State Immunity and ius cogens in the ICJ’s Judgment of 3 February 2012

The article comments on the judgment delivered by the ICJ on 3rd February 2012 in the case Germany v. Italy. The focus is on the difference identified by the ICJ between procedural and substantive norms in order to deny the existence of a conflict between State immunity (procedural) and ius cogens norms (substantive). The article argues that the ICJ failed to capture the substantive nature of the State immunity regime at the international level. The argument is based on the recognition of a general international norm aimed at protecting the different aspects of State sovereignty and having procedural effects at national level, namely by defining specific limits to State jurisdiction. It is stressed that the weakness in the ICJ’s argument is accentuated by the incoherencies in its reasoning - in particular the comparison made to the case concerning the Arrest Warrant of 11th April 2000. Furthermore, by avoiding an adequate analysis of the nature of State immunity, the ICJ failed to address a crucial issue at the international level: the undeniable and controversial impact of State immunity on grave violations of human rights.

Livia Cosenza, Immunità dello Stato e ius cogens nella sentenza del 3 febbraio 2012 della Corte internazionale di giustizia in "DIRITTI UMANI E DIRITTO INTERNAZIONALE" 2/2012, pp 327-334, DOI: 10.3280/DUDI2012-002005