O Julgamento da Corte Constitucional Italiana sobre Imunidade Estatal em Casos de Sérias Violações de Direitos Humanos ou Direito Humanitário: uma tentativa de análise sob o enfoque do Direito Internacional
| Autor | Pasquale De Sena |
| Cargo | Università Cattolica del Sacro Cuore, Milão, Itália |
| Páginas | 97-113 |
The Judgment of the Italian Constitutional Court
on State Immunity in Cases of Serious Violations of
Human Rights or Humanitarian Law: a tentative
analysis under international law*
O Julgamento da Corte Constitucional Italiana sobre Imunidade Estatal
em Casos de Sérias Violações de Direitos Humanos ou Direito Humanitário:
uma tentativa de análise sob o enfoque do Direito Internacional
Pasquale de Sena
Università Cattolica del Sacro Cuore, Milão – Itália
Abstract: The article discusses the judgment
238/2014 rendered by the Italian Constitutional
Court on State immunity in cases of serious
violations of human rights or humanitarian
law. It aims to provide some critical reflections
on the potential relevance of this judgment in
the further development of the international
legal regime in respect of state immunity in
cases of serious violations of human rights or
humanitarian law. To best address this purpose,
the analysis will be divided into two parts. In
the first part, it will be addressed the potential
significance of the stance taken by the Court.
In the second part, the Italian Constitutional
Court’s approach will be assessed, with a focus
on its capacity to affect to a greater extent the
development of the relevant practice.
Keywords: State Immunity. Italian
Constitutional Court. Human Rights.
Humanitarian Law.
Resumo: O artigo discute o julgamento
238/2014 emanado pela Corte Constitucional Ita-
liana sobre Imunidade Estatal em casos de sérias
violações a direitos humanos ou direito humani-
tário. O propósito é oferecer algumas reflexões
críticas sobre a potencial relevância deste julga-
mente no posterior desenvolvimento do regime
jurídico internacional em relação a imunidades
estatais em casos de sérias violações a direitos
humanos ou direito humanitário. Para melhor
abordar esta questão, a análise será dividida em
duas partes. Na primeira parte, será abordado o
potencial significado do argumento adotado pela
Corte. Na segunda parte, a abordagem da Corte
Constitucional Italiana será avaliada, com foco
na sua capacidade de afetar em uma maior di-
mensão o desenvolvimento da prática relevante.
Palavras-chave: Imunidade Estatal. Corte
Constitucional Italiana. Direitos Humanos. Di-
reito Humanitário.
Recebido em: 04/08/2016
Revisado em: 28/09/2016
Aprovado em: 09/10/2016
http://dx.doi.org/10.5007/2177-7055.2016v37n74p97
98 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
1 Introduction
The judgment 238/2014, rendered by the Italian Constitutional
Court has already been discussed by a number of Italian scholars.
Differing opinions have been delivered on important aspects covered
by this judgment1, particularly on the legal consequences of a conflict
between general international law and on the fundamental values of the
Italian legal order2. Little attention, by contrast, has been paid to the
potential relevance of this judgment in the further development of the
international legal regime in respect of state immunity in cases of serious
violations of human rights or humanitarian law.
It is for this reason that this paper aims to provide some critical
reflections on the issue. To best address this purpose, this analysis
1 F Fontanelli, ‘I Know It’s Wrong but I Just Can’t Do Right. First Impressions on
Judgment no 238 of 2014 of the Italian Constitutional Court’ (2014) Diritti comparati
impressions-on-judgment-no-238-of-2014-of-the-italian-constitutional.html>; L Gradoni,
‘Corte Costituzionale italiana e Corte internazionale di giustizia in rotta di collisione
sull’immunità dello Stato straniero dalla giurisdizione civile’ (2014) SIDIBlog,
VLGLLVLORUJVLGLEORJ"S !3'H6HQDµ6SXQWLGLULÀHVVLRQHVXOODVHQWHQ]D
della Corte costituzionale (2014) ibid,log/?p=1108>.
2 According to the Constitutional Court, the traditional rule on state immunity for war
FULPHVDQGFULPHVDJDLQVWKXPDQLW\LVZLWKRXWOHJDOH൵HFWLQWKH,WDOLDQOHJDORUGHUVLQFH
art 10, para 1, of the Italian Constitution (by virtue of which ‘The Italian legal system
conforms to generally recognized rules of international law’) cannot be construed as
DOORZLQJFXVWRPDU\UXOHVFRQÀLFWLQJZLWKIXQGDPHQWDOOHJDOYDOXHVWREHDSSOLHGE\,WDOLDQ
courts (see the English translation of the judgment provided by the Italian Constitutional
Court, t_judgments/
S238_2013_en.pdf>, as well as the summary of the judgment, provided by F Messineo,
Questions of International Law (2014) ). On this aspect, see
L Gradoni, ‘Giudizi costituzionali del quinto tipo. Ancora sulla storica sentenza della
Corte costituzionale italiana’ (2014) SIDIBlog, org/sidiblog/?p=1135>,
P De Sena, ‘Norme internazionali generali e principi costituzionali fondamentali, fra
giudice costituzionale e giudice comune (ancora sulla sentenza 238/2014)’ (2014) ibid,
“controlimiti” e, facendo un uso alquanto singolare delle categorie processuali, sbarra
le porte all’ingresso in ambito interno di norma internazionale consuetudinaria’ (2014)
Consulta Online, .
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 99
Pasquale de Sena
will be divided into two parts.In the first part, I will address the
potential significance of the stance taken by the Court, with specific
regard to the perspective that other domestic judgments may follow
on the topic. More precisely, the Court’s reasoning will be examined,
with a view to verifying whether it might provide useful arguments
for resetting the relationship between the international protection
of human rights and the law of state immunity (paras 2 and 3).
In the second part, the Italian Constitutional Court’s approach will
be assessed, with a focus on its capacity to affect to a greater extent
the development of the relevant practice. The potential relevance of
the court’s approach, in identifying a general principle on the topic of
individual access to justice, will therefore be briefly examined, as well
as its role in the formation of a customary exception to the traditional
regime on state immunity in cases of serious violations of human rights
or humanitarian law (para 4). Some space will be also be devoted to
reflecting on the possible consequences of the Solange perspective
drawn by the Court on future judgments of the ICJ (ibid), as well as to
the potential relevance under international law of the recourse had by the
Court itself on the constitutional principles concerning access to justice.
2 The Legal Arguments Used by the Court
What are the legal arguments on the basis of which the Constitutional
Court has decided that the customary regime on State immunity has no
legal effect on the Italian legal system, in cases of international individual
crimes? As stated by the Court, both Article 2 of the Constitution – which
provides a solemn recognition of the fundamental (‘inviolable’) rights
pertaining to every human person – and Article 24 – which provides
the right to judicial protection – would be unlawfully sacrificed in such
cases3. More specifically, the sacrifice of the rights at stake, as a result of
the imposition of the customary rule on the immunity of foreign States
3 In the judgment, arts 2 and 24 are seen as being strictly intertwined, and art 24 itself ‘
>«@LVGH¿QHGDVµDVDIHJXDUGRIKXPDQGLJQLW\DVZHOODVLWSURWHFWV WKHULJKWRIDFFHVV
to justice for individuals in order to invoke their inviolable right[s]’; immediately after
WKLVVHQWHQFH LWLV VWDWHGWKDWµ,W ZRXOGLQGHHG EHGL൶FXOW WRLGHQWLI\ KRZPXFK LVOHIW
100 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
(as defined in its scope by the ICJ), is deemed ‘untenable’, insofar as it
implies that the jurisdiction of domestic courts over claims for damages
caused by serious international crimes cannot be exercised4. Provided that
the ‘rationale’ for the said rule is the desire to avoid interference with the
exercise of sovereign powers by a foreign State, such a need does not
appear to be relevant in cases involving the commission of war crimes
or crimes against humanity. In other words, in the Court’s opinion, State
actions that amount to grave breaches of fundamental human rights are to
be excluded, as such, from the lawful exercise of governmental powers5.
Hence, the above mentioned conclusion, according to which the sacrifice
of articles 2 and 24 of the Constitution would be untenable in similar
cases, under the Italian Constitution itself.
So it clearly emerges that the ‘noyau dur’ or core of the Court’s
reasoning on state immunity is based on assumptions that appear from
the point of view of international law to be both axiological and logical,
at the same time. There is no doubt, in fact, that the ‘untenability’ of the
sacrifice of the right to judicial protection stems from the gravity of the
war crimes committed by the German troops; i.e., from an axiological
consideration. There is equally no doubt that the argument pursuant to
which state immunity does not extend to unlawful State conduct is a
logical one, insofar as these types of conduct are considered as not being
covered by such a regime as a logical consequence6 of their unlawfulness
under international law.
RID ULJKWLILW FDQQRWEH LQYRNHGEHIRUH DMXGJHLQ RUGHUWR REWDLQH൵HFWLYHSURWHFWLRQ¶
(Judgment no 238 (n 2) para 3.4).
4 ibid.
5 In fact, in the Court’s opinion, immunity is not intended to cover ‘behaviors that do not
represent the typical exercise of governmental powers, but are explicitly considered and
TXDOL¿HGXQODZIXOVLQFHWKH\DUHLQEUHDFKRILQYLRODEOHULJKWVDVZDVUHFRJQL]HGLQWKH
present case, by the ICJ itself, and – before that Court – by the FRG […]’ (ibid).
6 ‘Immunity from jurisdiction of other States can be considered tenable from a legal
standpoint, and even more so from a logical standpoint, and thus can justify on the
FRQVWLWXWLRQDOSODQHWKHVDFUL¿FHRIWKHSULQFLSOHRIMXGLFLDOSURWHFWLRQRILQYLRODEOHULJKWV
guaranteed by the Constitution, only when it is connected – substantially and not just
formally – to the sovereign functions of the foreign State, i.e. with the exercise of its
governmental powers’ (ibid; italics added).
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 101
Pasquale de Sena
Indeed, these assumptions are not completely novel in the general
framework of both the case law and the debate concerning the relationship
between State immunity and serious human rights violations7. As far as
the first assumption is concerned, one may recall the judgment rendered
by the District Court for the District of Columbia in 1992 in the Princz
case8, as well as the judgment of the Supreme Court of Greece in the
Prefecture of Voiotia9 case. In both these judgments, room is left –
albeit in different ways – to the idea that state immunity cannot cover
state actions that amount to grave breaches of international law rules10,
particularly of jus cogens rules11. An analogous thesis is advanced also
by some international law scholars, such as Reimann12 and Kokott13, who
both assert that when committing serious international law violations,
7 )RU DQ H[FHOOHQW VWLOO YDOLG FULWLFDO VXUYH\ RI WKH VFLHQWL¿F GHEDWH VHH ) 'H9LWWRU
‘Immunità degli Stati dalla giurisdizione e tutela dei diritti umani fondamentali’ (2002),
5LYLVWD GLGLULWWR LQWHUQD]LRQDOH ൵IRU DPRUHXS WRGDWH VXUYH\RI WKHUHOHYDQW
FDVHODZVHH59DQ$OHEHHN7KH,PPXQLWLHVRI6WDWHVDQGWKHLU2൶FLDOVLQ,QWHUQDWLRQDO
Criminal Law and International Human Rights Law(OUP 2008), esp ch 6.
83ULQF]Y)HGHUDO5HSXEOLFRI*HUPDQ\GHFHPEHU)6XSS൵
9 Prefecture of Voiotia v Federal Republic of Germany (4 may 2000): see M Gavouneli,
I Bantekas, ‘Prefecture of Voiotia v. Federal Republic of Germany. Case No. 11/2000’
$-,/൵
10 In the District Court’s opinion, the FSIA ‘has no role to play where the claims alleged
involve undisputed acts of barbarism committed by a one-time outlaw nation which
demonstrated callous disrespect for the humanity of an American citizen, simply because
he was Jewish’ (n 8, 26).
11 In Prefecture of Voiotia, the Supreme Court of Greece rejected the jure imperi/jure
gestionis distinction, by referring to the peremptory nature of the prohibition of the crimes
at stake, on the basis of which Germany was considered as having tacitly waived its
immunity (provided for by art 46 of the Hague IV Convention; M Gavouneli, I Bantekas
(n 9) 202).
12 M Reimann ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on
3ULQF]9)HGHUDO5HSXEOLFRI*HUPDQ\¶0LFKLJDQ-,QWO/൵
13 J Kokott, ‘Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden
Völkerrechtsvertößen’, in U Beyerlin (ed), Recht zwischen Umbruch und Bewahrung,
)HVWVFKULIWIU5XGROI%HUQKDUGW൵
102 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
States are not entitled to invoke immunity from jurisdiction, since they
lose their immunity as a consequence of the gravity of these violations14.
Even the logical assumption which forms the backdrop of the
judgment of the (Italian) Constitutional Court can be found in certain
domestic judgments and in some scholarly contributions. It is easy
to observe, for example, that the argument according to which state
immunity does not extend to unlawful State conducts was used by the
District Court for the District of Columbia in the Letelier case15 (in
order to deny immunity to Chile, with regard to a political assassination
occurring within the territory of the United States), as well as by the
Court of Appeals for the Ninth Circuit in the Liu Case16 (in order to deny
immunity to China, once again with regard to a political assassination
occurring in the United States). Such a tendency is not surprising; if
one considers that a similar way of thinking has been prevalent among
international law scholars, since the 1940’s. Suffice it to say, on one side,
that a logical incompatibility between state immunity and unlawful state
actions was assumed by R. Quadri, in 1941, in his seminal book on the
immunity of foreign States17, even before the well known study of H.
Lauterpacht18; and suffice it to add, on the other, that many studies of A.
Bianchi were inspired by the need to get over such an incompatibility19.
14 According M. Reimann such a loss would be the consequence of the non applicability
LQWKHVHFDVHV RIWKHSULQFLSOH RIQRQLQWHUIHUHQFH LQWKHLQWHUQDO D൵DLUVRI 6WDWHVQ
422-423), whereas J. Kokott refers to the doctrine of abuse of rights (n 12, 148 -149).
15/HWHOLHUY&KLOHPDUFK,QW/DZ5HS൵
16/LXY5HSXEOLFRI&KLQDGHFHPEHU,QW/DZ5HS൵
17 R. Quadri, La giurisdizione sugli Stati stranieri, (1941 CEDAM), 127.
18 H. Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951),
%ULW<%,QW¶O/൵
19 Among which, see, for ex., ‘Serious Violation of Human Rights and Foreign States’
Accountability Before Municipal Courts’, in L.C. Vohrah et al. (Eds), Man’s Inhumanity
to Man. Essays on International Law in Honour of Antonio Cassese (KLUWER, 2003),
൵DVZHOODV µ'HQ\LQJ6WDWH,PPXQLW\WR9LRODWRUVRI+XPDQ5LJKWV¶
$XVWULDQ-3XE,QWO/൵
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 103
Pasquale de Sena
3 And Their Suitability for Application in Future Domestic
Judgments
May we conclude that after the judgment of the ICJ on the
jurisdictional immunities of the State the logical and axiological
arguments of the Italian Constitutional Court can effectively represent
useful tools, in futures domestic judgments, for a possible reappraisal of
the relationship between human rights and the law of state immunity under
international law? In order (to try) to give an answer to this question, two
remarks need to be briefly developed.First, it is to be recalled that in the
aforementioned judgment, the ICJ excluded that under current customary
law, States can be considered as being ‘deprived’ of immunity when they
are accused of ‘serious violations of international human rights law or the
international law of armed conflict’20. Such a negative conclusion appears
to be quite reasonable, at least if one examines the relevant practice
from the point of view of the formation process of a specific customary
exception to the traditional rule on state immunity21.
The second remark is strictly connected to the first one. If it is
true, on the one side, that customary law has not developed to the above
mentioned point, it is also true, on the other, that both the traditional
rule on State immunity and the legal regime for serious violations of
human rights and humanitarian law can be deemed expressions of two
conflicting, fundamental principles of current international law: i.e., the
sovereign equality of states and the protection of inviolable human rights.
Whatever opinion one may have about the stance taken by the Court,
in the same judgment, on the relationship between jus cogens and State
immunity22, the above circumstance does not require, evidently, any
special demonstration.
20 Jurisdictional Immunities of the State (Germany/Italy, Greece Intervening) (Judgment
3 February 2012) [2012] ICJ Rep 99, para 91.
21 ibid paras 81-91.
22 Ibid paras 92-97; for a (strongly) critical assessment, see R Pisillo Mazzeschi, ‘Il
rapporto fra norme di ius cogens e la regola sull’immunità degli Stati: alcune osservazioni
critiche sulla sentenza della Corte internazionale di giustizia del 3 febbraio 2012’ (2012)
'LULWWLXPDQLHGLULWWRLQWHUQD]LRQDOH൵
104 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
That being said, both the preceding remarks ultimately mean that the
logical and axiological arguments invoked by the (Italian) Constitutional
Court are far from useful, when it comes to future domestic judgments
concerning the relationship between human rights and the law of state
immunity.
In this regard, it can first of all be contended that these arguments
are rather simplistic, if compared to the in-depth investigation carried
out by the ICJ in order to state that an human rights exception to the
customary regime on state immunity has not yet come to light. One
could reply that such a different approach appears to be justified, at
least insofar as the Constitutional Court decided to confine itself to
merely assessing the constitutionality of the customary regime on state
immunity, without questioning the assessment of such a regime, in
contrast to the assessment made by the ICJ under international law23.
Apart from any consideration on this specific stance24, the fact remains,
however, that under international law the arguments used by the Court
do not go far enough, in the face of the opposite conclusion reached by
the ICJ, on the basis of a careful analysis of the relevant state practice.
Furthermore, it can be added that by simply invoking the gravity of the
crimes at stake and the logical incompatibility between state immunity
and unlawful state actions (such as the grave breaches of human rights
and humanitarian law at stake), the Constitutional Court has ended
up neglecting what has just been emphasized; namely, that both state
immunity and the legal regime for serious violations of human rights
or humanitarian law can be considered as being expressions of two
conflicting general principles of international law, such as the sovereign
equality of states and the protection of inviolable human rights. In
23 According to the Court: ‘International custom is external to the Italian legal order, and
its application by the government and/or the judge, as a result of the referral of Article 10,
para. 1 of the Constitution, must respect the principle of conformity, i.e. must follow the
interpretation given in its original legal order, that is the international legal order. In this
FDVHWKHUHOHYDQWQRUPKDVEHHQLQWHUSUHWHGE\WKH,&-SUHFLVHO\ZLWKDYLHZWRGH¿QLQJ
the dispute between Germany and Italy on the jurisdiction of the Italian judge over acts
attributable to the Federal Republic of Germany (FRG)’: Judgment no 238/2014 (n 2)
para 3.1.
24 On this aspect, see below para 4.
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 105
Pasquale de Sena
contrast, this circumstance appears to be of the utmost importance, if
one takes into account that a specific customary rule, concerning the
applicability of the law on state immunity in cases of serious violations
of human rights cannot yet be proved. In the absence of such a rule, it
emerges quite clearly that appropriate solutions to similar cases cannot
be reached except by resorting to the aforementioned principles and
balancing them on a case-by case basis.25 The recourse to such general
principles was perceived – in contrast with the Constitutional Court – as
being necessary by the Italian Supreme Court in the Ferrini judgment,26
as well as by the Greek and the Polish Supreme Courts, in the Margellos27
and the Natonievsky28 judgments.
As to the Ferrini case, it is worth recalling that the conclusion
reached by the Court29 was based upon asystematic interpretation of the
international legal order, which led to a consideration of the customary
rule on State immunity and the legal regime for serious violations of
human rights (and humanitarian law), as being expressions, respectively,
of the two above-mentioned fundamental principles: the sovereign
equality of states and the protection of fundamental rights30. A similar
25 On this aspect, see the insightful comments on the ICJ judgment, made by L Gradoni,
A Tanzi, ‘Immunità dello stato e crimini internazionali tra consuetudine e bilanciamento:
note critiche a margine della sentenza della Corte internazionale di giustizia del 3
IHEEUDLR¶/D&RPXQLWjLQWHUQD]LRQDOH൵LQWKHVDPHOLQHRIWKRXJKW
P De Sena, F De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court
'HFLVLRQRQWKH)HUULQL&DVH¶(XU-,QWO/൵
26 For a summary as well as a critical examination of this judgment, see P De Sena, F De
Vittor (n 25).
27 Margellos and others v. Federal Republic of Germany (17 September 2002) 129 ILR
൵
28 Natonievsky v. the Federal Republic of Germany and the Federal Chancellery for
3D\PHQWRFWREHU3ROLVK
29 Germany was deemed to be not entitled to sovereign immunity for serious violations of
human rights committed by German occupying forces in 1944.
300RUHSUHFLVHO\WKHMXULVGLFWLRQRIWKH,WDOLDQFRXUWVRYHU*HUPDQ\ZDVMXVWL¿HGQHLWKHU
on account of the actual content of the allegedly violated human rights and humanitarian
norms, nor as the mere consequence of their formal rank (i.e., their peremptorycharacter),
but as result of the substantial importance that can be given to the value of human rights
protection these norms are based on (P De Sena, F De Vittor (n 25) 110).
106 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
stance can also be found in Margellos and Natonievsky, despite the fact
that in both these judgments – in contrast with Ferrini and Prefecture
of Voiotia31 – Germany was deemed entitled to sovereign immunity for
the violations at stake. As it has been rightly argued32, this finding was
reached by both the Polish and the Greek Supreme Court, on the basis
of the idea whereby ‘it cannot be said that State immunity imposes a
disproportionate restriction on the right of access to courts, when the
applicants have available to them reasonable alternative means to protect
effectively their rights’33. This means that the above judgments can
ultimately be regarded as the outcome of a balancing of the principle
of effective judicial protection of international fundamental rights with
that of state immunity, as it stems from the sovereign equality of States.
Furthermore, the importance attributed, in Margellos, as well as in
Natonievsky, to the availability of alternative means of restoration entails
that both these rulings can be traced back to the widely known logic of
the ‘equivalent protection’, so as this logic has been elaborated by the
ECtHR (albeit) with specific reference to the immunity of international
organizations.
4 The Judgment of the Constitutional Court and the Future De-
velopment of the Relationship Between State Immunity and
Human Rights: some general reflections
In the light of the foregoing it can be restated that the line of
reasoning chosen by the Constitutional Court does not seem to be able to
provide sound arguments for innovative future judgments, if compared to
the ‘balancing of principles’ approach, chosen by some domestic courts
with regard to the relationship between state immunity and human rights
under international law.
31 See above (n 9).
32 L Gradoni, A Tanzi (n 25) 216, 217.
33 Natoniewsky (n 28) 303; in a similar manner, in Margellos, the Greek (Special) Supreme
Court took the time to conclude that alternative means of restoration had been provided
IRUE\*HUPDQODZLQIDYRURIWKHSODLQWL൵VQ
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 107
Pasquale de Sena
But may we infer from this that the judgment is definitively,
manifestly unhelpful, when it comes to any future developments of this
relationship?
My impression is that such a conclusion would go too far, if one
considers that the present judgment is in contrast with the prevailing
tendency which is to deny that the traditional rule on State immunity can
be disregarded in cases involving serious violations of human rights or
humanitarian law34. In spite of the choice of the Italian Constitutional
Court not to deal autonomously with the identification of the general rules
relevant to this case, it seems to me that the stance taken by the Court
could gain considerable ground under international law, at least from two
points of view.
Firstly, there is no doubt that the weight attributed to the right of
access to justice is able to strengthen the idea that such a right is now
a general principle of international law35; i.e., a principle to be balanced
with the general regime on state immunity, on a case-by-case basis36.
Although the Court has neither resorted to international law principles,
nor balanced them for the purpose of solving the case under examination,
one cannot rule out that this judgment may be used precisely for that
purpose37, being that it is widely accepted that domestic judgments are to
be referred to, as much for identifying customary rules as for identifying
general principles of law38.
346X൶FHLWWRUHFDOOKHUHWKDWWKH,&--XGJPHQWZDVSUHFHGHGE\$O$GVDQLDQGKDVEHHQ
followed by Jones.
35 On this category, see G Gaja, ‘General Principles of Law’, in R Wolfrum (ed), Max
Planck Encyclopedia of Public International Law (2012), (online edn, OUP), paras 7-32;
ZLWKVSHFL¿FUHJDUGWRWKHULJKWRIDFFHVVWRMXVWLFHVHH))UDQFLRQLµ7KH5LJKWRI$FFHVV
to Justice under Customary International Law’ in F Francioni (ed), Access to Justice as an
+XPDQ5LJKW283൵
36 See above, para. 3.
37 This is all the more important, in light of the convergent tendency shown by both the
CJEU and the ECtHR, respectively, in Kadi IIand Al Dulimi (see below).
38 On the importance of the domestic case law in order to identify general principles
of law recognized by civilized nations, see B Conforti, A Labella, An Introduction to
,QWHUQDWLRQDO /DZ %ULOO ൵ LQ PRUHJHQHUDO WHUPV $ 3HOOHW µ$UWLFOH ¶ LQ
108 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
Moreover, nothing excludes the fact that the ruling of the
Constitutional Court could represent a significant judicial precedent in the
framework of the (possible) formation process of a customary exception
to the traditional rule on State immunity in case of serious violations
of human rights or humanitarian law. If it is true, on one side, that the
Court recognizes that ‘the interpretation by the ICJ of the customary
law of immunity of States from the civil jurisdiction of other States for
acts considered jure imperii is particularly qualified and does not allow
further examination by national governments and/or judicial authorities,
including this Court’39, it is to be pointed out, on the other, that the
Court both recalls the decisive support given by the Italian case law to
the restrictive doctrine of state immunity40, and advances the idea that its
judgment ‘may also contribute to a desirable – and desired by many –
evolution of international law itself’41. Not only does this mean that the
Court is well aware that it is infringing the current customary regime on
State immunity, but also that it hopes to be able to promote a change of
this regime, insofar as such a change is clearly perceived – by the Court
itself – as being imposed by a sort of widespread opinio necessitatis. On
the other hand, the importance of the decision under examination in the
process of formation of a new customary rule on State immunity cannot be
challenged by contending that the stance taken by the Court is discordant
with that adopted by the Italian Government and the Italian Parliament
following the ICJ judgment42. Suffice it to stress, in this respect, that
the Constitutional Court (as the ‘guardian of the Constitution’) has the
last word within the Italian legal system; its stance can be therefore
A Zimmermann et al. (eds), The Statute of the International Court of Justice: A
&RPPHQWDU\QGHGQ283൵
39 Judgment no 238/2014 (n 2) para 3.1 (italics added).
40 ibid, para 3.3.
41 ibid.
42,WLVZRUWKSRLQWLQJ RXWWKDWDVSHFL¿FSURYLVLRQDLPHGDW LPSOHPHQWLQJWKDWMXGJPHQW
had been adopted by the Italian Parliament: art 3 of Law 5/2013 (14 January 2013). By
means of this provision, Italian courts were required to decline jurisdiction in conformity
ZLWKWKH ,&-UXOLQJ DV ZHOODV WRUHYRNH DQ\UXOLQJ SUHYLRXVO\ DGRSWHGWKDW FRQÀLFWHG
with the ICJ Judgment, if so requested by the parties; such a provision has been declared
constitutionally unlawful by the Court: Judgment no 238/2014 (n 2) para 5.1.
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 109
Pasquale de Sena
legitimately deemed to be the current, official Italian position concerning
the legal regime of state immunity43 in cases of serious violations of
human rights or humanitarian law.
That being said, one may still wonder if the stance taken by the
Court is to be deemed a significant one, so to say, even from a ‘Solange’
perspective. This question may be legitimately posed, provided that the
Court itself has referred to the Kadi judgment, in order to strengthen the
idea whereby the principle of effective judicial protection for individual
rights is a fundamental, non-derogable principle, as much in the Italian
legal order as in the EU legal order44. More precisely, one may wonder if
such a stance is actually able to change the strict attitude adopted by the
ICJ in its judgment.
A similar hypothesis is to be probably excluded with specific
regard to the dispute between Germany and Italy. Should this dispute
be brought again before the ICJ45, the Court would hardly be able to
43$WOHDVWDVIDUDVLPPXQLW\IURPMXULVGLFWLRQLVFRQFHUQHGJLYHQWKDWDVSHFL¿FSURYLVLRQ
concerning immunity from execution has just been adopted by the Italian Parliament
(n 44).
44 Judgment no 238/2014 (n 2) para 3.4.
45$JDLQVWWKH,WDOLDQIDLOXUHWRFRPSO\ZLWKWKH,&-MXGJPHQW*HUPDQ\PD\KDYH¿UVWRI
all, recourse to the Security Council (art 94, para 2, of the UN Charter), as well as to the
Committee of Minister of the Council of Europe, by virtue of the European Convention
for the Peaceful Settlement of Disputes of 29 Avril 1957 (art 39, para 2), on the basis
of which (art 1) the ICJ rendered its judgment; but neither this circumstance, nor the
ODFNRI VLJQL¿FDQWMXGLFLDO SUHFHGHQWVVHHP WR EHDEOH WRH[FOXGH DWOHDVW LQSULQFLSOH
that Germany may also have recourse to the Court, provided that: a) proceedings against
Colombia have been recently instituted by Nicaragua at the ICJ, precisely with regard,
inter alia, to the alleged violation of obligations stemming from a preceding ICJ judgment
between the same parties (19 November 2012); b) the request for interpretation of the
judgment Avena and Others Mexican Nationals (Mexico/United States) was actually
aimed at achieving compliance with this judgment. In spite of this, it is quite likely that
QHLWKHUWKH ¿UVW VFHQDULR QRU WKH VHFRQG RQH ZLOO WDNH SODFH IRU WKH WLPH EHLQJ JLYHQ
that a new legislative provision has just been adopted (art 19 bis, Law 10 November
Q µ&RQYHUVLRQH LQOHJJHFRQ PRGL¿FD]LRQLGHO GHFUHWROHJJH VHWWHPEUH
2014, n 132, recante misure urgenti di degiurisdizionalizzazione ed altri interventi per
ODGH¿QL]LRQHGHOO¶DUUHWUDWR LQPDWHULDGLSURFHVVR FLYLOH¶E\YLUWXH RIZKLFKEDQNDQG
postal accounts of foreign states assigned to tasks which are part of their duty as public
authorities are exempt from execution.
110 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
modify its attitude, if one considers that not only would such a change
amount to going against its preceding judgment46, but it would also entail
the adoption of a completely different approach, such as the equivalent
protection doctrine47. In spite of this, it should not be ruled out that the
‘Solange’ perspective, drawn by the Italian Constitutional Court, may
affect the future ICJ case law with respect to the applicability of the
customary law on state immunity in case of serious violations of human
rights or humanitarian law. By taking into consideration the principle
of effective judicial protection in the framework of the aforementioned
doctrine, the Court could in fact minimize the risk that judgments to be
adopted in similar cases may not be complied with by States involved
in such judgments, by invoking precisely the need for respect of the
principle at stake, as provided for by (their) domestic constitutional
provisions48.
To conclude, some brief remarks are to be developed with
regard to the recourse had by the Constitutional Court to fundamental
constitutional principles, in order to state the non-applicability (in the
Italian legal system) of the customary regime on State immunity in case
of international individual crimes. Such a recourse has been widely
debated from the point of view of the Italian legal order49, whereas little
or no attention has been paid to its potential relevance under international
466KRXOGWKHSULQFLSOH RIH൵HFWLYHMXGLFLDOSURWHFWLRQ IRULQGLYLGXDOULJKWVEHWDNHQ LQWR
account, the ICJ would be led to verify the availability of alternative judicial means, in
DVVHVVLQJH൵HFWLYHUHVSHFWIRUWKLVSULQFLSOHLQWKHIDFHRIWKHFXVWRPDU\UHJLPHRQVWDWH
immunity); provided that these means are not available within the German legal order,
the Court would therefore be forced to reach an opposite conclusion with respect to that
DGRSWHGLQKLV¿UVWMXGJPHQW
47 Taking into account both the above principle and the availability of alternative means
IRUH൵HFWLYHFRPSOLDQFHZLWKWKHIRUPHUZRXOGFOHDUO\DPRXQWWRFKRRVLQJDFRPSOHWHO\
GL൵HUHQW OLQH RI UHDVRQLQJ IURP WKDW IROORZHG LQ WKH ¿UVW MXGJPHQW LQVRIDU DV VXFK
reasoning would appear to be based on the equivalent protection doctrine (Solange),
UDWKHUWKDQWKHVLPSOHLGHQWL¿FDWLRQRIWKHUHOHYDQWFXVWRPDU\UHJLPH
48 It is unhelpful to say that this risk may increase in the event that other Supreme Courts
be minded to follow the stance taken by the Italian Constitutional Court (maybe by means
RIGL൵HUHQWDUJXPHQWVVHHDERYHSDUD
49 See above (n 1).
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 111
Pasquale de Sena
law. This seems quite understandable, provided that according to a
well-established principle of international law, a State may not invoke
provisions of its internal law as an excuse for failure to perform its
obligations under international law50, including those relating to the
cessation of an internationally wrongful act and the reparation for its
consequences51.
Nevertheless, it should be borne in mind that the right invoked by
the Constitutional Court, i.e., the right of access to justice (in connection
with the protection of human dignity), is also deemed to be a non-
derogable right, in the context of the relevant international practice52.
Furthermore, it is to be pointed out that both the ECJ in Kadi II53 and
the ECtHR in Al Dulimi54 have recently invoked the need for respect of
this right – albeit in the framework of the equivalent protection doctrine
– in order to state that a full judicial review over SC decisions concerning
50 See art 27 of the Vienna Convention on the Law of Treaties, as well as art 3 of the
Draft Articles on Responsibility of States for Internationally Wrongful Acts and the
commentary provided for by the ILC to this provision (Report of the International Law
Commission on the Work of its 53rd Session, 23 April 1 June and 2 July-10 August 2001,
൵HVSSDUDVIRUWKHUHOHYDQWSUDFWLFH
51 See art 32 of the abovementioned Draft Articles, as well as the corresponding
commentary (ibid 231-233).
52 It is worth noting that both the UN Human Rights Committee and the ECtHR – like
the Italian Constitutional Court (see above, para 2 and 3) – have considered the right to
judicial protection as being basically a non-derogable right, although such a right is not
explicitly included among the non-derogable ones, provided for by the Covenant and the
European Convention (art 27, para 2, of the American Convention expressly provides,
in turn, ‘for judicial guarantees essential for the protection’ of non-derogable rights):
VX൶FHLW WRVD\ WKDWLQ WKH*HQHUDO &RPPHQW1R RQ 6WDWHVRI (PHUJHQF\81 GRF
CCPR/C/21/Rev.1/Add.11, 31 August 2001) it is vigorously emphasized that respect for
WKHµQR\DXGXU ¶RIWKHULJKW WRH൵HFWLYHUHPHGLHV PXVWEHVDIHJXDUGHG DOVRLQVWDWHV RI
emergency (para 14); in Brannigan and Mcbride v United Kingdom, App no 14553/89
and 14554/89 (ECtHR, Judgment 26 May 1993) an analogous conclusion is reached with
VSHFL¿FUHJDUG WR WKH ULJKW RI KDEHDV FRUSXV SURYLGHG IRU E\ DUW RI WKH &RQYHQWLRQ
(paras 63-66).
53 Joined cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission and
Council of the European Union v Yassin Abdullah Kadi (CJEU Judgment 18 July 2013).
54 Al-Dulimi and Montana Management Inc v Switzerland, App no 5809/08 (ECtHR
Judgment 26 November 2013).
112 Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016
The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights
or Humanitarian Law: a tentative analysis under international law
targeted sanctions is perfectly lawful under the EU legal order, as well as
in the legal systems of the contracting States of the European Convention,
to the extent that the guarantees of an effective judicial protection are not
provided within the UN system to persons affected by those sanctions55.
Lastly, it should be recalled that not only has a similar stance been adopted
by some domestic courts56, but also that no significant contrasting action
has been so far taken at the international level. By this, I will not deny, of
course, that this tendency has developed so far with specific regard to the
question of the SC targeted sanctions, nor will I advance the hypothesis
that customary international law has developed to the point where a State
may invoke its constitutional provisions concerning access to justice as a
legal excuse for failure to perform conflicting international obligations.
Instead, it is quite clear to me that the recourse had by
the Constitutional Court to this right may be traced back to the
aforementioned tendency. Despite the fact that its judgment relates to
the different issue of state immunity, there is no doubt that, by invoking
the right to judicial protection in the face of the consequences stemming
from such a regime, the Court aimed to assign to the former a role
which appears to be analogous to the one played by it in the case law
in respect of the SC targeted sanctions. In all these cases, access to
justice, so as provided for by the legal orders at stake, tends actually to
be considered as prevailing over conflicting international obligations,
insofar as respect for these obligations would entail a denial of judicial
55 Kadi (n 53) para 133; Al-Dulimi (n 54) para 134; for a detailed critical assessment, see
M Arcari, ‘Forgetting Article 103 of the UN Charter? Some Perplexities on “Equivalent
Protection” after Al-Dulimi’ (2014) QIL-Questions Intl L Zoom-in 6, para 3.
56 For ex: High Court Of Justice, Queen’s Bench Division, Administrative Court, Hay c
+07UHDVXU\DQG 6HFUHWDU\RI6WDWH IRU)RUHLJQDQG &RPPRQZHDOWK$൵DLUV&DVH QR
CO/1200/2009 (10 July 2009); adde: Supreme Court of the United Kingdom, Her Majesty’s
Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants); Her
Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant); R (on the
application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury
(Appellant), Case no [2010] UKSC 2 (27 January 2010); Federal Court of Canada,
$ERXV¿DQ$EGHOUD]LN Y 7KH 0LQLVWHU RI )RUHLJQ$൵DLUV DQG 7KH $WWRUQH\ *HQHUDO RI
Canada (4 June 2009); see M Marchegiani, ‘Le principe de la protection équivalente dans
l’articulation des rapports entre ordre juridique des NU et CEDH après l’arrêt Al-Dulimi’
(2014) QIL-Questions Intl L Zoom-in 6.
Seqüência (Florianópolis), n. 74, p. 97-114, dez. 2016 113
Pasquale de Sena
protection of the fundamental human rights come to the fore. Within these
limits, one may therefore wonder if the judgment at issue is also to be
deemed a significant contribution to the progressive development of a
regional customary rule, according to which European States may invoke
constitutional provisions on access to justice, as a circumstance capable
of precluding the wrongfulness of their failure to comply with conflicting
international legal duties.
* This article was originally published in QIL –Questions of International Law, available
at http://www.qil-qdi.org/.
Pasquale de Sena é professor de Direito Internacional e Direitos Humanos na
Università Cattolica del Sacro Cuore (Milão – Itália).
E-mail: pasquale.desena@unicatt.it
(QGHUHoRSUR¿VVLRQDO 8QLYHUVLWj&DWWROLFD GHO 6DFUR&XRUH /DUJR$*HPHOOL
n. 1, Milano, Italia – 20123.
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