Italian judges' point of view on foreign states' immunity.

• Author: Sciso, Elena
• Position: Foreign State Immunity at Home and Abroad

ABSTRACT

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.

TABLE OF CONTENTS I. ITALIAN CASE LAW ON FOREIGN STATES' IMMUNITY. THE JUS COGENS EXCEPTION CONCERNING INTERNATIONAL CRIMES II. THE INTERNATIONAL PRACTICE CONCERNING THE RELATIONSHIP BETWEEN INTERNATIONAL CRIMES AND RULES ON STATES' IMMUNITY. THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS. THE CODIFICATION CONVENTIONS III. THE 2009 RESOLUTION OF THE INSTITUTDE DROIT INTERNATIONAL CONCERNING INTERNATIONAL CRIMES AND IMMUNITIES FROM JURISDICTION OF STATES AND THEIR AGENTS IV. CONCLUDING REMARKS I. ITALIAN CASE LAW ON FOREIGN STATES' IMMUNITY. THE JUS COGENS EXCEPTION CONCERNING INTERNATIONAL CRIMES

Italy has never enacted specific legislation on foreign states' immunities. It does not take part in the 2004 UN Convention on Jurisdictional Immunities of States and their Property, nor is it a party to the 1972 European Convention on State Immunity (Basle Convention). (1) In the past, a legislative decree provided that measures of constraint against foreign states' properties should be subject to prior authorization by the Ministry of Justice and to the condition of reciprocity. (2) However, the measure was "dismantled" by the Constitutional Court through two subsequent decisions in 1962 and 1993. (3) In the opinion of the Court, the legislative measure in question was contrary to Article 10 of the Constitution. By subordinating the adoption of a measure of constraint against foreign state properties to the discretionary appreciation of the Ministry of Justice, the measure could come into conflict with rules of general international law applicable to state's immunity from measures of constraint either for the purpose of enforcing judgment (post-judgment measures) or for the purpose of pre-judgment attachment. (4) As a matter of fact, Article 10 of the Constitution affirms the conformity of the internal legal order to the rules of international law generally recognized, thus "constitutionalizing" customary international law. (5) By virtue of Article 10 of the Constitution, international customary law (or better, general international law) always prevails over conflicting legislative measures: the latter are declared unconstitutional where they are in conflict with a rule of general international law. (6) With respect to international law's relationship with constitutional norms, the Constitutional Court concluded in the Russel case that general international law prevails as lex specialis, save when it conflicts with the fundamental principles of the internal legal order, which represent a threshold that external values cannot override without affecting the intimate coherence of the national system of law. (7) The recognition and respect for inviolable human rights, as expressed in Article 2 of the Constitution, including the right of access to justice for everyone, belong to those fundamental internal principles. (8)

In principle, Italian judges enjoy a broad discretion with regard to the interpretation of general international rules (i.e., the rule on state immunity as well as the immunity of state agents). Italian courts have proved to be both very sensible and very creative in how they exercise this power. For example, between the nineteenth and the twentieth centuries, a restrictive doctrine of the state immunity from civil jurisdiction based on the distinction between acta jure imperii (i.e., acts of government) and acta jure gestionis (i.e., acts of a commercial nature) resulted from both Italian and Belgian case law denying immunity from jurisdiction in respect to acts of a commercial nature. (9) Italian case law also paved the way for applying the restrictive immunity theory to the jurisdiction to execute. (10) In principle, Italian jurisprudence seems to be in line with the principles and solutions put forward by the UN Convention on State Immunity as indicated below.

In fact, with regard to immunity from cognitive jurisdiction, and in order to qualify state activities either as jure imperii or as jure gestionis, Italian judges have expressed their preference for the criterion of the nature, rather than the purpose, of the act, in line with the indications emerging from the UN Convention (Article 2). (11) For instance, the Court of Appeals of Genoa denied immunity to Iraq in a proceeding concerning a contract with an Italian corporation for the supply of warships, despite the fact that the contract was concluded by Iraq for public purposes. (12) In a similar perspective, in cases concerning Argentinean bonds, Italian judges usually granted immunity to Argentina in civil suits initiated by Italian citizens who purchased Argentinean bonds and did not receive the expected repayments after the default of the state, even though the issuance of bonds has to be considered an activity of a private nature and not an act of government. In such a case, in fact, the activity taken into account by the judges in order to affirm Argentinean immunity was not the issuance of the bonds, but the legislative measure taken by Argentina to freeze the repayment of its financial obligations. (13)

With respect to employment disputes, the Italian courts generally deny immunity to a foreign state whenever the employee does not perform duties connected with the exercise of sovereign functions of the foreign state. The courts will also deny immunity when the judicial petitum (i.e., the object of the request introduced by the employee) has an exclusively economic character not involving, by its nature, interference by the forum judge within the exercise of sovereign powers by a foreign state. (14) The employee's nationality seems to have no particular relevance in the Italian case law. (15) In that respect, the emerging Italian jurisprudence is likely to be a bit less conservative than customary international law as reflected by Article 11 of the UN Convention on State Immunity, which grants immunity whenever the employee is a national of the employer state. (16)

As far as state immunity from executive measures is concerned, Italian case law does not seem to be significantly different from international practice, as confirmed by the 2004 UN Convention on Jurisdictional Immunities, granting execution only with respect to foreign state property used for private commercial purposes. (17) Moreover, Italian judges have so far been confirming the general principle that immunity from execution must be granted if state immunity from cognitive jurisdiction is recognized. (18) A significant expression of this trend is the way in which Italian judges managed the question of Argentinean bonds. Recognizing the jure imperi character of the Argentinean measure enjoining the freezing of the bonds' repayments, Italian judges rejected requests by the purchasers for pre-judgment measures of constraint against Argentinean properties in Italy. (19) The one exception to this, a judgment of a first instance Rome Tribunal, (20) was later dismissed by the Court of Cassation.

A possible new perspective seems to have emerged in the last few years with respect to a jus cogens exception. Italian courts recently lifted immunity with respect to acts of the foreign state qualified as acta jure imperii in civil proceedings promoted by individuals who are victims of serious violations of humanitarian law and of fundamental human rights. (21) According to Italian judges, the peremptory character of the rule prohibiting such conduct would be hampered should the violation remain unsanctioned because of the barrier of the immunity of the responsible state. (22) The starting point of this...