Damage-assessment on the building of international law after the Italian Constitutional Court’s decision no. 238 of 2014: no structural damage, just wear and tear.

von Filippo Fontanelli

This symposium invites reflections on the intercourse between national courts and international law, in light of the recent judgment of the Constitutional Court of Italy (no. 238 of 2014, of 22 October 2014). I briefly examine this judgment’s impact on international law in two respects. First, whether it can point to a new principle of international law. Second, whether it undermines international law as such.

I have elsewhere summarised the main aspects of the ruling, and criticised its inward-looking approach. The Italian judges deliberately avoided engaging with international law and therefore their ruling serves, at most, as cheap-talk for the purpose of further negotiation with Germany, all tbd. From a substantive point of view, the reasoning of the Constitutional Court is not outlandish, I have reckoned. Indeed, the Italian court took pains to break immunity down to its essential elements, and questioned the putative priority of serene international relations over access to justice. The Italian court gave up the jus cogens argument, which was appealing instinctively but technically far from compelling. The proportionality analysis, instead, is a value judgment that can be criticised only on the merits. The shift managed to realign the values at stake. Rather than comparing the gravity of the crimes with the function of immunities, the Italian Constitutional Court compared the procedural effect of immunity with the procedural right of the victims. This linear interplay lends itself better to judicial review and to proportionality à la Alexy (and the gravity of war crimes enters from the back-door, indicating the disproportionately modest value of the value pursued in casu) ...

Zum vollständigen Artikel

Cookies helfen bei der Bereitstellung unserer Dienste. Durch die Nutzung erklären Sie sich mit der Cookie-Setzung einverstanden. Mehr OK