CYIL 2015

PETR VÁLEK CYIL 6 ȍ2015Ȏ The key provision of the UN Convention is Article 5, which codifies the concept of restrictive State immunity the following way: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” The provisions limiting the scope of State immunity – referred to in this provision – can be found in Part III of the UN Convention containing the list of exceptions in which State immunity cannot be invoked (acta iure gestionis) : commercial transactions, contracts of employment, personal injuries and damage to property, ownership, possession and use of property, intellectual and industrial property, participation in companies or other collective bodies, ships owned or operated by a State used for other than government non-commercial purposes and proceedings related to an arbitration agreement. Part IV provides for State immunity from measures of constraint in connection with proceedings before a court. It is a distinct regime from that of immunity from adjudication under Part III: the State immunity under Part IV is broader than under Part III. The customary law status of some of the provisions of the UN Convention was confirmed by the ICJ in the case of Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) in 2012. 18 Since this is perhaps the most important case before an international court related to the State immunity, it deserves closer attention. At the beginning of this judicial dispute was Mr. Ferrini, an Italian national, who was arrested in 1944 and deported to Germany for forced labor. In 1998 he instituted proceedings against Germany before the Italian courts. Although it was decided at first that his claim was inadmissible (because Germany was protected by jurisdictional immunity), in 2004 the Court of Cassation ruled that Italian courts have jurisdiction over these claims, as the immunity does not apply when the act complained of constitutes international crime. Following this judgment, other claimants brought proceedings against Germany demanding reparation for forced labor and for the large-scale killing of civilians committed in 1944. This group of claimants was enlarged by the relatives of the Greek victims of the 1944 Distomo massacre who were awarded damages by the Greek courts. When the German Federal Supreme Court refused to recognize these decisions, they turned to the Italian courts, which declared them enforceable in 2007. Subsequently, the Greek claimants registered a legal charge with the Italian Land Registry over Villa Vigoni, a property of Germany near Lake Como. 19 In 2008 Germany filed an application instituting proceedings against Italy before the ICJ. The basis for jurisdiction was the European Convention for the Peaceful Settlement of Disputes. According to Germany, Italy committed “violations of obligations under international law” through its judicial practice “in that it has failed 18 ICJ Reports, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of February 3, 2012, and Summary of the Judgment, available at: http://www.icj-cij.org. 19 Id. , paras 1-36.

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