'The ICJ’s decision reinforces the observation that, just as successful revolutions vindicate themselves with hindsight, international law-breakers only become international law-makers when their legal “transgressions” attract a sufficient following to establish a new rule of customary international law.'So writes California-Hastings Law Professor Chimène Keitner (below right), an IntLawGrrls contributor, in a superb new ASIL Insight. It analyzes the February 3 judgment in Jurisdictional Immunities of the State (Germany v. Italy), in which the International Court of Justice ruled by overwhelming majority that Germany enjoyed sovereign immunity against Italian lawsuits seeking compensation for forced labor endured under the Nazis more than half a century ago. (Prior IntLawGrrls posts on the case here and here.) (map credit)
In passages that will no doubt interest students competing in this year's Jessup International Moot Court competition, Chimène notes that the ICJ's ruling, grounded in an understanding of customary international law obligations, seems at odds with:
► 1st, a U.S. Supreme Court position, evident in Republic of Austria v. Altmann (2004) (prior post), that one state grants another sovereign immunity as a matter of comity; and
► 2d, the state-sponsors-of-terrorism exception contained in Section 1605A of the pertinent U.S. statute, the Foreign Sovereign Immunities Act.
Hence the reference to "international law-breakers" in the quote at top.
A different and also well-worth-reading analysis of the Immunities judgment is that of our colleague William A. Schabas. Focusing on implications for human rights law, Bill's post is available here.