Krajewski & Singer: Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights

Markus Krajewski (Univ. of Erlangen-Nuremberg - Law) & Christopher Singer (Univ. of Erlangen-Nuremberg -Law) have posted Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights (Max Planck Yearbook of United Nations Law, forthcoming). Here's the abstract:

The present essay critically analyses the ICJ’s ruling in Jurisdictional Immunities of the State (Germany v. Italy). To contextualize the Court’s judgment the essay begins with a brief reflection on the law of state immunity and recalls the historical and factual background of the case. The essay then discusses the ICJ’s analysis of the claims of the parties. The main focus is not a challenge of the conclusions of the Court based on a positivist approach to customary international law. Instead, it is argued that faced with a methodological challenge and an institutional dilemma concerning the determination of customary international law, the Court opted for an approach which did not serve the progressive development of international law well.