THE UNBEARABLE LIGHTNESS OF CUSTOMARY INTERNATIONAL LAW IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE: THE JURISDICTIONAL IMMUNITIES OF THE STATE CASE

The Judgment of 3(rd) February 2012 in the Case concerning the Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) serves as an instance of the consensualist postulates presiding the task of the International Court of Justice to the detriment of those objectivist theses attempting to gain relevance in the last decades, ius cogens norms being the latter's major reference. Under the said postulates, the Court carries out the analysis and appraisal of the means of proof in international practice -internal legislations, domestic case law, codification procedures and ECHR case law- and examines the existence of the opinio juris inherent in the international custom substantive element. All this allows the Court to reach the following conclusion: in Customary International Law, there cannot be found an exception to the jurisdictional immunity general rule in the event of injuries and damages caused by a foreign State's army within the territory of the forum's State, in a context of armed conflict, even if ius cogens norms have been violated. Certainly, the result offered by the Court through this Judgment, in spite of the complex task of determining Customary International Law in force, does not respond successfully to the legitimate interests defended by the victims of serious violations of human rights and International Humanitarian Law. But the international legal system continues to be an inter-State legal system essentially, where States' interests, represented by their Governments, prevail over the effective protection of individuals' rights on many occasions.