Waiting for Negotiations: An Italian Way to Get Out of the Deadlock

Abstract

AbstractThe outcome of Judgment 238/2014 does not directly rely on the fact that the international dispute on state immunity involves two member states of the EU. Also, it is difficult to envisage at the European level any normative development on the international rules on state immunity. It seems, however, that some useful lessons can be learnt from the judicial dialogue between the European Court of Justice, the European Court of Human Rights, and constitutional courts. In very general terms and for many reasons, the relationship between constitutional courts and the International Court of Justice (ICJ) cannot rely on particularly sophisticated techniques of judicial dialogue.This encourages us to consider the importance of involving state-level political organs as one of the counterparts to the dialogue. The potential power of judges to address these political organs in order to find a diplomatic solution raises the thorny question of whether this availability of alternative means of dispute settlement at the international level might impact on (or somehow restrict) the right of access to justice for Italian victims. Since both ICJ and the Italian Constitutional Court (ItCC) seem to agree that negotiation is the alternative dispute settlement par excellence (and the only means available to settle the present dispute at the international level), the ItCC might have given more importance to the availability of alternative means of redress—in the form of negotiations between the two states—in order to wear down the absolute character of the principle of judicial protection enshrined in Article 24 of the Italian Constitution.Of course, a negotiated solution depends upon the willingness of both parties, whereas an Italian political initiative aimed at unilaterally granting reparation to the victims is always possible. Moreover, the latter solution may stop the enforcement of Judgment 238/2014 and reduce Italy’s exposure to international responsibility for non-compliance with the 2012 ICJ Judgment. So long as Italian victims and their heirs are compensated, the restriction on their right to seek justice through the courts might become more tolerable for the Italian tribunals.