Recently, in the case of Certain Iranian Assets, the ICJ was presented with a magnificent opportunity to rework, clarify, and enhance the troubled doctrine of sovereign immunity, especially with regard to immunity from execution. The authors believe that the ICJ had a singular opportunity—just as it did in the Jurisdictional Immunities case in 2012—to broaden and articulate a modern doctrine of sovereign immunity. Instead of seizing this opportunity, however, the court hid behind outmoded and difficult-to-rationalize concepts of judicial restraint and tradition. As a result, the court has now missed two great opportunities to discuss and clarify a pragmatic and liberal rule of immunity from jurisdiction and execution, which has bedeviled courts and practitioners for many years.
“Jurisdictional Immunities” and “Certain Iranian Assets”: Missed Opportunities for Defining Sovereign Immunity at the International Court of Justice, Vol. 53
23 Mar 2022