scholarly journals The Judgment of the Italian Constitutional Court on State Immunity in Cases of Serious Violations of Human Rights or Humanitarian Law: a tentative analysis under international law

2016 ◽  
Vol 37 (74) ◽  
pp. 97
Author(s):  
Pasquale De Sena
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Court ◽  
Humanitarian Law ◽  
State Immunity

http://dx.doi.org/10.5007/2177-7055.2016v37n74p97O artigo discute o julgamento 238/2014 emanado pela Corte Constitucional Italiana sobre Imunidade Estatal em casos de sérias violações a direitos humanos ou direito humanitário. O propósito é oferecer algumas reflexões críticas sobre a potencial relevância deste julgamente no posterior desenvolvimento do regime jurídico internacional em relação a imunidades estatais em casos de sérias violações a direitos humanos ou direito humanitário. Para melhor abordar esta questão, a análise será dividida em duas partes. Na primeira parte, será abordado o potencial significado do argumento adotado pela Corte. Na segunda parte, a abordagem da Corte Constitucional Italiana será avaliada, com foco na sua capacidade de afetar em uma maior dimensão o desenvolvimento da prática relevante.

scholarly journals State Immunity, Individual Compensation for Victims of Human Rights Crimes, and Future Prospects

2021 ◽  
pp. 143-157
Author(s):  
Stefan Kadelbach
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
Individual Rights ◽  
Humanitarian Law ◽  
State Immunity ◽  
Bona Fide ◽  
Court Proceedings ◽  
State Of Affairs ◽  
The Individual

AbstractThis chapter first recapitulates the state of affairs as to the principle of state immunity and why exceptions from jurisdictional immunity for gross violations of human rights and humanitarian law are not recognized. It explores customary law and the global compensation treaty between Germany and Italy. Both indicate that Italy would be obligated to indemnify Germany from individual claims raised before Italian courts.In a second step, the development towards individual rights in public international law will be taken up. It appears that human beings are increasingly recognized as holders of individual claims but, apart from human rights treaty systems, lack the capacity under international law to invoke their rights before courts. Instead, they depend on their home states, which have standing but are not entitled to waive the individual rights of their citizens.In order to reconcile the seemingly antagonistic regimes of state immunity and claim settlement, prospects for a friendly solution of the present dilemma will be assessed. Against the background of cases pending before Italian courts, it will be examined whether the distinction between jurisdictional immunity and immunity from execution opens up a way out of the impasse, which the two states and private capital could pursue, and whether this solution would create a precedent for other similar constellations.Lastly, some concluding remarks will address lessons to be learnt for future conflicts. They will deal with elements of a general regime of compensation, drawing from the experience of both past reparation schemes and the experience of reconciliation in post-totalitarian societies. Such elements could be a duty to seek bona fide settlements, possible consequences of violations for domestic court proceedings, methods of assessing damages inspired by mass claim processing, the categorization of claims according to the gravity of violations, rules on evaluating evidence, procedures to give victims a say, and appropriate forms of monetary and non-pecuniary compensation including the necessary institutional framework.

scholarly journals State Immunity and Serious Violations of Human Rights: Judgment No. 238 of 2014 of the Italian Constitutional Court Seven Years on

2021 ◽  
Vol 1 (1) ◽  
pp. 29-58
Author(s):  
Carlo Focarelli
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
State Immunity ◽  
Legal Perspective ◽  
The Us ◽  
Us Supreme Court ◽  
The World

Abstract On 3 February 2021, the US Supreme Court affirmed the icj’s Jurisdictional Immunities of the State Judgment of 2012—according to which “a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law”—adopting, thus, a position opposite to that taken by the Italian Corte Costituzionale in its well-known Judgment No. 238 of 2014. Based on a realist-constructivist theoretical approach to international law, this article argues that the only plausible legal perspective justifying Judgment No. 238 is a dynamic one. However, the Corte Costituzionale has substantially failed to argue the plausibility of the expected change in existing international law that it wished to promote for the future. To take its intended big leap realistically and successfully, the Italian position would have deserved a sounder theoretical analysis of international law and of the world system in which the latter is meant to work.

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.

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.

Iran and International Law

2021 ◽  
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Security Council ◽  
Negative Impact ◽  
The United States ◽  
Humanitarian Law ◽  
State Immunity ◽  
The Us ◽  
Iranian Government

Geographically situated in the juxtaposition of East and West, peace among nations is the zeal of Iranian people. As a founding member of both the League of Nations and the United Nations, Iran was seen as a great supporter of multilateralism. Iran voted in favor of the Universal Declaration of Human Rights in 1948 and hosted the first UN Human Rights Conference in its capital in 1968. Following the 1979 Islamic Revolution and the crisis of the US diplomatic and consular staff in Tehran, the United States put in place embargoes against the newly elected Iranian government and instituted proceedings against Iran before the International Court of Justice (ICJ). Iran did not participate in the proceedings to defend itself and the court ruled that Iran has violated its international obligations. Since then, Iran has faced many challenges in its international relations especially with the Western powers. For example, neither Iraq’s aggression against Iran nor the use of chemical weapons against Iranian civilians was recognized by the UN Security Council; different types of unilateral, regional, and international sanctions have been imposed on Iran; and the human rights situation in Iran has been repeatedly criticized by individual Western states and the UN mechanisms. Furthermore, Iran’s nuclear program was considered by the Security Council under Chapter VII of the UN Charter, while the US officials have emphasized that military options against Iran remain “on the table.” Iranian academics and international lawyers have extensively discussed the last four decades of Iran’s presence on the international plane as a thought-provoking issue in the fields of international responsibility, diplomatic and consular law, state immunity, arbitration, judicial adjudication, human rights, humanitarian law, use of force, law of the sea, fight against terrorism, and nonproliferation, just to name a few. This long list, however, has created its own negative impact internally: doubts about the effectiveness and efficacy of relevant rules of international law which found more basis after the United States announced its withdrawal from the Iran nuclear deal and reimposed some further tough sanctions against Iran. Seeking to use international law as a tool to protect its national interests, the Iranian government has brought this case to the ICJ and is still making efforts to preserve the nuclear deal. This contribution introduces the different Iranian resources and institutions in the field and also deals with some of the above-mentioned topics as the most important subjects for Iran in the context of international law.

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative Aspects

2010 ◽  
Vol 1 (2) ◽  
pp. 117-135
Author(s):  
Bożena Drzewicka
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Human Rights ◽  
The West ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The World ◽  
International Human

Conceptions And Interpretations of Human Rights in Europe and Asia: Normative AspectsThe issue of confronting values between civilizations has become very important. It influences not only the level of international politics but also the international normative activity. It is very interesting for the modern international law and its doctrine. The most important factor of causing huge changes in the system of international law is still the international human rights protection and the international humanitarian law which is related to it. It is very difficult to create one catalogue of executive instruments and procedures but it is possible to influence the attitude toward the basic paradigms. The frictions appear from time to time and move to other planes. The West and Asia are still antagonists in the dialogue on the future of the world. The article is a contribution to the intercivilizational dialogue.

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.

Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions

2018 ◽  
Vol 112 (4) ◽  
pp. 553-582 ◽  
Author(s):  
Boyd van Dijk
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
History Of ◽  
History Of International Law ◽  
The 1960S ◽  
The Relationship ◽  
Cross Fertilization

AbstractThe relationship between human rights and humanitarian law is one of the most contentious topics in the history of international law. Most scholars studying their foundations argue that these two fields of law developed separately until the 1960s. This article, by contrast, reveals a much earlier cross-fertilization between these disciplines. It shows how “human rights thinking” played a critical generative role in transforming humanitarian law, thereby creating important legacies for today's understandings of international law in armed conflict.

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