Jurisdictional immunity of the state in selected judgments of national courts

The rule of State immunity occupies a special place in international law, since it belongs to a narrow group of norms directly influenced by judgments of national courts. The question, however, concerns the role of national judiciary in the development of international law and the State immunity in particular. The issue whether national courts create the scope of jurisdictional immunity of the State, or simply confirm its existence, is crucial in the context of judgments denying immunity to foreign states in respect of violations of peremptory norms of international law (jus cogens). The International Court of Justice in a dispute between the Federal Republic of Germany and the Italian Republic, originating in the Italian Court of Cassation Ferrini judgment, declared in favour of the former, thus finding such decisions to be contrary to customary international law. Analysis of states' jurisprudence in the judgment of 3 February 2012 in the jurisdictional immunities of the State (Germany v. Italy: Greece intervening) case is, however, neither exhaustive, nor extensive. The article focuses on judgments of national courts dealing with claims for compensation arising from the facts that occurred mainly during the second world war, in which exception in the rule of State immunity was justified on the basis of jus cogens violations. Selection of judicial decisions encompass judgments delivered in proceedings against the USSR (Von Dardel) and the Federal Republic of Germany (Princz, Prefecture of Voiotia and Ferrini). On the one hand, it takes into account the case law of American courts omitted by the International Court of Justice and, on the other, it enables gaining a deeper insight into origins and the essence of the dispute between Germany and Italy. Above all, analysis of these judgments allows for following legal reasoning of national courts, rejecting jurisdictional immunity of the State in case of violations of peremptory norms, and identifying the main problems in their struggle for change of well-grounded jurisprudence on State immunity.