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On Certainty

Published on February 16, 2012        Author: 

Professor Andrea Bianchi is Professor of International Law at the Graduate Institute of International and Development Studies

 ‘If you do know that ‘here is the Court’, we’ll grant you all the rest’

(Liberally adapted from the incipit of L. Wittgenstein’s, On Certainty, Blackwell, 1975: ‘If you do know that here is one hand, we’ll grant you all the rest’).

At last we have certainty. After almost twenty years of heated debate on how to reconcile the law of state immunity with human rights, we now know. State cannot be sued for serious human rights violations before the municipal courts of another state. The International Court of Justice by its holding in the Jurisdictional Immunities of the State (Germany v Italy) case provided us with a two-fold certainty. It told us what the law is on a controversial point and, at the same time, it reassured us, as international lawyers, that the Court is always there to tell us what the law is. As long as we know this, all the rest can be set aside.

Comments are being posted in blogs, like this one, and comments will later appear in highly reputed international journals. As Jennings once put it, the judgment will be regarded ‘as if it were a sort of holy writ’. Every single line of it will be scrutinized and ‘gobbets’ of it will be relied upon, often regardless of context and facts, as if they were incontestable truths. It is to be expected that those sentences dealing with ‘custom’ and/or ‘customary law’ will become particularly popular. International law textbooks and manuals will be revised and their next edition will include the ‘last’ chapter of this long saga. Invariably, the last paragraph of any such chapter will be ‘The ICJ conclusively held….’. The die is cast.

I was among the first to ignite this debate long ago (see, for example my EJIL article here) and for the last seven years I have deliberately abstained, despite numerous solicitations, from making further comments on the matter. I said what I had to say and I do not like restating what I have already said (admittedly, not a smart choice in my profession). In so doing, I have tried as much as possible to be faithful to Mr Hare’s teaching to his son Thumper, the small rabbit in Walt Disney’s Bambi: ‘If you don’t have something to say it’s better to keep quiet and say nothing at all’. If I now derogate from this sound practice, it is because I thought that the ICJ judgment as such (not the nooks and crannies of the Court’s reasoning) might be worth of comment.

Overall, I do not think that there has been much new. The Court rehearsed well-known arguments on both sides. Presumably, some things could have been argued more effectively (Italy seems to have conceded far too many points on the law of immunity); a different pleading strategy could have been adopted (why not arguing, even in a subsidiary way, that the lifting of immunity was a countermeasure?); some pre-emptive strikes might have been hit (why not countering more effectively in the pleadings the jus cogens / substance vs. immunity / procedure distinction?), but all in all there was nothing substantially new.

Be that as it may, all this discussion is trivial, as the Court did want to say what it said (it had an easy way out, had it not wanted to pronounce itself on the issue of immunity, by upholding the claim that Italy had waived its claims by agreement) and could not reach a different outcome. No serious bookmaker would have taken bets on the decision of the ICJ. If one had asked one hundred international lawyers what they expected the ICJ to say, ninety-seven of them (3% accounts for statistical uncertainty or random fluctuations) would have predicted the outcome. Everyone was certain of this and that should not come as a surprise.

How did we acquire such an absolute certainty? What was it that made us all convinced that no serious alternative existed to the Court coming up in favour of Germany? Read the rest of this entry…