Fontanelli, Filippo

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Mo 15 Mai2017Suggesting Solutions: Do the Right Thing verfassungsblog.de /suggesting-solutions-do-the-right-thing/Filippo Fontanelli Mo 15 Mai 2017This short presentation distils the conclusions of the panel regarding the international law angle of thepost-Sentenza scenario. They reflect some degree of consensus which was reached on certain crucial points,including the steps ahead.Keep calm…The applicable rules of international law are clear. A State’s immunity in the civil courts of another State isgranted also in the case of serious human rights violations, and irrespective of whether the victims could bringtheir cases to other courts or resort to an alternative remedy. This is what the law is. What the law should be isanother story, one that is worth telling; if the law alone cannot occasion certain objectives, it still would beappropriate to pursue them if they are desirable.Because an alternative remedy is not a necessary condition for the granting of immunities, it is not crucial tocheck whether the Italian victims had been afforded one – a point of controversy if one reads the ConstitutionalCourt’s decision next to the German government’s statements. In principle, the concept of an effective remedywould not amount to a right to win in court, but more likely to a right to have a case heard by an impartial judgethat is empowered to afford an actual remedy to a winning claimant. Again, the issue is essentially moot,because the availability of remedies is not indispensable for the granting of State immunity and because theEuropean Court of Human Rights considered that the suits brought by Italian claimants were conducted byGerman courts in a way that did not violate the Convention’s norms on a fair trial.The Italian Constitutional Court clearly paved the way for Italy to breach the law on immunities, through its courts’actions. Sure enough, Italy must respond for a breach of international law. The academic drama surrounding thisdecision, however, might be overstated, at the expense of the underlying human drama, which unfortunatelycannot be overstated. Germany is entitled to invoke responsibility, as an aggrieved State, and expressdiscontent. All the same, the episode does not mark the end of international law’s normativity, and there is noreason it will be repeated or inspire to disobey that would have not otherwise done so. The case’s circumstancesare narrowly circumscribed to the very idiosyncratic legal and historical scenario; and we might accept as aninevitable occurrence the idea that the law – occasionally – is breached. CHRISTIAN TOMUSCHAT warned ofthe “unfathomable” repercussions of the Sentenza – but think of the factual and legal matrix: if the precedent isapplied narrowly, virtually all imaginable other cases can be distinguished. But that’s already guessing.Something unfathomable, literally, cannot be predicted. So it is wiser not to do what cannot be done. A breach isa breach is a breach, not necessarily a revolution.Such a clear picture responsibility, it is the consensus, would not help overcome the deadlock. A cohort ofexcellent, well-intentioned and well-fed lawyers gather to ponder the issue agreed that the applicable law canonly help us so much towards reconciliation. This conclusion is worth keeping in mind. Also, it must be notedthat whether Germany owes to Italy or to the victims any compensation was not determined by the ICJ.That Germany is not required by the law to take steps or explore a way to resolve the issue does not mean itshould not do so. In fact, the likelihood that, in this case, a mere application of the law might yields unfairoutcomes recommends exploring voluntary action that transcends what is merely owed by way of obligation –this is true, of course, assuming reconciliation and legal peace are truly valued. Reconciliation that does not boildown to re-litigation depends on goodwill. When a solution inevitably requires sacrificing one’s interest for acommon purpose, it might be wiser to gloss over the question whether an attempt to negotiate is made out offavour or out of a duty. It is not a sin to do a favour. In the worst case scenario: pretend generosity will be met bypretend gratitude. More likely, actual generosity will be met by actual gratitude. In each case, something durablecan be achieved, which transcends all mental reservations. This is negotiation 101; the comparative advantage1/3of honey over vinegar is well-researched.In short, fixating on the legal conundrum has had so far a frustrating effect. Law can be imperfect that way, andin this circumstance law has exhausted its potential of resolving disputes – certainly arguing legalities adnauseam can only aggravate this one. A solution must be found that, whilst not legally required, is legallytenable, and steeped in both parties’ goodwill. This is also what the International Court of Justice suggested,when it mentioned negotiations as a possible way out (cfr. para. 104: it contains no obligation, see KARINOELLERS-FRAHM). As it was noted, a shift from legal reasons to legal reasonableness would be appropriatenow. Italian illustrates well the gulf between “avere ragione” (being right) and “essere ragionevole” (beingreasonable); perhaps there is a German equivalent to it.Germany and Italian courts base their position on principles, but the righteous views do not match the reality –which is less honourable. Germany clings to a privilege; it is entitled to do so. Italian courts invoke higherfundamental principles, but their actions might lead to nothing if the victims are unable to execute theirjudgments.  The solution of this impasse must go beyond the immediate scenario emerged after 2014. Germanydeclared that it will not pay, and whilst the Italian Constitutional Court knew this too well, it sent victims to courtsanyway. These individuals were consciously accompanied into a kafkian cul de sac. Without apportioning blame,it clearly appears that the situation is dishonourable, in spite of all the principled protestations of both States.For the victims to derive satisfaction from the Italian courts’ decisions, in the quasi-certain absence of voluntarypayment by Germany, we would need to see whether they can proceed to seise German assets. This possibilityis very remote, as KARIN OELLERS-FRAHM remarked. Not even the Constitutional Court’s decision seemed tochallenge the basic principle that State assets serving a public function cannot be apprehended. Hence, theominous feeling that all this litigation is for nothing.…carry onNow, two points on what can be done.The first regards civil disobedience by domestic courts that disrespect international law. Even assuming thatsome episodes of rebellion are inevitable, appearances do matter. Sharing the reasons for non-complianceelicits sympathy, and when a breach is perceived as principled it is more difficult that it be considered a threat tothe system. In the views of many commentators, what the Constitutional Court failed to do adequately, and othercourts would better do should they break ranks, is to factor in the reasoning the values of international law.Ultimately, it would be preferable to show that the outcome is a tough decision, a conscious trade-off betweentwo values, carried out through balancing and sacrifice rather than self-interest.The final point must concern the way ahead. Balancing interests domestically might advise recourse to waysdifferent from litigation. Given the stalemate described above, alternative means of dispute resolutions are alsothe only practicable way from an inter-State perspective. Either State here can take the lead, but given the lack ofobligations it would be most appropriate for Italy to take the first step – for instance, as CHRISTIANTOMUSCHAT suggested, by preparing a list of eligible victims – and show that it is ready to set the example ofgenerosity allocating funds to a compensation scheme. It might then invite Germany to follow its example andmatch the funds. A compensation mechanism, funded by both States, could be a good solution, accompanied byItaly’s commitment to shield Germany from further suits. If individuals could directly or indirectly derivesatisfaction from such mechanism, Italian judges could see that the circumstances examined the ConstitutionalCourt no longer apply. Immunity could then apply again – of course, as GIOVANNI BOGGERO said, aclarification issued by the Constitutional Court would help ordinary judges, but might not be indispensable. Ifeither party is unsatisfied by the bilateral course of conciliation, an alternative might be to involve an impartialsubject, for instance a commission established under the aegis of the United Nations.This is the summation of our conclusions. Their limitations reflect the limitations of international law andinternational lawyers. Luckily, there is more to life than law, and we trust that Germany and Italy know this toowell and will do the right thing, resuming the path of negotiation and reconciliation.2/3LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Fontanelli, Filippo: Suggesting Solutions: Do the Right Thing, VerfBlog, 2017/5/15,http://verfassungsblog.de/suggesting-solutions-do-the-right-thing/.3/3

Suggesting Solutions: Do the Right Thing

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Suggesting Solutions: Do the Right Thing

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