Abstract

This contribution discusses the relationship between the Italian Constitutional Court’s Judgment No. 159 of 2023 and the Court’s highly controversial Judgment No. 238 of 2014, which ruled State im-munity from adjudicative jurisdiction to be unconstitutional in the case of grave breaches of funda-mental human rights and refused to obey the ICJ Judgment in Jurisdictional Immunities of the State. While Judgment No. 159 fully confirmed the findings of Judgment No. 238, this article highlights that the two decisions also have significant differences. First, Judgment No. 159 carefully refrained from challenging international law, finding a way to affirm the compatibility with the Constitution of the rule on immunity from measures of constraint even though that rule was not subject to constitu-tionality review. Secondly, unlike Judgment No. 238, Judgment No. 159 did not manifest any aspira-tion to cause changes to the current law of State immunity. Thirdly, in Judgment No. 159, the Con-stitutional Court placed greater emphasis on the constitutional principle that requires compliance with international obligations, stressing its importance in the balancing process and reaching the conclusion – which seemed alien to Judgment No. 238 – that access to judicial protection can be excluded where other non-jurisdictional remedies exist. Finally, the article discusses the possible rea-sons why the Court chose to distance itself from Judgment No. 238 while at the same time hiding any changes behind a professed adherence to that precedent. It concludes by arguing that, although this choice may perhaps appear questionable, Judgment No. 159 draws the portrait of a Constitutional Court much more attentive to Italy’s international position and to the effects of its own rulings on the international level.