Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Published date01 November 2015
Date01 November 2015
DOIhttp://doi.org/10.1111/1468-2230.12159
CASES
Intimations of Unconstitutionality: The Supremacy of
International Law and Judgment 238/2014 of the Italian
Constitutional Court
Massimo Lando*
Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the
immunity enjoyed by states for violations of jus cogens. The decision, which questions the
authority of the ICJ’s 2012 judgment in Germany vItaly, could certainly have effects on the
formation of customary international law. In addition, it revives the discussion on the relationship
between national and international law and on the supremacy of the latter over the former,
especially if read in light of the previous Medellín and Kadi I decisions. Judgment 238/2014 is an
opportunity to reappraise the role played by international law in domestic courts, particularly in
cases where international law conf‌licts with core domestic constitutional values.
INTRODUCTION
The Ferrini saga is conclusive proof that inter-state litigation does not end at the
International Court of Justice (ICJ). In October 2014 the Italian Constitutional
Court added a new chapter to the saga,1which could cast doubt on the domestic
law authority of the ICJ’s judgments. In its Judgment No 238 of 22 October
2014,2the Constitutional Court declared that the primary legislation implement-
ing the 2012 Germany vItaly decision3(Judgment 238/2014) was unconstitu-
tional, as it disproportionately limited the constitutionally guaranteed judicial
protection of fundamental human rights. The Court’s decision is certainly
distressing for international lawyers, and rightly so. The so far scant literature on
the decision is critical towards the dualist approach adopted by the Court, and
highlights that the decision could be damaging for future compliance with ICJ
judgments.4However, a close analysis suggests that alarmism may not be entirely
*PhD candidate in Law, St Catharine’s College, University of Cambridge. The author would like to
thank Daniel Peat for his comments on an earlier draft, and the anonymous reviewer for feedback.
1 A. Gattini, ‘The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe
for a Change of the Law?’ (2011) 24 Leiden JIL 173, 199.
2 The decision can be found in the Off‌icial Journal of the Italian Republic (OJIR), First Special Series
No 45 of 29 October 2014. An English translation provided by the Registry of the Constitutional
Court is available at http://www.cortecostituzionale.it/documenti/download/doc/recent
_judgments/S238_2013_en.pdf (last accessed 2 June 2015).
3Jurisdictional Immunities of the State (Germany vItaly; Greece intervening) [2012] ICJ Rep 99 (Germany
vItaly). See also I. Wuerth, ‘International Law in Domestic Courts and the Jurisdictional Immunities
of the State Case’ (2012) 13 Melbourne JIL 819.
4 A recent comment on Judgment 238/2014 can be found in E. Cannizzaro, ‘Jurisdictional Immun-
ities and Judicial Protection: the Decision of the Italian Constitutional Court No. 238 of 2014’
(2015) 110 Rivista di Diritto Internazionale 126. Some discussion on Judgment 238/2014 has also
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.(2015) 78(6) MLR 1028–1056
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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