Germany v. Italy – one-up for jurisdictional immunities over jus cogens norms
On February 3, 2012 the International Court of Justice (ICJ) pronounced its judgment in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy) thereby propounding upon the scope and ambit of State immunity vis-à-vis violation of jus cogensnorms. The Court pronounced that violation of jus cogensnorms does not constitute an exception to the exercise of jurisdictional immunities by a State and that the law of State immunity is in the nature of a procedural rule and not a comment on the substantive question of lawfulness of any other settled means of redressing human rights’ violations. The decision has been criticized for having sacrificed human rights at the altar of procedural formalism. The author attempts to view the law of State immunity through the prism of violation of jus cogens norms and human rights. Various domestic courts have upheld the law of State immunity on the premise that prosecution of a State at the hands of another would unsettle the sovereignty and integrity of nations and would open up domestic courts to litigation against alleged human rights’ violations by other States. Human rights’ advocates argue that a State impliedly waives its right to State immunity when its officials indulge in acts which constitute a breach of jus cogensnorms. Jus cogensnorms stand on a higher pedestal and thus, in case of a conflict between jus cogensnorms and State immunity, the former shall prevail. This article shall provide a profound view of State practice on the aforementioned subject, a critique of the decision of the ICJ and the response that the decision has elicited across the globe.>
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