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The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?

Published online by Cambridge University Press:  05 February 2013

MATTEO SARZO
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Abstract

The following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

Keywords

immunityindividual rightsinternational obligationsjurisdiction
Type
HAGUE INTERNATIONAL TRIBUNALS
Information
Leiden Journal of International Law , Volume 26 , Issue 1 , March 2013 , pp. 105 - 125
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013

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References

1 ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012 (not yet published), at 24 para. 57.

2 Ibid. Emphasis added.

3 The preparatory works of the International Law Commission (ILC) on the topic of jurisdictional immunity of states show the ambivalent relationship between the need to preserve the principle of territorial absolute sovereignty and the concern to find a rationale behind immunity. In fact, the Commission initially admitted that the ‘the first prerequisite’ of the study of immunity is the assertion of a ‘valid jurisdiction’ not in conflict with ‘any basic norm of public international law’. Then, it specified that the topic of ‘compatibility with general international law of a State's internal law on the extent of jurisdiction’ did not fall within its duties. This methodological choice is justified in that ‘any restraint or suspension’ of the judiciary power is to be deemed as a limitation of the ‘absolute sovereignty’ of states. See ‘Jurisdictional Immunities of States and Their Property’ YILC (1982) vol. II(2), at 101. The Court itself shows this ambivalence. For example, when dealing with the relationship between jus cogens and immunity, the Court indirectly qualifies immunity as a procedural rule which ‘determine[s] the scope and extent of jurisdiction and when that jurisdiction may be exercised’, because there is nothing ‘inherent in the concept of jus cogens which would require [its] modification or would displace [its] application’. It is rather clear that reference is made to immunity, also because the Court recalls, in particular, the Yerodia case. See ICJ, Jurisdictional Immunities of the State, at 39, para. 95.

4 Lauterpacht observed that if states grant immunity because of reciprocity, this would imply the lack of any customary rule, on the assumption that compliance with a norm cannot rely on reciprocity. Accordingly, immunity would be a privilege of exemption from jurisdiction which the forum state grants to the defendant state. Therefore, this would confirm that the power of states to fix freely the extent of jurisdiction, stemming from their sovereignty, governs the entire matter. See Lauterpacht, H., ‘Jurisdictional Immunities of Foreign States’, (1951) 28 BYIL 220Google Scholar, at 228–9. This opinion has been recently restated by Caplan, L. M., ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’, (2003) 97 AJIL 741CrossRefGoogle Scholar, at 754, with the argument that the rule of immunity is in reality a ‘practical courtesy between states’. However, in countries, such as the USA, where courts deem immunity a matter of ‘grace and comity’, and not of international law, the courts fully endorse the assumption of the absolute territorial sovereignty. See Damrosch, L. F., ‘Changing the International Law of Sovereign Immunity through National Decisions’, (2011) 44 VAND. JTL 1185Google Scholar, at 1187.

5 The Court holds that the rule of immunity ‘is not a mere matter of comity’ because ‘opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States’. See ICJ, Jurisdictional Immunities of the State, Judgment, at 23–4, paras. 53, 55. (Emphasis added.)

6 In his individual opinion, Judge Keith underlined that this topic was debated lengthily by the ILC during the preparatory works of the codification of the rule of immunity. In the original proposal, the Commission employed a fictio to explain the lack of immunity in case of acts jure gestionis, assuming that the defendant state gives its consent to be bound by the law of the forum state. By contrast, in the final draft, this choice was withdrawn and the phrasing ‘the State is considered to have consented to the exercise of jurisdiction’ of the forum state was replaced by the wording ‘the State cannot invoke immunity’. According to Judge Keith, this change proves that the Commission shared the idea of the prominence of the freedom of states to regulate their jurisdiction as a ‘statements of general law’. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Keith, at 4, para. 10. On the contrary, for Crawford, the rule of immunity is the expression of the principle of consent of states, which reigns ‘sovereign’ in the international dispute settlement system. Without a previous consent, any kind of dispute involving a state could not be settled unilaterally. See Crawford, J., ‘Execution of Judgments and Foreign Sovereign Immunity’, (1981) 75 AJIL 820CrossRefGoogle Scholar, at 856.

7 ICJ, Jurisdictional Immunities of the State, Judgment, at 27, para. 65

8 Ibid., at 38, para. 93

9 Ibid., at 38, para. 94.

10 The origin of the modern concept of immunity from civil jurisdiction embodies the historical evolution of the principle of personal immunity of the sovereign head of state or government, against whom individuals might not lay ‘private rights and claims’. See Sir I. Sinclair, ‘The Law of Sovereign Immunity: Recent Developments’ (1980-II) 167 RCADI 117, at 123 and 197–8. Crawford maintained that the traditional rule of absolute immunity is nothing more than immunity ratione personae. See Crawford, J., ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’, (1983) 54 BYIL 75Google Scholar, at 79.

11 The scholars who, at the end of the nineteenth century, denied the existence of any exception to the rule of immunity upheld this formal approach too. The argument is that, if derogation from immunity existed without the actual consent of the defendant state, states would not be sovereigns any more, because the laws of the forum state would always bind the defendant state. See Gabba, M., ‘De la compétence des Tribunaux à l'égard des Souverains et des Etats étrangers’, (1889) 16 Journal du droit international privé 538Google Scholar, at 552.

12 In the rapporteur's words, ‘c'est la distinction bien connue des actes qui se font ratione gestionis et ceux qui se font ratione administrationis qui détermine la compétence des tribunaux’. (Emphasis added.) For instance, the actions concerning public debts were classified in the first category. See AIDI session de Hambourg (1928), at 1175 and 1180. In the final draft of the resolution, Article 4 provides that the actions concerning an act of sovereignty of the foreign state are never ‘receivables’. See ‘Projet de règlement international sur la compétence des tribunaux dans les procès contre les Etats, souverains ou chefs d'Etat étrangers’, in ibid., at 1217.

13 Article 1 of the second resolution of the Institut de droit international, adopted in Aix-en-Provence in 1954, provides that ‘les tribunaux d'un Etat ne peuvent connaître des litiges ayant trait à des actes de puissance publique’. See AIDI session d'Aix-en-Provence (1954-II), at 294.

14 For a short review of such alternative theories see Gattini, A., ‘To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals' Claims for War Damages?’ (2003) 1 JICJ 348Google Scholar, at 351.

15 H. Lauterpacht in AIDI session de Sienne (1952-I), at 123.

16 ‘Jurisdictional Immunities of States and Their property’, YILC 1980, vol. II(2), at 144.

17 G. Morelli in AIDI session de Sienne, supra note 16 at 127; and G. Morelli, Diritto processuale civile internazionale (1954), at 189 ff.

18 Brownlie, I., ‘Contemporary Problems Concerning the Jurisdictional Immunity of States: Definite Report and Draft Set of Resolutions’, AIDI session du Caire (1987-I), at 47Google Scholar.

19 I. Brownlie, ‘Contemporary Problems Concerning the Jurisdictional Immunity of States, Preliminary Report’, AIDI session du Caire, supra note 20 at 18 ff. and at 35.

20 When, in the nineteenth century, the courts did not admit any derogation from the rule of immunity, the perspective appeared completely reversed. In the early French case law concerning sovereign immunities, the Cour de cassation held that the fact that a person had entered into a private-law transaction with a foreign state implied that ‘cette personne, par le fait seul de l'engagement qu'elle contracte, se soumet aux lois, aux modes de comptabilité et à la juridiction administrative ou judiciaire de cet Etat’. See Cour de cassation, chambre civile, 22 January 1849, Recueil générale des lois et des arrêts: En matière civile, criminelle, commerciale et de droit public (1849) at 94.

21 See European Convention on State Immunity (1972) 11 ILM 470. According to Article 5, immunity is barred when the work of the plaintiff ‘has to be performed on the territory of the state of the forum’ as well as, it happens, in regard to disputes over real estate when ‘the property is situated in the territory of the State of the forum’ (Art. 9), and in the case of torts claims when ‘the facts which occasioned the injury or damage occurred in the territory of the State of the forum’ (Art. 11). See Sinclair, I. M., ‘The European Convention on State Immunity’, (1973) 22 ICLQ 254CrossRefGoogle Scholar, at 272. See also van Panhuys, H. F., ‘In the Borderland between the Act of State Doctrine and Questions of Jurisdictional Immunities’, (1964) 13 ICLQ 1193CrossRefGoogle Scholar, at 1196. The thesis that the rationale behind immunity involves also issues relating to the applicability of the domestic law to the defendant state is known in the French doctrine as well; see J. Combacau and S. Sur, Droit international public (2008), at 248. See also F. Poirat, ‘Les immunités des sujets du droit international’, in Verhoeven, supra note 10, 11 at 19–20.

22 See United Nations Convention on Jurisdictional Immunities of States and Their Property, (2005) 44 ILM 803. The first reports are ambiguous on this issue. On the one hand, the rationale of immunity has been detected in the lack of the consent of the defendant state to be subjected to the jurisdiction of another state, thus under the assumption of the absolute power of state to fix jurisdiction. See ‘Jurisdictional Immunities of States and their property’, YILC 1981, vol. II(2), at 156. On the other hand, in the words of the rapporteur, the question of immunity should not be dealt with if ‘the causes of action are outside the jurisdiction of the courts, or when the courts before which proceedings have been brought have no jurisdiction, because of the subject-matter’. Therefore, in this case the judiciary power is not supposed to be absolute, but limited to certain matters by the application of the relevant rules of private international law. See ‘Jurisdictional Immunities of States and Their Property’ YILC 1983, vol. II(1), at 40. Even if the commentary to the Convention does not make this point clear, one can maintain that the Commission finally endorsed the latter solution. In fact, having specified that the rules of private international law must apply, the commentary to Article 10 points out that ‘a significant territorial connection generally affords a firm ground for the exercise of jurisdiction, but there may be other valid grounds for the assumption and exercise of jurisdiction by virtue of the applicable rules of private international law’. With regard to Article 12, the commentary reads as follows: ‘since the damaging act or omission has occurred in the territory of the State of the forum, the applicable law is clearly the lex loci delicti commissi and the most convenient court is that of the State where the delict was committed’. See ‘Jurisdictional Immunities of States and Their Property’, YILC 1991, vol. II(2), at 34 and 44.

23 See respectively Articles 4 and 6 of the UK Foreign State Immunity Act 1978.

24 ICJ, Jurisdictional Immunities of the State, Judgment, at 25 para. 60.

25 For instance, Article 3 of the second resolution on immunity issued by the Institut de droit international in 1954 provides that domestic rule must be applied in order to assess the jure imperii character of an act. See AIDI session d'Aix-en-Provence, supra note 124, at 294.

26 This conclusion could explain the passage of the judgment according to which, when the defendant state does not enjoy immunity for a particular activity in light of the relevant rule of international law, the qualification of a certain activity as legal or illegal ‘can be determined only in the exercise of [the] jurisdiction [of the forum state]’. Indeed, it is up to the domestic law to determine if the conduct at stake is in breach of a right granted to an individual by this law, which is the applicable standard. See ICJ, Jurisdictional Immunities of the State, Judgment, at 25, para. 60.

27 See ICJ, Jurisdictional Immunities of the State, Judgment, at 33, para. 77. In the Court's reasoning, there is no exception to immunity regarding armed activities carried out in the forum state by the defendant state because of ‘the almost complete absence of contrary jurisprudence’ and of ‘the absence of any statements by States . . . in any other context asserting that customary international law does not require immunity in such cases’. In the Cudak and Sabeh cases, concerning issues of employment with a foreign embassy, the European Court of Human Rights has lent more weight to the element of opinio, even if in the sphere of labour disputes the practice of states is more uncertain. In these cases, the plaintiffs alleged the violation of Article 6, section 1, of the European Convention on Human Rights because the forum state applied immunity in favour of the defendant state. Thus, the Court held that Article 11 of the UN Convention on Jurisdictional Immunities of State and Their Property mirrors a rule of customary law and that both Lithuania and France did not make any opposition to this rule. See Cudak v. Lithuania [GC], No. 15869/02, Sections 65–9, ECHR 2010; and Sabeh El Leil v. France [GC], No. 34869/05, Sections 57–61, 29 June 2011. On the contrary, the Court of Justice of the European Union adopted a ‘qualitative’ view of immunity. In the judgment Lechouritou, issued in 2007 (see CJEC, 15 February 2007, Irini Lechouritou and Others v. Dimosio tis Omospondiakis Dimokratias tis Germania, Case C-292/05), the Court did not take into account the practice of states or the opinio juris. It rather held that jure imperii acts concerning armed activities are those ‘decided upon in a unilateral and binding manner by the competent public authorities and appear as inextricably linked to States’ foreign and defence policy’ (para. 37). However, in this case the subject matter of the dispute did not directly affect the existence and the content of the rule of immunity, but the separate, albeit connected, question of the interpretation of Article 5, para. 3, of the EU 44/2001 Regulation, referring to the civil or commercial character of a transaction.

28 The individual opinion of Judge Keith seems to uphold this conclusion. He states that immunity is barred in case of acts jure gestionis because of the ‘similarities of the foreign State's acts to the acts of other persons under local law and the correlative rights and obligations of the other (non-State) party in the litigation’. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Keith, at 1, para. 3. Although the Court has not defined the criteria for distinguishing between acts jure imperii and gestionis, however, in a passage of the judgment, reference is made to the agreement of Germany and Italy to consider Villa Vigoni a real estate earmarked to satisfy ‘governmental purposes . . . falling within Germany's sovereign functions’. See ICJ, Jurisdictional Immunities of the State, Judgment, at 45 paras. 118–119. The ICJ has not decided whether Article 19 of the UN Convention on Jurisdictional Immunities of States mirrors customary law. It confines itself to stating the necessity of ‘at least one condition’; that is to say, ‘the property in question must be in use for an activity not pursuing government non-commercial purposes, or that the State which owns the property has expressly consented to the taking of a measure of constraint’ or ‘State has allocated the property in question for the satisfaction of a judicial claim’. (Emphasis added.) The reference to consent is rather clear: the Court applies a subjective criterion, the consent of the owner state, in order to determine the commercial character of the estate.

29 ICJ, Jurisdictional Immunities of the State, Judgment, at 34–9.

30 Brownlie, provides an example in AIDI session du Caire, supra note 19, at 33. For the sake of the argument, one can imagine that state A allows state B to build an airbase on its territory with the scope to stock nuclear weapons. If Mr X, citizen of A, sues state B before a court of state A alleging the breach of a treaty of non-proliferation of nuclear weapons binding both the states to limit the use of those weapons, in the opinion of Brownlie this matter would not be justiciable. This happens because, otherwise, the judges of state A would deal with an issue of foreign politics of state B. Consequently, the courts of state A will apply immunity. In my opinion, inversely, immunity will be applied because no right is directly accrued to individuals on the basis of the interpretation of the relevant treaty.

31 ICJ, Jurisdictional Immunities of the State, Judgment, at 21, paras. 48 and 50.

32 Ibid., at 38, para. 94.

33 Ibid.

34 In their separate opinions, two judges handled this issue discarding the existence of an international rule that would grant a right to reparation directly to individuals. See ICJ, Jurisdictional Immunities of the State, Separate Opinion of Judge Koroma, at 2–3, para. 9; and ibid., Separate Opinion of Judge Keith, at 7, para. 18. Most authors deny that individuals may have a right to reparation for war damages under international customary law, considering that neither Article 3 of the IV Hague Convention of 1907 nor Article 91 of the First Protocol of the Geneva Convention of 1977 are self-executing. See Gattini, supra note 15 at 351. Contra, see Bank, R. and Schwager, E., ‘Is There a Substantive Right to Compensation for Individual Victims of Armed Conflicts under International Law?’, (2006) 49 GYIL 368Google Scholar, at 380 ff.

35 See ICJ, Jurisdictional Immunities of the State, Judgment, at 41, para. 102.

36 In the application of Germany, international customary law does not provide for a right which directly accrues to individuals for war reparations. As clearly stated, ‘it emerges from the conventional instruments cited above [that is, several peace treaties concluded after the Second World War, editor's note] that the entire reparation regime was founded on the premise that reparation should be sought and made exclusively in a global manner on an inter-State level’. See ICJ, Jurisdictional Immunities of the State (Germany Italy, Greece intervening), Memorial of Germany, at 12, Section 12. During the oral pleadings, the same issue was debated from a different angle, namely that ‘the immunity rule supports this substantive rule [the lack of any individual right of reparation] from the procedural side’. See ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Oral Pleadings, Verbatim Record CR 2011/17, at 35, Section 32. See also Tomuschat, C., ‘Individuals’, in Crawford, J., Pellet, A., and Olleson, S. (eds.), The Law of International Responsibility (2010), 985 at 988Google Scholar.

37 See UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 23 ILM 1027. Following Article 14, each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation. In the CAT's interpretation, this rule obliges each state to grant a right of reparation to the victims of torture and to assert jurisdiction accordingly, regardless of the immunity of the defendant state. See UN General Assembly, 60th Session, Report of the Committee against Torture, Supplement No. 44 (A/60/44). Official Records, New York (2005), at 27. This decision fostered a strong debate among the scholars. The majority of them criticized it: see, inter alia, Mora, Paul D., ‘The Legality of Civil Jurisdiction over Torture under the Universal Principle’, (2009) 52 GYIL 367Google Scholar, at 378. Contra, for a support of the CAT decision, see Hall, C., ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, (2008) 18 EJIL 921CrossRefGoogle Scholar, at 923 ff. and Orakhelashvili, A., ‘State Immunity and International Public Order Revisited’, (2006) 49 GYIL 327Google Scholar, at 351 ff.

38 See Universal Declaration of Human Rights, (1949) 43 AJIL Supp. 127; European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5; International Covenant on Civil and Political Rights, (1967) 6 ILM 368; American Convention on Human Rights, (1970) 9 ILM 673.

39 Even if, in relation to a different topic, the UN Committee against Torture highlighted that the UN Convention against Torture does not create obligations upon individuals but only between states. In fact, states alone bear the ‘international responsibility for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law’. See Committee against Torture, ‘General Comment No. 2’, UN Doc. CAT/C/GC/2, 24 January 2008, para. 15.

40 See Gattini, A., ‘The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?’, (2011) 24 LJIL 173CrossRefGoogle Scholar, at 180.

41 The supporters of a right to individual reparation under customary law have basically renounced inductive reasoning, the traditional way to assess customary law, for a deductive approach. Indeed, they draw the right to reparation from the existence of a particular prohibition (i.e. the inter-state obligation not to accomplish act of torture), or from the concept of jus cogens. The obiter dictum of the Furundžija judgment, issued by the TPIY, can be explained from this constitutional perspective. In the spirit of the judgment, it would be absurd that the prohibition of torture, as a rule of jus cogens, entails the invalidity of others’ international rules and that, at the same time, states are free to pass laws and other measures allowing the accomplishment of such acts or to prevent victims from laying claims for reparation. From this perspective, every international or domestic rule which might be an obstacle to the full effect of the prohibition has to be considered void because in breach of the jus cogens prohibition. See Prosecutor v. Anto Furundžija (Trial Judgement), IT-95–17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 December 1998, at 59 ff, paras. 155–158, available at www.unhcr.org/refworld/docid/40276a8a4.html. Accordingly, see de Wet, E., ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, (2004) 15 EJIL 97CrossRefGoogle Scholar, at 99–100.

42 See Bouzari v. Iran, Ontario Superior Court of Justice [2002] O.J. No. 1624, Court File No. 00-CV-201372, paras. 52–56, in (2002) 124 ILR 427.

43 At the time the complainant had suffered the act of torture, Kuwait was not a party to the UN Convention against Torture, the accession being notified in 1996.

44 See Al-Adsani v. the United Kingdom [GC], No. 35763/97, Section 40, ECHR 2001-XI.

45 On the contrary, Verhoeven maintained that the European Court should have verified if customary law provides for a rule just like the one couched in Article 6, section 1 of the European Convention on Human Rights and binding both UK and Kuwait. See J. Verhoeven, ‘Les immunités propres aux organes ou autres agents des sujets du droit international’, in Verhoeven, Droit international des immunités, supra note 10, at 135. However, this argument cannot be held because a right of action has no sense without a corresponding substantial right to reparation.

46 See Al-Adsani v. the United Kingdom, supra note 45, Section 48.

47 A similar rationale is shown in another case decided by the European Court of Human Rights on the same date, Fogarty v. the United Kingdom [GC], No. 37112/97, Section 26, 37–9, ECHR 2001-XI. In this case, the applicant alleged the breach of Article 6 para. 1 of the European Convention due to the application of immunity; in particular, the rule on immunity had prevented Mrs Fogarty from filing a lawsuit for the violation of the UK Sex Discrimination Act 1975, committed by an organ of the United States of America. The European Court, noting that ‘the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law’, ascertained whether the alleged acts were jure imperii or gestionis and rejected the application. See Rozakis, C. L., ‘The Law of State Immunity Revisited: The Case Law of the European Court of Human Rights’, (2008) 61 RHDI 563Google Scholar, at 588. Both in Fogarty and in Al-Adsani, the authors of the violation of the domestic law were foreign states (Iran and the USA) and the plaintiffs lamented the lack of reparation because the application of immunity prevented them from drawing some domestic consequences (a right to reparation) from the breach of a right recognized by the domestic legal order. Other decisions applying the doctrine of the ‘act of state’ show a very similar way of reasoning. For instance, in the Marković case, the Italian Corte di cassazione dismissed the complaint lodged before the Italian courts by Serbian victims of the NATO attack on Radio Belgrade in April 1999 during the air campaign against Serbia on the ground that no substantive right could be claimed against a political decision as to the way of carrying out war activities. The Court supported its holding by further stating that the victims of war activities draw no right of reparation from the 1977 Geneva Protocol and the European Convention on Human Rights or from domestic law. See Cassazione civile, sezioni unite, 5 June 2002, No. 8157, point 3, translated in English in Marković and Others v. Italy [GC], No. 1398/03, Section 18, ECHR 2006-XIV.

48 For a critical assessment of the saving clause, see Gattini, A., ‘Alcune osservazioni sulla tutela e gli interessi individuali nei progetti di codificazione della Commissione del diritto internazionale sulla responsabilità internazionale e sulla protezione diplomatica’, in Spinedi, M., Gianelli, A., and Alaimo, M. L. (eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (2006), at 431 ffGoogle Scholar.

49 In its recent codification of the responsibility of international organizations, the ILC added in Part Four, dealing with the invocation of responsibility, a new saving clause, Article 50. This rule reads as follows: ‘this Chapter [the fourth referring to the right to invoke the responsibility of an international organization] is without prejudice to the entitlement that a person or entity other than a State or an international organization may have to invoke the international responsibility of an international organization’. Although the commentary to this article is extremely brief, the rationale behind this different phrasing of the saving clause is rather clear. While in the case of responsibility of states there is always an appropriate forum to settle the claim put forward by the individual (i.e. the courts of the state author of the wrongful act), in the case of the responsibility of an international organization the availability of a jurisdictional venue is exceptional. See ‘Report of the International Law Commission – Sixty-Third Session’, Official Records of the General Assembly, Sixty-Sixth Session, Supplement No. 10 (A/66/10), at 149. This explains the different finding of the European Court of Human Rights in the Waite and Kennedy v. Germany case [GC], No. 26083/94, Section 73, ECHR 1999-I, when compared to the Al-Adsani one. In the former case, the Court granted immunity to the organization only after assessing the availability of an alternative judicial or quasi-judicial mechanism of dispute settlement.

50 As Lord Hoffmann pointed out in his opinion in the Jones case, as long as international law is based on the common consent of states, it would not be up to the domestic courts to develop this law ‘by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’. See Jones v. Saudi Arabia (House of Lords), (2007) 129 ILR 713, at 739. Similarly, see Fang and Others v. Jiang and Others (New Zealand High Court) (2011) 141 ILR 702, at 718.

51 The commentary to Article 33, para. 2, does not give any example of customary rule, nor does it identify the treaty-based rights accruing to individuals. The only reference is made to the passage of the LaGrand case, in which the International Court of Justice stated the existence of an ‘individual right’. See ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, YILC 2001, vol. II(2), at 94 ff. A recent contribution has demonstrated that the ILC construed this holding of the ICJ in a very broad way and not in the correct spirit of the whole judgment, according to which the Court ‘envisageait ici des “droits” dont l'individu jouirait sur le plan interne et qui ne seraient garantis dans l'ordre juridique international qu'au travers de reclamations interétatiques’. See S. Villalpando, ‘Le codificateur et le juge face à la responsabilité internationale de l'Etat: Interaction entre la CDI et la CIJ dans la détermination des règles secondaires’, 55 AFDI 39 (2009), at 45. In any case, even if in LaGrand the ICJ had identified in Article 36 of the Vienna Convention on Consular Relations a primary rule granting a right to the state and its citizens (see LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, at 497, para. 89), in the following Avena case this statement was dramatically limited. In fact, the Court pointed out that the secondary obligation of ‘review and reconsideration’ of the pending trials, drawn from the breach of the primary obligation bestowing an individual right, accrues only to the state author of the wrongful act. See Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, at 12, paras. 122–123. For this reason, the Court specified that this obligation is not necessarily self-executing, Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, ICJ Reports 2009, at 17, para. 44. In a very similar way, the advisory opinion issued by the ICJ relating to the construction of the Palestinian wall confirms this trend. Having assessed the breach of Articles 46 and 52 of the 1907 Hague Regulations and of Article 53 of the 1949 Fourth Geneva Convention, the Court maintained that an individual right to reparation flows from those violations. However, the Court did not specify the basis of this right, who would be entitled to invoke this breach, and where a lawsuit should be filed. These conclusions are due to the fact that the victims had not a state parens patriae, entitled to invoke the breach of the international obligation. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, at 189 and 198, paras. 132 and 153.

52 The ILC dismissed the proposal to make the exercise of diplomatic protection compulsory in the event of a breach of a jus cogens rule. See ‘Diplomatic Protection’, YILC 2000, vol. II(2), at 7 ff. In the commentary to Article 2, it is confirmed that states are never obliged to exercise diplomatic protection. See ‘Report of the International Law Commission – Fifty-Eighth Session’, Official Records of the General Assembly, Sixty-First Session, Supplement No. 10 (A/61/10), at 29.

53 The argument of the ‘horizontal effect’ of international law leads us to a different, but closely linked, question: whether the rules of international law directly affect individuals, imposing on them duties too. The Kiobel v. Royal Dutch Petroleum and Shell case, currently pending before the US Supreme Court, deals with the applicability of the Alien Tort Statute to corporations (and, generally, to private actors). In its amicus curiae brief, the British government emphasizes that no rule of international customary law entails the international responsibility of foreign companies ‘for torts committed abroad against foreign victims for human rights violations’ (at 16). This happens because international law, and human rights law in particular, are ‘clearly intended to apply to the vertical relationship between the State and the individual, in which the State bears sole legal responsibility to respect individual rights’ (at 22 ff). This view addresses from another perspective the question set out in this article, namely the existence vel non of a rule of international law, be it customary or treaty-based, which would be directly applicable to a relationship between private parties. Our view is that no customary rule can apply ‘horizontally’ between individuals just as it cannot be applied ‘horizontally’ between the individual and the state author of the breach before the courts of another state, because the individuals are not the actual counterparts of that obligation.

54 The lack of an entitlement of the individual to the right of reparation is the expression of the principle of the freedom of states to choose whether and how to settle an international dispute between them. To be sued before a judge of another state for the breach of an international obligation is, for the defendant state, equal to being subjected to a jurisdiction that it has not consented to.

55 See Tomuschat, C., ‘Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law’, in Kohen, M. G. (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch (2006), at 569Google Scholar.

56 See ‘Dixième séance plénière’, AIDI session de Bâle (1991-II), at 274.

57 See AIDI session du Caire, supra note 19 at 99 and, for the commentary, at 55 ff.

58 Ibid., at 236.

59 This link is present even in the thought of some authors, such as Cannizzaro, E. and Bonafé, B. (see ‘Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights’, in Fastenrath, U., Geiger, R., and Khan, D.-E. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (2011), 839)Google Scholar. These scholars still argue that no link exists between the individuals who claim the breach of a rule of international law and immunity, because the latter would only prevent the judges of the forum state from assessing unilaterally the responsibility of the defendant state for the breach of the international obligation at stake in the domestic lawsuit. Even if, in the view of these scholars, the rule of immunity is procedural in character nevertheless, that would not prevent the courts from discarding it ‘in the presence of . . . an egregious breach of fundamental rule protecting individual rights . . . attributable to the State which invokes immunity’. It easy to notice that, according to this construction, the existence of an obligation granting individual rights is a sort of condicio juris for applying or denying immunity.

60 European Convention for the Peaceful Settlement of Disputes, 320 UNTS 243.

61 See Rosenne, S., The Law and Practice of the International Court, 1920–2005 – Jurisdiction (2006), at 511Google Scholar, for the remark that, when the title of jurisdiction contains a temporal limitation, the main issue becomes the definition of the dispute and not the interpretation of the texts which confer such jurisdiction. This is affirmed on the basis that these texts are precise about the ‘critical’ date. See ibid., at 756, for the final remark that the problem of interpretation of a dispute is ‘in the ultimate analysis largely of a philosophical character – the philosophy of cause and effect’. For a survey of the practice of the PCIJ and the ICJ relating to reservation to jurisdiction ratione temporis, see Alexandrov, S. A., ‘Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases’ (2001) 14 LJIL 89CrossRefGoogle Scholar, 109 ff.

62 In addressing this topic in the light of the relevant case law, Rosenne argued that the distinction ‘may be one of form only’, whereas ‘there is inevitably a justifiable element of subjective appreciation or judicial discretion in determining whether a concrete dispute is caught by the stipulation of non-retroactivity in the title of jurisdiction’. See Rosenne, supra note 62 at 758 ff.

63 See ICJ, Jurisdictional Immunities of the State, Judgment, at 18, para. 37.

64 Ibid., at 20, para. 44.

65 Ibid., at 21, para. 48.

66 Ibid., at 21, para. 50. Emphasis added.

67 Ibid.

68 Ibid., at 40, para. 99.

69 Ibid., at 41, para. 104. On the contrary, it is not a matter of surprise that, through these statements, the Court has confirmed that the duty of reparation does not accrue to individuals.

70 For Germany, see supra note 37. For Italy, see ICJ, Jurisdictional Immunities of the State, Counter-Memorial of Italy, at 104 ff.

71 See Certain Property (Liechtenstein v. Germany), Memorial of Liechtenstein, at 68 para. 3.29ff. Article 3 of the Settlement Convention rules out the jurisdiction of German courts to deal with issues of the German properties seized for the purpose of reparation and restitution after the Second World War. In the case of immunity, Germany underlined that ‘it does not deem it useful . . . to engage in a legal battle about the links between’ the two claims, namely the fact that ‘Germany complains about the case law of the Italian tribunals, initiated by the Ferrini judgment’, and ‘the factual basis of the Italian claims is located in the years from September 1943 to May 1945’, because ‘the distance between the two claims is enormous’ and, in this respect, the Italian counterclaim ‘must fail’. See ICJ, Jurisdictional Immunities of the State, Preliminary Objections of Federal Republic of Germany regarding Italy's Counter-Claim, at 3–4, para. 3.

72 See Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, ICJ Reports 2005, at 17, para. 26.

73 See Certain Property (Liechtenstein v. Germany), Preliminary Objections of the Federal Republic of Germany, at 54–56 paras. 87–89. Italy, in the immunity case, argued that the decisions of the Corte di cassazione on the issue of immunity of the Germany could not be separated from the issue of reparation owed by Germany to victims of Nazi crimes; consequently, these decisions could not be the source or real cause of the dispute brought by Germany. See ICJ, Jurisdictional Immunities of the State, Counter-Memorial of Italy, at 36 para. 3.12.

74 See Certain Property (Liechtenstein v. Germany), Judgment, at 26–7, paras. 51–52.

75 When dealing with the admissibility of the Italian counterclaim, the Court notes that ‘Germany reserved its position on the question whether the requirement of direct connection is met in this case’ and, promises to deal with this issue further. ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Order, at 6, para. 16. However, after the dismissal of the Italian counterclaim ratione temporis, the Court surprisingly decides not to ‘address the question whether that counter-claim is directly connected with the subject matter of the claims presented by Germany’. See ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Order, at 15 para. 32.