by Dr Filippo Fontanelli
The International Court of Justice
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?
On the practical matters of the follow-up scenario before Italian ordinary courts, I take the liberty to refer to my discussion here (spoiler: Germany will not pay anyway).
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. Continue reading
by Shehzad Charania*
On 17 December 2013, Timor-Leste instituted proceedings at the International Court of Justice against Australia. The application related to the seizure and detention of “documents, data and other property” by “agents of Australia” from the offices of Timor-Leste’s legal adviser in Canberra, pursuant to a warrant issued by the Australian Attorney General under the Australian Security Intelligence Act. Timor-Leste claimed that the material seized related to a pending arbitration in which the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea was invalid because Australia had bugged the offices of the Timor-Leste cabinet room for a number of
years, thereby gaining an unfair advantage in treaty negotiations. In their application, Timor-Leste argued that the material should be returned, and copies retrieved and destroyed. They demanded an apology, and a declaration from the ICJ that Australia’s actions were illegal under international law.
The same day, Timor-Leste submitted a request for provisional measures. They sought the delivery of the seized documents to the ICJ; information relating to, and destruction of copies made; and an assurance that Australia would “not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers, whether within or outside Australia or Timor-Leste”. Continue reading