CYIL 2015

393

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.

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,

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.

Regarding the measures of constraint taken against Villa Vigoni, relying on Article 19

of the UN Convention

– 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:

Id.

, paras 15, 37-50.

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.

See

supra

note 16, paras 51-108.

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

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.”