Colliding legal systems or balancing of values? International customary law on State immunity vs fundamental constitutional principles in the Italian Constitutional Court decision no 238/2014

The relationship between the international and the municipal legal order: reflections on the decision no 238/2014 of the Italian Constitutional Court

By decision no 238/2014,[1] the Italian Constitutional Court (Consulta) declared that the customary rule on jurisdictional immunities of States, as ascertained by the judgment of the ICJ in the case Germany v Italy (2012),[2] and also the implementation of this judgment itself in the Italian legal order, would be unconstitutional. It would be contrary to...

The judgment of the Italian Constitutional Court on State immunity in cases of serious violations of human rights or humanitarian law: a tentative analysis under international law

1. Introduction The judgment 238/2014, rendered by the Italian Constitutional Court has already been discussed by a number of Italian scholars. Differing opinions have been delivered on important aspects covered by this judgment[1], particularly on the legal consequences of a conflict between general international law and on the fundamental values of the Italian legal order[2]....

Decision no. 238/2014 of the Constitutional Court: Between undue fiction and respect for constitutional principles

Decision no 238/2014 of the Italian Constitutional Court raises a vast array of both international and constitutional law issues: to begin with, how Article 10, para. 1[1], of the Italian Constitution has been interpreted and, secondly, whether the Court struck the right balance between Article 10 and Article 24[2] and its interaction with Article 2[3]....

Judgment 238/2014 of the Italian Constitutional Court: In search of a way out

In Judgment 238/2014 the Constitutional Court unhesitatingly gave precedence to the right to jurisdictional protection over compliance with international law. The high costs of the judgment in terms of respect for international law – and of the constitutional values enshrined in Articles 10 and 11 of the Italian Constitution – are apparent. Yet, taking into...