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

Published online by Cambridge University Press:  11 February 2011

ANDREA GATTINI
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Abstract

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

Keywords

complianceInternational Court of Justiceinternational responsibilityjurisdictional immunitiesjus cogens
Type
INTERNATIONAL COURT OF JUSTICE
Information
Leiden Journal of International Law , Volume 24 , Issue 1 , March 2011 , pp. 173 - 200
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 See www.icj-cij.org/docket/files/143/14925.pdf.

2 Ferrini v. Federal Republic of Germany, Court of Cassation, Decision No. 5044/2004, 11 March 2004, (2004) 87 Rivista di Diritto Internazionale 539; English translation in (2004) 128 ILR 658.

3 Prefecture of Voiotia v. Federal Republic of Germany (Distomo case), Greek Supreme Court, Case No. 11/2000, 4 May 2000, (2001) 95 AJIL 198; English translation in (2000) 129 ILR 513.

4 I will leave here aside the doctrinal debate of whether there is any rule of international customary law on state immunity, because both international practice and opinio juris clearly point at the existence of such rules. For the negative view, see L. M. Caplan, ‘State Immunity, Human Rights and Jus Cogens; A Critique of the Normative Hierarchy Theory’, (2003) 97 AJIL 741; A. Orakhelashvili, ‘State Immunity and International Public Order’, (2002) 45 GYIL 227, at 249.

5 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat. 1214. Section 221 (Jurisdiction for Lawsuits against Terrorist States) amended Section 1605 of Title 28 United States Code (Foreign Sovereign Immunity Act).

6 At the time, there are four states designated as terrorism sponsors: Cuba, Iran, Sudan, and Syria.

7 UN Doc. A/RES/59/38 (2004).

8 UN Doc. A/RES/53/98 (1998).

9 ‘Report of the Working Group on Jurisdictional Immunities of States and their Property’, 1999 YILC, Vol. II (Part Two), Annex, at 155. The five issues were: the concept of a state for purposes of immunity; the criteria for determining the commercial character of a contract or transaction; the concept of a state enterprise or other entity in relation to commercial transactions; the contracts of employment; the measures of constraint against state property.

10 Ibid., at 172, para. 13.

11 Ibid., at 128, para. 484.

12 1972 European Convention on State Immunity, ETS 74 (1972).

13 Cf. 1991 YILC, Vol. II (Part Two), at 46, para. 10.

14 Summary Record of the 13th Meeting of the Sixth Committee, UN Doc A/C.6/59/SR. 13 (2005), para. 36. For a critical assessment of the ILC work, see A. Dickinson, ‘Status of Forces under the UN Convention on State Immunity’, (2006) 55 ICLQ 427.

15 Cf. T. Treves, ‘Some Peculiarities of the UN Convention on Jurisdictional Immunities of States and their Property: A Footnote on the Codification Technique’, in I. Buffard et al. (eds.), International Law between Universalism and Fragmentation, Liber Amicorum Prof. Gerhard Hafner (2008), 503. For the author, the interplay between the statement of the Ad Hoc Committee's Chairman and the text of the General Assembly's preamble are useful interpretative tools, but he does not wish to go as far as to see in them ‘instruments’ in the meaning of Art. 31(2)(b) of the Vienna Convention on the Law of the treaties, as maintained by G. Hafner and L. Lange, ‘La Convention des Nations Unies sur les immunités juridictionnelles des états et de leur biens’, (2004) 50 AFDI 45, at 75.

16 Max Josef Milde, Court of Cassation, Case No. 1072/2009, 21 October 2008, reproduced in (2009) 92 Rivista di Diritto Internazionale 618.

17 Kalogeropoulou v. Greece and Germany, Decision of 12 December 2002, no. 59021/00, [2002-X] ECHR. The Chamber dismissed the claim against Germany as manifestly inadmissible and against Greece as unfounded.

18 Greek Citizens v. Federal Republic of Germany (The Distomo Massacre case) (2003) 42 ILM 1030.

19 Repubblica Federale di Germania c. Amministrazione Regionale della Vojotia, Florence Court of Appeal, Order of 22 March 2007, in (2008) I Foro Italiano 1308.

20 Repubblica Federale di Germania c. Amministrazione Regionale della Vojotia, Court of Cassation, Order of 29 May 2008, in (2009) 92 Rivista di Diritto Internazionale 594.

21 The European Court of Justice had already stated in Sonntag v. Waidmann [1993] ECR I-1963 that an action against a ‘public authority in the exercise of its powers’ does not fall unto the notion of ‘civil and commercial matter’. In Lechouritou v. Federal Republic of Germany [2007] ECR I-1519, the ECJ held that civil actions for war damages are excluded from the application of Reg. 44/2001.

22 Arts. 64–7 of the Law 218/1995.

23 See M. Bordoni, ‘L'ordine pubblico internazionale nella sentenza della Cassazione sulla esecuzione della decisione greca relativa al caso Distomo’, (2009) Rivista di Diritto Internazionale 496.

24 Decree No. 63/2010 of 28 April 2010, converted into Law 98/2010, Gazzetta Ufficiale della Repubblica Italiana 147 of 26 June 2010.

25 See A. Reinisch, ‘European Court Practice Concerning State Immunity from Enforcement Measures’, (2006) 17 EJIL 803, at 824 for pertinent case law. The UN 2004 Convention fails to indicate cultural centers among the specific categories of state property immune from measures of constraint listed in Art. 21, but as a rule, they belong to property in use for ‘government non-commercial purposes’ in the meaning of Art. 19(c).

26 The distinction between the two questions is stressed by a commentator of Judgment 14199/2008, but it is not clear which consequences he intends to draw; see Franzina, P., ‘Norme sull'efficacia delle decisioni straniere e immunità degli Stati dalla giurisdizione civile, in caso di violazioni gravi dei diritti dell'uomo’, (2008) 2 Diritti Umani e Diritto Internazionale 638Google Scholar.

27 The issue is less unquestionable than it would seem, since it deals with the as yet unsettled question of the direct applicability of ICJ's decisions; on this, see A. Gattini, ‘Domestic Judicial Compliance with International Judicial Decisions: Some Paradoxes’, in Fastenrath et al. (eds.), From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (forthcoming 2011).

28 A. Gattini, ‘War Crimes and State Immunity in the Ferrini Decision’, (2005) 3 JICJ 224.

29 For the contrary opinion, see notably A. Bianchi, ‘L'immunité des états et les violations graves des droits de l'homme: la fonction de l'interprète dans la détermination du droit international’, (2004) 108 RGDIP 63, at 96: ‘conflit entre deux valeurs normative’. Of the same author, see ‘Denying State Immunity to Violators of Human Rights’, (1994) 46 Austrian Journal of Public and International Law 195, at 219.

30 H. Fox QC, The Law of State Immunity (2002), at 525. This opinion is largely shared; see Caplan, supra note 4, at 771; C. Tomuschat, ‘L'immunité des états en cas de violations graves des droits de l'homme’, (2005) 109 RGDIP 51; A. Zimmermann, ‘Sovereign Immunity and Violations of International Jus Cogens: Some Critical Remarks’, (1995) 16 Mich. JIL 433; T. Giegerich, ‘Do Damages Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?’, in C. Tomuschat and J.-M. Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (2006), at 203. This is also the position of the House of Lords in the Jones decision of 14 June 2006, Jones v. Ministry of Interior for the Kingdom of Saudi Arabia & Ors [2006] 2 WLR 1424; [2006] UKHL 26, para. 24, per Lord Bingham, paras. 44–45 per Lord Hoffmann. For a criticism of this view, see among others Orakhelashvili, supra note 4, at 258, and by the same author, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’, (2007) 18 EJIL 955, at 968.

31 Not surprisingly, some alert authors, although supporting the jurisprudence of the Court of Cassation, are aware that ‘the hierarchy of norms theory based upon the jus cogens nature of the norms breached does not necessarily fit with the Court's reasoning’; see A. Ciampi, ‘The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case Relating to the Second World War: The Civitella Case’, (2009) 7 JICJ 597, at 607. For the author, ‘the Court seems to be more concerned to solve a conflict of values than a formal clash of rules’. See also De Vittor, F., ‘Immunità degli Stati dalla giurisdizione e risarcimento del danno per violazione dei diritti fondamentali: il caso Mantelli’, (2008) 2 Diritto Internazionale e Diritti Umani 632Google Scholar, at 634.

32 See Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, IACHR Series C, No. 153, para. 131; La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, IACHR Series C, No. 162, para. 160: ‘Access to justice constitutes an imperative rule of International Law, and as such, it generates erga omnes obligations for the States to adopt the necessary provisions so as not to leave those violations without punishment.’

33 A partially different matter is the question of whether access to justice is a rule of customary international law; on the point, see F. Francioni, ‘The Rights of Access to Justice under Customary International Law’, in F. Francioni (ed.), Access to Justice as a Human Right (2001), 1.

34 Prosecutor v. Furundzija, Trial Judgement, Case No. IT-95–17/I-T, 10 December 1998, para. 155. The obiter dictum was ambiguous because it is not clear from the text whether the civil redress is meant only against the individual culprit or also against the state, whose organ the individual might be. Be that as it may, the obiter dictum was ultra vires. Article 106 of the Rules of Procedure expressly states that civil claims for damages related to the crimes under the jurisdiction of the ICTY must be submitted to domestic courts according to their domestic procedures. Even the authors most inclined towards developing as far as possible a systemic theory of jus cogens did not fail to see the exorbitant character of this obiter dictum; see P.-M. Dupuy, ‘L'unité de L'ordre juridique internationale’, (2002) 297 RCADI 9, at 312, labelling it an example of ‘jurisprudence commando’ of the ICTY.

35 In its Bouzari v. Islamic Republic of Iran [2002] OJ No. 1624, judgment of 1 May 2002, the Ontario Superior Court of Justice (Canada) held that Art. 14 of the UN Convention against Torture 1984, 1465 UNTS 85, does not apply to civil actions for torture committed abroad (paras. 49–51), reproduced in 124 ILR 427 (2002) (the judgment was confirmed by the Court of Appeal for Ontario on 30 June 2004). In an exchange of views with the Canadian representative, the UN Committee against Torture maintained the Art. 14(1) mandates for civil universal jurisdiction, cf. Conclusions and Recommendations of the Committee against Torture: Canada. 07/07/2005, UN Doc. CAT/C/CR/34/CAN, 7 July 2005, paras. 4(g) and 5(f). Art. 14(1), reads: ‘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.’ For a sympathetic view with the CaT, see C. K. Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, (2007) 18 EJIL 921, though his accurate study of the travaux préparatoires of the Convention does not provide any conclusive evidence that the drafters wanted, first, to affirm universal civil jurisdiction, and, second, to dispose of the state immunity rule. For the view that the removal of state immunity could be implied in Art. 14 by way of teleological interpretation, see C. Consolo, ‘Jus cogens and rationes dell'immunità giurisdizionale civile degli stati stranieri e dei loro funzionari: tortuosità finemente argumentative (inglesi) in material di “tortura governativa” (saudita)’, in Il diritto processuale civile nell'avvicinamento internazionale. Omaggio ad Aldo Attardi (2009), 307, at 344. It must be recalled that even the issue of civil universal jurisdiction is far from settled. The United States ratified the Convention in 1990, with the understanding that ‘Article 14 requires a State party to provide a private right of action for damages only for acts of torture committed in the territory under the jurisdiction of the State party’, and, significantly, the understanding was not contested either by other states parties or by the CaT itself. Later on, the limited scope of application of Art. 14 of the UN Convention to civil actions in the forum delicti commissi has been affirmed also by the House of Lords in the Jones case, supra note 30, para. 25 (per Lord Bingham). For the right conclusion that neither the text of Art. 14 of the UN Convention nor the subsequent practice provide the legal basis for states to assert universal civil jurisdiction over torture, not to speak of denial of state immunity, see P. D. Mora, ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’, (2009) 52 GYIL 367, at 378.

36 Clause 12 on the right to an effective judicial remedy is circumscribed ‘as provided for under international law’, without touching upon the question of state immunity. The resolution aptly does not differentiate between the normative force of its ‘principles’ and its ‘guidelines’, but the de lege ferenda character of Clause 12 is made clear by the 7th paragraph of the Preamble of the Resolution and by Clause 26, which expressly states that both principles and guidelines are ‘without prejudice to special rules of international law’. In the same sense, see C. Tomuschat, ‘Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law’, in M. G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch (2006), 569; P. d'Argent, ‘Le droit de la responsabilité complété? Examen des principes fondamentaux et directives concernant le droit à un recours et à réparation des victims de violations flagrantes du droit international des droits de l'homme et de violations graves du droit international humanitaire’, (2005) 51 AFDI 27.

37 See General Comment No. 32, ‘Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’, CCPR/C/GC/32 (2007), para. 6.

38 For the inexistence of an individual right of reparation under general international law, see C. Tomuschat, ‘Reparation for Victims of Grave Human Rights Violations’, (2002) 10 Toulane JICL 173, and of the same author, supra note 36, at 578. For the opposite view, see R. Pisillo Mazzeschi, ‘International Obligations to Provide for Reparation Claims?’, in C. Tomuschat and A. Randelzhofer (eds.), Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (1999), 149.

39 In the LaGrand judgment of 27 June 2001, the ICJ held that Art. 36(1), of the 1963 Vienna Convention on Consular Relations conferred rights on an individual (LaGrand (Germany v. United States of America), Judgment of 27 June 2001 [2001] ICJ Rep. 494, para. 77). In the subsequent Avena Judgment of 31 March 2004, the Court specified that the violation of the right entailed a judicial remedy (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, [2004] ICJ Rep. 128, paras. 138 ff.), but later on, however, the Court was not able to draw any particular consequence from the violation of such right, having omitted to specify the direct effect of the judicial remedy in question and/or of its judgment (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), Judgment of 19 January 2009 (not yet published), on which see Gattini, A., ‘La Corte Internazionale di Giustizia fra judicial activism e judicial self-restraint: il curioso caso della richiesta di interpretazione della sentenza resa nell'affare Avena’, (2009) 92 Rivista di Diritto Internazionale 476Google Scholar. In the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 136, the Court made a step forward, by affirming that Israel had a duty ‘to compensate . . . all natural or legal persons having suffered any form of material damage’ as a result of its unlawful act, at 198, para. 152. It is, however, unclear on which ground the Court based this right, whether as a consequence in general of the violation of an erga omnes obligation, or, as seems more probable, having in mind the peculiarity of the case, due to the fact of Israeli occupation of the territories and the continuing absence of a Palestinian state. On the issue, see P. d'Argent, ‘Compliance, Cessation, Reparation and Restitution in the Wall Advisory Opinion’, in P.-M. Dupuy et al. (eds.), Völkerrecht als Wertordnung: Festschrift für Christian Tomuschat/Common Values in International Law: Essays in Honour of Christian Tomuschat (2006), 463. A positive view on the right of reparation of individual victims of serious human rights abuses has been taken also by the International Commission of Inquiry on Darfur in an obiter dictum of its Report of the International Commission of Inquiry on Darfur to the Secretary-General, Pursuant to Security Council Resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60 (2005), para. 597.

40 The Ferrini case and its aftermath should also be a reminder for international lawyers of their responsibility as ‘subsidiary sources’ of international law. I wonder whether the Italian Court of Cassation would have ventured its arguments if it had not found them ‘ready to use’ in the sixth edition of the most authoritative and popular of Italian textbooks, B. Conforti's Diritto Internazionale (2002). At p. 253 of the textbook, the Court, as the majority of Italian students of international law, could read that ‘Ci sembra che in linea di principio l'esercizio della giurisdizione debba ammettersi, le norme di jus cogens non potendo non prevalere non solo sulle convenzioni internazionali ma anche sulle altre norme consuetudinarie’ (‘As a matter of principle, the exercise of jurisdiction [against defendant states in cases of violations of jus cogens] must be admitted, because the norms of jus cogens cannot but prevail not only on international treaties but also on customary rules’ (my own translation). Unfortunately for the Court of Cassation, Conforti radically changed his mind from 2002 to 2006 (possibly after realzing the consequences of his theory becoming true). In the seventh edition of Conforti's Diritto Internazionale (2006), the majority of Italian students of international law read at p. 230 that ‘la prassi non autorizza una simile estensione, essendo limitata ai casi di genocidio, tortura e simili, con la conseguenza che l'estensione finisce per essere una mera opinione dottrinale espressa per via deduttiva e non induttiva’ (‘state practice does not authorize such an extension [of the lack of immunity in cases of violation of jus cogens], its being limited to the cases of genocide, torture, and the like, with the consequence that such an implication is a mere doctrinal opinion expressed in a deductive and not inductive manner’ (my own translation). Finally, in the eighth edition (2010), Conforti admits at p. 255 that on the whole matter of state immunity and grave violations of human rights, one could at best speak of a ‘semplice trend’.

41 Repubblica federale di Germania c. Presidenza del Consiglio dei ministri e Maietta, Italian Court of Cassation, Order of 29 May 2008, No. 14209, (2008) 91 Rivista di Diritto Internazionale 896.

42 It has been observed that only this sentence in itself synthesizes the Court's entire thought on the matter; Consolo, supra note 35, at 324. The recourse to ever more resounding phrases, however, cannot make up for a lack of positive law; see Focarelli, C., ‘Diniego dell'immunità giurisdizionale degli Stati stranieri per crimini, Jus Cogens e dinamica del diritto internazionale’, (2008) 91 Rivista di Diritto Internazionale 738Google Scholar. The author rightly concludes that the Court would have done a better service to its cause by openly assuming a position de jure condendo.

43 See T. Rensmann, ‘Impact on the Immunity of States and their Officials’, in M. Kamminga and M. Scheinin (eds.), The Impact of Human Rights Law on General International Law (2008), 151, at 165. A different question would be whether, in general, as a consequence of violations of erga omnes obligations, states have a duty to ensure compliance. For a different answer, depending on the primary obligation violated, see G. Gaja, ‘Do States Have a Duty to Ensure Compliance with Obligations Erga Omnes by Other States?’, in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005), 31.

44 Report of the ILC on its Fifty-Third Session, UN Doc. Supplement No. 10 A/56/10, (2001), 287, para. 5. On the meaning of the obligation of non-recognition, see S. Talmon, ‘The Duty Not to Recognize as Lawful a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’, in Tomuschat and Thouvenin, supra note 30, at 107.

45 The same observation is made by the House of Lords in the Jones case (para. 24 per Lord Bingham, para. 44 per Lord Hoffmann). Mutatis mutandis see also the ICJ's judgment in the Arrest Warrant case, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3, para. 60: ‘Immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they may enjoy impunity in respect of any crimes that they may have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.’

46 For an earlier discussion of the denial of state immunity as a countermeasure, see J. Bröhmer, State Immunity and the Violations of Human Rights (1997), 192, who unconvincingly reaches a negative conclusion.

47 On the issue, see now R. Kolodkin, Special Rapporteur, Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/601 (2008).

48 Although it can be conceded that the doctrine of state immunity is historically rooted in the rule of the personal immunity of the heads of state at the time in which a patrimonial conception of sovereignty prevailed, the emancipation of the concept of state immunity is traceable in positive international law as far back as the beginning of the nineteenth century, as shown by the US Supreme Court's classical decision in The Schooner Exchange v. McFaddon, 11 US 116 (1812). Differently from the UK House of Lords in the Jones decision of 2006, which derived functional immunity from state immunity (see supra note 30), the US Supreme Court in the Samantar v. Yousuf et al., US Supreme Court, No. 08–1555, 1 June 2010 (unreported), unanimously held that the FSIA does not encompass individual functional immunity, observing that ‘the relationship between a state's immunity and an official's immunity is more complicated than petitioner suggests’, although leaving aside the question ‘as to the precise scope of an official's immunity at common law’ (per Judge Stevens, slip op. at 15).

49 On this, see Gattini, supra note 28, at 238.

50 See Jones Judgment, supra note 30, para. 24.

51 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), supra note 45, para. 58.

52 Armed Activities in the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, ICJ Rep. 6, para. 64.

53 Dissenting opinion of Judge Van den Wyngaert in the Arrest Warrant case, supra note 45, at paras. 10–12, followed by, among others, Orakhelashvili, supra note 4, at 250; Rensmann, supra note 43, at 163.

54 Max Joseph Milde, supra note 16, at 627.

55 For a criticism, see Focarelli, C., ‘Diniego dell'immunità alla Germania per crimini internazionali: la Suprema Corte si fonda su valutazioni “qualitative”’, (2009) 92 Rivista di Diritto Internazionale 363Google Scholar, who concludes that the Court, by insisting on maintaining the existence de lege lata of the exception, manoeuvred itself ‘in a blind alley’, at 408s.

56 See A. Orakhelashvili, ‘State Immunity and International Public Order Revisited’, (2007) 50 GYIL 327, at 365; Caplan, supra note 4, at 777, labelled as ‘collective benefit theory’.

57 See J. J. Fawcett, ‘General Report’, in Fawcett (ed.), Declining Jurisdiction in Private International Law (2001), 10, and, for an even more critical approach, H. Zhenjie, ‘Forum Non Conveniens: An Unjustified Doctrine’, (2001) 48 NILR 143.

58 Also with respect to this amazing statement, one would search in vain for examples of practice or opinio juris. As is well known, the United States is the only country in the world in which a universal civil jurisdiction, based on the Alien Tort Statute of 1789 (Alien Tort Claims Act 1789 (28 USC §1350)), has been practised in the last decades. The conformity with international law of such jurisdiction, in the absence of some pertinent jurisdictional links, is rather dubious. See the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in the ICJ Arrest Warrant case, supra note 45, in which it is said that ‘this unilateral exercise of the function of guard of international values . . . has not attracted the approbation of States generally’, at 77, para. 48. See also the US Supreme Court judgment of 29 June 2004 in the Sosa v. Alvarez Machain et al. case (542 US 692 (2004)), in which the Court, having taken note of the amicus curiae briefs presented by the governments of Australia, Switzerland, and the United Kingdom, and the EC Commission, stated its intention to limit the scope of application of the ATS to the only cases of a clear, either personal or territorial, jurisdictional link with the United States. On the whole issue, see C. Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’, (2007) 38 NYIL 3, who, weirdly applying the Lotus principle, maintains that customary international law would not prohibit universal tort jurisdiction. For a criticism of this approach, see Mora, supra note 35.

59 See A. Bianchi, ‘Ferrini v. Federal Republic of Germany’, (2005) 98 AJIL 242, at 246: ‘ambiguity on the actual rule of decision’; Iovane, M., ‘The Ferrini Judgment of the Italian Supreme Court’, (2004) 14 Italian Yearbook of International Law 172Google Scholar, at 177: ‘theoretical incoherence.’

60 Max Josef Milde, Italian Military Court of Appeal, Judgment No. 72 of 18 December 2007 (registered 25 January 2008), unreported (on file with the author).

61 Lozano, Court of Cassation, First Criminal Division, Judgment No. 31171 of 24 July 2008, in (2008) 101 Rivista di Diritto Internazionale 1124. The case dealt with the killing by a US soldier on duty at a checkpoint in Baghdad of an Italian secret service agent, Calipari. The Court held that Italian judges had no jurisdiction because of the functional immunity of the US soldier. As for the jus cogens exception, the Court held that the killing did not amount to a war crime, because of the factual development of the ‘episode’ and because of the ‘isolated and individual character of the act’. For a sharp criticism of the Court's understanding of war crime, see A. Cassese, ‘The Italian Court of Cassation Misapprehends the Notion of War Crimes’, (2008) 6 JICJ 1077.

62 Rensmann, supra note 43, at 156. A similar argument had been made by Orakhelashvili, supra note 30, at 959.

63 Al-Adsani v. United Kingdom [2001] ECHR 761.

64 See Mizushima, T., ‘Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means’, (2008) 71 Modern Law Review 734Google Scholar.

65 Waite and Kennedy v. Germany (Appl. 26083/94), GC Judgment of 18 February 1999, ECHR 1999–1, 393.

66 Bosphorus hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland (Appl. 45036/98), GC Judgment of 30 June 2005, ECHR 2005-VI, 107.

67 A debate on the necessity vel non of exhausting local remedies has arisen also with regard to the application of the US Alien Tort Statute, as a consequence of the US Supreme Court's decision of 2004 in the Sosa v. Alvarez Machain case, supra note 58, in which the Court noted the question but left it open (ibid., at 733). It is to be noted that the 1991 US Torture Victim Protection Act (28 USC § 1350) expressly requires the exhaustion of local remedies before an alien can sue in US courts. Doctrine on the whole reacted favorably; see Anon., ‘The Alien Tort Statute, Forum Shopping, and the Exhaustion of Local Remedies Norm’, (2008) 121 Harvard Law Review 2110; G. C. Ackerman, ‘An Analysis of Whether Aliens Should Be Required to Exhaust Local Remedies before Suing in the United States under the Alien Tort Statute’, (2008) 7 Wash. U GSLR 543; Holtzclaw, L. E., ‘Finding a Balance: Creating an International Exhaustion Requirement for the Alien Tort Statute’, (2009) 43 Georgia Law Review 1245Google Scholar.

68 See Gattini, supra note 28, at 232.

69 1947 Treaty of Peace with Italy, Signed at Paris, 10 February 1947, 126 UNTS 1950: ‘Without prejudice to these and to any other dispositions in favor of Italy and Italian nationals by the Powers occupying Germany, Italy waives on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war.’

70 1961 Treaty between the Federal Republic of Germany and the Italian Republic concerning Compensation for Italian Nationals subjected to National Socialist Measures of Persecution (Italian text in Gazz. Uff. Rep. It. 1963 No. 93; German text in BundesGesetzBlatt 1963, II, 669). On the meaning and the context of this treaty, see Gattini, supra note 28, at 227.

71 Repubblica federale di Germania c. Presidenza del Consiglio dei Ministri e Maietta, Court of Cassation, Judgment of 29 May 2008, No. 14209, in (2008) 91 Rivista di Diritto Internazionale 896, at 898: ‘the dispositions [of the two treaties of 1947 and 1961] concern the merits and not the jurisdiction. It is the competence of the tribunals to decide the civil suits object of the waiver.’

72 Max Joseph Milde, supra note 16, at 631, para. 8.

73 See Jurisdictional Immunities of the State (Germany v. Italy), Counterclaim, Order of 6 July 2010 (not yet published).

74 See J. D. Dugard, Special Rapporteur, First Report on Diplomatic Protection, UN Doc. A/CN.4/L 506, at 27, para. 74. For the ILC's rejection, see 2000 YILC, Vol. II (Part Two), at 78, para. 456.

75 According to Art. 19, a state entitled to exercise diplomatic protection should: (a) give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; (b) take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; (c) transfer to the injured person any compensation obtained for the injury from the responsibles state subject to any reasonable deductions.

76 See, however, Mizushima, supra note 64, at 751, for the odd theory that the entertaining of court proceedings against a foreign state might be seen as a form of diplomatic protection, allowed by Art. 1 of the Draft Articles on Diplomatic Protection: ‘diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State.’ For the confuse drafting history of Art. 16 and its obscure relation to Art. 17 (Special rules of international law), see A. Gattini, ‘Alcune osservazioni sulla tutela degli interessi individuali nei progetti di codificazione della Commissione del Diritto Internazionale sulla responsabilità internazionale e sulla protezione diplomatica’, in M. Spinedi et al. (eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (2006), 431, at 461. The incongruity is due to the fact that in its final reading, Art. 16 seems to refer, as opposed to Art. 17, to ‘actions or procedures other than diplomatic protection’ under customary international law. Now, it is difficult to see which other actions or procedures should be available to natural persons, legal persons, or other entities besides those provided for by treaties. For the relation between diplomatic protection and state responsibility, see A. Vermeer-Künzli, ‘A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes’, (2007) 56 ICLQ 553.

77 See J. Kokott, ‘Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen’, in R. Bernhardt and U. Beyerlin (eds.) Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht: Festschrift für Rudolf Bernhardt (1995), 135. See also the Italian Court of Cassation's assertion that the violation of peremptory norms constitutes ‘the breaking point of an acceptable exercise of sovereignty’, supra note 41.

78 See Case Concerning Certain German Interests in Polish Upper Silesia (Merits), 25 May 1926, PCIJ Rep. Series A No. 7, at 30: ‘such misuse cannot be presumed . . ., it rests with the party who states that there has been such misuse to prove this statement.’

79 H. Lauterpacht, The Function of Law in the International Community (1933), at 286: ‘there is such an abuse of rights each time the general interest of the community is injuriously affected as the result of the sacrifice of an important social or individual interest to a less important, though hitherto legally recognized, individual right.’

80 Ibid., at 306.

81 Ciampi, supra note 31, at 610.

82 2004 UN Convention on Jurisdictional Immunities of States and their Property, UN Doc. A/59/508 (not yet in force), Art. 2(1) (b)(i) of the Convention, by which ‘State’ means ‘the State and its various organs’.

83 On the rules of state succession in tort, see B. Stern, ‘Responsabilité internationale et succession d'états’, in L. Boisson de Chazournes and V. Gowland-Debbas (eds.), The International Legal System in Search of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), 327, who supports the thesis of automatic succession in general, but with the notable exception of violations of jus cogens, having regard to the character ‘éminemment personnel’ of that aggravating aspect of responsibility, at 349.

84 On the still very resilient character of these classical limitations on state jurisdiction, at least in common-law systems, see H. Fox, ‘International Law and Restraints on the Exercise of Jurisdiction by National Courts of States’, in M. D. Evans, International Law (2006), at 363; Patterson, A. D., ‘The Act of State Doctrine Is Alive and Well: Why Critics of the Doctrine Are Wrong’, (2008) 15 U.C. Davis Journal of International Law and Policy 111Google Scholar. On the application of the two concepts to war claims, see A. Gattini, ‘To What Extent Are State Immunity and Non-Justiciability Major Hurdles for Individuals’ Claims for War Damages?’, (2003) 1 JICJ 348. Remarkably, that was also the view of Morelli, for whom some cases commonly but mistakenly dealt with as cases of immunity should have, in reality, been understood as cases in which domestic judges had no jurisdiction because of the nature itself of the controversy, namely situations in which the foreign state acted as an international subject. See G. Morelli, Diritto processuale civile internazionale (1954), 187; and of the same author, ‘Immunità dalla giurisdizione e competenza giurisdizionale’, (1958) 41 Rivista di Diritto Internazionale 126. The article was a case note on a judgment by the Italian Court of Cassation (Regno di Grecia c. Gamet, Court of Cassation, No. 2144/1957, in (1958) 41 Rivista di Diritto Internazionale 123, English translation in (1963) 28 ILR 153), which had upheld the immunity of Greece in a civil action concerning the taking of property under the enemy property clause of the Peace Treaty of 1947 and the Greek–Italian Treaty of 1949.

85 The relationship between civil jurisdiction and international human rights is on the whole not yet sufficiently investigated; see P. Dubinsky, ‘Human Rights Law Meets Private Law Harmonization: The Coming Conflict’, (2005) 30 Yale JIL 211, who ends his overview of the state of the art by pleading for the development of ‘a set of common principle applicable to adjudicating grave human rights offenses’, but without putting into question ‘the principle’ of individual compensation (at 314). For a sympathetic view of lobby strategies in international/domestic human rights litigation, see Helfer, L. R., ‘Forum Shopping for Human Rights’, (1999) 148 University Pace Law Review 285CrossRefGoogle Scholar; B. Stephens, ‘Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’, (2002) 27 Yale JIL 10.

86 With regard to the 1907 IV Hague Convention, see Gattini, supra note 84, at 348. For the 1949 Geneva Conventions, cf. J. S. Pictet (ed.), Commentaire de la IV Convention de Genève (1956), at 645.

87 See ex multis A. W. Freeman, ‘Responsibility of States for Unlawful Acts of their Armed Forces’, (1955) 88 RCADI 267, at 333; N. Ronzitti, ‘Access to Justice and Compensation for Violations of Law of War’, in F. Francioni, supra note 33, at 95. It is only in recent years, and especially after the conflict in ex-Yugoslavia, that some doctrinal voices have been raised arguing for the direct applicability (either de lege lata or de lege ferenda) of Art. 3 of the 1907 IV Hague Convention (Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907); see among others T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), 224; E. David, Principes de droit des conflits armés (1999), 570; M. Sassoli, ‘State Responsibility for Violations of International Humanitarian Law’, (2002) 84 IRRC 401, at 419.

88 Ferrini, supra note 2, at 7.1. On the point, see the critical remarks by Gianelli, A., ‘Crimini Internazionali ed Immunità degli Stati dalla Giurisdizione nella Sentenza Ferrini’, (2004) 87 Rivista di Diritto Internazionale 643Google Scholar, at 677.

89 See the decision of the German Constitutional Federal Tribunal of 28 June 2004, rejecting the joint constitutional complaint by the Associazione Nazionale Reduci dalla Prigionia and by Mr Ferrini, In dem Verfahren über die Verfassungsbeschwerde, Judgment of the German Supreme Court of 2 November 2006, III ZR 190/05 (Varvarin-Brücke), BVerfG 2 BvR 1379/01, available at www.bverfg.de/entscheidungen/rk20040628_2bvr137901.html.

90 Das Bundesgesetzblatt für die Republik Österreich (BGBl), (2000), I, at 1263.

91 Associazione Nazionale Reduci dalla Prigionia, dall’ Internamento e dalla Guerra di Liberazione (A.N.R.P.) and 275 Others v. Germany, Admissibility of Application, Judgment of 4 September 2007, [2007] ECHR 5556.

92 Marković c. Presidenza del Consiglio dei ministri e Ministero della difesa, Italian Court of Cassation, United Chambers, Order of 5 June 2002, No. 8157/2002, (2002) 85 Rivista di Diritto Internazionale 799, and 128 ILR 652.

93 Cf. Marković v. Italy (Appl. No. 1398/03), Judgment of 14 December 2006, [2006] ECHR 1141, para. 114.

94 This distasteful impression is not solved by the attempt of the Court of Cassation in the Ferrini decision to distinguish the Marković precedent, instead of simply rejecting it. See also Gianelli, supra note 88, at 664. For some benevolent commentators, such as Iovane, supra note 59, at 172, the Marković order ‘was completely overturned’ in the subsequent Ferrini decision.

95 The point was forcefully made in the dissenting opinion of the Italian Judge Zagrebelsky joined by six other judges; see Marković v. Italy, supra note 93: ‘It is a matter of great concern that neither the Court of Cassation nor the Court provided any definition of what might qualify as an “act of government” or “political act” . . . or of what the limitation on such acts might be.’

96 See Bröhmer, supra note 46, at 204; P. d'Argent, Les réparations de guerre en droit international public (2002), 802; A. Gattini, Le riparazioni di guerra nel diritto internazionale (2003), 653; Tomuschat, supra note 30, at 69. The point has recently and forcefully been made by the Eritrea–Ethiopia Claims Commission in its Final Award on 17 August 2009 in the Ethiopia's Damages Claims case, Ethiopia's Damages Claims between The Federal Democratic Republic of Ethiopia and The State of Eritrea, Final Award, 17 August 2009 (Eritrea–Ethiopia Claims Commission). Rejecting Ethiopia's claims of billions of dollars for moral damages, with regard to the damages suffered by its population as a consequence of the 1998–2000 war, the Commission held that ‘large per capita awards of moral damages may be logical and appropriate in some contexts involving significant injuries to an individual or to identifiable members of small groups. The concept cannot reasonably be expanded to situations involving claimed moral injury to whole populations of large areas’, para. 18, available at www.Pca-cpa.org/showpage.asp?pag_id=1151. After a painstacking assessment of the damages suffered by both parties, the Commission awarded to Ethiopia in respect of its claims a total monetary compensation of US$174,036,520 and to Eritrea a total monetary compensation of US$161 455 000 plus a little more than US$2 million in respect of claims presented on behalf of individual claimants.

97 This is, or should be by now, common wisdom in international criminal and transitional justice; see P. De Greiff (ed.), The Handbook of Reparations (2006); H. Ruiz-Fabri et al. (eds.), La clémence saisie par le droit: Amnistie, prescription et grace en droit international et compare (2006).

98 See Caflisch, L., ‘New Practice Regarding the Implementation of the Judgments of the Strasbourg Court’, (2005) 15 Italian Yearbook of International Law 3Google Scholar.

99 Even this last proposal, however, would be just palliative; it would not eradicate the problem of true systemic failures, which remains primarily and at its root a political one. See A. Gattini, ‘Mass Claims at the European Court of Human Rights’, in Breitenmoser et al. (eds.), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (2007), 271. In a document issued by the President of the Court on 3 July 2009, ‘Mémorandum du Président de la Cour Européenne des droits de l'homme aux états en vue de la Conférence d’ Interlaken’, the question of class actions is mentioned among the ideas that the Court is going to study in detail at sub. III.B.2.3.

100 See supra note 35.

101 See Art. 1 of the UN Torture Convention: ‘For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.’ For an application of an excessively broad concept of torture, see E. de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, (2004) 15 EJIL 97, who mentions the Princz v. Federal Republic of Germany, 998 F.2d 1 (D.C.Cir.1993) (which concerned a civil claim for forced labour during the Second World War brought by a US citizen before the District Court for the District of Columbia in 1994) and the Distomo cases, supra notes 3 and 18, as instances of torture, respectively at 105 and 106.

102 A. Gattini, ‘La renunciation au droit d'invoquer la responsabilité internationale’, in Dupuy, supra note 39, at 338. For a different position, see d'Argent, supra note 96, at 759, and by the same author, ‘Wrongs of the Past, History of the Future’, (2006) 17 EJIL 288.

103 On the point, see G. Gaja, ‘Jus Cogens Beyond the Vienna Convention’, (1981) 172 RCADI 271, at 292.

104 See mutatis mutandis the recent decision of 16 June 2009 of the Fifth Chamber of the European Court of Human Rights in the Grosz v. France case (Grosz v. France (dec.), no. 14717/06, 16 June 2009), in which a French citizen had unsuccessfully tried to sue Germany in France for compensation for forced labor during the Second World War. The Court unanimously did not find any violation either of Art. 4 of the 1950 European Convention on Human Rights (ECHR), 213 UNTS 221, because the facts related to a time previous to the entry into force of the ECHR, or Art. 6 with regard to state immunity for acta jure imperii, adding that ‘cela vaut du moins en l’état actuel du droit international public, ce qui n'exclut pas pour l'avenir un développement du droit international coutumier ou conventionnel’.

105 See ex multis Focarelli, supra note 42, at 393.

106 It is remarkable that after the First World War, the injuries suffered by Belgian citizens who had been deported for forced labor to Germany were considered ‘civil damages’ in the meaning of Annex I of Part VIII of the Treaty of Peace at Versailles, 28 June 1919, Allied & Associated Powers-Ger., 225 Consol. T.S 188, and therefore appertaining to the general category of war damages, which Germany had to repair through the classical mechanism of inter-state reparations; see on the point Gattini, supra note 28, at 225.

107 The first view is held by Italian judges, applying to foreign state immunity the general solution provided by Art. 8 of the Italian Law 218/1995, read in combination with Art. 5 of the Italian Civil Procedural Code. The second view was held by the German Federal Court in its decision of 26 June 2003 (see supra note 18), in which the Court, in dismissing a claim filed in Germany by some of the Distomo plaintiffs, noted inter alia that a retrospective application of the tort exception to facts that occurred during the Second World War ‘would raise serious concern’. The first view was held also by the US Supreme Court in the Republic of Austria v. Altmann judgment of 7 June 2004, concerning the application of the Foreign Sovereign Immunity Act of 1976 to Austrian actions that had taken place in 1948; see 541 US 677 (2004). It must be noticed, however, that the Altmann judgment was sharply criticized for having drawn away, without any reasonable explanation, from the precedent of the Landgraf v. USI Film Products, 511 US 244 (1994), which excluded retroactivity in all the cases in which it would ‘impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed’. See C. M. Vazquez, ‘Altmann v. Austria and the Retroactivity of the Foreign Sovereign Immunity Act’, (2005) 3 JICJ 207; M. Goodman, ‘The Destruction of International Notions of Power and Sovereignty: The Supreme Court's Misguided Application of Retroactivity Doctrine to the Foreign Sovereign Immunity Act in Republic of Austria v. Altmann’, (2005) 93 GLJ 1117; J. Chung, ‘Republic of Austria v. Altmann: A Flawed Attempt to Apply Retroactively the FSIA of 1976’, (2006) 20 Temple ICLJ 163.

108 See Rapports Explicatifs Concernant la Convention européenne sur l'immunité des etats et le protocole additionnel, Conseil de l’ Europe (1972), at 42.

109 Medellín v. Texas, 552 US 491 (2008). On the question of the direct applicability of ICJ decisions, see supra note 27.

110 Soc. Imm. Soblim c. Russell, Italian Court of Constitution, Judgment No. 48 of 18 June 1979, (1979) 62 Rivista di Diritto Internazionale 797.

111 Conforti, supra note 40, seventh edition, at 288.

112 See Baraldini, Italian Court of Constitution, Judgment No. 73 of 22 March 2001, (2001) 84 Rivista di Diritto Internazionale 490 (at 3.1, in which the principle of Judgment 48 of 1979 is recalled, but without the temporal divide); R.A. c. Comune di Torre Annunziata et al., Italian Court of Constitution, Judgment No. 348 of 24 October 2007, (2008) 91 Rivista di Diritto Internazionale 198 (at 4.7, with regard to the European Convention on Human Rights).

113 For a stringent criticism of the (lack of) coherence and logic of this part of the judgment, see Focarelli, supra note 55, at 398.

114 For an accurate overview of the current practice and doctrinal debate on the relation between international law and domestic constitutional law, see Peters, A., ‘Supremacy Lost: International Law Meets Domestic Constitutional Law’, (2009) 3 Vienna Journal of International Constitutional Law 170Google Scholar, who concludes with a dubitative note on the ‘promise and peril’ of constitutional pluralism.