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Italian Judges’ Point of View on Foreign States’ Immunity

PDF · Elena Sciso · Jun-15-2012 · 44 VAND. J. TRANSNAT'L L. 1201 (2011)

The Article gives an account of the most recent Italian practice as regarding foreign states’ immunity from the jurisdiction of the forum state. In the absence of domestic laws regulating the matter, Italian courts thus far have been directly applying international customary law, making recourse to a progressive interpretation of international rules. In the past, Italian judicial practice together with the Belgian one gave a great contribution to the consolidation of the restrictive immunity theory. In the last few years, Italian courts have lifted immunity with respect to acts of a foreign state qualified as acta iure imperii in civil proceedings promoted by individuals who were victims of serious violations of humanitarian law and of fundamental human rights. According to Italian judges, the peremptory character of rules prohibiting such conducts would be impaired, and the right to compensation denied, should the violation remain unsanctioned because of the barrier of state immunity.

I argue in this Article that the Italian judicial practice is not inconsistent with existing international law. I examine the relevant provisions of the codification conventions on state immunity, namely the Basle Convention and the New York Convention, and internal and international case law concerning the relationship between international crimes and rules on state immunity, especially the decisions of the European Court on Human Rights. In the same perspective, I also consider the work of the Institut de Droit International, and the Resolution adopted in 2009 on International crimes and Immunities. In the light of the foregoing analysis, I conclude that the Italian judicial practice restricting the traditional immunity that foreign states enjoy with respect to acta iure imperii in order not to deprive victims of human rights violations amounting to international crimes of the right to pecuniary compensation fits comfortably with recent developments which have occurred in international law concerning the protection of fundamental human rights. I also assert that Italian judges’ decisions foster in that regard the
consolidation of a trend that has recently emerged in international practice, at the same time giving a meaningful contribution to the clarification of some controversial issues of the new boundaries of state immunity that the New York Convention leaves unprejudiced.




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