Riccardo Pisillo Mazzeschi

The Judgment No. 238/2014 of the Constitutional Court and Its Possible Effects on International Law

  • Abstract

Informations and abstract

Keywords: State Immunity; International Crimes; Fundamental Constitutional Principle; Access to Justice; Fundamental Human Rights; Ius Cogens; International Immunities.

The Italian Constitutional Court, in its judgment no. 238/2014, does not apparently bring into question the customary international norm on State immunity, as interpreted by the ICJ in its judgment on "Jurisdictional Immunities of the State"; but in reality gives a critical evaluation of that norm. Therefore the judgment can produce some effects on the development of international law. Firstly, an effect can derive from the theory of 'constitutional counter-limits' to international law, This theory, explicitly adopted by the Court, can foster a progressive development of international law leading to set an exception (the respect of fundamental constitutional values) to the traditional principle according to which a State cannot invoke its own domestic law in order to justify a breach of international law. Secondly, the judgment can lead towards a progressive reduction of the content of the customary norm on State immunity in the perspective of increasing human rights' protection. The Court consequently advances three legal arguments which could also be used, with some adaptation, in international law: a) access to justice is a fundamental principle that prevails over State immunity; b) such prevalence also derives from balancing the value of judicial protection of fundamental rights with that of State immunity; c) the norm on State immunity does not cover international crimes, because they do not pertain to the typical exercise of State authority. The judgment of the Italian Constitutional Court can be an authoritative precedent, capable to affect the future law of international immunities.

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