I have uploaded a new paper on the Judgment of the International Court of Justice in Jurisdictional Immunities of States (2012). It was written for the Conference ‘The ICJ’s Judicial Year in Review’, which took place in 25-26 April 2013 at the European University Institute. The conference was superbly directed by professors Andreas Zimmermann and Eyal Benvenisti. Here is the abstract of the paper which will be publish with the rest of the presentations in the next issue of the Journal of International Dispute Settlement (October 2013).

Of Plumbers and Social Architects: Elements and Problems of the Judgment of the International Court of Justice in Jurisdictional Immunities of States

Carlos Espósito


This analysis of the judgment of the International Court of Justice in the Jurisdictional Immunities case is conducted in two parts. The first briefly presents the basic elements of the judgment of the Court in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening); the second part identifies and discusses some problems raised by the judgment. These include the legal character of the rule of state immunity, the limits of the positivist methodology to establish state practice as evidence of customary international law and its exceptions, and the troubles with a strictly procedural approach to consider a possible exception to immunity for serious violations of international law and international humanitarian law. The comment concludes with a brief general assessment of the judgment of the Court, its role and the future development of the law of state immunities by national courts.

El manuscrito de mi artículo «Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: A Conflict Does Exist», que será publicado en el próximamente en el Italian Yearbook of International Law (vol. 21, 2011), ya se puede consultar y descargar desde esta dirección en SSRN. A continuación transcribo el abstract.

In its judgment of 3 February 2012 in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), the International Court of Justice has considered the relationship between jus cogens and the rule of State immunity. The Court has denied the existence of a jus cogens exception to the rule of State jurisdictional immunities based primarily on the distinction between peremptory norms as rules of substance and jurisdictional immunities as rules of procedure. For the Court, a conflict between rules on jurisdictional immunities, “essentially procedural in nature,” and substantive rules of jus cogens is conceptually impossible. This comment presents a critique of the approach and reasoning of the Court regarding the absolute separation between procedural and substantive rules, and supports that a legal conflict may exist between jus cogens and jurisdictional immunities. Moreover, it sustains that the decision of the Court is neither an ideal kind of stability for international law nor an encouraging legal message to national judges dealing with public interest claims arising from serious violations of international law.

Gracias por los comentarios y las críticas.

The European Journal of International Law has published our article «The Protection of Humanitarian Legal Goods by National Judges» [Eur J Int Law (2012) vol 23, pp 67-96]. Here is the abstract:

National judges are increasingly exposed to deciding on issues regulated by the international legal system, given its expansion and specialization. However, this is just one of the many ways in which national judges interact with international law: they have the potential not only to receive and take into account international law, but also to shape and contribute to its modification, acting alone or in conjunction with other judicial authorities, and considering or ignoring the interests of several actors. The attitude of judges towards international norms, in the reception and modification dimensions, depends on a variety of factors worth exploring in detail. Such exploration allows us to ascertain how and when judges are more prone to protecting legal goods enshrined by international norms. The fact that national judges are empowered by a domestic legal system to act, while generating tensions and paradoxes when norms created in different levels of governance clash, does not detract from the possibility for them to defend interests and values, i.e., legal goods, belonging to other legal systems, even those generated in a global space of interaction where interests and values shared by different legal systems are shaped, including the protection of human dignity.

The European Journal of International Law Vol. 23 no. 1 © EJIL 2012; all rights reserved

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