The Italian Constitutional

Court Judgment No. 238 and

the Myth of the
‘Constitutionalization’of
International Law

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Massimo Iovane

Abstract
This article investigates three major international law issues raised by Judgment No.
238, which was handed down by the Constitutional Court of Italy in 2014. First,
the Constitutional Court rejected the distinction between procedural and substantial
norms of international law. This argument had been maintained by both the
International Court of Justice and the European Court of Human Rights in order to
deny any actual conflict between the (procedural) customary rule on state immunity
and (substantial) jus cogens obligations. In giving priority to fundamental rights,
the Constitutional Court instead resorted to interpretative devices typical of the doc-
trine of constitutionalism. Secondly, in the process of balancing the various consti-
tutional principles at stake, the Court concluded that the commission of crimes
against humanity could not justify the total sacrifice of the victims’ right to a
judge. In doing so, the judges relied on arguments developed by the international
law doctrine of jus cogens. Thirdly, although Judgment No. 238 does not constitute
an internationally wrongful act per se, its application by the Italian judiciary could
perhaps entail Italy’s international responsibility. Italy could justify itself by addu-
cing respect for the fundamental rights enshrined in the Constitution of Italy or re-
sorting to the doctrine of ‘counter-limits’. However, it is doubtful whether these two
claims already possess the necessary degree of recognition in international practice.
In conclusion, despite the views expressed by influential scholars over a supposed
‘constitutionalization’ of international law, this article argues that the doctrine of
constitutionalism is still applied reluctantly by both international and national
courts.

 Professor of International Law, Department of Law, University of Naples Federico II.

[Massimo.iovane@unina.it]
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Journal of International Criminal Justice 14 (2016), 595^605 doi:10.1093/jicj/mqw029
ß The Author (2016). Published by Oxford University Press. All rights reserved. Advance Access publication 3 July 2016
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596 JICJ 14 (2016), 595^605

1. Introduction: the Three Main International Law

Problems Raised
Judgment No. 238 of 2014, handed down by the Italian Constitutional Court,
has been labelled as an internally oriented decision. This is mostly because, at
first glance, the solutions reached to the proposed questions of constitutional-
ity are based only on considerations of Italian constitutional law.1 This impres-
sion stems from some important statements within the reasoning of Judgment
No. 238.
In paragraph 3.1 of the Merits section, for example, the Constitutional Court

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declared that it does not fall under the purview of the Court to challenge the
interpretation by the International Court of Justice (ICJ) in Jurisdictional
Immunities of the State (Germany v. Italy: Greece intervening) over the customary
norm on the jurisdictional immunity of foreign states. Being external to the
Italian legal order, every international norm must follow the interpretation
given in its original (international) legal order. On the other hand, the Court
expressly claimed the right to control the compatibility of such norms with
the fundamental rights granted by the Constitution of Italy, even at the cost of
violating international law. Despite its explicitly declared intention to stick to
a strictly dualistic approach, the Constitutional Court does, however, elaborate
on arguments and themes developed by international law scholars and practice
to justify its conclusion. For this reason, Judgment No. 238 brings an important
contribution to the clarification of the protection of fundamental rights in the
relationship between national and international law.
The international law elements worth discussing throughout this article
may be summarized as follows. First, the Constitutional Court roundly rejects
the argument put forward by both the ICJ and the European Court of Human
Rights (ECtHR) whereby norms on jurisdictional immunities, being procedural
in nature, should be preliminarily applied independently of any balancing be-
tween such norms and those norms protecting fundamental human rights. In
reality, this distinction is based on false premises, which it is worth pointing
out for the sake of potential developments in the international courts’ attitude
to the problem.
Secondly, once this methodological option was clarified, the Constitutional
Court embarks on an analysis of the conditions under which recognition of im-
munity of states from the civil jurisdiction of other states can be reconciled
with the fundamental right of every individual to appear and be defended
before a court. With an eye to the present debate on the regime of international
jus cogens, the Constitutional Court, at the outset, explains that respecting in-
violable human rights is also a way to contribute to an international legal
order inspired by the principles of peace and justice. Furthermore, the
Constitutional Court emphasizes that acts, such as deportation, slave labour,

1 Italian Constitutional Court, Judgment No. 238, 22 October 2014, available online at http://
www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf (vis-
ited 13 October 2015) (hereinafter ‘Judgment No. 238’).
 Judgment No. 238 and ‘Constitutionalization’ of International Law 597

and massacres, recognized as crimes against humanity by international law,

cannot justify the total sacrifice of the judicial protection of the victims. To
grant immunity to states that have violated those rules of international law
forbidding such heinous acts would be tantamount to inflicting a dispropor-
tionate burden on the rights of individuals, especially when no alternative
means to recover those damages sustained is made available.
Thirdly, having highlighted the significance of the Judgment No. 238 in con-
nection with the international protection of fundamental rights, the problem
of consequences arising from the non-compliance by Italy with the holding of
Jurisdictional Immunities of the State remains. According to general principles

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on the international responsibility of states, Judgment No. 238 does not
amount to an internationally wrongful act per se. For this to occur, it is neces-
sary to concretely deny immunity in a specific case. This does not arise directly
from a constitutional judgment. On the other hand, the particular kind of deci-
sion handed down by the Constitutional Court, while obliging the remitting
judge to follow the interpretation reached in Italy, does not have similar effects
on other judges addressing the merits, let alone on the Italian Court of
Cassation. It is worthwhile explaining this point to an international audience
not proficient in the intricacies of Italian constitutional law. In the meantime,
Italy and Germany may well agree on an economic settlement for the victims
of atrocities of the Second World War, as hoped for by the ICJ.

2. The Distinction between Procedural and Substantial

Norms and Its Relevance for the Application of the
Law of Balancing between International Principles
Is Judgment No. 238 an expression of current nationalistic resurgence, looking
with growing annoyance at the proliferation of international norms and judg-
ments? Or, is Judgment No. 238 rather a form of participation by domestic
judges in the development and clarification of the international law on
human rights? As international lawyers, we are used to struggling our way
through the hurdles of a decentralized legal order. Let us not be discouraged
in the present case, but try to examine closely the second option. My aim is to
demonstrate how the whole question concerning the juxtaposition of the
Italian judicial practice, culminating in Judgment No. 238, offsets mainstream
national and international judicial practice.
From the outset it should be observed that the whole judicial saga regarding
compensation for Italian victims of Nazi atrocities relentlessly shows how dis-
tant the concepts of ‘fundamental values’ are in national constitutional law
and customary international law. International fundamental values, subsumed
under the regimes of jus cogens and peremptory norms of general international
law, only partly coincide with those protected by the constitutions of demo-
cratic states. Not only are there differences in content, but national and inter-
national judges seem reluctant to apply the interpretative devices that the
598 JICJ 14 (2016), 595^605

doctrine of constitutionalism has fine-tuned so as to give fundamental rights

priority over conflicting principles of a different nature. This holds true despite
the genuine enthusiasm expressed by mainstream scholarship in recent years
about the so-called ‘constitutionalization’ of international law, precisely be-
cause of the unprecedented proliferation of international norms on the protec-
tion of fundamental human rights.
This assumption will be illustrated by stressing the different attitudes of the
ICJ, on the one side, and the Italian Constitutional Court, on the other, in
three specific areas concerning the interpretative devices that the doctrine of
constitutionalism has adjusted to confer fundamental rights priority over con-

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flicting principles of a different nature or to adjust variances between human
rights.
As for the first area, the ICJ’s judgment in Jurisdictional Immunities of the State
and its line of reasoning must be revisited as it relates to the distinction be-
tween substantial and procedural norms. By and large, the argument runs as
follows: as questions on jurisdictional immunities are procedural in nature,
limited to determining whether judicial proceedings should even be com-
menced, and thus, are necessarily independent of the merits of the case.
Therefore, such questions must be decided prior to dealing with the subject
matter of the proceedings.2 This position would entail some practical effects,
the most important being the denial of any actual conflict between the cus-
tomary rule on state immunity and the substantial jus cogens obligation to
afford compensation to the victims of crimes of war and crimes against hu-
manity. Under these conditions, a value centred decision on a value sensitive
topic would be impossible as a matter of principle. I have always found this
curious argument unpalatable, despite being upheld by influential scholar-
ship.3 Unfortunately, the same argument has also been taken up by the
ECtHR, despite its role as a guardian of the protection of human rights, in rela-
tion to the immunity of states.4 However, procedural rules, despite shared typ-
ical features, do not all have the same effects. Stefan Talmon, who also holds
the opinion that ‘[s]ubstantive rules of jus cogens generally leave procedural
rules unaffected and, in particular, do not automatically override such rules’,5
provides an open definition of procedural norms as being distinct from sub-
stantive norms, partly overlapping the distinction between primary and

2 Ibid., see especially xx 58, 81^83, 92 et seq.

3 H. Fox and P. Webb, The Law of State Immunity (3rd edn., Oxford University Press, 2015), at 44 et
seq.
4 Al Adsani v. United Kingdom, Appl. No. 35763/97, Judgment, 21 November 2001; Jones and Others
v. United Kingdom, Appl. Nos 34356/06 and 40528/06, Judgment, 14 January 2014.
5 S. Talmon, ‘Jus cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’,
Bonn Research Papers on Public International Law, 12 June 2012, at 11. This classification has
been rightly criticized by A. Orakhelashvli, ‘The Classification of International Legal Rules: A
Reply to Stefan Talmon’, 26 Leiden Journal of International Law (2013) 89. See, in particular,
ibid., at 97, where the author states that ‘any rules on immunity are substantive rules just like
any rule of international law’.
 Judgment No. 238 and ‘Constitutionalization’ of International Law 599

secondary norms.6 It is certainly true that a decision on immunity presents

itself as a procedural problem before a court.
Yet, jurisdictional immunities are not mere technical legal devices, but pro-
tect some material interest both in domestic and international law.
Parliamentary immunities, for example, are intended to assure the independ-
ence of ministers to express their opinions and cast their vote. Under interna-
tional law, the immunity of foreign states aims to ‘protect the unimpeded
exercise of governmental power by a State’, whereas diplomatic immunities
find their raison d’e“ tre in the old maxim ne impediatur legatio. For this reason, it
is possible to balance the interpretation and application of the norms on juris-

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diction immunities with other colliding material interests, also worthy of
legal protection. One of these colliding interests is the right of access to justice,
which is also established by a procedural norm while protecting, at the same
time, a fundamental human right, the importance of which is stressed in all
liberal constitutions. So much so, that the ECtHR has considered it possible in
principle to balance this right with the immunity before domestic courts ç
enjoyed by international organizations under customary law. In concrete, the
ECtHR found that this immunity must be set aside if an alternative judicial
remedy is not provided for the requesting individual by the international or-
ganization in question.7
Needless to say, the same argument has also been blindly followed by Italy’s
Office of the State Attorney in the case that led to the Judgment No. 238. In
this instance, it was contended that:
[T]he issue of jurisdiction needs to be addressed preliminary to the examination of the
merits of the case. The establishment of jurisdiction of the territorial State merely on the
basis of a claim filed for compensation for damages, caused by acts in breach of substantive
jus cogens norms, results in an unacceptable reversal of the relationship of logical propriety
between distinct procedural and substantial judicial assessments.8

The Constitutional Court quickly countered that argument by pointing out

that ‘an objection concerning jurisdiction necessarily requires an examination
of the arguments put forward in the claim, as formulated by the parties’.
Hopefully, this should be sufficient for subsequent national and international
courts not to use this line of reasoning in future cases. As a matter of fact,
the restrictive theory of sovereign immunity would not have arisen if this dis-
tinction between procedural and substantial norms had been correct. Indeed,
the judge has always to make an analysis of the fundus of the claim to assess
whether a state deserves immunity from jurisdiction.

6 ‘Procedural rules could be defined negatively as all rules that do not bear upon the question of
whether or not a particular conduct is lawful and unlawful ::: in positive terms, procedural
rules are rules governing the judicial and non-judicial interpretation, implementation and en-
forcement of substantive rules ::: . Procedural rules are those which govern the putting into
practice of the substantive rules’. See ibid., at 5.
7 Waite and Kennedy v. Germany, Appl. No. 26083/94, Judgment, 18 February 1999, x 68; Beer and
Regan v. Germany, Appl. No. 28934/95, Judgment, 18 February 1999, x 58.
8 Judgment No. 238, Conclusions in Point of Law, x 2.2.
600 JICJ 14 (2016), 595^605

3. The Interpretation of the Customary Norm on the

Jurisdictional Immunities of Foreign States
The second point of this contribution will now be illustrated. Dismissal of the
argument based on such a distinction ç between procedural and substantive
judicial assessments ç clears the ground for a possible systematic interpret-
ation of the customary norm on sovereign immunity with regard to the consti-
tutional, and also the international, norms on the protection of fundamental
rights. However, has this systematic interpretation been attempted by the
Constitutional Court at all? And has the Court given any consideration to inter-

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national law when deciding the merits of the question of constitutionality?
These were the most commonly addressed problems in the initial passionate
comments to Judgment No. 238 in the aftermath of its deliverance.
At first glance, the solution given by the Court to the proposed questions of
constitutionality may seem to be based on considerations of Italian constitu-
tional law only. This impression could stem from some important statements
within Judgment No. 238. In paragraph 3.1 of the Merits section, the
Constitutional Court declared that it was not its task to challenge the ICJ inter-
pretation of the customary norm on the jurisdictional immunity of foreign
states. Being external to the Italian legal order ç so runs the Court’s reason-
ing ç international customary norms must follow the interpretation given in
the legal order to which they belong. However, this would not prevent the
Court from controlling the compatibility of these norms with the fundamental
rights guaranteed by the Constitution of Italy. If found in conflict with such
rights, the Court continues, they are not even incorporated into the domestic
system and will thus remain outside the Italian legal order.9 This finding has
prompted ironic comments by some scholars, who correctly noted that the
Court ended up adjudging the constitutionality of a norm that does not even
exist in the Italian legal order.10
Upon closer inspection, the Constitutional Court did, in fact, take interna-
tional law into consideration in the process of balancing the different

9 Ibid., Conclusions in Point of Law, x 3.4, which held:

Furthermore, such a control is essential in the light of Article 10, para. 1, of the
Constitution, which requires that this Court ascertain whether the customary interna-
tional norm of immunity from jurisdiction of foreign States, as interpreted in the inter-
national legal order, can be incorporated into the constitutional order, as it does not
conflict with fundamental principles and inviolable rights. [On the contrary], if there
were a conflict, ‘the referral to the international law would not operate’ (Judgment No.
311/2009). Accordingly, the incorporation, and thus the application, of the internal
norm would inevitably be precluded, insofar as it conflicts with inviolable principles
and rights.

10 A. Ruggeri, ‘La Corte aziona l’arma dei ‘‘controlimiti’’ e, facendo un uso alquanto singolare delle
categorie processuali, sbarra le porte all’ingresso in ambito interno di norma internazionale
consuetudinaria (a margine di Corte Cost. n. 238 del 2014)’, available online at http://www.
giurcost.org/studi/ruggeri42.pdf (visited 13 October 2015), at 2.
 Judgment No. 238 and ‘Constitutionalization’ of International Law 601

constitutional principles at stake in the case in question. Before coming to the

point, it should be preliminarily stressed that, contrary to the common view,
it would seem that the judges of the Constitutional Court actually embarked
on a largely comprehensive interpretation of the constitutional norms in ques-
tion before reaching their decision. They appear to have been well aware of
the assumption that ‘the enduring function of constitutional rights is
embedded in a broader framework’,11 and that ‘the constitutional rights
embody an objective order of values’.12 Following the three basic principles (or
phases) of the so-called ‘law of balancing’, the Constitutional Court first clari-
fies the content and nature of the fundamental right that must be weighed

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against other conflicting principles by stating that ‘there is little doubt that
the right to a judge and to an effective judicial protection of inviolable rights
is one of the greatest principles of legal culture in democratic systems of our
times’.13 Secondly, the Constitutional Court goes on to affirm that the right in
question could, indeed, be limited to giving priority to ‘reasons of public inter-
est’, such as respect for the international customary rule on the immunity of
foreign states. The Court also explains that such a limitation, along with
other limitations to which fundamental rights could be subject to, must be jus-
tified following a rigorous assessment of the public interest in light of the con-
crete case. Thirdly and finally, the Constitutional Court proceeds to compare
the different principles in question.
As is well known, this operation should be carried out with a view to bring-
ing about a rational result, bearing in mind the principle of proportionality.
At this third stage, a tribunal must provide the reasons why the satisfaction
of one competing principle justifies the non-satisfaction of the other. The two
constitutional principles in question are ‘the right to a judge’ and the ‘respect
for international law as a means to safeguard peaceful relations with foreign
states’, and the Constitutional Court in its judgment opts to satisfy the former.
During this phase of the reasoning international law comes into play, because
the Court grounds its choice on arguments and themes that have been de-
veloped by international law scholars and practice on jus cogens. Basically, the
Court observes that granting immunity to Germany would mean absolute sac-
rifice for victims of acts that the ICJ qualified not only as internationally un-
lawful, but also as crimes against humanity and gross violations of human
rights of the gravest kind. Moreover, the judges also clarify that immunity of
foreign states is tenable only when it is connected, substantially and not only
formally, to the sovereign functions of those states, that is, with the exercise
of its governmental powers. When, as in the present case, the activities for
which immunity is sought lies outside the typical exercise of these powers
and is explicitly classified as unlawful, the denial of judicial protection would

11 The quotations are taken from R. Alexy, ‘Constitutional Rights, Balancing, and Rationality’, 16
Ratio Juris (2003) 131, where the author responds to the objections raised by J. Habermas to
the balancing construction.
12 Ibid.
13 Judgment No. 238, x 3.4.
602 JICJ 14 (2016), 595^605

determine a completely disproportionate sacrifice of two supreme principles of

the Constitution of Italy.14

4. The Effects of the Interpretative Decisions of

Dismissal and Italy’s International Responsibility
While declaring that it will not question the interpretation of international law
given by the highest international tribunals, as a matter of fact, the
Constitutional Court has, instead, offered its version of the rule on sovereign

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immunity. This version is substantially a confirmation of the interpretation
given by the Court of Cassation in the Ferrini, Mantelli and Milde cases.15 The
Constitutional Court also immodestly proposes itself as the champion of a rad-
ical change in the customary law on jurisdictional immunity, in the same way
that Italian case law had championed the introduction of the restricted ap-
proach of state immunity now prevailing in mainstream judicial and statutory
practice.16
This brings us to the third and last point. What consequences could
Judgment No. 238 have on the dispute between Germany and Italy, considering
that the change advocated by the Constitutional Court is not likely to come
about in the near future?
It is submitted that Judgment No. 238 is not per se tantamount to an interna-
tionally wrongful act entailing the international responsibility of Italy.17 The
violation of an international obligation only ensues from a state act that is
both definitive and concrete. Judgment No. 238 is neither definitive nor
concrete. On the question of the constitutionality of the customary norm on
sovereign immunity, the Court handed down an interpretative decision of dis-
missal.18 A decision like this, while obliging the remitting judge to follow the
interpretation chosen in Italy, does not have similar effects on other judges of
merit (i.e. Italian judges dealing with similar issues in different concrete cases
in the future), let alone on the Court of Cassation. This (Supreme) Court could
in the end confirm the judgment it delivered following Jurisdictional
Immunities of the State, which practically endorsed the interpretation of the

14 Ibid.
15 Corte di Cassazione, Sezioni Unite civili, Judgment No. 5044, 11 March 2004 (Ferrini c.
Repubblica Federale di Germania); Cassazione, Sezioni Unite civili, Order No. 14201, 29 May
2008 (Repubblica Federale di Germania c. Mantelli e Altri); Cassazione, Sez. I penale, Judgment
No. 1072, 13 January 2009 (Milde).
16 Starting at the end of the 1800s, Italian and Belgian courts were the first to apply the doctrine
of restrictive immunity. See X. Yang, State Immunity in International Law (Cambridge
University Press, 2015), at 13 et seq.
17 N. Ronzitti, ‘La Cour constitutionnelle italienne et l’immunite¤ juridictionnelle des Etats’, LX
Annuaire Franc ais de Droit International (2014) 9.
18 See F.M. Palombino, ‘Quale futuro per i giudizi di costituzionalita' delle norme internazionali
generali? Il modello rivisitato della sentenza interpretativa di rigetto’, 98 Rivista di Diritto
Internazionale (2015) 151.
 Judgment No. 238 and ‘Constitutionalization’ of International Law 603

rule on foreign states’ jurisdictional given in The Hague. The same question
could even be brought before the Constitutional Court again and decided in a
different way. A scenario could be imagined where ordinary judges decide to
apply Jurisdictional Immunities of the State notwithstanding the fact that the
Constitutional Court has declared the Statute ordering its implementation con-
stitutionally illegitimate.
Pending the publication of this article, the Constitutional Court has ruled
again on the question and has upheld its former interpretation found in
Judgment No. 238.19 It should, however, be pointed out that in this new ruling
the Court stresses that restraints to the jurisdictional immunity of foreign

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states apply only to crimes against humanity committed at least in part on
Italian territory. This clarification may be seen as an endorsement of the tort
exception to sovereign immunity, which was also rejected by the ICJ.
Of greater interest are the ‘twin’ judgments handed down by the Tribunal of
Florence on 6 July 2015.20 It should be noted that these are precisely the two
cases that gave rise to Judgment No. 238 by the Constitutional Court. As men-
tioned above, the Tribunal of Florence as applicant, was thus specifically
bound to abide by it.
In a commentary on the judgment in Ferrini published in 2005,21 it was sug-
gested that the refusal to grant immunity to Germany by the Court of
Cassation, albeit a violation of customary international law, was in any case
able to lead the parties to negotiate a solution taking into account the rights
of the injured parties to compensation. Now, it would seem that the initial pos-
ition taken by the Tribunal of Florence in these judgments was precisely
geared towards encouraging a direct agreement between the parties, a move
disregarded by Germany, with the consequence that the Court had no option
but to order Germany to pay damages. It now remains to be seen how this
will proceed within the Italian hierarchy and how the two states concerned
will react at diplomatic level, if at all, and this was also the wish of the ICJ.
Assuming that the entire Italian judiciary does conform in the end to
Judgment No. 238, would this amount to an irreparable violation of interna-
tional law exposing Italy to countermeasures by Germany or sanctions by the
Security Council?
Or could Italy escape international responsibility by adducing respect for the
fundamental rights protected by its Constitution? This would be a means of
last resort for a state to defend fundamental rights which are also protected

19 Italian Constitutional Court, Order No. 30, 11 February 2015, available online at http://www.
cortecostituzionale.it/actionPronuncia.do (visited 23 March 2016).
20 Tribunale di Firenze, II Sezione, Judgment No. 2468, 6 July 2015 (Du. Be. c. Repubblica Federale
Tedesca); Tribunale di Firenze, II Sezione, Judgment No. 2469, 6 July 2015 (Fu. Si. c. Repubblica
Federale Tedesca). See on these two judgments the excellent commentary by E. Sciso, ‘Brevi con-
siderazioni sui primi seguiti della sentenza della Corte costituzionale 238/2014’, 98 Rivista di
Diritto Internazionale (2015) 887.
21 M. Iovane, ‘The Ferrini Judgment of the Italian Supreme Court: Opening Up Domestic Court to
Claims of Reparation for Victims of Serious Violations of Fundamental Human Rights’, 14 The
Italian Yearbook of International Law 2004 (2005) 191.
604 JICJ 14 (2016), 595^605

by international law. A further hermeneutical tool available to the judiciary

may be considered, but in order to be effective it has to be conducive to a solu-
tion in line with current international law.
The practice offers some examples in this respect, while still others have
been proposed in scholarship. In the first place, the thesis proposed by an influ-
ential author is relevant, whereby respect for the fundamental human rights
provided for by the constitution of a democratic state could be invoked as a cir-
cumstance precluding wrongfulness.22 Such a view would mean circumvent-
ing the overriding customary principle, codified by Articles 27 of the Vienna
Convention on the Law of Treaties,23 and Article 32 of the Draft Articles on

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the International Responsibility of States, whereby ‘the responsible state
cannot rely on the provisions of its internal law for failure to comply with its
obligations’.24 This thesis, however, has not yet consolidated in the practice of
state and other international subjects.
As a second option, it may be considered that a state could attempt to rely on
the now famous doctrine of ‘counter-limits’.25 However, to date, this doctrine
has been examined only in relation to obligations stemming from conventional
sources, and not from customary international law. For this reason, there is
not a sufficient sample of cases proving that the doctrine has attained the ne-
cessary degree of consensus among states and is generally accepted as a sort
of circumstance precluding wrongfulness. Moreover, even in relation to con-
ventional obligations, its application has often been threatened by certain con-
stitutional court and supreme courts, but is seldom applied in reality.
Ironically, those few cases where it has been applied, albeit not mentioned ex-
plicitly, did not so much concern the protection of fundamental human rights,
as constitutional principles of different kinds, such as the separation of
powers, or the preservation of the national pension system.26 Even worse, in
the cases counter-limits were used to give priority to some national interests
over internationally protected human rights.
Summing up, the doctrine of counter-limits, or rather the threat by national
courts to make use of it, has produced some restricted effects only within re-
gional systems possessing a centralized jurisdictional authority. Such courts
can thus gradually mitigate these normative conflicts in the interest of a uni-
form application of human rights within their regional system. It goes without

22 B. Conforti, Diritto Internazionale (10th edn., Editoriale Scientifica, 2014), at 402^403.

23 According to Art. 27 Vienna Convention on the Law of Treaties: ‘A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty’.
24 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
Commentaries, Yearbook of the International Law Commission, Vol. II (Part Two, United Nations
Publication, 2001), at 31 et seq.
25 For a recent reassessment of the doctrine of counter-limits and its latest developments, see F.M.
Palombino, ‘Compliance with International Judgments: Between Supremacy of International
Law and National Fundamental Principles’, 75 Zeitschrift fu«r o«ffentliches recht und Vo«lkerrecht
(2015) 503.
26 Italian Constitutional Court, Judgment No. 264, 28 November 2012. For a comment on this
judgment, see B. Conforti, ‘La Corte costituzionale applica la teoria dei controlimiti’, 98 Rivista
di Diritto Internazionale (2013) 527.
 Judgment No. 238 and ‘Constitutionalization’ of International Law 605

saying, however, that when such an authority exists, those conflicts are in
reality settled at international level and not by domestic courts.
At domestic level, on the other hand, some scholars have introduced the doc-
trine of the ‘internationalization of domestic values’ as a means to avoid and
solve conflicts between national and international law in the field of human
rights.27 This doctrine, however, does not solve the problem. First, contrasts be-
tween national and international law mostly concern human rights and some
national interests not protected by international law. Secondly, the conflict be-
tween national and international law arises only when no other means of recon-
ciling the two conflicting interests has proved workable. Finally, this criterion

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surely cannot be invoked with regard to the problem in question, as the interna-
tionalization of domestic values has already been unsuccessfully attempted by
the Court of Cassation on the basis of the supremacy of international jus
cogens, but roundly rejected by the ICJ in Jurisdictional Immunities of the State.
This brings us back to our starting point, namely, the judgment in
Jurisdictional Immunities of the State. The ICJ could simply have provided a solu-
tion by using the interpretative approach advocated by constitutionalism and
applied by the Constitutional Court, yet it chose to adopt a completely different
line. It looked for the existence of an express humanitarian exception to sover-
eign immunity and, unable to identify it, simply allowed a norm protecting
the interests of the state as a power to have priority over the right to compen-
sation for the victims of Nazi atrocities.
This seems to imply that for the ICJ, the fundamental values of international
law do not concern only human rights, but also the interests of the state as a
power, and that it is not possible to automatically attribute to human rights a
hierarchical position superior to interests of the state. The fact that, through-
out the judgment, the ICJ tried in vain to identify a humanitarian exception to
sovereign immunity leads to the suspicion that, sadly, the protection of a
state’s governmental authority is no less a fundamental international value
than the prohibition of the most heinous crimes.28 In addition, the immunity
of states may even prevail over individual human rights, unless this priority
has been expressly established in a specific international norm. In the absence
of a practice placing human rights at a higher level, a court cannot take it
upon itself to attribute superior ranking to such rights. This is a disappointing
conclusion. In general international law, however, this is the current reality
until the Constitutional Court manages to bring about the change that it has
promised to bring about through Judgment No. 238.29

27 A. Nollkaemper, ‘Rethinking the Supremacy of International Law’, 65 Zeitschrift fu«r o«ffentliches

Recht (2010) 65.
28 It recalls the old doctrine of the ‘fundamental rights and duties of states’, which considered the
jurisdictional immunities of states before foreign courts as being derived from the fundamental
right of equality of a state with all other states. See Preparatory Study Concerning a Draft
Declaration on the Rights and Duties of States- Memorandum Submitted By the Secretary General,
UN Doc. A/CN.4/2, 15 December 1948.
29 For further considerations on the aftermath of the judgment of the Constitutional Court, see
Ronzitti, supra note 17, at 13.