Paul Stephan on ICJ Decision in Jurisdictional Immunities of the State (Germany v. Italy)

Benjamin Wittes
Sunday, February 5, 2012, 2:55 PM

Paul Stephan, the John C. Jeffries, Jr.

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Paul Stephan, the John C. Jeffries, Jr. Distinguished Professor of Law at the University of Virginia and a former counselor on international law in the U.S. Department of State, has the following analysis of the International Court of Justice’s decision Friday in Jurisdictional Immunities of the State (Germany v. Italy):

On Friday, the International Court of Justice (ICJ) handed a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system. Its decision in Jurisdictional Immunities of the State rejected Italy’s attempt to create an exception to sovereign immunity in civil cases based on claims of grave human rights abuses. The decision not only rebukes Italian and Greek courts, which earlier in this decade had opened themselves to claims based on Germany’s World War II atrocities, but also may cast a shadow over some aspects of human rights litigation in the United States. One can find in the decision, and particularly in the concurring opinion of Judge Keith (New Zealand), support for the argument that the exercise of universal civil jurisdiction, which most U.S. human rights litigation does, violates international law.

A Greek court first opened the door to war crimes civil suits, although a special constitutional court there later repudiated the notion that an exception to sovereign immunity exists for human rights cases. Italy’s courts, including its Supreme Court, later embraced this exception to sovereign immunity. After successful plaintiffs attached a villa in Italy belonging to Germany to enforce their judgment, and the Italian courts also recognized a Greek judgment as enforceable by their courts, Germany invoked the ICJ’s jurisdiction. Italy has neither a statute nor any treaty obligation regarding sovereign immunity, but its courts purport to apply customary international law in this area. Italy consented to the ICJ’s jurisdiction but sought to add a counterclaim for reparations, in spite of a peace treaty that waived all such claims against Germany. In 2010 the ICJ determined that it lacked jurisdiction to decide the counterclaim, over a dissent by Judge Cançado Trindade (Brazil). On Friday the court issued a decision in favor of Germany. President Owada wrote the opinion, in which eleven other judges joined. Judges Cançado Trindade, Yusuf (Somalia) and Gaja (an ad hoc judge from Italy) dissented, although only Cançado Trindade asserted that international law generally privileges human rights claims over rules based on the underlying state structure of international law.

For the majority, sovereign immunity from civil suits rests firmly on the concept of sovereign equality of states, which it described as “one of the fundamental principles of the international legal order.” Another fundamental principle, however, is that “each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory.” Vindication of sovereign equality through immunity thus impairs a sovereign’s jurisdiction over events on its territory, such as the war crimes that Germany committed on Greek and Italian soil. The court depicted the evolving law of sovereign immunity as balancing these principles, with the norm one of immunity and the exceptions reflecting circumstances where a state’s sovereign character was not seriously impaired. Although many states and a few treaties have recognized such an exception for torts occurring on the territory of the state seeking to assert jurisdiction, none had extended this exception to military acts occurring during an armed conflict. The majority regarded military operations as being at the core of sovereign character, and violations of the laws of war as subject to punishment by the international system, not by national courts imposing tort liability on foreign states.

The majority also rejected the argument that violations of the so-called peremptory norms (jus cogens) of international law demanded a different result. First, it observed that the assertion of jurisdiction, and hence the infringement of foreign sovereignty, occurs at the outset of a proceeding, before any attempt to assess the merits of the claim. Recognition of a jus cogens exception would mean that immunity could “in effect be negated simply by skillful construction of the claim.” Moreover, the question of wrongfulness under international law, even as to severe breaches of fundamental human rights, is independent of the question of how to redress that wrong. A rule of sovereign immunity, it asserted, does “not derogate from those substantive rules which possess jus cogens status.” After a careful survey of existing treaties, domestic legislation, and judicial practice, the ICJ determined that Italy stood alone in claiming a judicial power to vindicate core human rights against a foreign state through civil litigation, and in doing so it violated the customary international law of sovereign immunity.

Judge Cançado Trindade’s dissent is interesting for its methodology as much as its conclusion. He defended a jus cogens exception to sovereign immunity not on the basis of any official acts of governmental authorities that might be seen as indicating the acceptance of such an exception. Rather, he asserted that the advancing progressive nature of international law, as expressed by reputable scholars and other jurists, demanded such a rule, regardless of state consent. His argument in effect removes nations, or at least the governments that represent them, from international law.

Because the case concerned sovereign immunity and not the right of a sovereign to entertain civil suits for misconduct by aliens on foreign territory, the principle of universal civil jurisdiction was not at issue. But some have argued (including amici filing briefs in the pending Supreme Court case, Kiobel v. Royal DutchPetroleum Co.), and Judge Keith in his concurrence agreed,  that sovereign immunity and a general prohibition of extraterritorial jurisdiction both rest on the fundamental principle of sovereign equality. Purporting to prescribe rules for conduct in a foreign country that neither involves the regulating sovereign’s subjects nor produces a significant impact on its economy, the argument goes, intrudes on the sovereignty of a territorial state every bit as much as subjecting that sovereign to judicial jurisdiction. Absent the territorial sovereign’s consent, such regulation violates international law. By indicating that there exists no jus cogens exception to immunity from judicial jurisdiction, the Jurisdictional Immunities judgment may imply that there also exists no such exception to immunity from prescriptive jurisdiction. If so, much of what U.S. human rights litigation does violates international law.

The Supreme Court granted certiorari in Kiobel to consider a separate question, namely the liability of corporations under the federal common law that derives from the so-called Alien Tort Statute. But the extraterritoriality issue lurks in the case, as the dispute involves conduct in Nigeria harming Nigerians by the Nigerian subsidiary of an Anglo-Dutch family of companies. Other cases coming out of the lower courts and awaiting the resolution of Kiobel, including Sarei v. Rio Tinto in the Ninth Circuit, also raise the issue. At some point the Court will have decide whether, as the Jurisdictional Immunities judgment indicates, vindication of human rights must give way to the core principles of sovereign equality, or whether the United States, like Italy, should go its own way in spite of the international system.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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