A Dangerous Last Line of Defence: Or, A Roman Court Goes Lutheran

Abstract

AbstractThe chapter addresses questions of international law implicated by Sentenza 238/2014. It begins by revisiting the longstanding debate about state immunity and its limits, arguing that notwithstanding decades of discussion, a ‘grave breaches’ exception has never had more than marginal support in positive international law. Against that background, it comes as no surprise that the Italian Constitutional Court (ItCC), in Judgment 238/2014, did not assert the existence of a grave breaches exception as a matter of international law. Instead, the ItCC relied on what might be termed a ‘foreign relations law’ approach, holding that Italian constitutional law required it not to give domestic effect to the international law of state immunity. This ‘foreign relations law’ approach offers a last line of defence for those seeking to limit the reach of rules of state immunity. As is set out in this chapter, it is an effective line of defence because international law does not ‘by itself, possess the force to amend or repeal internationally unlawful domestic (…) acts’ (Antonio Cassese). At the same time it is a dangerous line, as it risks weakening international law generally and not just in the area of immunity. This chapter suggests that, when read as a foreign relations law decision, Sentenza 238/2014 is not as such unusual: it is one of many decisions accepting some form of ‘constitutional override’ that limits the effects of international law within domestic legal orders. However, Sentenza 238/2014 stands out because—unlike other decisions—it seems to refuse international law any place in the construction of constitutional law: in the ItCC’s ‘separatist treatment’ (Kolb) international law is denied a directive function (‘Orientierungswirkung’); it is not factored into the equation. Seen in that light, Sentenza 238/2014 (counter-intuitively, for a ‘Roman’ decision) has a ‘Lutheran’ quality; it is informed by a stubborn ‘here I stand, I can do no other’ aspect, which limits the potential for a constructive dialogue between domestic and international judiciaries.