The Italian Constitutional Court and ‘Constructive Contestation’

This chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.

Would the World Be a Better Place If One Were to Adopt a European Approach to State Immunity? Or, ‘Soll am Europäischen Wesen die Staatenimmunität Genesen’?

Zimmermann

2021

Teaching the World Court Makes a Bad Case: Revisiting the Relationship Between Domestic Courts and the ICJ

Kunz

2021

Self Cite

Sentenza 238/2014 once more highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court (ItCC) also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. Sentenza 238/2014 suggests that domestic courts, in times of global governance and increased activity of international courts, see the role they play at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This chapter does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the International Court of Justice, in reality, more often than not, they have refused to do so, arguing that its judgments are not self-executing and thus deferring the implementation to the political branches. Assessing this practice, the chapter argues that domestic courts should take a more active stance and overcome the purely interstate view that seems at odds with present-day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the chapter cautions that there is a considerable risk of setting dangerous precedents by openly defying international judgments. Domestic courts should carefully balance the different interests at stake, namely an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand. The chapter finds that the ItCC’s attempt to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality.

Deadlocked in Dualism: Negotiating for a Final Settlement

Arnauld¹

2021

While on the international plane Germany has as strong a position as one could wish for, a second appeal to the ICJ does not seem advisable. Though not formally estopped from challenging Sentenza 238/2014, Germany would at least face a principled contradiction (Wertungswiderspruch). Like Italy, Germany takes the position that international obligations must be disregarded should they be found incompatible with fundamental rights enshrined in the national constitution. Concerning the underlying conflict, another formally strong German position proves to have inherent shortcomings. To argue that, as far as Italian citizens are concerned, all matters of compensation had been dealt with comprehensively in the German–Italian lump sum agreement of 1961 carries some conviction. However, the limitations of that agreement, the erosion of the individual’s strict mediatisation in international law, and recent German compensation schemes for other victims of World War II (WWII) have fuelled a growing discontent with this final settlement. Having been doubly denied recognition as victims by the injustices of non-retroactivity and of differentiation, the Italian WWII victims ‘in oblivion’ have pursued compensation claims for over a decade now. It would go too far to argue an individual claim for financial compensation under international law for historic wrongs. The principle of intertemporal law, however, has its merits as well as its defects. This chapter argues in favour of mildly piercing the veil of intertemporality by reliance on fundamental ethical principles as part of the law in force already at the time of the original violation. A breach in this kind of obligation should give rise to an obligatio de negotiando under the principle of just satisfaction. Such a legal construction takes up the idea that in most of the recent cases of ‘history taken to court’, compensation is but a secondary aim, the primary aim being to ‘tell one’s own story’ as a counter-narrative to hegemonic discourse. By entering into negotiations with the victims ‘in oblivion’, Germany—and Italy—could and should attempt to finally solve what has been and remains a fundamentally unjust situation.