Guest Post: Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.]

A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II.

Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits.

The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions.

The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials.

This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany.

The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation.

But this is just the beginning. The Constitutional Court sets the ground for domestic courts’ decisive role in changing customary law. The Court formally does not challenge the CIG’s understanding of sovereign immunity – in fact, it simply affirms that it cannot be enforced in Italy. However, it maintains that domestic jurisdictions can modify the “generally applicable international law.” Once they change their habits, it is up to the ICJ to affirm that this new law exists and to enforce it. It is a polite way of telling the ICJ that it should follow this judgment and acknowledge that the relevant custom is changing.

So, behind the theory of counter-limits, the Constitutional Court doesn’t simply protect Italian core constitutional values; it pushes for a change of international law. The theory of the Constitutional Court is laid down in rather frank terms: a) the Court acknowledges the ICJ ruling on sovereign immunity; b) it finds that this ruling violates a fundamental principle of the Constitution; c) it then stops the enforcement of the sovereign immunity rule; d) it acknowledges that domestic courts make customary international law; and e) it hopes that a new custom thus will be born out of domestic decisions like this one.

The Constitutional Court reserves to itself the power to ascertain the compatibility of international customary law with the Italian fundamental constitutional principles. This power, the Court maintains, is not dispersed throughout the judiciary. Each time there is a doubt about the compatibility between an international custom and the Italian Constitution, domestic jurisdictions must request a preliminary ruling from the Constitutional Court. This is a wise specification, since it avoids scattered, conflicting decisions by different Italian judges.

It would be mistaken to believe that the Italian Constitutional Court understands its blockade of international customary sovereign immunity as a protection of the Italian Constitution only. The Court backs its international-relationships-disrupting decision by highlighting that the right to judicial protection is “surely among the great principles of law recognized by any democratic civilized nations in our time.” This affirmation clearly echoes Art. 38 (1) of the statute of ICJ (“The Court … shall apply: … the general principles of law recognized by civilized nations”). And, the Court adds, the European Court of Justice also has declared that “the obligations stemming from an international agreement cannot violate fundamental rights.” In other words, the Italian Court justifies its attitude in saying that the kind of values it is protecting characterizes democratic legal civilizations and the EU. All things considered, the theory of counter-limits was conceived to shield the Constitution against EU laws, but was never used; here it is backed by the European Court of Justice’s decisions. What used to menace, specifically the EU, has now become a powerful source of legitimization.