ACCESS TO JUSTICE IN CONSTITUTIONAL AND INTERNATIONAL LAW: THE RECENT JUDGMENT OF THE ITALIAN CONSTITUTIONAL COURT

2015 ◽  
Vol 24 (1) ◽  
pp. 7-23
Author(s):  
Riccardo Pisillo Mazzeschi
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Norms ◽  
Access To Justice ◽  
Constitutional Court ◽  
Present Contribution ◽  
Potential Conflict ◽  
State Immunity ◽  
The Right ◽  
Right Of Access

In its judgment No. 238/2014 the Italian Constitutional Court, whilst appearing to show respect for the ICJ’s 2012 judgment in Jurisdictional Immunities of the State, makes notable criticisms of that judgment and insists on its own role in the progressive development of international law in the field of State immunity. In particular, the main legal argument of the Constitutional Court, based on the fundamental and inviolable character of the right of access to justice in constitutional law, can also be used, although modified to some extent, in international law. The Court’s argument can also resolve the possible conflict between the international norm of State immunity, on the one hand, and the international norms on fundamental human rights and access to justice, on the other. The present contribution seeks to demonstrate that: (a) the right of access to justice and the connected right to reparation for violations of fundamental human rights are established by two customary international norms; (b) there is a potential conflict between these norms and the norm of State immunity; (c) this conflict becomes real and concrete when the limits on access to justice and reparation laid down by immunity are unjustified in accordance with the rule of “equivalent protection”; and (d) the solution to that conflict derives from the normative superiority of the customary norms on access to justice and reparation (being peremptory in nature when functionally linked to the violation of fundamental human rights) over the norm of State immunity. The judgment of the Constitutional Court, utilizing legal reasoning that can also translate to the level of international law, demonstrates that osmosis may occur between the arguments used in constitutional and international law, and that today there is growing interaction between the domestic and international legal orders and their common values. The law of human rights, placed at the very center of the Constitutional Court’s judgment, is the field in which this community of values emerges most clearly.

Simoncioni v. Germany

2015 ◽  
Vol 109 (2) ◽  
pp. 400-406
Author(s):  
Riccardo Pavoni
Keyword(s):  
Human Rights ◽  
Crimes Against Humanity ◽  
Access To Justice ◽  
Constitutional Court ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
International Court ◽  
Compensation Claims ◽  
The Right ◽  
Right Of Access

With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

CAN STATE ACTION ON BEHALF OF VICTIMS BE AN ALTERNATIVE TO INDIVIDUAL ACCESS TO JUSTICE IN CASE OF GRAVE BREACHES OF HUMAN RIGHTS?

2015 ◽  
Vol 24 (1) ◽  
pp. 53-60
Author(s):  
Paolo Palchetti
Keyword(s):  
Human Rights ◽  
International Law ◽  
Current Trend ◽  
Alternative Form ◽  
Access To Justice ◽  
Constitutional Court ◽  
International Level ◽  
State Action ◽  
State Immunity

In judgment No. 238/2014 the Constitutional Court unhesitatingly gave prevalence to the right to jurisdictional protection over compliance with international law. The present paper argues that, at least in its reasoning, the Constitutional Court, instead of targeting exclusively the way in which international law regulates State immunity, should have assessed the possible role of alternative forms of protection of the rights of the victims of Nazi crimes. In particular, the Court should have considered whether negotiation can be an alternative form of protection of the rights of the victims and whether State action at the international level can substitute for individual access to justice. By taking into consideration the role of political organs of the State in the protection of the rights of nationals at the international level, it could have given its contribution to the current trend towards limiting the discretionary nature of diplomatic protection, particularly when grave breaches of human rights are at stake. It would also have contributed to delineate a possible way out of a situation of serious disrespect for international law.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

Ius Humanitatis and the Right to Reparation for International Crimes in Foreign Domestic Courts

2014 ◽  
Vol 14 (2) ◽  
pp. 358-376
Author(s):  
Marcel Brus
Keyword(s):  
Human Rights ◽  
International Law ◽  
Domestic Court ◽  
Core Element ◽  
International Crimes ◽  
State Immunity ◽  
Domestic Courts ◽  
Humanitarian Ethics ◽  
The Right

This article focuses on the possibilities for victims of international crimes to obtain reparation in a foreign domestic court. The chances of success for such claims are small under traditional international law. The article questions whether the development of human rights and humanitarian ethics as a core element of international law (referred to as ius humanitatis) is having an impact on traditional obstacles to making such claims. Two elements are considered: the relevance of changing societal attitudes to the ‘rights’ of victims of such crimes and their possible effect on the interpretation and application of existing law, and whether in present-day international law humanitarian concerns have led to limiting obstacles that are still based on sovereignty, notably regarding the universality principle, prescription, and state immunity. The general conclusion is that on all these points much remains to be done.

I. Diplomatic Representations and Diplomatic Protection

2002 ◽  
Vol 51 (3) ◽  
pp. 723-733 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organisations ◽  
Civil Action ◽  
Diplomatic Protection ◽  
Foreign State ◽  
European Court ◽  
The Right ◽  
Right Of Access

The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities.1 Although the facts differed, the arguments of the applicants were much the same. They contended that allowing a foreign State or an international organisation to claim immunity in a civil action in proceedings in the defendant State violated the applicants' rights to access to a court for the determination of a civil right.2 The European Court accepted the claims in principle but concluded in each case that the limitation imposed on the right of access was for a legitimate reason (the protection of State or international immunities, a condition for effective co-operation between States or with international organisations) and was proportionate to this aim, because in each case, the grant of immunity was required by international law and that in each case there was the possibility of the applicant using another procedure to try to assert his rights, action in the courts of the foreign State or under the special staff regime of the international organisation.

THE EVOLUTION IN SPANISH LAW OF STATE IMMUNITY LEADING TO THE ACCEPTANCE OF THE RESTRICTIVE THEORY

1992 ◽  
Vol 2 (1) ◽  
pp. 45-81
Author(s):  
Alberto Soria Jiménez
Keyword(s):  
International Law ◽  
Due Process ◽  
Executive Branch ◽  
European Convention ◽  
Constitutional Court ◽  
Public International Law ◽  
Spanish Law ◽  
State Immunity ◽  
Due Process Of Law ◽  
The Right

SUMMARY Judgment 107/1992 of the Spanish Constitutional Court has not only cleared up any possible doubts about the alleged unconstitutionality of State immunities and it has discarded any possible contradictions that these immunities might have with art. 24.1 of the Spanish Constitution.. Judgment 107/1992 has also directly linked the right to due process of law with the correct jurisdictional application of the international rules to which art. 21.2 of the LOPJ remits. The Constitutional Court feels that extending immunity from enforcement to foreign State property beyond the provisions of Public International Law violates the right to due process because it limits the right to enforcement of judgments without any legal support. On the other hand, the Constitutional Court points out that when the rules of Public International Law impose absolute immunity from enforcement, the aforementioned right is not violated. That in these cases, this right might be guaranteed by diplomatic protection or, as a last resort, by an assumption by the forum State of its duty to satisfy judicially mandated obligations when the absence of enforcement of these might imply undue sacrifice for an individual contrary to the principle of equality before public burdens. Therefore it seems wise for the Spanish State to establish some procedure which would prevent the recognition of immunity would also be highly recommendable for Spain to enact a statute containing a list of exceptions to State immunity as soon as possible. It is the executive branch, therefore, that should resolve this situation by proposing a bill on this issue and perhaps, as a complementary measure, by ratifying the European Convention on State Immunity.

scholarly journals Implementation of Human Rights and the Mandatory Precedents in Foreign Trade, Legal Effectiveness: Mexico Case

2021 ◽  
Vol 9 (12) ◽  
pp. 153-164
Author(s):  
Laura Hernandez Ramirez
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Trade ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
Access To Justice ◽  
Court Of Justice ◽  
The Supreme Court ◽  
The Right ◽  
Right Of Access

We make an analysis of the implementation of human rights and the mandatory precedent in matters of Mexican foreign trade, in an administrative and judicial context in the search for legal effectiveness with constitutional control, highlighting the implementation of human rights contained in treaties commercial, such as access to justice and prompt and expeditious; We point out a recent case of human rights and foreign trade, with the implementation in the Mexican legal system, of the Free Trade Agreement Mexico United States Canada, before the Supreme Court of Justice of the Nation, as well as a possible proposal before the provisions of its Article 14.D.5, regarding the right of access to prompt and expeditious justice in investment matters, and avoiding the resolution of controversies before international arbitration panels that have been questioned.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

2009 ◽  
pp. 85-110
Author(s):  
Stefano Dorigo ◽  
Pietro Pustorino
Keyword(s):  
Human Rights ◽  
International Law ◽  
Critical Comment ◽  
European Convention ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Right ◽  
Italian Constitution ◽  
Italian Norms

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

Italy’s Compliance With ICJ Decisions vs. Constitutional Guarantees: does the “Counter-limits” Doctrine matter?

2013 ◽  
Vol 22 (1) ◽  
pp. 185-200 ◽  
Author(s):  
Fulvio Maria Palombino
Keyword(s):  
International Law ◽  
The State ◽  
Access To Justice ◽  
Basic Principles ◽  
Constitutional Order ◽  
Res Judicata ◽  
International Legal Order ◽  
The Icj ◽  
The Right ◽  
Right Of Access

One of the most common obstacles to the domestic enforcement of international decisions is represented by the presence of a constitutional impediment. Indeed, most national constitutions, though open to international law, can prevent the implementation of an international decision, insofar as the latter conflicts with the basic principles of the constitutional order. This article argues that in such cases it is necessary to preserve a space where the State continues to retain full sovereignty and whose protection acts as an unbreakable “counter-limit” to the limitations deriving from the international legal order (“counter-limits” doctrine). Yet recent judicial and legislative practice in Italy concerning the implementation of the ICJ decision in Jurisdictional Immunities of the State seem to overlook the need to preserve this “space”. As a consequence, certain fundamental constitutional guarantees, such as the right of access to justice, the rule of res judicata and the principle of non-retroactivity of the law, have inescapably ended up being compromised.

Benkharbouche v. Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs and Others intervening)

2019 ◽  
Vol 180 ◽  
pp. 575-677
Keyword(s):  
Human Rights ◽  
International Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Customary International Law ◽  
State Immunity ◽  
Starting Point ◽  
Charter Of Fundamental Rights ◽  
Right Of Access

State immunity — Jurisdictional immunity — Embassy employment disputes — Domestic staff — Claims for infringement of employment rights — Whether claims barred by State immunity — State Immunity Act 1978 (“SIA”), Section 1 — Exceptions to immunity — Limitations to exceptions — Section 16(1)(a) of SIA — Section 4(2)(b) of SIA — Scope of immunity — Absolute immunity — Restrictive immunity — Whether starting point absolute or restrictive immunity — Distinction between jure gestionis and jure imperii — Customary international law — Whether rule of customary international law justifying Sections 4(2)(b) and 16(1)(a) of SIA — Whether United Kingdom having jurisdiction over respondent States — Whether Article 6 of European Convention on Human Rights, 1950 and Article 47 of Charter of Fundamental Rights of the European Union engagedDiplomatic relations — Immunity from jurisdiction — Embassy employment disputes — Domestic staff employed locally — Whether members of mission — Vienna Convention on Diplomatic Relations, 1961, Article 1 — Whether Section 16(1)(a) of SIA applicable to claimants — Whether employment of domestic staff of diplomatic mission an act jure gestionis — Whether State entitled to State immunity in proceedings against employer embassiesRelationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 6 and 14 — Charter of Fundamental Rights of the European Union, Article 47 — Incorporation into English law — Sections 4(2)(b) and 16(1)(a) of SIA — Whether compatible — Whether Article 6 of European Convention engaged by claim to State immunity — Jurisprudence of European Court of Human Rights — Customary international law — Scope of State immunity — Whether starting point absolute or restrictive immunity — International Law Commission’s Draft Article 11 — United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, Article 11 — Relevance — Whether Sections 4(2)(b) and 16(1)(a) of SIA having any basis in customary international law — Whether employer States entitled to immunity as regards claimants’ claims — Whether Sections 4(2)(b) and 16(1)(a) of SIA compatible with Article 6 of European Convention and Article 47 of EU CharterHuman rights — Right of access to court — State immunity — European Convention on Human Rights, 1950 — State Immunity 576Act 1978 — Claimants bringing proceedings against foreign States in relation to employment at embassy — Whether defendant States immune — Whether provisions of SIA barring claimants’ access to court — Whether recognition of immunity involving violation of right of access to courts — Whether infringement of Article 6 of European Convention and Article 47 of EU CharterHuman rights — Prohibition of discrimination — State immunity — European Convention on Human Rights, 1950 — Whether Section 4(2)(b) of State Immunity Act 1978 discriminating on grounds of nationality — Whether infringing Article 14 taken together with Article 6 of European Convention — The law of England

Sign in / Sign up

Export Citation Format

Share Document