Author: Paech, Norman

Source: Archiv des Völkerrechts, Volume 47, Number 1, March 2009 , pp. 36-92(57)

Publisher: Mohr Siebeck

Abstract:

The immunity of states from foreign lawsuits is a direct expression of the sovereignty of states. It is, however, limited to acts by sovereign authority (acta iure imperii) and is not in conflict with lawsuits against acts by management authority (acta iure gestionis). Therefore, acts by sovereign authority are out of reach of the jurisdiction of another state, opposed to acts by non-sovereign authority, i.e. commerce or economic transactions. This strict distinction has been questioned in recent publications and breached by several laws and court decisions. Well-known amongst these court decisions is the judgement of the Greek Areopag in the so-called Distomo lawsuit, which convicted the Federal Republic of Germany to pay compensations for severe war crimes and crimes against humanity committed by the SS and the Wehrmacht. The inquiry at hand supports the emerging tendency to approve the submission of such crimes and severe violations of human rights to foreign courts, and not to let them fail on the ground of the sovereignty of the state.

The controversial positions that the highest courts of Greece, Germany and Italy assumed in regard to this issue, lead to the conclusion that the judgements of the Greek court cannot generally be qualified as illegal. Yet, only judgements which are considered illegal with absolute certainty defy the German Ordre Public and must not be recognized and carried out.

This study outlines the development from an absolute immunity to a limited immunity, which prevailed in numerous codifications since the early seventies, especially in Europe, the United States and Great Britain. It goes along with a limitation of the sovereignty of states, especially in the field of international trade and economy. This is a proceeding trend; particularly the appreciation of the preservation of human rights further limited the sovereignty of the states. Moreover, the options of implied waiver and forfeiture are being discussed as further limitations of immunity.

The most frequent offence clauses which are grounded on international laws of immunity imply a further erosion of the protection of immunity. Highly controversial within this debate is the question, if this includes war crimes as well. This study, however, concludes that these clauses, likewise the terrorism clauses, can be applied to severe war crimes as committed in Distomo. This is also not invalidated by the prohibition of ex post facto laws.

Document Type: Research article

DOI: http://dx.doi.org/10.1628/000389209788075266

Publication date: 2009-03-01

More about this publication?

• Archiv des Völkerrechts (Archive of Public International Law - AVR) has been founded as a quarterly journal in 1948. With its scientific papers, reports and book reviews, the journal covers the full spectrum of developments in public international law. AVR is a forum for the German-language community of scholars engaged in public international law and aims at entering into a dialogue with its international peers. AVR's content reflects dogmatic and theoretical essentials of public international law as well as developments in international jurisprudence. Legal fields covered range from traditional core questions of public international law as law between states, the laws of armed conflict and the law of international organisations to human rights law, international environmental law, world trade law and international administrative law.
  
  In the recent past, the comprehensive analysis of particular and universal legal orders as well as the creation of a material international legal order based on principles have been in the spotlight besides contributions on today's conflicts with a public international law angle.
  
  AVR is published on a quarterly basis with contributions in German, English and French.
  
  
• Editorial Board
• Information for Authors
• Subscribe to this Title
• Information for Advertisers
• Terms & Conditions
• Werle: Volkerstrafrecht
• Jus Internationale et Europaeum
• POLITIKA
• ingentaconnect is not responsible for the content or availability of external websites

Related content

• In this: publication
• By this: publisher
• By this author: Paech, Norman

Website © Publishing Technology. Article copyright remains with the publisher, society or author(s) as specified within the article.

• Terms and conditions
• Privacy policy
• Information for advertisers