Germany versus Italy Reloaded: Whither a Human Rights Limitation to State Immunity?

The present essay seeks to discuss the possible scenarios arising from the renewed Jurisdictional Immunities case before the ICJ triggered by Germany's application against Italy filed at the end of March 2022. The purpose is to evaluate what these scenarios may signify for the ‘human rights and State immunity’ debate. In doing so, attention is paid to a number of elements arising from the pertinent practice and scholarly discussions which have emerged since the 2012 ICJ judgment. If Germany v Italy (reloaded) proceeds to the merits, those elements should hopefully induce the ICJ to rethink a few controversial aspects of its 2012 decision and, in turn, the Italian Constitutional Court to exercise caution when setting out to revisit and circumscribe Judgment No 238/2014

Armed Conflicts and the Environment: An Assessment of Principle 24 of the Rio Declaration Thirty Years On

This paper assesses the history and significance of Principle 24 of the Rio Declaration, which in 1992 called upon States to respect international law providing protection for the environment in times of armed conflict and to cooperate in its further development. In particular, the paper explores how the key elements of the principle have influenced subsequent law- and policy-making processes led by institutions such as the International Committee of the Red Cross, the UN Environment Programme, and the International Law Commission. The paper argues that while Principle 24 does not contain specific normative prescriptions, it has translated over the years into a significant and vibrant international law standard. However, in the light of the gaps and shortcomings that continue to characterize the protection afforded to the environment under international humanitarian law, the paper emphasizes the need to develop a comprehensive multilateral convention on armed conflict and the environment, with the aim of bringing the vision of Principle 24 into completion

Stergiopoulos v. Iran. Order No. 39391/2021

In Angela Stergiopoulos v. Iran, the Italian Supreme Court of Cassation held that state immunity does not bar exequatur proceedings against a foreign state when those proceedings seek the recognition and enforcement of a foreign judicial decision finding the state responsible for serious breaches of human rights. Stergiopoulos confirms the Italian courts’ persisting inclination to champion a human rights limitation to state immunity in contrast to mainstream transnational case law. It also reveals several legal and policy risks arising out of that position. Yet the decision should be seen in the context of a new constellation of states prioritizing human rights enforcement over state immunity, including Brazil and, at least in the Court’s view, the United States, especially given the availability under U.S. law of proceedings against states sponsors of terrorism accused of certain egregious violations of human rights

The Sustainable Development Goals and International Environmental Law: Normative Value and Challenges for Implementation

This article explores the implications for international environmental law of the adoption of the Sustainable Development Goals (SDGs), which occurred at the 2015 United Nations Sustainable Development Summit. Following a summary of the main outcomes of the Summit, the paper evaluates the process and vision of the SDGs against both the Millennium Development Goals and the past efforts of the UN General Assembly in the field of sustainable development. The paper then examines how the environmental dimension of the SDGs is integrated into the general framework of the post-2015 development agenda and addresses two important questions which will most likely prove instrumental in the achievement of the Goals themselves. First, in the light of UN General Assembly Resolution 70/1, it discusses the normative value of the environmental obligations of States enshrined in the SDGs. Secondly, it deals with problems of implementation of the outcomes of the Summit, and accordingly attempts to identify the main legal challenges for the operationalization of the environmental component of the SDGs, in the wider context of the Agenda and taking the recent developments under the UN Framework Convention on Climate Change into account

Sovereign Immunity and the Enforcement of International Cultural Property Law

The present paper examines the intersection of the law of State immunity and cultural property issues. The primary interest in undertaking this investigation lies in the fact that, while immunity from seizure and other measures of constraint aims to protect and further the cultural and educational function of State cultural heritage property, immunity from jurisdiction (understood stricto sensu as immunity from suit) may bar legitimate restitution claims brought by individuals who have been unlawfully dispossessed of cultural objects. Therefore, a clear-cut and comprehensive solution to the problems raised by the expanding litigation in this area is not forthcoming. Customary and treaty obligations in the field of cultural heritage, such as the duty to return stolen cultural objects, are inconclusive in that regard and stand in the background as the reference materials guiding the analysis. What seems most needed is instead a wide-ranging balancing exercise that takes into account all of the values, interests and circumstances at stake in art-and-immunity cases. Obviously, this assumes that State immunity for jure imperii acts, such as the expropriation of property in times of armed conflict, should not be regarded as a dogma of contemporary international law. On the contrary, it is submitted that factors such as the alternative remedies available to dispossessed individuals or the commission of egregious breaches of human rights by the defendant State may well have a bearing on the enjoyment of sovereign immunity

After Sentenza 238: A Plea for Legal Peace

This post summarizes some of the key points of my presentation at the upcoming Villa Vigoni conference organized by the Max Planck Institute and its partners around the theme ‘Remedies against Immunity? Reconciling International and Domestic Law after the Italian Constitutional Court’s Sentenza 238/2014

Sovereign Immunity and the Enforcement of International Cultural Property Law

The present paper examines the intersection of the law of State immunity and cultural property issues. The primary interest in undertaking this investigation lies in the fact that, while immunity from seizure and other measures of constraint aims to protect and further the cultural and educational function of State cultural heritage property, immunity from jurisdiction (understood stricto sensu as immunity from suit) may bar legitimate restitution claims brought by individuals who have been unlawfully dispossessed of cultural objects. Therefore, a clear-cut and comprehensive solution to the problems raised by the expanding litigation in this area is not forthcoming. Customary and treaty obligations in the field of cultural heritage, such as the duty to return stolen cultural objects, are inconclusive in that regard and stand in the background as the reference materials guiding the analysis. What seems most needed is instead a wide-ranging balancing exercise that takes into account all of the values, interests and circumstances at stake in art-and-immunity cases. Obviously, this assumes that State immunity for jure imperii acts, such as the expropriation of property in times of armed conflict, should not be regarded as a dogma of contemporary international law. On the contrary, it is submitted that factors such as the alternative remedies available to dispossessed individuals or the commission of egregious breaches of human rights by the defendant State may well have a bearing on the enjoyment of sovereign immunity

Diritto alla tutela giurisdizionale effettiva e immunità degli Stati: irrompe la Corte di giustizia dell’Unione Europea

L'azione di risarcimento danni promossa contro il Registro Italiano Navale (RINA s.p.a.) da un gruppo di vittime (e loro eredi) del tragico naufragio del traghetto Al Salam Boccaccio ’98 battente bandiera panamense, avvenuto nel Mar Rosso nel 2006 e che costò la vita a più di 1.000 persone, è sfociata nella recente sentenza RINA della Corte di giustizia dell'UE. Dopo aver sintetizzato le statuizioni della Corte di giustizia e discusso le indicazioni da esse desumibili in termini di rapporto tra competenza giurisdizionale ed immunità degli Stati, il presente scritto si sofferma sul passaggio della sentenza RINA in cui la Corte sottolinea l'importanza del diritto fondamentale alla tutela giurisdizionale effettiva, cercando di interpretarne il significato e valutarne il possibile impatto sulla prassi di diritto internazionale e dell'UE

How Broad is the Principle Upheld by the Italian Constitutional Court in Judgment No. 238?

The present article discusses the breadth of the principle upheld by the Italian Constitutional Court in Judgment No. 238 of 2014, concerning the unconstitutionality of grants of foreign state immunity over international crimes and comparable grave breaches of human rights. This article takes the view that two - and only two - requirements qualify that principle: first, the commission of an international crime by state agents; and second, the unavailability of effective compensatory remedies for the victims, which would provide an alternative to a suit in the courts of the forum state. The necessity of a territorial nexus - that the crime was perpetrated, at least in part, in the territory of the forum state - is ruled out. These two requirements are examined in light of Judgment No. 238 as well as the broader context of the Italian jurisprudence on state immunity and human rights both prior to, and falling after, the Constitutional Court’s decision. The article briefly considers the prospects for universal civil jurisdiction over compensation claims arising from international crimes committed by foreign state agents. It submits that the coming challenge for Italian courts may involve an effort to reconcile the norms governing civil jurisdictional competence over states responsible for international crimes, and thus not entitled to immunity, with the right of access to justice as bolstered by Judgment No. 238