Follow by Email

Friday, November 27, 2009


          A pending a lawsuit filed late last year by Germany against Italy before the International Court of Justice provides a very interesting occasion for treatment by the Court of the rules of international law pertaining to sovereign immunity.  Germany contends that Italy is violating those rules by permitting (recently via the Italian Supreme Court) the litigation of claims and entry of judgments in Italian courts (and the registration there of foreign judgments) against Germany by Italian citizens and others involving alleged wrongful actions taken by the German military and officials during World War II, such as the forced deportation of such persons to Germany and their subjection to forced labor there during the War.  Briefing is proceeding  pursuant to a Court-ordered schedule, to culminate at the end of this year, with oral arguments and a decision possible next year.  The German contentions are stated in the German application filed with the Court, equivalent to a complaint in domestic US litigation.  Germany claims that these actions of the Italian courts violate rules of international law providing for the immunity of foreign governments in the courts of another countries.
          Historically, the main exceptions recognized to that sovereign immunity have been for claims relating to actions of foreign governments constituting commercial activity.  However, more recently, some countries have also begun to assert jurisdiction over foreign states (and exceptions to sovereign immunity) for claims related to non-commercial activities, such as alleged involvement in terrorism and violations of certain international human rights.  It is on the latter basis that Italian courts have recognized jurisdiction over the claims against Germany, even approving the attachment of Italian real estate owned by German Government entities in connection with enforcement of the judgments obtained against that Government.  A number of commentators have criticized this result, and the courts of other countries have reached the opposite result.  The ICJ itself has previously sustained a sovereign-immunity-based challenge by a country to an assertion of criminal jurisdiction over one of its top national officials by other country based on the alleged involvement of that official in gross human rights violations. E.g., Dem. Rep. Congo v. Belgium.
          The outcome of the Germany v. Italy case will be of particular interest to American international lawyers, as the United States law, particularly in the Foreign Sovereign Immunities Act, (28 USC 1602-1607) and recent amendments thereto contains assertions of extraterritorial jurisdiction, including for attachment of foreign sovereign assets, and corresponding exceptions to foreign sovereign immunity (e.g., for so-called state-sponsored terrorism) that are similar in important espects to those contained in Italian law being challenged by Germany.  An interesting analysis of the pending ICJ case is provided in a recent publication of the American Society of International Law.