State Immunity and Serious Violations of Human Rights: Judgment No. 238 of 2014 of the Italian Constitutional Court Seven Years on

Carlo Focarelli

doi:10.1163/27725650-01010003

Abstract

Abstract On 3 February 2021, the US Supreme Court affirmed the icj’s Jurisdictional Immunities of the State Judgment of 2012—according to which “a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law”—adopting, thus, a position opposite to that taken by the Italian Corte Costituzionale in its well-known Judgment No. 238 of 2014. Based on a realist-constructivist theoretical approach to international law, this article argues that the only plausible legal perspective justifying Judgment No. 238 is a dynamic one. However, the Corte Costituzionale has substantially failed to argue the plausibility of the expected change in existing international law that it wished to promote for the future. To take its intended big leap realistically and successfully, the Italian position would have deserved a sounder theoretical analysis of international law and of the world system in which the latter is meant to work.

Highlights

On 3 February 2021, the US Supreme Court noted in Federal Republic of Germany et al v
On 3 February 2021, the US Supreme Court affirmed the icj’s Jurisdictional Immunities of the State Judgment of 2012—according to which “a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law”—adopting, a position opposite to that taken by the Italian Corte Costituzionale in its well-known Judgment No 238 of 2014
The Corte Costituzionale has substantially failed to argue the plausibility of the expected change in existing international law that it wished to promote for the future

Summary

Introduction

On 3 February 2021, the US Supreme Court noted in Federal Republic of Germany et al v. The enforceable title that was relevant in the instant case remained valid in itself, it could not be applied to Villa Vigoni On this point, the Court ordered the removal of the judicial mortgage.[23] Interestingly, this decision has mentioned Judgment No 238—concerning the different, but closely connected, rule on immunity from jurisdiction—but it has taken for granted that the “customary international rule” on immunity of foreign States from measures of constraint against property that is intended for use in the performance of governmental functions, applies and fully operates within the domestic legal system by virtue of Article 10 of the Constitution, without raising any issue in relation to the possible overriding effects of either international jus cogens, or of Articles 2 and 24 of the Constitution on such customary rule. The approach mentioned in the text was followed by Conforti, and it is premised on the 19th-century theory which considered international law as the result of the “self-limitation” of individual States, and on the notion that international law “becomes” law proper only when it is received in domestic legal systems, that is, translated into domestic

A Realist-Constructivist Approach

Conclusion