The Effects of Framing International Legal Norms as Rules or Exceptions: State Immunity from Civil Jurisdiction

Abstract

Abstract The finding by the International Court of Justice in the case concerning Jurisdictional Immunities of the State that Italy violated its obligation to respect Germany’s immunity from civil jurisdiction comes as no surprise. The anticipated conclusion of the Court is the outcome of the powerful tradition of framing State immunity as a rule to which an exercise of jurisdiction by a domestic court is an exception expressly established under customary international law. As technically faultless as this finding may appear, it sits uncomfortably with deeper, structural developments in international law that challenge the very application of the ‘rule-exceptions’ framework of State immunity. This article questions the underlying assumption upon which the Court’s judgment is premised: that State immunity operates as a predominant rule, to which only exceptions that are established under customary law can apply, and it proposes an alternative understanding of the doctrine of State immunity.