jure gestionis belong to the domestic forum.Footnote 25 As has been said before, it may well be that the courts qualify a conduct as jure imperii and grant immunity to the defendant state, because no individual right could be claimed against the forum state, if it was sued for the same activity. In the same way, the courts deem the transaction to be jure gestionis whenever the individual might sue the forum state for an analogous transaction. The distinction between jure imperii and jure gestionis would then depend on the existence of domestic rules which grant a right to the individual against the forum state.

This view, however, reveals itself to be ideologically driven. Indeed, nothing excludes that the difference between the character jure imperii and the character jure gestionis of a transaction is due to a rule of customary international law. It suffices to invert the focus of the inquiry, by asking whether states, have expressed over time their consent to be subjected to the jurisdiction and to the law of another state for a particular activity. Accordingly, this consent changes the rule of immunity in relation to a specific transaction. This conclusion is in accordance with the rationale behind immunity as construed by the Court itself, when it points out that the derogations from immunity represent a departure from the principle of equality between states.

Renouncing its right to be treated as a sovereign entity in front of the forum state, the defendant state loses its sovereign quality and accepts being put on the same footing as an individual. From a practical point of view, the whole issue becomes a matter of domestic law, both for the character of the defendant, which is not considered a state any more for the purpose of the specific lawsuit, and for the nature of the legal transaction between the claimant and the defendant state, which entirely falls within the domestic legal order of the forum state.Footnote 26 From a theoretical point of view, however, it is still customary international law which dictates the conditions and modalities of such an occurrence. In fact, in the capital passage devoted to the territorial tort exception relating to activities of armed forces, the Court rejects the argument that this specific conduct should be excluded by the range of application of immunity or, in other words, that the rule of immunity would have undergone a change. This conclusion is reached after a quantitative analysis of the relevant practice.Footnote 27

To sum up, in this first category of cases, the rule of immunity is still within the realm of international law, but due to the peculiarity that it plays on a domestic-law ground. When a specific transaction is not covered by the rule of immunity, this means that, with the passing of time, states have been expressing their agreement to be sued in relation to that specific transaction and to be bound by certain rules of another state, which bestow a right to individuals. In this context, the expression ‘jure gestionis’, or any other label, is just a convenient formula meaning that the rule of immunity has changed in respect of a particular transaction. This conclusion is linked to the principle of sovereign equality evoked by the Court: if the ‘exceptions’ to immunity convey the idea that a state is no longer a ‘state’ when faced with a court, then the entire transaction will be subjected to the rules governing the relationships between private persons of the forum state.Footnote 28

5. Immunity and customary law: the relationship between the forum state, the defendant state, and individuals

Immunity could hide the lack of an individual right in a second group of cases, in which the transaction is trilateral. In this different hypothesis, there is an international obligation binding both the forum state and the defendant state and bestowing a right on individuals. The fact that one claims a right granted by the laws of the forum state too is not relevant here, because this right is provided for by an international rule binding the defendant state as well. The passage of the judgment devoted to jus cogens deals with this issue.Footnote 29 This topic, fundamental as it may be in the economy of the whole decision, in the present section will be touched upon to the extent that it is useful for the purposes of the present contribution.

The first problem is to assess whether the international obligation grants an individual right. The answer to this legal issue, which calls for the interpretation of the content of the relevant rule of international law, is preliminary with respect to the application of immunity.Footnote 30 Indeed, declining to rule upon ‘the question of whether Germany has a duty of reparation towards the Italian victims of the crimes committed by the German Reich’, the Court nevertheless decids to verify if, in general terms, ‘the failure of a State to perform completely a duty of reparation . . . is capable of having an effect, in law, on the existence and scope of that State's jurisdictional immunity before foreign courts’.Footnote 31 (emphasis added)

In this context, the Court makes the argument that international customary law does not provide for any rule of jus cogens obliging ‘the payment of full compensation to each and every individual victim’.Footnote 32 In fact, ‘the background of a century of practice’ shows that states used to make lump-sum agreements or to waive any right to compensation in order to settle postwar disputes.Footnote 33 It is well evident that the Court checks the existence of a general international obligation of reparation underlying immunity to which individuals would be entitled.Footnote 34 In another passage, the Court holds that the creditor state, having received the sum, could freely choose how to employ it.Footnote 35 To the extent that the creditor state enjoys the discretionary power of establishing the beneficiaries of the sum, it follows that there is no customary rule the victims could rely on to challenge an unfair assignment of the sum, to which they would be entitled.

Yet, the cursory references of the Court to the obligation of reparation still allow a glimpse of the issue of individual rights, wrought in the shadow of immunity. Would the Court have decided otherwise if, in 1945, a customary rule had obliged states to pay reparation directly to individuals?Footnote 36 This being a purely rhetorical question for the reasons set out above, it nevertheless highlights the underlying problem of immunity, when this rule is read in conjunction with the existence vel non of an international obligation bestowing individual rights. The merits of the argument put forward will become more evident once the perspective is slightly widened, for instance, taking into consideration a different topic, such as the prohibition of torture.

Recently, in a case involving Canada, the United Nations Committee against Torture maintained that the provision of Article 14, paragraph 1, of the 1984 UN Convention against Torture bars the application of the rule of immunity for civil tort claims by individuals when the alleged acts of torture are not carried out by the organs of the forum state.Footnote 37 Generally, in customary international law the prohibition of torture is construed in a negative form; that is to say, states are obliged not to commit such an act, even if several treaties codify this prohibition as an individual right. For instance, Article 5 of the Universal Declaration of Human Rights, Article 4 of the European Convention on Human Rights, Article 4, paragraph 2, of the American Convention on Human Rights, and Article 7 of the International Covenant on Civil and Political Rights provide that no one shall be subjected to torture.Footnote 38 Article 2, paragraph 1, of the UN Convention against Torture differs curiously from this phrasing, providing that states have the obligation to take positive legislative, administrative, judicial, or other effective means to prevent acts of torture in any territory under their jurisdiction.Footnote 39

Now, provided that customary law prevents states from committing acts of torture, in the same way as the treaty-based rule, this fact, however, would not entail that customary law encompasses a right to reparation, and even less a right of so wide a range as that defined by the Committee against Torture.Footnote 40 Following the interpretation of the CAT, Article 14 obliges any state party to the Convention to lift immunity to allow individual suits against the state author of the torture in the forum of every state party of the Convention. In this way, the individual would be entitled to invoke the breach of the relevant international obligation ‘horizontally’, no matter the place it occurred and author who carried it out.

Some significant cases, both domestic and international, prove the absence of such a wide rule of customary law. In some of them, the defendant states were not parties to the Convention against Torture, while in some others the courts did not take into account this Convention to ground their holdings. The customary obligation on torture forbids only the commission of such act – in that sense, it is an inter-state obligation – consequently leaving aside the issue of reparation and of immunity.Footnote 41

For instance, in the Bouzari v. Iran case, the Ontario Court of Justice construed Article 14 of UN Convention against Torture according to the Canadian State Immunity Act and granted immunity to Iran, which was not a party to that Convention. Therefore, if Article 14 had mirrored a customary rule in the same wide fashion as the CAT interprets Article 14, the Ontario Court of Justice should have applied that customary rule.Footnote 42 In the Al-Adsani case, issued by the European Court of Human Rights in November 2001, the main issue at stake was to verify whether the commission of torture would have entailed an international obligation of the author state to pay damages directly to individuals (a right to remedy embodied in a customary rule). In this case, too, the author – the state of Kuwait – was not party to the Convention, nor did the European Court make any reference to Article 14 of the UN Convention against Torture to support its holding.Footnote 43 The ECtHR implicitly denied the existence of a customary rule, construed as the CAT would have done shortly after. For the majority of judges, the positive (and treaty-based) obligation to provide individuals with a remedy in event of torture, according to Articles 3 and 13 of the European Convention, does not imply the duty for the UK to ‘provide a civil remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities’.Footnote 44 Having discarded such an obligation under the European Convention, one can assume that the European Court would have decided otherwise if a customary rule, wider than the one provided for by the European Convention, had existed and had bound the UK and Kuwait. In other words, the European Court would have applied a customary rule bestowing directly an individual right to reparation in the same fashion as it actually applied the customary rule of immunity.Footnote 45

The Court's awareness of the lack of such a customary rule applicable between states and individuals was even more evident when the Court found that the national proceedings were based on ‘a cause of action well known to English law’.Footnote 46 The reasoning of the Court seems to be the following: ruling out a customary norm providing for an individual right and binding the forum and the defendant states, the only legal basis, on which individuals may rely is the forum state's law. Consequently, the consequences are those described in section 4 of this contribution: the lifting of immunity depends entirely on the consent of the defendant state, expressed in a rule of customary law.Footnote 47

This case law leads to the fundamental question as to the nature of the obligation of reparation from the point of view of customary international law, and – more generally – to the issue of individual rights couched in international obligations. As is well known, in the latest stages of the elaboration of the Articles on the Responsibility of State for Internationally Wrongful Acts, the ILC included a saving clause with the effect of leaving open the question of reparation due directly ‘to individuals or entities other than a State’. It is unclear whether, in the Commission's reasoning, this right would flow from a primary or secondary obligation.Footnote 48 However, in both cases this saving clause entails some doubts.

In the event that an individual right is couched in a primary obligation, the question arises as to who will be entitled to invoke the breach of this obligation. Actually, Article 33, paragraph, 2 refers only to the second part of the project, which deals with the consequences of an international wrongful act, while the third part is concerned with the entitlement of a state to invoke a breach.Footnote 49 According to this part, the entitlement of the action to set in motion the international responsibility is identified by a subjective standard. The right to invoke a breach is up to the state which the primary obligation is due to, such as the ‘injured’ or ‘specially affected’ states of Article 42, or to the state other than the injured one, in case of infringement of an erga omnes obligation according to Article 48. Consequently, applying the coupled rule ‘entitlement of the (primary) obligation – right of action’ in the spirit of the ILC Articles, if individuals were directly affected by the primary obligation, they would have the right to invoke the breach on every occasion and against every state bound by the same primary rule. Needless to say, practice simply does not bear out any such wide-ranging consequence under customary or treaty law.Footnote 50

If the right to reparation of an individual does not flow from a primary norm, a fortiori one has to exclude that a secondary obligation could embody such a right. If the individuals were entitled to invoke a secondary obligation, it would result in a separation between the state, which is entitled to invoke the primary obligation, and the individuals, who are entitled to invoke the secondary one. This way of reasoning cannot be supported because the ILC Articles make clear that the secondary obligation, which can well concern an individual right to reparation, is due to the state to which the primary obligation is due and has been breached. It would be a nonsense to affirm that individuals might be entitled to invoke a transaction (the secondary obligation: the consequence of the breach) without having the right to invoke the violation of a primary obligation, from which the secondary obligation flows. The right of individuals to reparation, as a secondary obligation, is another faux-semblant if it is not linked to the right to invoke the primary obligation, of which individuals are not the direct beneficiaries.

In the light of these reflections, it is straightforward that Article 33, paragraph 2, can only be concerned with treaty-based regimes, where individuals are specially entitled to claim the respect of a primary rule before the courts of the state author of the breach or in front of an international tribunal. This happens because states have intentionally conferred such a wide substantive right.Footnote 51

How does one solve the apparent discrepancy between the existence of an individual right couched in an international obligation and the lack of any international customary rule allowing individuals to invoke it? Confronted with this dilemma, some authors think to find an easy way out in getting rid by sleight of pen, of the principle of state immunity. As the ICJ now makes sufficiently clear, such a ‘solution’ is not a viable one. On the contrary, the apparent contradiction would be easily sorted out if one admitted that the rule of state immunity proves the lack of any right directly granted to individuals by international law on a horizontal, or international, plane. The fact that immunity bears some procedural consequences too is here of minor relevance. Given the absence of an individual right to reparation, the rule of immunity is nothing more than a shorthand expression to preserve the freedom of the states involved in the breach to settle the dispute peacefully through any international means they wish to use, in particular through diplomatic protection, which, by the way, is not compulsory.Footnote 52

The rule of immunity gives expression to the fact that individuals are not the actual counterpart of any customary international obligation, because the obligation regulates only inter-state transactions.Footnote 53 This is obviously the case of war reparation. Of course, nothing precludes states from agreeing that an individual may sue the state author of the breach in the forum of another state bound by the same international obligation, but such an agreement may not be presumed and a special consent is needed accordingly.Footnote 54 This is the case, for example, when a treaty creates an international court, before which individuals could bring a claim against the responsible state.

Some recent instruments of international law confirm that individuals are not the actual substantive counterparts of an international obligation and consequently they lack the right to invoke ‘horizontally’ the breach of one international obligation through the judges of a state other than the author of the breach, even if the last is bound by the same international rule. For instance, even if Clause VII of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (annexed to General Assembly Resolution 60/147 of 21 March 2006) urges states to grant redress to the victims of gross violation of humanitarian law, Clause XII makes clear that this resolution is without prejudice to the issue of immunity.Footnote 55

The Resolution on State Immunity, adopted by the Institut de droit international in its session in Basle in 1991, confirms the validity of the above considerations. In particular the rule couched in Article 2, paragraph 3(a)–(c), specifically deals with the cases in which domestic courts should not have jurisdiction over issues concerning the validity of inter-state transactions or domestic acts of the defendant state in the light of international law, as well as over cases in which the settlement of a dispute is up to ‘un autre système de recours’.Footnote 56 In the original version, Professor Brownlie drafted these rules with a wider scope: in fact, their aim was to exclude altogether the jurisdiction of the courts over issues involving the ‘meaning and effect’ of international transactions of the state, including, inter alia, the assessment of the breach of an international obligation by a state.Footnote 57 In the last round of discussions of the plenary meeting, that draft was sharply criticized by Judge Higgins, who lamented the ‘retrogressive elements’ contained in the rule, which would have wholly prevented the courts from dealing with issues of international law.Footnote 58 This criticism is not unfounded but decreases in value once the rule of immunity is construed in the way we have shown here. Domestic courts grant immunity to the foreign state not because of whatsoever international transaction at stake, but because the rule of international law does not accrue directly to an individual, in case of customary law, or because the right of action is limited and granted directly by states themselves, in case of treaty-based rules.

6. Conclusion: the consequences for international jurisdiction

If immunity may be construed as a ‘procedural’ rule inextricably intertwined with an international substantial obligation,Footnote 59 as in the situation envisaged in the previous section, one might argue whether this fact could have some consequences for the extent of the jurisdiction of the ICJ. Therefore, the last question is to understand how the Court, after ruling on the existence of an obligation of reparation, albeit indirectly, confirmed its jurisdiction in the case.

In the present litigation, jurisdiction was based on the European Convention for the Peaceful Settlement of Disputes of 29 April 1957.Footnote 60 Article 27(a) of that Convention excludes the jurisdiction of the ICJ with regard to disputes relating to facts or situations arising before the entry into force of the Convention between the states parties (18 April 1961). Called upon to deal with disputes only occurring after this precise date, the Court had to verify the very object of the litigation and check whether it arose after this ‘critical’ date.Footnote 61 In this respect, the case at hand upholds the opinion authoritatively expressed by Rosenne. For this author, the assessment of the moment in which the ‘facts and situation’ giving rise to a dispute had occurred, and the time in which the dispute itself arose in relation to those facts or situations, is to a large extent a ‘formal’ problem, not to say an arbitrary decision of the judge.Footnote 62

In the present case, the applicant defined the object of the dispute in the denial of immunity by Italian judges, according to the procedural character of the rule.Footnote 63 The Court fully endorses this assumption, establishing the rise of the dispute in the Italian judicial decisions denying immunity to Germany from 2004 onwards. In addition, the Court carefully distinguishes this question from the subject matter of the Italian judicial proceedings, namely ‘reparation for the injury caused by actions of the German armed forces in 1943–1945’.Footnote 64 Consequently, the Court explicitly excludes being called upon to rule ‘on the question of whether Germany had a duty of reparation towards the Italian victims of the crimes committed by the German Reich and whether it has complied with that obligation in respect of all those victims’.Footnote 65

However, had the Court strictly followed this path, it should have confined itself to stating (as in Part I of the judgment it actually did) that immunity has no exception because of the lack of any ‘customary’ consent of the defendant state to be bound by the rules of the forum state in relation to a certain transaction (in this case, reparation claims arising out from war activities). Nevertheless, as explained in the previous section, if immunity was construed as the consequence of the existence vel non of a right of reparation directly due to individuals, in force at the time when the atrocities occurred, the finding of the Court would inevitably involve legal issues relating to the appraisal of this obligation. At this point, a ruling addressing the existence and the performance of an obligation of reparation would roll the dispute back to 1947, when, through Article 77, paragraph 4, of the Paris Peace Treaty, Italy waived in favour of Germany all its claims for itself and on behalf of its citizens. Following the approach described in the previous section, the assessment of an underlying substantial obligation, granting individual rights, is a preliminary matter of law to ascertain in order to define immunity. In this way, the dispute would inevitably include the effects of such a waiver on the obligation of reparation and the subsequent agreements between Germany and Italy in the matter.

Aware of the possible risk to its jurisdiction, the Court thought to circumvent this impossible object of the dispute, by approaching it from a rather theoretical and general perspective. As we have seen, the Court makes the argument that its task is to determine whether, in general terms, ‘the failure of a State to perform completely a duty of reparation . . . is capable of having an effect, in law, on the existence and scope of that State's jurisdictional immunity before foreign courts’.Footnote 66 Thus, the performance of a specific obligation of reparation, being a simple matter of fact, would have an effect ‘of law’, because it would permit one to ‘determine the customary international law applicable in respect of State immunity for the purposes of the present case’.Footnote 67

Despite the ingenious rhetorical device, the Court is not able to keep true to it, because, instead of assessing the failure to perform an obligation in general terms, it could not resist the temptation to say something on the very existence and the extent of a specific obligation of reparation allegedly infringed by Germany. Indeed, the Court checks whether Germany fulfilled this obligation, pointing out that the issue of reparation has not been already settled between the parties and holding as ‘a matter of surprise – and regret – that Germany decided to deny compensation to a group of victims’.Footnote 68 In the following passage, the Court confirms the extent of this obligation of reparation, which nevertheless does not accrue directly to individuals, because the dispute about its performance ‘could be the subject of further negotiation involving the two states affected’.Footnote 69 Given the constraint of the Court's jurisdiction, these statements are obviously nothing but obiter dicta. Nevertheless, they are prompted to a certain extent by the very arguments of the parties displayed during the proceedings, Germany having asserted the non-existence of such an obligation and Italy having argued the jus cogens character of that same obligation.Footnote 70

In sum, it appears that, if the preliminary issue on the question of reparation is patently part of the subject matter of the dispute, then for the Court this does not, however, entail any consequence for its jurisdiction, as long as its enquiry is held in general terms. This approach gives rise to some doubts.

In particular, the Court's solution is in a marked contrast to a previous holding, in which the jurisdiction was based on the same Article 27 of the 1957 Strasbourg Convention. In the Certain Property case, Liechtenstein (the applicant) argued that the application of Article 3, Chapter 6, of the Convention on the Settlement of Matters Arising out of the War and the Occupation of 26 May 1952 violated the right of one of its citizens, Prince Hans-Adam II. In particular, Article 3 prevented German courts from dealing with the question of the restitution of movable property once belonging to the prince's grandfather and seized by Czechoslovakia as a ‘German enemy asset’ after the Second World War.Footnote 71 Accordingly, the ICJ recognized that ‘the subject-matter of the dispute is whether, by applying Article 3, Chapter Six of the Settlement Convention to Liechtenstein . . . Germany was in breach of the international obligations it owed to Liechtenstein’.Footnote 72 Germany, however, raised the preliminary objection that the application of Article 3 of the Settlement Convention (a procedural rule) depended on the appraisal of a substantive regime, namely the confiscations carried out by Czechoslovakia in 1945–6, thus falling outside the jurisdiction of the Court ratione temporis in compliance with Article 27 of the Strasbourg Convention.Footnote 73 Clearly, the measures of confiscations of Czechoslovakia are a preliminary law issue, which determine, in turn, the application of the Settlement Convention to Liechtenstein properties. The Court dismissed the case on the ground that the decisions of German courts over the Pieter van Laer painting, by applying the Settlement Convention, were ‘inextricably linked’ to the Beneš Decree of confiscation of 1945. In consequence, this ‘preliminary issue’ was the ‘real source’ or cause of the current dispute between the parties.Footnote 74 So, one might remark that, in this case, the dismissal of the main claim because of lack of ratione temporis jurisdiction is due to the link of this claim with a preliminary substantive regime (the measures of confiscations), qualified as the real litigation between the parties. In contrast, in the case of immunity, the Court confined itself to ascertaining whether the object of the Italian counterclaim was simply included in its jurisdiction ratione temporis, but did not rule on the question of the connection with the German main claim.Footnote 75 This approach reveals once more the assumption that immunity, for the Court, must be a rule ‘procedural in character’.

In conclusion, one might notice the formality, and frailty, of the reasoning adopted by the Court in the present case. On the one hand, the ICJ fully endorses the object of the dispute as outlined by Germany and, by dismissing the Italian counterclaim, it consequently excludes from its jurisdiction any question relating to the performance of the duty of reparation. On the other hand, the interpretation of this obligation is treated as a preliminary – partly of fact, partly of law – issue and, at any rate, the core point of some relevant arguments of the fond. A possible explication of this awkward balance is that the Court's final aim was to seize the opportunity to dispel any doubt about the fact that international law allows individuals to invoke an international obligation only within the narrow confines of treaties.

References

1 ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012 (not yet published), at 24 para. 57.

2 Ibid. Emphasis added.

3 The preparatory works of the International Law Commission (ILC) on the topic of jurisdictional immunity of states show the ambivalent relationship between the need to preserve the principle of territorial absolute sovereignty and the concern to find a rationale behind immunity. In fact, the Commission initially admitted that the ‘the first prerequisite’ of the study of immunity is the assertion of a ‘valid jurisdiction’ not in conflict with ‘any basic norm of public international law’. Then, it specified that the topic of ‘compatibility with general international law of a State's internal law on the extent of jurisdiction’ did not fall within its duties. This methodological choice is justified in that ‘any restraint or suspension’ of the judiciary power is to be deemed as a limitation of the ‘absolute sovereignty’ of states. See ‘Jurisdictional Immunities of States and Their Property’ YILC (1982) vol. II(2), at 101. The Court itself shows this ambivalence. For example, when dealing with the relationship between jus cogens and immunity, the Court indirectly qualifies immunity as a procedural rule which ‘determine[s] the scope and extent of jurisdiction and when that jurisdiction may be exercised’, because there is nothing ‘inherent in the concept of jus cogens which would require [its] modification or would displace [its] application’. It is rather clear that reference is made to immunity, also because the Court recalls, in particular, the Yerodia case. See ICJ, Jurisdictional Immunities of the State, at 39, para. 95.

4 Lauterpacht observed that if states grant immunity because of reciprocity, this would imply the lack of any customary rule, on the assumption that compliance with a norm cannot rely on reciprocity. Accordingly, immunity would be a privilege of exemption from jurisdiction which the forum state grants to the defendant state. Therefore, this would confirm that the power of states to fix freely the extent of jurisdiction, stemming from their sovereignty, governs the entire matter. See Lauterpacht, H., ‘Jurisdictional Immunities of Foreign States’, (1951) 28 BYIL 220Google Scholar, at 228–9. This opinion has been recently restated by Caplan, L. M., ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’, (2003) 97 AJIL 741CrossRefGoogle Scholar, at 754, with the argument that the rule of immunity is in reality a ‘practical courtesy between states’. However, in countries, such as the USA, where courts deem immunity a matter of ‘grace and comity’, and not of international law, the courts fully endorse the assumption of the absolute territorial sovereignty. See Damrosch, L. F., ‘Changing the International Law of Sovereign Immunity through National Decisions’, (2011) 44 VAND. JTL 1185Google Scholar, at 1187.

5 The Court holds that the rule of immunity ‘is not a mere matter of comity’ because ‘opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States’. See ICJ, Jurisdictional Immunities of the State, Judgment, at 23–4, paras. 53, 55. (Emphasis added.)

6 In his individual opinion, Judge Keith underlined that this topic was debated lengthily by the ILC during the preparatory works of the codification of the rule of immunity. In the original proposal, the Commission employed a fictio to explain the lack of immunity in case of acts jure gestionis, assuming that the defendant state gives its consent to be bound by the law of the forum state. By contrast, in the final draft, this choice was withdrawn and the phrasing ‘the State is considered to have consented to the exercise of jurisdiction’ of the forum state was replaced by the wording ‘the State cannot invoke immunity’. According to Judge Keith, this change proves that the Commission shared the idea of the prominence of the freedom of states to regulate their jurisdiction as a ‘statements of general law’. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Keith, at 4, para. 10. On the contrary, for Crawford, the rule of immunity is the expression of the principle of consent of states, which reigns ‘sovereign’ in the international dispute settlement system. Without a previous consent, any kind of dispute involving a state could not be settled unilaterally. See Crawford, J., ‘Execution of Judgments and Foreign Sovereign Immunity’, (1981) 75 AJIL 820CrossRefGoogle Scholar, at 856.

7 ICJ, Jurisdictional Immunities of the State, Judgment, at 27, para. 65

8 Ibid., at 38, para. 93

9 Ibid., at 38, para. 94.

10 The origin of the modern concept of immunity from civil jurisdiction embodies the historical evolution of the principle of personal immunity of the sovereign head of state or government, against whom individuals might not lay ‘private rights and claims’. See Sir I. Sinclair, ‘The Law of Sovereign Immunity: Recent Developments’ (1980-II) 167 RCADI 117, at 123 and 197–8. Crawford maintained that the traditional rule of absolute immunity is nothing more than immunity ratione personae. See Crawford, J., ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’, (1983) 54 BYIL 75Google Scholar, at 79.

11 The scholars who, at the end of the nineteenth century, denied the existence of any exception to the rule of immunity upheld this formal approach too. The argument is that, if derogation from immunity existed without the actual consent of the defendant state, states would not be sovereigns any more, because the laws of the forum state would always bind the defendant state. See Gabba, M., ‘De la compétence des Tribunaux à l'égard des Souverains et des Etats étrangers’, (1889) 16 Journal du droit international privé 538Google Scholar, at 552.

12 In the rapporteur's words, ‘c'est la distinction bien connue des actes qui se font ratione gestionis et ceux qui se font ratione administrationis qui détermine la compétence des tribunaux’. (Emphasis added.) For instance, the actions concerning public debts were classified in the first category. See AIDI session de Hambourg (1928), at 1175 and 1180. In the final draft of the resolution, Article 4 provides that the actions concerning an act of sovereignty of the foreign state are never ‘receivables’. See ‘Projet de règlement international sur la compétence des tribunaux dans les procès contre les Etats, souverains ou chefs d'Etat étrangers’, in ibid., at 1217.

13 Article 1 of the second resolution of the Institut de droit international, adopted in Aix-en-Provence in 1954, provides that ‘les tribunaux d'un Etat ne peuvent connaître des litiges ayant trait à des actes de puissance publique’. See AIDI session d'Aix-en-Provence (1954-II), at 294.

14 For a short review of such alternative theories see Gattini, A., ‘To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals' Claims for War Damages?’ (2003) 1 JICJ 348Google Scholar, at 351.

15 H. Lauterpacht in AIDI session de Sienne (1952-I), at 123.

16 ‘Jurisdictional Immunities of States and Their property’, YILC 1980, vol. II(2), at 144.

17 G. Morelli in AIDI session de Sienne, supra note 16 at 127; and G. Morelli, Diritto processuale civile internazionale (1954), at 189 ff.

18 Brownlie, I., ‘Contemporary Problems Concerning the Jurisdictional Immunity of States: Definite Report and Draft Set of Resolutions’, AIDI session du Caire (1987-I), at 47Google Scholar.

19 I. Brownlie, ‘Contemporary Problems Concerning the Jurisdictional Immunity of States, Preliminary Report’, AIDI session du Caire, supra note 20 at 18 ff. and at 35.

20 When, in the nineteenth century, the courts did not admit any derogation from the rule of immunity, the perspective appeared completely reversed. In the early French case law concerning sovereign immunities, the Cour de cassation held that the fact that a person had entered into a private-law transaction with a foreign state implied that ‘cette personne, par le fait seul de l'engagement qu'elle contracte, se soumet aux lois, aux modes de comptabilité et à la juridiction administrative ou judiciaire de cet Etat’. See Cour de cassation, chambre civile, 22 January 1849, Recueil générale des lois et des arrêts: En matière civile, criminelle, commerciale et de droit public (1849) at 94.

21 See European Convention on State Immunity (1972) 11 ILM 470. According to Article 5, immunity is barred when the work of the plaintiff ‘has to be performed on the territory of the state of the forum’ as well as, it happens, in regard to disputes over real estate when ‘the property is situated in the territory of the State of the forum’ (Art. 9), and in the case of torts claims when ‘the facts which occasioned the injury or damage occurred in the territory of the State of the forum’ (Art. 11). See Sinclair, I. M., ‘The European Convention on State Immunity’, (1973) 22 ICLQ 254CrossRefGoogle Scholar, at 272. See also van Panhuys, H. F., ‘In the Borderland between the Act of State Doctrine and Questions of Jurisdictional Immunities’, (1964) 13 ICLQ 1193CrossRefGoogle Scholar, at 1196. The thesis that the rationale behind immunity involves also issues relating to the applicability of the domestic law to the defendant state is known in the French doctrine as well; see J. Combacau and S. Sur, Droit international public (2008), at 248. See also F. Poirat, ‘Les immunités des sujets du droit international’, in Verhoeven, supra note 10, 11 at 19–20.

22 See United Nations Convention on Jurisdictional Immunities of States and Their Property, (2005) 44 ILM 803. The first reports are ambiguous on this issue. On the one hand, the rationale of immunity has been detected in the lack of the consent of the defendant state to be subjected to the jurisdiction of another state, thus under the assumption of the absolute power of state to fix jurisdiction. See ‘Jurisdictional Immunities of States and their property’, YILC 1981, vol. II(2), at 156. On the other hand, in the words of the rapporteur, the question of immunity should not be dealt with if ‘the causes of action are outside the jurisdiction of the courts, or when the courts before which proceedings have been brought have no jurisdiction, because of the subject-matter’. Therefore, in this case the judiciary power is not supposed to be absolute, but limited to certain matters by the application of the relevant rules of private international law. See ‘Jurisdictional Immunities of States and Their Property’ YILC 1983, vol. II(1), at 40. Even if the commentary to the Convention does not make this point clear, one can maintain that the Commission finally endorsed the latter solution. In fact, having specified that the rules of private international law must apply, the commentary to Article 10 points out that ‘a significant territorial connection generally affords a firm ground for the exercise of jurisdiction, but there may be other valid grounds for the assumption and exercise of jurisdiction by virtue of the applicable rules of private international law’. With regard to Article 12, the commentary reads as follows: ‘since the damaging act or omission has occurred in the territory of the State of the forum, the applicable law is clearly the lex loci delicti commissi and the most convenient court is that of the State where the delict was committed’. See ‘Jurisdictional Immunities of States and Their Property’, YILC 1991, vol. II(2), at 34 and 44.

23 See respectively Articles 4 and 6 of the UK Foreign State Immunity Act 1978.

24 ICJ, Jurisdictional Immunities of the State, Judgment, at 25 para. 60.

25 For instance, Article 3 of the second resolution on immunity issued by the Institut de droit international in 1954 provides that domestic rule must be applied in order to assess the jure imperii character of an act. See AIDI session d'Aix-en-Provence, supra note 124, at 294.

26 This conclusion could explain the passage of the judgment according to which, when the defendant state does not enjoy immunity for a particular activity in light of the relevant rule of international law, the qualification of a certain activity as legal or illegal ‘can be determined only in the exercise of [the] jurisdiction [of the forum state]’. Indeed, it is up to the domestic law to determine if the conduct at stake is in breach of a right granted to an individual by this law, which is the applicable standard. See ICJ, Jurisdictional Immunities of the State, Judgment, at 25, para. 60.

27 See ICJ, Jurisdictional Immunities of the State, Judgment, at 33, para. 77. In the Court's reasoning, there is no exception to immunity regarding armed activities carried out in the forum state by the defendant state because of ‘the almost complete absence of contrary jurisprudence’ and of ‘the absence of any statements by States . . . in any other context asserting that customary international law does not require immunity in such cases’. In the Cudak and Sabeh cases, concerning issues of employment with a foreign embassy, the European Court of Human Rights has lent more weight to the element of opinio, even if in the sphere of labour disputes the practice of states is more uncertain. In these cases, the plaintiffs alleged the violation of Article 6, section 1, of the European Convention on Human Rights because the forum state applied immunity in favour of the defendant state. Thus, the Court held that Article 11 of the UN Convention on Jurisdictional Immunities of State and Their Property mirrors a rule of customary law and that both Lithuania and France did not make any opposition to this rule. See Cudak v. Lithuania [GC], No. 15869/02, Sections 65–9, ECHR 2010; and Sabeh El Leil v. France [GC], No. 34869/05, Sections 57–61, 29 June 2011. On the contrary, the Court of Justice of the European Union adopted a ‘qualitative’ view of immunity. In the judgment Lechouritou, issued in 2007 (see CJEC, 15 February 2007, Irini Lechouritou and Others v. Dimosio tis Omospondiakis Dimokratias tis Germania, Case C-292/05), the Court did not take into account the practice of states or the opinio juris. It rather held that jure imperii acts concerning armed activities are those ‘decided upon in a unilateral and binding manner by the competent public authorities and appear as inextricably linked to States’ foreign and defence policy’ (para. 37). However, in this case the subject matter of the dispute did not directly affect the existence and the content of the rule of immunity, but the separate, albeit connected, question of the interpretation of Article 5, para. 3, of the EU 44/2001 Regulation, referring to the civil or commercial character of a transaction.

28 The individual opinion of Judge Keith seems to uphold this conclusion. He states that immunity is barred in case of acts jure gestionis because of the ‘similarities of the foreign State's acts to the acts of other persons under local law and the correlative rights and obligations of the other (non-State) party in the litigation’. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Keith, at 1, para. 3. Although the Court has not defined the criteria for distinguishing between acts jure imperii and gestionis, however, in a passage of the judgment, reference is made to the agreement of Germany and Italy to consider Villa Vigoni a real estate earmarked to satisfy ‘governmental purposes . . . falling within Germany's sovereign functions’. See ICJ, Jurisdictional Immunities of the State, Judgment, at 45 paras. 118–119. The ICJ has not decided whether Article 19 of the UN Convention on Jurisdictional Immunities of States mirrors customary law. It confines itself to stating the necessity of ‘at least one condition’; that is to say, ‘the property in question must be in use for an activity not pursuing government non-commercial purposes, or that the State which owns the property has expressly consented to the taking of a measure of constraint’ or ‘State has allocated the property in question for the satisfaction of a judicial claim’. (Emphasis added.) The reference to consent is rather clear: the Court applies a subjective criterion, the consent of the owner state, in order to determine the commercial character of the estate.

29 ICJ, Jurisdictional Immunities of the State, Judgment, at 34–9.

30 Brownlie, provides an example in AIDI session du Caire, supra note 19, at 33. For the sake of the argument, one can imagine that state A allows state B to build an airbase on its territory with the scope to stock nuclear weapons. If Mr X, citizen of A, sues state B before a court of state A alleging the breach of a treaty of non-proliferation of nuclear weapons binding both the states to limit the use of those weapons, in the opinion of Brownlie this matter would not be justiciable. This happens because, otherwise, the judges of state A would deal with an issue of foreign politics of state B. Consequently, the courts of state A will apply immunity. In my opinion, inversely, immunity will be applied because no right is directly accrued to individuals on the basis of the interpretation of the relevant treaty.

31 ICJ, Jurisdictional Immunities of the State, Judgment, at 21, paras. 48 and 50.

32 Ibid., at 38, para. 94.

33 Ibid.

34 In their separate opinions, two judges handled this issue discarding the existence of an international rule that would grant a right to reparation directly to individuals. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Koroma, at 2–3, para. 9; and ibid., Separate Opinion of Judge Keith, at 7, para. 18. Most authors deny that individuals may have a right to reparation for war damages under international customary law, considering that neither Article 3 of the IV Hague Convention of 1907 nor Article 91 of the First Protocol of the Geneva Convention of 1977 are self-executing. See Gattini, supra note 15 at 351. Contra, see Bank, R. and Schwager, E., ‘Is There a Substantive Right to Compensation for Individual Victims of Armed Conflicts under International Law?’, (2006) 49 GYIL 368Google Scholar, at 380 ff.

35 See ICJ, Jurisdictional Immunities of the State, Judgment, at 41, para. 102.

36 In the application of Germany, international customary law does not provide for a right which directly accrues to individuals for war reparations. As clearly stated, ‘it emerges from the conventional instruments cited above [that is, several peace treaties concluded after the Second World War, editor's note] that the entire reparation regime was founded on the premise that reparation should be sought and made exclusively in a global manner on an inter-State level’. See ICJ, Jurisdictional Immunities of the State (Germany Italy, Greece intervening), Memorial of Germany, at 12, Section 12. During the oral pleadings, the same issue was debated from a different angle, namely that ‘the immunity rule supports this substantive rule [the lack of any individual right of reparation] from the procedural side’. See ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Oral Pleadings, Verbatim Record CR 2011/17, at 35, Section 32. See also Tomuschat, C., ‘Individuals’, in Crawford, J., Pellet, A., and Olleson, S. (eds.), The Law of International Responsibility (2010), 985 at 988Google Scholar.

37 See UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 23 ILM 1027. Following Article 14, each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. In the CAT's interpretation, this rule obliges each state to grant a right of reparation to the victims of torture and to assert jurisdiction accordingly, regardless of the immunity of the defendant state. See UN General Assembly, 60th Session, Report of the Committee against Torture, Supplement No. 44 (A/60/44). Official Records, New York (2005), at 27. This decision fostered a strong debate among the scholars. The majority of them criticized it: see, inter alia, Mora, Paul D., ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’, (2009) 52 GYIL 367Google Scholar, at 378. Contra, for a support of the CAT decision, see Hall, C., ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, (2008) 18 EJIL 921CrossRefGoogle Scholar, at 923 ff. and Orakhelashvili, A., ‘State Immunity and International Public Order Revisited’, (2006) 49 GYIL 327Google Scholar, at 351 ff.

38 See Universal Declaration of Human Rights, (1949) 43 AJIL Supp. 127; European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5; International Covenant on Civil and Political Rights, (1967) 6 ILM 368; American Convention on Human Rights, (1970) 9 ILM 673.

39 Even if, in relation to a different topic, the UN Committee against Torture highlighted that the UN Convention against Torture does not create obligations upon individuals but only between states. In fact, states alone bear the ‘international responsibility for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law’. See Committee against Torture, ‘General Comment No. 2’, UN Doc. CAT/C/GC/2, 24 January 2008, para. 15.

40 See 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, at 180.

41 The supporters of a right to individual reparation under customary law have basically renounced inductive reasoning, the traditional way to assess customary law, for a deductive approach. Indeed, they draw the right to reparation from the existence of a particular prohibition (i.e. the inter-state obligation not to accomplish act of torture), or from the concept of jus cogens. The obiter dictum of the Furundžija judgment, issued by the TPIY, can be explained from this constitutional perspective. In the spirit of the judgment, it would be absurd that the prohibition of torture, as a rule of jus cogens, entails the invalidity of others’ international rules and that, at the same time, states are free to pass laws and other measures allowing the accomplishment of such acts or to prevent victims from laying claims for reparation. From this perspective, every international or domestic rule which might be an obstacle to the full effect of the prohibition has to be considered void because in breach of the jus cogens prohibition. See Prosecutor v. Anto Furundžija (Trial Judgement), IT-95–17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 December 1998, at 59 ff, paras. 155–158, available at www.unhcr.org/refworld/docid/40276a8a4.html. Accordingly, see de Wet, E., ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, (2004) 15 EJIL 97CrossRefGoogle Scholar, at 99–100.

42 See Bouzari v. Iran, Ontario Superior Court of Justice [2002] O.J. No. 1624, Court File No. 00-CV-201372, paras. 52–56, in (2002) 124 ILR 427.

43 At the time the complainant had suffered the act of torture, Kuwait was not a party to the UN Convention against Torture, the accession being notified in 1996.

44 See Al-Adsani v. the United Kingdom [GC], No. 35763/97, Section 40, ECHR 2001-XI.

45 On the contrary, Verhoeven maintained that the European Court should have verified if customary law provides for a rule just like the one couched in Article 6, section 1 of the European Convention on Human Rights and binding both UK and Kuwait. See J. Verhoeven, ‘Les immunités propres aux organes ou autres agents des sujets du droit international’, in Verhoeven, Droit international des immunités, supra note 10, at 135. However, this argument cannot be held because a right of action has no sense without a corresponding substantial right to reparation.

46 See Al-Adsani v. the United Kingdom, supra note 45, Section 48.

47 A similar rationale is shown in another case decided by the European Court of Human Rights on the same date, Fogarty v. the United Kingdom [GC], No. 37112/97, Section 26, 37–9, ECHR 2001-XI. In this case, the applicant alleged the breach of Article 6 para. 1 of the European Convention due to the application of immunity; in particular, the rule on immunity had prevented Mrs Fogarty from filing a lawsuit for the violation of the UK Sex Discrimination Act 1975, committed by an organ of the United States of America. The European Court, noting that ‘the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law’, ascertained whether the alleged acts were jure imperii or gestionis and rejected the application. See Rozakis, C. L., ‘The Law of State Immunity Revisited: The Case Law of the European Court of Human Rights’, (2008) 61 RHDI 563Google Scholar, at 588. Both in Fogarty and in Al-Adsani, the authors of the violation of the domestic law were foreign states (Iran and the USA) and the plaintiffs lamented the lack of reparation because the application of immunity prevented them from drawing some domestic consequences (a right to reparation) from the breach of a right recognized by the domestic legal order. Other decisions applying the doctrine of the ‘act of state’ show a very similar way of reasoning. For instance, in the Marković case, the Italian Corte di cassazione dismissed the complaint lodged before the Italian courts by Serbian victims of the NATO attack on Radio Belgrade in April 1999 during the air campaign against Serbia on the ground that no substantive right could be claimed against a political decision as to the way of carrying out war activities. The Court supported its holding by further stating that the victims of war activities draw no right of reparation from the 1977 Geneva Protocol and the European Convention on Human Rights or from domestic law. See Cassazione civile, sezioni unite, 5 June 2002, No. 8157, point 3, translated in English in Marković and Others v. Italy [GC], No. 1398/03, Section 18, ECHR 2006-XIV.

48 For a critical assessment of the saving clause, see Gattini, A., ‘Alcune osservazioni sulla tutela e gli interessi individuali nei progetti di codificazione della Commissione del diritto internazionale sulla responsabilità internazionale e sulla protezione diplomatica’, in Spinedi, M., Gianelli, A., and Alaimo, M. L. (eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (2006), at 431 ffGoogle Scholar.

49 In its recent codification of the responsibility of international organizations, the ILC added in Part Four, dealing with the invocation of responsibility, a new saving clause, Article 50. This rule reads as follows: ‘this Chapter [the fourth referring to the right to invoke the responsibility of an international organization] is without prejudice to the entitlement that a person or entity other than a State or an international organization may have to invoke the international responsibility of an international organization’. Although the commentary to this article is extremely brief, the rationale behind this different phrasing of the saving clause is rather clear. While in the case of responsibility of states there is always an appropriate forum to settle the claim put forward by the individual (i.e. the courts of the state author of the wrongful act), in the case of the responsibility of an international organization the availability of a jurisdictional venue is exceptional. See ‘Report of the International Law Commission – Sixty-Third Session’, Official Records of the General Assembly, Sixty-Sixth Session, Supplement No. 10 (A/66/10), at 149. This explains the different finding of the European Court of Human Rights in the Waite and Kennedy v. Germany case [GC], No. 26083/94, Section 73, ECHR 1999-I, when compared to the Al-Adsani one. In the former case, the Court granted immunity to the organization only after assessing the availability of an alternative judicial or quasi-judicial mechanism of dispute settlement.

50 As Lord Hoffmann pointed out in his opinion in the Jones case, as long as international law is based on the common consent of states, it would not be up to the domestic courts to develop this 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’. See Jones v. Saudi Arabia (House of Lords), (2007) 129 ILR 713, at 739. Similarly, see Fang and Others v. Jiang and Others (New Zealand High Court) (2011) 141 ILR 702, at 718.

51 The commentary to Article 33, para. 2, does not give any example of customary rule, nor does it identify the treaty-based rights accruing to individuals. The only reference is made to the passage of the LaGrand case, in which the International Court of Justice stated the existence of an ‘individual right’. See ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, YILC 2001, vol. II(2), at 94 ff. A recent contribution has demonstrated that the ILC construed this holding of the ICJ in a very broad way and not in the correct spirit of the whole judgment, according to which the Court ‘envisageait ici des “droits” dont l'individu jouirait sur le plan interne et qui ne seraient garantis dans l'ordre juridique international qu'au travers de reclamations interétatiques’. See S. Villalpando, ‘Le codificateur et le juge face à la responsabilité internationale de l'Etat: Interaction entre la CDI et la CIJ dans la détermination des règles secondaires’, 55 AFDI 39 (2009), at 45. In any case, even if in LaGrand the ICJ had identified in Article 36 of the Vienna Convention on Consular Relations a primary rule granting a right to the state and its citizens (see LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, at 497, para. 89), in the following Avena case this statement was dramatically limited. In fact, the Court pointed out that the secondary obligation of ‘review and reconsideration’ of the pending trials, drawn from the breach of the primary obligation bestowing an individual right, accrues only to the state author of the wrongful act. See Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, at 12, paras. 122–123. For this reason, the Court specified that this obligation is not necessarily self-executing, Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, at 17, para. 44. In a very similar way, the advisory opinion issued by the ICJ relating to the construction of the Palestinian wall confirms this trend. Having assessed the breach of Articles 46 and 52 of the 1907 Hague Regulations and of Article 53 of the 1949 Fourth Geneva Convention, the Court maintained that an individual right to reparation flows from those violations. However, the Court did not specify the basis of this right, who would be entitled to invoke this breach, and where a lawsuit should be filed. These conclusions are due to the fact that the victims had not a state parens patriae, entitled to invoke the breach of the international obligation. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, at 189 and 198, paras. 132 and 153.

52 The ILC dismissed the proposal to make the exercise of diplomatic protection compulsory in the event of a breach of a jus cogens rule. See ‘Diplomatic Protection’, YILC 2000, vol. II(2), at 7 ff. In the commentary to Article 2, it is confirmed that states are never obliged to exercise diplomatic protection. See ‘Report of the International Law Commission – Fifty-Eighth Session’, Official Records of the General Assembly, Sixty-First Session, Supplement No. 10 (A/61/10), at 29.

53 The argument of the ‘horizontal effect’ of international law leads us to a different, but closely linked, question: whether the rules of international law directly affect individuals, imposing on them duties too. The Kiobel v. Royal Dutch Petroleum and Shell case, currently pending before the US Supreme Court, deals with the applicability of the Alien Tort Statute to corporations (and, generally, to private actors). In its amicus curiae brief, the British government emphasizes that no rule of international customary law entails the international responsibility of foreign companies ‘for torts committed abroad against foreign victims for human rights violations’ (at 16). This happens because international law, and human rights law in particular, are ‘clearly intended to apply to the vertical relationship between the State and the individual, in which the State bears sole legal responsibility to respect individual rights’ (at 22 ff). This view addresses from another perspective the question set out in this article, namely the existence vel non of a rule of international law, be it customary or treaty-based, which would be directly applicable to a relationship between private parties. Our view is that no customary rule can apply ‘horizontally’ between individuals just as it cannot be applied ‘horizontally’ between the individual and the state author of the breach before the courts of another state, because the individuals are not the actual counterparts of that obligation.

54 The lack of an entitlement of the individual to the right of reparation is the expression of the principle of the freedom of states to choose whether and how to settle an international dispute between them. To be sued before a judge of another state for the breach of an international obligation is, for the defendant state, equal to being subjected to a jurisdiction that it has not consented to.

55 See Tomuschat, C., ‘Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law’, in Kohen, M. G. (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch (2006), at 569Google Scholar.

56 See ‘Dixième séance plénière’, AIDI session de Bâle (1991-II), at 274.

57 See AIDI session du Caire, supra note 19 at 99 and, for the commentary, at 55 ff.

58 Ibid., at 236.

59 This link is present even in the thought of some authors, such as Cannizzaro, E. and Bonafé, B. (see ‘Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights’, in Fastenrath, U., Geiger, R., and Khan, D.-E. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (2011), 839)Google Scholar. These scholars still argue that no link exists between the individuals who claim the breach of a rule of international law and immunity, because the latter would only prevent the judges of the forum state from assessing unilaterally the responsibility of the defendant state for the breach of the international obligation at stake in the domestic lawsuit. Even if, in the view of these scholars, the rule of immunity is procedural in character nevertheless, that would not prevent the courts from discarding it ‘in the presence of . . . an egregious breach of fundamental rule protecting individual rights . . . attributable to the State which invokes immunity’. It easy to notice that, according to this construction, the existence of an obligation granting individual rights is a sort of condicio juris for applying or denying immunity.

60 European Convention for the Peaceful Settlement of Disputes, 320 UNTS 243.

61 See Rosenne, S., The Law and Practice of the International Court, 1920–2005 – Jurisdiction (2006), at 511Google Scholar, for the remark that, when the title of jurisdiction contains a temporal limitation, the main issue becomes the definition of the dispute and not the interpretation of the texts which confer such jurisdiction. This is affirmed on the basis that these texts are precise about the ‘critical’ date. See ibid., at 756, for the final remark that the problem of interpretation of a dispute is ‘in the ultimate analysis largely of a philosophical character – the philosophy of cause and effect’. For a survey of the practice of the PCIJ and the ICJ relating to reservation to jurisdiction ratione temporis, see Alexandrov, S. A., ‘Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases’ (2001) 14 LJIL 89CrossRefGoogle Scholar, 109 ff.

62 In addressing this topic in the light of the relevant case law, Rosenne argued that the distinction ‘may be one of form only’, whereas ‘there is inevitably a justifiable element of subjective appreciation or judicial discretion in determining whether a concrete dispute is caught by the stipulation of non-retroactivity in the title of jurisdiction’. See Rosenne, supra note 62 at 758 ff.

63 See ICJ, Jurisdictional Immunities of the State, Judgment, at 18, para. 37.

64 Ibid., at 20, para. 44.

65 Ibid., at 21, para. 48.

66 Ibid., at 21, para. 50. Emphasis added.

67 Ibid.

68 Ibid., at 40, para. 99.

69 Ibid., at 41, para. 104. On the contrary, it is not a matter of surprise that, through these statements, the Court has confirmed that the duty of reparation does not accrue to individuals.

70 For Germany, see supra note 37. For Italy, see ICJ, Jurisdictional Immunities of the State, Counter-Memorial of Italy, at 104 ff.

71 See Certain Property (Liechtenstein v. Germany), Memorial of Liechtenstein, at 68 para. 3.29ff. Article 3 of the Settlement Convention rules out the jurisdiction of German courts to deal with issues of the German properties seized for the purpose of reparation and restitution after the Second World War. In the case of immunity, Germany underlined that ‘it does not deem it useful . . . to engage in a legal battle about the links between’ the two claims, namely the fact that ‘Germany complains about the case law of the Italian tribunals, initiated by the Ferrini judgment’, and ‘the factual basis of the Italian claims is located in the years from September 1943 to May 1945’, because ‘the distance between the two claims is enormous’ and, in this respect, the Italian counterclaim ‘must fail’. See ICJ, Jurisdictional Immunities of the State, Preliminary Objections of Federal Republic of Germany regarding Italy's Counter-Claim, at 3–4, para. 3.

72 See Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, ICJ Reports 2005, at 17, para. 26.

73 See Certain Property (Liechtenstein v. Germany), Preliminary Objections of the Federal Republic of Germany, at 54–56 paras. 87–89. Italy, in the immunity case, argued that the decisions of the Corte di cassazione on the issue of immunity of the Germany could not be separated from the issue of reparation owed by Germany to victims of Nazi crimes; consequently, these decisions could not be the source or real cause of the dispute brought by Germany. See ICJ, Jurisdictional Immunities of the State, Counter-Memorial of Italy, at 36 para. 3.12.

74 See Certain Property (Liechtenstein v. Germany), Judgment, at 26–7, paras. 51–52.

75 When dealing with the admissibility of the Italian counterclaim, the Court notes that ‘Germany reserved its position on the question whether the requirement of direct connection is met in this case’ and, promises to deal with this issue further. ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Order, at 6, para. 16. However, after the dismissal of the Italian counterclaim ratione temporis, the Court surprisingly decides not to ‘address the question whether that counter-claim is directly connected with the subject matter of the claims presented by Germany’. See ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Order, at 15 para. 32.