The Judgment of the Italian Consttutional Court on State Immunity in Cases of Serious Violations of Human Rights or Humanitarian Law: A Tentative Analysis under International Law

The judgment 238/2014, rendered by the Italian Constitutional Court has been discussed by a number of Italian and foreign scholars. Differing opinions have been delivered on important aspects covered by this judgment, particularly on the legal consequences of a conflict between general international law and on the fundamental values of the Italian legal order. Less 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 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.