State Immunity, the ICJ and Customary International Law

Abstract

The concept of state immunity has governed norms of discourse of states as part of customary international law. It implies that states are not liable in the domestic courts of another state for any wrongdoing committed within their own jurisdiction. In Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) No 143, (3 February 2012) the International Court of Justice (ICJ) ruled that the immunity from litigation and enforcement enjoyed by states in regard to their property situated on foreign territory goes further than the jurisdictional immunity and that this is overriding even over human rights breaches. There can be no claim of damage suffered in another state that could be compensated by the respondent state. However, the ICJ has diverged from this principle in its ruling in Certain Iranian Assets (Iran v. United States) (2019) No. 2019/51 in which it denied the Iranian claim that the US had no right to seize its property within the federal jurisdiction. This paper enquires if the implications are the reduced scope of its jurisdiction in such matters, and if the ICJ should revert to its established principle that the customary international law takes precedence over domestic statutes that dilute state immunity.