by Dr Filippo Fontanelli
With the decision no. 238 of 22 October 2014, the Italian Constitutional Court (the CC) produced the most spectacular display of dualism this side of Medellin. The CC declared the unconstitutionality of Italy’s compliance with the International Court of Justice (ICJ)’s judgment Germany v. Italy (Greece intervening). The CC’s ruling – briefly reported – invites speculation on two fronts: 1) What does it say about the application of international law in domestic courts? 2) Is the judgment reasonable by any relevant standards other than Italian constitutional law?
In February 2012, the ICJ found that Italy breached its international obligations vis-à-vis Germany. Italian courts had exercised jurisdiction in tort proceedings against Germany, instituted by Italian plaintiffs for World War II war crimes of the Nazi occupation forces in Italy. These proceedings, resulting in Germany being ordered to compensate the victims, constituted internationally wrongful acts, since they disregarded the international custom whereby sovereign states are immune from civil suit in foreign courts, for acts jure imperii. The ICJ reached the same conclusion with respect to the ensuing enforcement proceedings and the exequatur granted by Italian judges to authorise execution of Greek judgments in similar disputes.
Italy had argued that i) the jus cogens nature of the rules breached by the German agents overrides the rules on immunity, and ii) a customary exception displaces immunity for armed activities carried out on the territory of the State of the court seised. Both arguments failed. Immunity raises a procedural bar to the exercise of jurisdiction and operates regardless of the gravity of the crimes concerned. In addition, the ICJ found no evidence of a new custom. In fact, a survey of state practice revealed that Italy’s approach was isolated.
Italian courts complied directly with the ICJ’s judgment by upholding Germany’s jurisdictional objections in pending proceedings (e.g., see Albers). Moreover, the Italian legislator passed a law authorising the revision of final judgments breaching Germany’s immunity (Art. 3, Law no. 5 of 2013).
Three domestic sources required Italy’s respect of the ICJ’s ruling: the statute ratifying the UN Charter (whose Art. 94 commands compliance with ICJ’s judgments); the new statute of 2013, transposing the ICJ’s order to discontinue pending proceedings and remedy the breach caused by those already concluded; Art. 10 of the Constitution, providing for the Italian legal order’s automatic adaptation to international custom, including those on sovereign immunity. The Tribunal of Florence, in January 2014, referred a question to the CC, challenging the constitutionality of all three.
The CC found that compliance with the ICJ’s ruling entails a disproportionate restriction of the right of access to court (Art. 24 of the Constitution). Respect for sovereign immunity, which generally justifies such restrictions to preserve the State exercise of governmental powers, cannot extend to cover the commission of international crimes that bear no relationship with the governmental function. The CC did not question the accuracy of the ICJ’s ruling as regards the interpretation of customary law: it simply refused to allow its legal effects at the domestic level. The relevant provision of Law no. 5 of 2013 was declared unconstitutional, as was Law no. 848 of 1957 ratifying the UN Charter (only insofar as it required compliance with Germany v. Italy: the statute as such remains intact). As for the customary norms on immunity, they could only enter the Italian system already purged of their unconstitutional traits, raising therefore no issue of constitutionality.
This judgment epitomises the pitfalls of dualism. The domestic legal effect of international obligations is ultimately subject to the State’s unilateral approval. Moreover, the CC clarified Italy’s relative – à la carte – monism with respect to international customs: they are automatically incorporated so long as they keep within the redline of fundamental rights’ protection. The reasoning reminds of other “so long as” (Solange) decisions, whereby courts grant a presumption of legality to supra-national obligations, and/or accept their domestic effect, only insofar as they do not encroach upon the peremptory values of the system of the forum. This technique dates back to the attempts of the Italian and German constitutional courts to contain the impact of directly effective EU law onto domestic constitutional guarantees (see Frontini and Wünsche Handelsgesellschaft, aka Solange II). The European Court of Human Rights (ECtHR) used the Solange principle in Bosphorous, when it declared that it would only review the compatibility of EU law with the Convention in exceptional cases. The most recent – and expressly acknowledged – inspiration for the CC is the exploit of Court of Justice of the EU (CJEU) in the Kadi I and Kadi II proceedings. Just like the CC, the CJEU formally limited its review to the internal measures implementing international law (in casu, the UN Security Council’s resolution ordering the blacklisting of suspected terrorists) and annulled them based on an uncompromising interpretation of fundamental rights as constitutional values of the Union. Kadi’s repercussions on the solidity of international law at large are too recent to assess. Some claim that the obdurate approach of the CJEU, which even subjected the substance of the UN Security Council’s resolution to a test of proportionality based on EU law standards, is a manifest of fragmentation and can only threaten international law’s coherence. The same could be said of the CC’s decision, but its systemic impact will depend on whether other domestic courts will follow course. For now, the episodic disregard of one international decision by one State does not falsify the pragmatic understanding that most States respect most international law obligations most of the times.
How does the reasoning of the CC, which uses fundamental rights to trump Italy’s international duties, fare compared to other jurisdictions? The CC purported to exercise a proportionality analysis, a routine commonly used to probe the legality of public measures that sacrifice the enjoyment of a fundamental right to pursue a public interest (or to promote another human right). The outcome was straightforward: the absolute sacrifice of the right of access to court is not compensated by the putative advantages of granting immunity to Germany. No systemic benefit of covering up international crimes exists, that could make up for the restriction of the fundamental right. The CC’s proportionality review did not implicate a real balancing of interests: the restriction was absolute (no access to court) and the countervailing value was absent (no public interest): there was little to weigh. More than real proportionality the CC reviewed the reasonableness of the measures impugned (assuming there is a difference).
A few days before the CC’s decision, the Supreme Court of Canada (SCC) upheld Iran’s immunity in civil proceedings brought before Canadian courts for alleged torture (Kazemi v. Iran). The SCC applied the Canadian statute on immunities (which “completely oust[ed]” any hypothetical new exceptions emerged in international law). It held that the territorial tort exception, contemplated therein, does not extend to conduct abroad (or to armed activities in general). The UK Supreme Court had come to the same conclusion in a dispute with a similar factual matrix, Jones v. Saudi Arabia. A challenge of the UK granting of immunity was dismissed by the ECtHR in January 2014 (Jones v. UK). These cases concern acts of torture allegedly committed outside the State of the forum, unlike in the Italian proceedings. However, since the CC did not consider the place of commission of the crimes critical in its judgment, the Canadian and UK decisions (as well as the ECtHR’s) are appropriate comparators to gauge how far off the CC has ventured from the mainstream view.
The SCC overcame a quasi-constitutional challenge based on the Bill of Rights, arguing that the right to fair trial “guarantees a fair procedure only when a process is already in place” and cannot create a self-standing right to a process. As for the general guarantee of access to justice, the majority simply noted that “[s]ubstantive rights are frequently implemented within a framework of procedural limitations,” and the absence of a remedy is not intolerable per se. Judge Abella, dissenting, claimed instead that there exists in international law a fundamental right of individuals to reparation for State violations of human rights. This right would require the lifting of immunity to secure compensation for the victims of torture – a conclusion not too distant from that of the CC – but only with respect to the individual officers, not the State as such.
The ECtHR, for its part, held that the right to access to court is not absolute, and that the application of sovereign immunity does not entail an “unjustified restriction” thereof. The proportionality assessment was only sketched, and quickly gave way to an analysis of public international law. The Germany v. Italy judgment was held to demonstrate conclusively that nothing had changed since Al-Adsani: “some restrictions on access [to justice] must … be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.”
In short, the compatibility between sovereign immunities and access to court has often relied on a circular paradigm rather than genuine proportionality-checking: immunity’s restriction to the fundamental right is not disproportionate because all States have agreed to it, and vice versa. If everyone agreed to respect sovereign immunities, they cannot be that bad. The CC decided that Italy does not agree to them wholesale, because they can be quite bad. The reasoning is thin, sure. But the opposite view, at a closer look, is not any better in displaying where exactly proportionality can be identified.