From Utopia to disenchantment: The ill fate of 'moderate monism' in the ICJ judgment on the jurisdictional immunities of the state

Abstract

Realizing Utopia is the posthumous testament of Antonio Cassese and an act of faith in the emancipatory power of international law. In Chapter 15 of the book he advocates a further breaching of the wall of sovereignty by enabling international law to invalidate inconsistent national law. This article discusses the ambiguities and pitfalls of this approach in light of the recent (2012) judgment of the ICJ in Jurisdictional Immunities of the State. It argues that, contrary to Cassese's proposal of 'moderate monism', a cosmopolitan view of the global community grounded in the rule of law and human rights may be better advanced by domestic courts, especially when, as in the ICJ case, the reason of justice and the right of access to judicial remedies are trumped by a deferential interpretation of the rule of sovereign immunity. © The Author, 2012. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved.