CYIL 2015

THE CZECHǧAUSTRIAN DECLARATION ON JURISDICTIONAL IMMUNITIES … to respect the jurisdictional immunity which… Germany enjoys under international law”. Italy argued, however, that Germany is not entitled to immunity, because that immunity as to acta iure imperii does not extend to delicts occasioning death, personal injury or damage to property committed on the territory of the forum State and, irrespective of where the relevant acts took place, because those acts involved the most serious violations of peremptory rules of international law for which no alternative means of redress was available. 20 The ICJ identified as the key issue not whether the German acts were a serious violation of international humanitarian law applicable in 1943–1945, but, whether in proceedings regarding claims for compensation arising out of those acts, the Italian courts were obliged to accord Germany immunity. The ICJ then stated that, as between the Parties, the entitlement to immunity can be derived only from customary international law. In this context, the ICJ agreed with the ILC’s 1980 conclusion that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States”. So the pertinent question was the scope of the immunity. Unlike the European Convention, the UN Convention contains no express provision excluding the acts of armed forces from its scope, 21 so the ICJ turned to the ILC’s commentary on the text of Article 12 (personal injuries and damage to property) stating that that provision does not apply to situations involving armed conflicts, which was confirmed by the State practice. Therefore, the action of the Italian courts in denying Germany the immunity to which it was entitled under customary international law constitutes a breach of the obligations owed by Italy to Germany. 22 Regarding the measures of constraint taken against Villa Vigoni, relying on Article 19 of the UN Convention 23 – inasmuch as it reflects customary law on the matter – the ICJ found that there is at least one condition that has to be satisfied before any measure of constraint may be taken against property belonging to a foreign State: 20 Id. , paras 15, 37-50. 21 In this context, it is worth noting that some contracting States to the UN Convention (Finland, Italy, Norway and Sweden) made a declaration confirming that the UN Convention does not apply to the military activities of a State, including the activities of armed forced during an armed conflict. 22 See supra note 16, paras 51-108. 23 Article 19 of the UN Convention: “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures…; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.”

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