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The International Law of State Immunity and Its Development by National Institutions

PDF · Christian Tomuschat · Jun-25-2012 · 44 VAND. J. TRANSNAT'L L. 1105 (2011)

The proceedings between Germany and Italy currently pending before the International Court of Justice have revived interest in the legal regime of jurisdictional immunity of states. Germany charges Italy with violating the basic rule of state immunity by entertaining reparation claims brought before its civil courts by victims of serious breaches of international humanitarian law committed by Nazi Germany during World War II. Jurisdictional immunity is not absolute, but it remains preserved for truly governmental acts like military operations. None of the generally recognized exceptions apply in the German–Italian dispute. Damages resulting from international armed conflict are not covered by the local tort clause included in most of the relevant instruments. Nor does the infringement of a jus cogens rule automatically confer jurisdiction to the domestic courts of an affected country. After World War II, a reparation scheme was established by the victorious Allied Powers that provided for reparations at the inter-state level. Granting additional reparation claims to every individual victim of unlawful conduct during armed hostilities would amount to double jeopardy, rendering any definitive peace settlement illusory.

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