From Rome with Love?
Preliminary Observations on the Corte Costituzionale’s Judgment of July 21st and its Effects on “Jurisdictional Immunities 2.0”
The 21st July judgment of the Italian Corte Costituzionale could bring an end to everyone’s favorite immunity dispute. “Jurisdictional Immunities 2.0” came into being when Germany instituted proceedings in 2022 after being threatened with imminent measures of constraint against State-owned property in Rome, Italy. In addition, Germany requested the indication of provisional measures, which was later withdrawn. But the Italian decree 30th April 2022/no. 36 and the recent decision no. 159/2023 of the Italian Constitutional Court could lead to a withdrawal of the German application altogether.
With this blog post, we want to give a brief overview on the history of the immunity-centered proceedings between Germany and Italy following the 2012 dictum of the International Court of Justice (ICJ), before turning to the aforementioned judgment of the Italian Constitutional Court, its effects on the current proceedings in the Hague and an outlook which advocates why Germany should not withdraw its application, or if it does, why a withdrawal should include a substantiated reasoning.
In 2012, the ICJ found in Jurisdictional Immunities of the State that admitting claims against Germany before Italian civil courts is just as much a violation of international law as the foreclosure of already acquired debt titles in German State-owned property.
In reaction to the admission of claims both from Italy and Greece by Italian courts, the Italian legislature passed law no. 5/2013, which obliged courts to dismiss civil claims against Germany as inadmissible thereby implementing the ICJ’s judgment. By virtue of decision no. 238/2014, the Italian Constitutional Court, however, declared this legislative act unconstitutional as it did not sufficiently take into account the higher-ranking constitutional right of individual legal protection against infringements of inviolable human rights. The Italian Constitutional Court thus defied the ICJ’s ruling and denied its application in the municipal legal system. The approach it chose, being based on individual legal protection against jus cogens violations, was precluded by the ICJ in 2012. Accordingly, State immunity and jus cogens concern two distinct systems, the former already applying at the procedural level and thereby barring a material assessment of the latter (paras. 92-97). Additionally, the ICJ rejected the Italian argument of last resort concerning the need for effective remedies (paras. 98-104).
Subsequently, civil claims were again filed against Germany. Pursuantly, the Court of Rome (Annex pp. 229) was to hear a case on the first enforcement into German State property on 25th May 2022. Thereby, Italy provoked the German institution of proceedings before the ICJ on 29th April 2022, fourteen years after the original application of 2008 had been lodged.
Only one day after Germany’s new application, on 30th of April 2022, the Italian government issued decree no. 36, which was later transformed into a law establishing in its Art. 43 (3) a State fund to satisfy the claims of Italian creditors, effectively releasing Germany from its liability whilst still assuming Germany’s purported obligation. So, while Italian citizens can still bring civil action against the German State in Italian fora, decisions in favor of victims of the German Reich are not enforced against Germany but taken over by the Italian State fund. On 5th May 2022, Germany removed its “Request of the indication of provisional measures” from the ICJ docket, since there will be no more enforcement of Italian judgments into German State-owned property.
The Court of Rome, dealing with the enforcement of claims against Germany, referred the question of constitutionality of Art. 43 (3) of decree no. 36 to the Italian Constitutional Court on 1st December 2022. About a half year later, the Italian Constitutional Court found the State fund established by this provision to be constitutional. By these means, all enforcement procedures before Italian courts against Germany were terminated in a constitutional manner. A procedural necessity for Italians seeking access to this fund is to bring civil action against Germany and the Italian Constitutional Court explicitly supports this approach.
Effects on the Pending Case Before the ICJ
When turning to the current proceedings it is crucial to assess the German application to the ICJ (p. 20). In its submissions, Germany seeks two pronouncements of the ICJ: Firstly, concerning jurisdictional immunity, Italy (still) violates international law by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the Germany Reich in Second World War. Secondly, regarding immunity from enforcement, Italy violates international law by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy. The differentiation into two systems of immunity is necessary as both systems are distinct and can be applied separately. Even if jurisdictional immunity would not apply in acta iure gestionis, a State could still take recourse to enforcement immunity (2012 judgment, para. 113).
In concreto, the German application identifies six questions on which it asked the Court to adjudicate. Of these six questions, (2), (3), and (5) concerned measures of constraint against State-owned property (enforcement immunity) and are thus obsolete. Questions (1), (4), and (6) however remain unanswered. They concern, (1) the violation of sovereign immunity alone by allowing citizens to institute civil proceedings, (4) immediate steps to be taken by the Italian government to prohibit the institution of further proceedings, and (6) concrete assurances that there will be no further infringements of Germany’s sovereign immunity. Applying the ICJ’s methodology, these latter three questions concern jurisdictional immunities stricto sensu.
The question is whether Germany sees the infringement of its jurisdictional immunity stricto sensu as enough to maintain proceedings before the ICJ.
The Italian reaction to the application of 29th April 2022 was prompt. Italy responded within 24 hours. Thus, the assumption of German media was not far-fetched that the request was necessary to trigger this Italian reaction. The withdrawal of the application for provisional measures may be indicative of such an understanding of the events. From a practical point of view, Germany does not have to fear measures of constraint anymore.
The question remains whether that is enough to satisfy a State which has always reiterated the relevance of sovereign immunity specifically concerning the mere possibility of an isolated institution of proceedings. This could have fundamental impact on the case as the underlying legal situation remains unchanged if one chooses to follow the ECtHR’s findings in Jones and others v. United Kingdom (paras. 88-94, 198) that there had been no development of the customary international law of State immunity between 2001 and 2014. In Jones, the ECtHR explicitly found that the ICJ’s findings of 2012 were authoritative concerning customary international law and therefore chose not to make any assessment at all (para. 198). Accordingly, sovereign immunity still entails the obligation of States not to allow the bringing of civil action against other States in their own fora. The German application explicitly relies upon this passage of Jones to demonstrate its take de lege lata (2022 application, para. 34).
Germany seems to take a clear stance that is supportive of this traditional reading of sovereign immunity under the 2012 ICJ judgment (2022 application, paras. 32, 36, 39) On closer reading, however, there seems to be a differentiation within the application, which may at first seem negligible, but is, in fact, of great import: At para. 38, Germany states that immunity from enforcement reaches further than jurisdictional immunity. It is a direct quote of para. 113 of the 2012 ICJ judgment. Thereby, Germany and the ICJ assign different weight to these separate violations in nature. Such reading is supported by the press statement of the German Federal Foreign Office. An affirmative finding of the ICJ on the German requests concerning jurisdictional immunities would identify fewer less grave violations than those caused by measures of constraint again.
Accordingly, it is likely that Germany, in the light of its own reasoning and differentiation, will refrain from further entertainment of questions on measures of constraint against State-owned property, irrespective of the necessity of a legal dispute. Concerning the other three issues things are not that clear cut: The problem may lie with opinio juris and State practice as conditions of customary international law. A withdrawal of the application as a whole could be understood as evidence of a seismic shift in customary international law concerning sovereign immunity that some had already wished for in the municipal decisions prior to the 2012 ICJ judgment and after the 2014 decision of the Italian Constitutional Court (e.g. South Korea, Brazil and Greece). They rely on grave violations of inviolable human rights – a matter of material law – as means to circumvent State immunity – a matter of procedural law. Whilst these decisions usually disregard the 2012 ICJ judgment in that regard (see above), they could hint at a development in customary international law (for a comprehensive analysis of the South Korean judgment concerning the “Comfort Women” and thoughts on the consequences see here).
Of course, these three examples from Brazil, Greece, and South Korea are insufficient in evidencing widespread and uniform consuetudo and opino juris. In fact, there is one example from Luxembourg pointing in the opposite direction, in favor of State immunity. But as Germany has certainly been one of the specially affected States concerning sovereign immunity, a withdrawal would not go unnoticed with i.e. Greece which has close ties to the subject matter of the disputes at hand.
Principally, we suggest that Germany should rather continue its endeavor to preserve the classical system of State immunity, restraining States from allowing civil action against other States in matters acta iure imperii. As the German government will most likely find otherwise due to the matter being resolved in principle, we nevertheless advocate for no simple notice of withdrawal, but a substantiated withdrawal bearing in mind the consequences that the former could have. In the latter case, Germany should append a unilateral declaration affirming an unchanged stance on matters of sovereign immunity and clarify that the withdrawal should not be understood as an expression of a weakening of the institute of sovereign immunity. While the length of the proceedings and the lack of compensation for many Italian (and Greek) victims of the Nazi Wehrmacht remains to be implored, the resolution of this case should not come at the prize of the law of sovereign immunity that would produce more and not less conflict in the international arena. This should also give pause to those who aim – with laudable intentions – at using Russian State assets for Ukrainian reconstruction before these matters are settled in accordance with the international law on reparations for war.