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Summary Jurisprudence Public International Law
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Werkgroep 3 International law + Case-law
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Book summary: International Law - Anders Henriksen
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Jurisprudence Public International LawWeek 1:
International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy:
Greece Intervening), Judgment, 3 February 2012, excerpts as included in the
Elementary International Law 2017 reader (EIL 2017, p. 600).
Facts: In multiple civil suits between 2004 and 2008, Italian courts have found Germany
responsible for crimes against humanity and/or war crimes committed by the German Reich
during WWII, thereby ordering Germany to pay compensation to Italian plaintiffs, who had
fallen victim to such crimes.
Germany did not dispute the substance of the facts. However, it did consider that Italy had
violated international law. By exercising jurisdiction over Germany, Italy had violated the
principle that one state cannot and should not exercise jurisdiction over (the acts of) another
state. This principle is based on the notion of sovereignty and, thus, the (legal) equality of all
states.
Italy, on the other hand, emphasised that the underlying crimes - crimes against
humanity and war crimes - are violations of jus cogens, law that is binding upon states
regardless of any treaty. And since jus cogens rules always prevail over any inconsistent
international law rule and considering the principle of jurisdictional immunity of states does
not have jus cogens status, the latter rule of immunity must give way.
Additionally, Italy was of the standpoint that state agents, including state armies, do not join
immunity for torts or delicts occasioning death, injury or damage committed on the territory of
another state.
Legal question: Do states enjoy full jurisdictional immunity before foreign domestic courts
for acts committed by their armed forces in the course of conducting an armed conflict?
Relevant rules:
Art. 38 of the ICJ Statute.
Art. 11 of the European Convention for the Peaceful Settlement of Disputes.
Art. 12 of the UN Convention on Jurisdictional Immunities of States and Their
Property.
Consideration ICJ:
Par. 77-79: The Court commenced with Italy's argument that there is a "territorial tort
exception" in international customary law that excludes state acts from jurisdictional immunity
if they take place on the territory of another state. This claim is rejected, as the Court could
not find any support for it in both (the history of) treaty law and international customs.
Then the Court turned to the other argument, holding that the underlying acts were violations
of jus cogens and that they, thus, allowed for denial of immunity. This claim was rejected as
well:
Firstly, though the Court acknowledged that the facts were indeed grave violations of
international law, there it found no support for denying state immunity. It emphasized that
this says nothing about individual criminal responsibility and the possibility to
deny individual immunity (paras. 81-91).
, Furthermore, while the underlying facts are of jus cogens character, this does not
conflict with the (international customary law) principle of state immunity: the former
addresses the (un)lawfulness of certain conduct, the latter concerns procedural,
jurisdictional issues (paras. 92-97)
And finally, the Court considered that "it cannot accept Italy's contention that the
alleged shortcomings in Germany's provisions for reparation to Italian victims entitled the
Italian courts to deprive Germany of jurisdictional immunity".
Hence, the Court rejected Italy's claims and held that the judgments ordering Germany to
pay compensation violated the principle of jurisdictional immunity.
Regarding the constraining measure on Villa Vigoni that was filed by the Greek claimants,
the Court stated that it was unlawfully awarded as well.
Conclusion: The Court rejected Italy's claims and fully agreed with Germany's points. State
immunity is part of customary international law, and the fact that the underlying acts (the
WWII crimes) were violations of jus cogens did not deprive Germany from its jurisdictional
immunity.
Importantly, though, the Court notes that while the current judgment confirms jurisdictional
immunity of states, this does not in any way alter the possibility to hold individuals criminally
responsible for certain acts.
Week 2:
International Court of Justice, Case Concerning the GabčiovovNagymaros Project
(Hungary/Slovaiia), Judgment, 25 September 1997, excerpts as included in the
Elementary International Law 2017 reader (EIL 2017, p. 512).
Facts: In 1977, Hungary and Czechoslovakia entered into a treaty to build and operate
various structures (a reservoir, dam, bypass canal, hydroelectric power plants, and
navigational and flood control improvements) on the Danube River, their shared border.
Construction began in 1978 but was not completed. In 1989, both countries experienced
major political and economic changes. New political leadership in both countries expressed
concerns over going through with the projects for environmental and economic reasons.
Hungary first suspended its share of the project in 1989 and later abandoned it.
Czechoslovakia began work in 1991 on a new version of the plan. However, in 1993,
Czechoslovakia dissolved into two states, and Slovakia became independent.
Slovakia wanted to continue the treaty, and Hungary wanted to terminate. Slovakia continued
building the dames, but according to a different plan, not good for Hungary important.
Hungary and Slovakia submitted a dispute to the International Court of Justice (ICJ) and
requested the court to determine on the basis of international law whether Hungary was
entitled to suspend and then abandon its part of the Danube project. Hungary argued it was
entitled to suspend and abandon due to changed circumstances and impossibility of
performance.
Legal question: The court needs to decide on all the facts if they were legal or illegal?
Consideration ICJ: The court handed down a decision in 1997:
Invoiing state necessity as a ground for termination of a treaty:
, Par. 46v48: Make a distinction between two things: termination of a treaty is in the VLCT and
the state of necessity is in the DARS articles. So Hungary made a mistake by invoking state
of necessity for invoking treaty termination, they should not have looked at the state
necessity but the reasons in the VCLT.
The ground for termination are in the VCLT, in art. 54 VCLT (general rule): all the states can
decide together to terminate the treaty. But unilateral ways for terminating a treaty for states,
art. 60-62:
- Art. 60: Other party breaches the treaty
- Art. 61: Force majeure: impossibility to perform an obligation
- Art. 62: Fundamental change of circumstances
This does not say state of necessity, state of necessity means a breach of an obligation
under specific circumstances does not mean a breach only as long as the circumstances are
there, not a ground for termination under specific circumstances you can not be blamed for
breaching the obligation.
Paragraph 101: Even if a state of necessity is found to exist, it is not a ground for the
termination of a treaty, as it is nog mentioned in VLCT as a ground.
Paragraph 49: The Court then considers the question of whether there was, in 1989 a state
of necessity which would have permitted Hungary, without incurring international
responsibility, to suspend and abandon works that it was committed to perform in
accordance with the 1977 Treaty and related instruments.
Paragraph 51: The Court observes, first of all, that the state of necessity is a ground
recognized by customary international law for precluding the wrongfulness of an act not in
conformity with an international obligation. It considers moreover that such ground for
precluding wrongfulness can only be accepted on an exceptional basis.
Article 33 of the Draft Articles on the International Responsibility of States says what the
conditions are for a state necessity. There is no state of necessity according to the Court:
The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its
natural environment in the region affected by the Gabcikovo-Nagymaros Project related to an
"essential interest" of that State.
Paragraph 53:It is of the view, however, that, with respect to both Nagyniaros and
Gabcikovo, the perils invoked by Hungary, withoutt prejudging their possible gravity, were not
sufficiently established in 1989, nor were they "imminent"; and that Hungary had available to
it at that tiine means of responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted. What is more, negotiations were
under way which might have led to a review of the Project and the extension of some of its
time limits, without there being need to abandon it.
Paragraph 58: The Court infers that, in the present case, even if it had been established that
there was, in 1989, a state of necessity linked to the performance of the 1977 Treaty,
Hungary would not have been permitted to rely upon that state of necessity in order to justify
its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it
about.
The court decided in total (not as important as above):
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