Andreas Fischer Lescano and Carsten Gericke 2011. The ICJ and Transnational Law: The “Case Concerning Jurisdictional Immunities” as an Indicator for the Future of the Transnational Legal Order. ZERP-Working Paper 2/2011.
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Abstract:
On 22 December 2008 the Federal Republic of Germany initialized proceedings against the Italian Republic before the International Court of Justice (ICJ) in The Hague. In January 2011 Greece applied for permission to intervene in the case. On 4 July 2011 the ICJ decided that Greece is permitted to intervene as a nonparty in the case, pursuant to Article 62 of the Statute. Public hearings in The Hague will take place from 12 to 16 September 2011.
The outcome of this “Case Concerning Jurisdictional Immunities” is of central significance for the future of the transnational enforcement of human rights insofar as the ICJ decision will determine the role national courts are to play in the enforcement of compensation claims under civil law in the field of “transitional justice.” Consequently, it will also determine how the tension between human rights, on the one hand, and state immunity, on the other, is to be adjusted. If one conceives “transnational law” in the vein of Philip C. Jessup – i.e. as law that breaks with the paradigm of an ius inter gentes, which can be invoked by individuals and which transcends the dualism of national and international law – it can be concluded that the future of transnational law and the leeway for the transnational enforcement strategies of civil societal actors depend significantly on the course of the proceedings in The Hague.
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