Università Degli Studi Di Pavia State Immunity and Access to Justice

Università degli Studi di Pavia Dottorato in Diritto Pubblico, Giustizia Penale e Internazionale XXXII ciclo State Immunity and Access to Justice between the International and the Municipal Legal Order Relatrice: Chiar.ma prof.ssa Carola Ricci Coordinatrice: Chiar.ma prof.ssa Cristina Campiglio Tesi dottorale di: Anna Facchinetti Anno accademico 2018/2019 INDEX Foreword Chapter 1. The law of the State vis à vis the international community 1. The international society as a society of States 1.1. Centrality of the State within the international legal system 1.2. The prerogatives of statehood 1.3. The protection of sovereignty 1.4. Sovereignty between pluralism and universal values 1.5. The State as ruler and/or addressee of rules: the human rights approach 1.6. «General principles of law recognized by civilized nations» as a source of human rights law 2. Theories of the State and the international legal order 2.1 General overview 2.2 The relationship between domestic and international law from a “dualist” perspective 2.3 The relationship between domestic and international law from an “internationalist monist” perspective 2.4 A critical appraisal of “dualism” and “internationalist monism” 3. The application of international law within domestic legal systems 3.1 The problem of adaptation to international law 3.2 Formal procedures of incorporation of international law 3.3 The rank of international law within domestic legal systems 3.4 Degrees of openness to international law 4. Restrictions to the domestic incorporation of international law: the “counter-limits” doctrine 4.1 Origins of the doctrine: limitations to sovereignty 4.2 Recent revival of “counter-limits” within the framework of EU law 4.3 Early developments of the doctrine with respect to treaty law and international custom 4.4 “Counter-limits” applied to the European Convention on Human Rights 4.5 The primacy of fundamental human rights over conflicting obligations Chapter 2. From absolute to restrictive immunity: “substance” against “procedure” 1. State immunity: a definition 1.1 Introduction to the rationale and content of the doctrine 1.2 The law of State immunity as customary law 2. From absolute to restrictive immunity: the emergence of a new custom 2.1 The absolute immunity doctrine 2.2 The emergence of the principle of restrictive immunity: Italian and Belgian case law 2.3 Subsequent practice of States 3. The distinction between acta jure imperii and acta jure gestionis 3.1 A feasible criterion? 3.2 A case study: sovereign bonds 3.3 The method of the list 4. State immunity from civil jurisdiction in labour disputes 4.1 Relevant international instruments 4.2 The practice of States II 4.3 The case law of the European Court of Human Rights 5. Immunity from measures of execution: the problem of enforcing judicial decisions rendered against a foreign State 6. Conclusive remarks: “substance” against “procedure” Chapter 3. Access to justice for the victims of serious violations of human rights: from early State practice to the Jurisdictional Immunities case 1. Introduction. Why further limitations of State immunity are not incompatible with the restrictive approach 2. Human rights litigations against foreign States before domestic courts 2.1 The United States of America 2.2 The United Kingdom 2.3 Other common law jurisdictions 2.4 Greece 2.5 Italy 2.5.1 The Ferrini case 2.5.2 Subsequent case law of Italian courts 2.6 Other civil law jurisdictions 3. The case law of the European Court of Human Rights 4. The judgment of the International Court of Justice in the Jurisdictional Immunities case 4.1 The subject matter of the dispute and the positions of the parties 4.2 General framing of the problem by the International Court of Justice 4.2.1 The forum tort exception III 4.2.2 The three strands argument 4.3 A critical appraisal of the judgment in light of the method of identification and the structure of customary international law Chapter 4. State immunity v. the right of access to justice: towards a new customary rule? 1. Italian practice in the aftermath of the ICJ judgment in the case Jurisdictional Immunities of the State 1.1 The obligation to comply with the judgment of the ICJ 1.2 Judgment No. 238/2014 of the Italian Constitutional Court 1.3 A critical appraisal of the judgment 1.4 Subsequent case law of Italian courts 1.5 The position of the other branches of power 2. The practice of other States after the Jurisdictional Immunities judgment 2.1 The United States of America 2.2 Other national practice: Canada, Luxembourg and Brazil 3. The recent case law of the European Court of Human Rights: the cases Jones v. the United Kingdom and Naït-Liman v. Switzerland 4. The denial of immunity in case of serious violations of human rights as an infra legem practice IV FOREWORD This dissertation deals with the subject, extensively debated in literature but still relevant, of the contrast between the principle of customary international law that grants immunity from civil jurisdiction to foreign States, and the rules of domestic and international law protecting human rights. At the domestic level, the Italian Constitutional Court has recently solved this conflict in favour of the individual right of access to justice.1 The purpose of this work is to assess if, also from an internationalist perspective, it is possible to give prevalence to the justiciability of fundamental human rights over the protection of State sovereignty, in light of the increasing importance of human rights in both national constitutions and international law. The main assumption underlying this work is that a contrast between State immunity and the right of access to justice does exist, despite the strict distinction between substance and procedure set out by the International Court of Justice in the Jurisdictional Immunities case.2 Indeed, the first institute – which belongs to classic international law – may actually impair the enjoyment of fundamental human rights enshrined both in the internal and the international legal systems. As observed by Benedetto Conforti, As for international law, there is no doubt that immunity is in conflict with the right of access to a judge, whatever the dispute in which immunity is invoked. The conflict is even more intolerable when the dispute concerns gross violations of human rights.3 1 Italian Constitutional Court, Judgment No. 238/2014, 22 October 2014. On this historic decision, widely commented and to which Chapter 4 of this work will be devoted, see, ex multis: G. CATALDI, A Historic Decision of the Italian Constitutional Court on the Balance between the Italian Legal Order’s Fundamental Values and Customary International Law, in «Italian Yearbook of International Law», Vol. XXIV (2014), pp. 37-52; P. DE SENA, 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, in «Questions of International Law», Zoom Out II (2014), pp. 17-31; S. DOMINELLI, Immunity from Civil Jurisdiction: Where Do we Go from Here? Assessing the Relevance of Recent Opposing Trends in the Conceptualization of State Immunity, in «Conference Paper Series of the European Society of International Law», No. 8/2016 (8-10 September, 2016); O. FERRAJOLO, La sentenza n. 238/2014 della Corte Costituzionale e i suoi seguiti: alcune osservazioni a favore di un approccio costruttivo alla teoria dei “contro-limiti”, in «Rassegna dell’Istituto di Studi Giuridici Internazionali del CNR», No. 2 (2014-2015), pp. 1-22; R. PISILLO MAZZESCHI, La sentenza n. 238 del 2014 della Corte costituzionale ed i suoi possibili effetti sul diritto internazionale, in «Diritti umani e diritto internazionale», Vol. 9 (2015), No. 1, pp. 23-40. 2 International Court of Justice, Case Concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, ICJ Report 99 (2012). This judgment, and especially the procedural conception of State immunity enshrined therein, will be discussed in detail in Chapter 3 of this work. 3 B. CONFORTI, Judgment of the International Court of Justice on the Immunity of Foreign States: a Missed Opportunity, in «Italian Yearbook of International Law», Vol.XXI (2011), p. 136. Therefore, when a national court faces issues of State immunity, it should raise a set of questions before deciding whether to uphold immunity or not. Sovereignty is a fundamental legal value of the international society of States, but should it be protected to the extent that the justiciability of fundamental human rights is completely sacrificed? Or should the individual right of access to justice prevail over the protection of the sovereignty of the foreign State and the swift conduct of international relations, especially if gross violations of human rights are at stake? Moreover, what kind of State conduct is to be regarded as a legitimate expression of sovereign powers, as such deserving the covering of State immunity? The present work will tackle these problems from an internationalist perspective. To do so, both the theory and practice of State immunity will be taken into account, including relevant international instruments, international judicial decisions and State practice. Particular attention will be paid to the case law of national courts. In fact, albeit being a doctrine of international law, State immunity is applied in domestic courts in accordance with domestic law, and as such represents an intersection between national and international law.4 National judicial decisions are particularly relevant to the extent that they may amount not only to State practice, but, if soundly reasoned, also to opinio juris in favour (or not) of the existence of a rule of customary international law.5 Before entering into the heart of the law of State immunity, this study will focus on the general theories of sovereignty and on the relations between the international and the national legal orders.

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