Wednesday, December 24, 2008

ICJ: Germany Institutes Proceedings Against Italy

Yesterday, Germany instituted proceedings against Italy before the International Court of Justice. (Press release here.) In its application, Germany claimed that Italian judicial authorities had "repeatedly disregarded the jurisdictional immunities of Germany as a sovereign State" in cases brought against Germany that sought compensation for acts that occurred during Germany's occupation of Italy toward the end of World War II. (The case also pertains to an attempt to enforce in Italian courts a Greek judgment against Germany that awarded compensation for a massacre by German forces during the War.) In addition to seeking a declaration that the acts of the Italian courts were unlawful, Germany asked the Court to declare that Italy must "by means of its own choosing" ensure that the relevant decisions of its courts "become unenforceable" and that in the future Italian courts do not entertain similar actions.

A few interesting things here: First, Germany and Italy appear to have submitted the dispute amicably. Second, Germany made clear in its application that the dispute does not pertain to EC law. If it did, then recent decisions of the European Court of Justice, interpreting Article 227 EC, would have precluded Germany from bringing this case. Third, Germany carefully characterized its remedial request so that it would not suggest that the ICJ had the authority to overturn the Italian judicial decisions directly. That would have stretched the remedial powers of the Court beyond those that the Court and its litigants have recognized. Instead, Germany adopted the same language - "by means of its own choosing" - that the Court used in LaGrand and Avena when it confronted domestic judicial decisions (in those cases) that it found were not in accord with the United States's international obligations. In other words, Germany recognized that the Court should indicate only the necessary remedial outcome not how that outcome must be achieved.