On Certainty

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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? One obvious, albeit simplistic, answer is that Germany had the law clearly on its side. I do not mind certainties. Quite the contrary: I highly value them as I have made my own professional task to shake them, or at least to reveal the hidden presuppositions behind them. Nonetheless, I remain circumspect towards comments like ‘The Court took the correct legal view’. There is nothing inherently correct or incorrect in a judicial determination such as this. As Lauterpacht used to say, judges make choices and these choices are made in a context where different factors interact. Furthermore, as Chaïm Perelman would put it, one cannot overlook the audience to which the ICJ speaks. This is an audience made of States as well as all those who make a living off international law, including counsel and advocates, international law professors and government lawyers. This is the world that the ICJ needs to reassure and give certainty to. It would be highly unrealistic to expect the Court in contentious proceedings to say something about human rights that would hurt the sensitivity of States, as States remain the sole ‘clients’ of the Court. Interestingly enough, this last remark is not my own speculation but a public statement made some months ago by a member of the ICJ before an audience of over two hundred people, including me.

Yet another reason for the betting-office not to take bets at this time is that the ICJ is always very considerate of the systemic effects of its own rulings. How could it possibly uphold the claim that international law allows individuals to seek redress against States before the municipal courts of other States for human rights violations?  All the more so as regards violations committed during armed conflict and dating as far back as WW II.  This would have opened the door to a flow of litigation before municipal courts that might have disrupted the whole system. Similar considerations applied to the Arrest Warrant case. G.E. Moore’s defence of common sense (which inspired Wittgenstein’s comments, posthumously published in the book On Certainty), could aptly be taken as the best explanation for what the ICJ and other courts have done. The problem is that the Court overdid it, by making sweeping statements on the scope of immunities under customary law, by downplaying the right of access to justice under international law and by adding remarks that may have serious repercussions on other related fields. Take for instance what the Court says at § 101 on the absence of any nexus between State immunity and the existence of ‘alternative means of securing redress’ for the complaining party. If invoked – as I am sure it will – with regard to the immunities of international organizations, the doctrine of equivalent protection, elaborated by the ECtHR but, potentially, an interpretive doctrine of wider application by international and domestic courts, might be jeopardized.

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

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Mihai Martoiu Ticu says

February 16, 2012

The Courts decision is nothing than a new evidence of the conspiracy of the powerful states together with the dictators against individuals. The powerful states want to be free to kill, torture and rape, like in Khalid El-Masri’s case. The dictators want to be free to kill, torture and rape like in Al-Adsani. Together, the powerful and the tyrants are the übertyrants of the international law. That’s why we don’t have an international court of human rights either. And this is the hill that Cançado Trinidade climbs with his cross on his back. The bookmaker can open the bets against his reelection.

jpaust says

February 16, 2012

Immunity is contrary to the rule of law. As written elsewhere, immunity is one more form of oppression, one less measure of human dignity.

Yokato says

February 16, 2012

Yes, countermeasures is indeed an interesting solution and it's a pity it was not addressed before the Court. What do you think about it? Could it maybe be used in the future.

An article concerning the specific issue:

John R Morss says

February 17, 2012

I know I'm thick but can someone explain the below to me, how do the last 2 sentences work together? [doesn't the last sentence contradict all the rest of the para, up to and inc the penult??]
many thanks!!!!!!!!!!!!!!!!!!!! J

57. The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.

Luis Bogliolo says

February 18, 2012

This is a very interesting opinion on the ICJ's decision and I was pleased to see your praise for Judge Cançado Trindade's role in the court.
For those who think Judge Trindade will not be reelected when the time comes, that may very well happen, yet when he was elected he managed to have a higher voting in the GA than any of his predecessors.
Professor Bianchi makes a good point when he questions if the certainty we now have means we also reached "the correct legal interpretation". In fact, I would have to say that the court's distinctions between procedural and substantive law are extremely fragile. Furthermore, when the court says state immunity is pre-trial, in the sense that it bars a domestic court from even analysing the subject matter of the dispute, it begs the question of how to defend any exception at all to state immunity, including those already generally accepted in international law (eg. labour relations; private commercial operations...). Here, again, the Court seems to have gone too far.
Finally, the Court's analysis of jus cogens leads us to the sad conclusion that precisely at the moment when the court deals with the concept with some detail, it denies it any practical effect through the use of formalistic and illusionary distinctions such as procedural/substantive law. It is the same case with obligations erga omnes - what good is having such a concept if it is void of any procedural consequences? To be fair, there is in domestic and international law a distinction between procedural and substantive law; yet these two categories are not entirely distinct and apart, there is some considerable conflation.
The Court's decision was expected and surely brought more certainty to the field of state immunities. Nevertheless, this certainty begs the question if this is the certainty we want. I would rather have doubts in this case.

Thomaz Santos says

February 22, 2012

Professor Bianchi,

Excellent post, and one I agree with in its entirety.

It makes me think of how International Law should be seen. Should it help maintain order ou should it uphold justice? Or could these two values coexist as the basic tenets of International Law? Of this, I am not certain.

On Cançado Trindade's dissent, those who have had the pleasure to know and talk with him in a professional or even personal basis can atest to his dedication to the judicial function. However, as a judge, he remains a professor, in that he will always try to teach the parties, his fellow judges and whoever is listening that the human dimension of International Law is not always certain, but extremely necessary. So, instead of the word "acculturate", I believe "educate" is a more fitting term to his approach on the judicial function.

And, last but not least, the remark on human rights and on States being the sole "clients" of the Court was made by and ICJ judge. Well, I'm going to call my bookmaker and place my money on Cançado Trindade as being the author of such remark. Of this, I am almost certain.

Thomaz Santos

Matteo Sarzo says

March 14, 2012

Dear prof. Bianchi,
don't you think that if Italy had raised the question of countermeasures, this issue would have been beyond the jurisdiction of the Court? In fact, in assessing on countermeasures, the Court would have checked the fulfillment of an alleged duty of Germany to pay a compensation directly to the individuals. This issue would has involved the question of the italian waiver in the 1947 Peace Treaty, which has been cleary excluded by the Court in the order that rejected the italian counter-claim.