- Joyce Mayrinck
The International Court of Justice in light of the jusnaturalist and juspositivist doctrines
*Este material, seus resultados e conclusões são de responsabilidade dos autores e não representam, de qualquer maneira, a posição institucional da Fundação Getulio Vargas / FGV Direito Rio ou do FGV Jean Monnet Centre of Excellence on EU-South America Global Governance.
The role of the International Court of Justice influence deal with a doctrinal conflict about the extension of international law application that are described on junaturalist and juspositivist doctrines. Although the discussion between these doctrines is related to the theory behind the Court decisions, the doctrine that’s been chosen to be applied can change interpretation of the limits of substantive laws perform and the Court’s ability to ensure those interests. In this regard, this article seeks to analyze the ICJ influence role in judicial relations as a regulatory mechanism that secure the interests of countries in between agreements within the goal to achieve the negotiations full potential by relating the case of Germany vs. Italy, where the behavior of the ICJ was seen as controversial because of the limitations of the law application that chose the State immunity over the protection of human rights that were violated.
The International Court of Justice is formed with variable principles of law, however, even with the discussion about the jusnaturalist and the juspositivist doctrines, the Court influence is very needed between different countries that are shaped by the international law system that reach beyond settlements and directly affect the international negotiations.
In this sense, it’s possible to define the jusnaturalist doctrine as the connection of a normative system with moral principles that are related to the law development involved with human reason and accessible for every person. In the other hand, the juspositivist doctrine is the opposite of juspositivism and that’s because the juspositivist doctrine believe that the label can only be applied if they share the same thesis.
Given the controversy of doctrines, it’s clear that the theory behind the international law can change the limits of their application based on the doctrine that’s prominent and such influence can be seen in rules in the international legal system and agreements. In this context, the discussion between doctrines is very important for the law construction and application that involve the existence of a common principle that is given to the principal legal systems of the world.
Furthermore, the transposition between doctrines during the construction of the ICJ system can be discussed by their definition and legal application examples. Indeed, the source of international law is based on the consensus that international law is a social phenomenon that is created by common social understandings. Subsequently, the consequence of its doctrine is affected by the imperative consent of the concrete law, and it should be uncontroversial due the ample significance of its extension and influence.
To view the application of both doctrines, the article analyzes the case between Germany and Italy, where the posture of the ICJ is placed in the juspositve doctrine but viewing the circumstances of the case, it’s possible to see the possible alternative application of the law that could promote compensation to individuals that were explored and affected by the Nazims regime. The possible application of the jusnaturalist doctrine could provide that compensation and portray the relation between world events and the law application adjust to specific causes that may or may not impact the countries relations.
1. A brief analysis of jusnaturalism and juspositivism
The theory behind the legal system can have multiple sources, and that’s possible due the human ability to create and change the legal act limits based on the social context of the time. Given the diverse existence of controversial doctrine, it’s important to explain the two most used doctrines in the legal system that were created to fulfill the question about the limitations of the law.
The first one is defined as jusnaturalism doctrine, where the Court attributes relate to morals that are commonly kwon and every person in the society share those principles that must be protected. The Court function is attached with the guarantee of those morals and all the agreements may not cross it in any way. So, the ICJ influence act is not very restricted since the priority is to maintain the moral and values that are important for the society, and within the application of this theory, the ICJ have more control in negotiations and the countries interests must respect those established values, having a loss of autonomy and even authority.
Unlike the jusnaturalism, the limits of de ICJ influence in the second doctrine called juspositivism is narrower, and that’s because the theory of juspositivim consider that it’s only possible to secure values or interests if they’re shared between both parts. The doctrine it’s the most used on legal systems and the ICJ influence allows a fair exchange between countries, once they’re respecting the common international rules that were beforehand established.
2. The Germany vs. Italy case
To correctly analyze the application of those doctrines, there’s the Germany vs. Italy case brought to the International Court of Justice. The allegation is that during the second world war, when the German tropes passed the Italian territory, several human rights were violated, and in that sense, civils and military were abused and had to do forced work. The agreements that were made after the end of the second war aimed the compensation of the victims of the Nazism regime, however, the Germany tribunals weren’t in fact compensating those victims, so they tried to use the pretext that the victims were war prisoners, so they didn’t have to give any compensation.
In that context, after the public knowledge of the Ferrini case, that was the first case against Germany made by Italy that went to the Corte di Cassazione, also known as the supreme Italian Court, a lot of individuals started to ask for indemnity, which made Germany give a compensation to different people of different places in similar situations or not, such as Greek. In that sense, seeking to protect their jurisdiction, the Germany Court made a provocation to ICJ saying that Italy didn’t respect their immunity conferred by the International Law in respect to the admission process reserved to Germany Courts with the participation of the Greek Court.
For this reason, the case went to the ICJ arguing the conflict between State immunity and the peremptory norm of general international law (jus cogens) regarding human rights and International Humanitarian Law. According to ICJ, the Germany state immunity was violated by Italy for judging the cases in their territory and disrespecting the norms that were being applied in their jurisdiction.
A conservative posture and the rejection of the idea of opening an exception to State immunity retract a contradiction in the ICJ behave, since the Court considered the Germany act a violation of human rights and didn’t consider it into their decision with the argument that the state immunity must be protected regardless the situation, there’s a disagreement in the doctrinal posture that was applied.
The posture adopted by ICJ in this case is allocated in the juspositivist doctrine and in that way, considering the view of the jusnaturalist doctrine of the application of the international law and its interpretations, the law should evolute with the social evolution and not be static over ongoing occurrences that can change the global environment, also having a behavior that can be adapted to different situations seeking to protect their rights as a nation and humans rights in general.
Some principles of the international law are evidenced in the case showing the compromise between the different applications of the law and its limits regarding the conventional systems and the application of the doctrines. The case involving Greek vs. Germany shows that even with the State immunity argument, due to the situation of the case, that was a slaughter that occurred in a Greek village where 218 people were killed and they demanded a compensation to the victims of the slaughter, sometimes the context require a different approach and law application.
Whitin the development of the international law, the critic in the ICJ decision is based in the category application of the international law and the seeking for the security of human rights with the protection of the authority of States. The judge Antônio Augusto Cançado Trindade, one of the judges that voted against the ICJ majoritarian decision, believed that the State immunity couldn’t surpass the human rights violation, and in that way, the static placement of the international law could result into bad decisions that affect diverse countries, ignoring events that could possibly requires a better doctrine allocation.
The selection of the State immunity over a violation of human rights shows the problem in the promotion of the State sovereignty over the protection of citizens premise that is one of the most important characteristics that compose the ICJ. Whatsoever, due the doctrine overview, it’s possible to see that with the necessity of a better allocation of the international law over the unexpected or expected events that has an impact on the global society, the doctrine behind the ICJ decisions also should follow the contemporary events, so it could be possible to give a correct evaluation over matters that are related those worldwide occurrences.
Regarding the discussion about the influence of juspositive and jusnaturalist doctrines, the role of the International Court of Justice is exemplified in the case of Germany vs. Italy make it possible to see the different types of behaviors related to doctrine position that can impact the life of several people. The critic in the ICJ behavior is that the conservative posture found in the juspositivist doctrine involve a limitation in the possible contribution to people that suffered with the violation of their rights.
Finally, the question in what ICJ should prioritize during their judgement, that if the State immunity would be more important than the compensation for violation of human rights, viewing that both are secured in the ICJ principles, the application of the doctrine is the one that will decide their behavior adopted, and those decision will rebound worldwide. Certainly, the thought behind the ICJ posture changed and will continue to change due the global events and the international law applicability, and for this reason, it’s possible to believe that differently of the decision to prioritize the State immunity over human rights, there can be a prioritization of the human rights and the protection of individuals with the use of the jusnaturalist doctrine.
 Joyce Mayrinck da Silva Raphael de Sant’Ana is a law student on Fundação Getulio Vargas and a Political Science student on Universidade Federal do Estado do Rio de Janeiro.  MAIA, Antonio Cavalcanti. Perspectivas atuais da Filosofia do Direito. Editora Lumens Juris. Rio de Janeiro. 2005.  MAIA, Antonio Cavalcanti. Perspectivas atuais da Filosofia do Direito. Editora Lumens Juris. Rio de Janeiro. 2005.  POMPSON, Ori. General Principles of Law Formed Whitin the International Legal System. 2022.  ALMEIDA, Paula Wojcikiewicz. Imunidades jurisdicionais do Estado perante a Corte Internacional de Justiça: uma análise a partir do caso Alemanha vs. Itália. 2016.  POMPSON, Ori. General Principles of Law Formed Whitin the International Legal System. 2022.  BOGDANDY, Armin von. & VENZKE, Ingo. Beyond Dispute: International Judicial Institutions as Lawmakers.