Constitutional rights vs. state immunity: implementation of an ICJ decision on sovereign immunity declared unconstitutional

A recent decision by the Italian Constitutional Court calls into question the applicability of generally accepted principles of sovereign immunity to acts where the relevant state action is particularly egregious violating constitutional rights. It may be possible for claimants to pursue a compensatory claim for damage done to property or even an expropriation claim in their national courts where the underlying foreign state action is so serious that the state should not be protected by sovereign immunity.

In decision No 238 of 22 October 2014, the Italian Constitutional Court held that proceedings brought by victims of war crimes alleged to have been committed by German armed forces between 1943 and 1945 could continue in Italian courts despite the International Court of Justice’s (ICJ) 2012 decision that Germany was immune from suit for these acts.

The balancing exercise conducted by the Italian Court, weighing obligations under customary international law principles against national constitutionally guaranteed rights, demonstrates that, where a state has immunity from suit under customary international law, a claimant may nonetheless be able to pursue a claim in a national court where its constitutional rights are at stake.

Background

A number of Italian nationals brought claims in Italian courts against Germany for torts allegedly committed by German forces during the Second World War.

Under international law, states are generally immune from being sued in the courts of another state. Historically, this immunity was absolute, but over the years, many states have developed exceptions to this principle. The 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (not yet in force) summarises some of these exceptions. For example, an exception to the immunity principle exists where the proceedings relate to a commercial transaction in which the relevant state was engaged. That state cannot invoke immunity from suit in another state’s court that has jurisdiction to hear the dispute arising out of that commercial transaction. Another exception is civil proceedings commenced in the courts of one state to seek compensation for personal injury or death or damage or loss of property caused by another state, if the relevant act occurred in the state where the proceedings are brought.

Despite the general immunity from suit under principles of international law and ambiguity as to whether any of the exceptions applied, the Italian Court of Cassation allowed in 2004 the proceedings brought by Italian nationals against Germany to continue in the Italian courts. Following this decision, Germany instituted proceedings against Italy in the ICJ.

The proceedings in the ICJ

In February 2012, the ICJ held that by allowing the proceedings brought by Italian nationals against Germany to continue, Italy had violated its obligations to respect the immunity enjoyed by Germany under international law (International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), 3 February 2012, paragraph 139). In particular, the ICJ held that “under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict” (Paragraph 91).

Italy had based its submissions principally on two arguments. First, Italy argued that the general principle of immunity from suit for foreign states does not apply in circumstances where the relevant acts occasioned death, personal injury or damage to property in the territory of the forum state (that is, the territorial tort principle) (Paragraph 62). Secondly, Italy stated that the particular nature of the acts committed and the circumstances in which they were brought justified a denial of immunity (Paragraph 80). The fact that the relevant acts were serious violations of the principles of international law applicable to the conduct of armed conflict (amounting to war crimes and crimes against humanity) and that the claimants had been denied all other forms of redress, meant that the exercise of jurisdiction by the Italian courts was necessary.

The ICJ rejected both arguments. Regarding the first, the ICJ held that the territorial tort principle did not apply to acts of armed forces of a state, even if those acts take place in the territory of the other state (Paragraph 79). With respect to the second argument, the ICJ held that even violations of peremptory norms do not affect the applicability of the principles of sovereign immunity (Paragraph 97).

The Constitutional Court decision

Italy passed a number of national norms to implement the ICJ’s decision. The constitutionality of these norms was challenged in the Italian Constitutional Court. That Court decided that strict adherence to the ICJ’s decision would violate Italian nationals’ right of access to a court which is guaranteed in the Italian Constitution. A summary of the decision in English can be found at: http://www.qil-qdi.org/wp-content/uploads/2014/10/Italian-Constitutional-Court-Judgment-238-2014.pdf (accessed 9 November 2014).

The Constitutional Court did not call into question the ICJ’s ruling on the state of customary international law, but held it could not apply in Italy insofar as it violated Italy’s Constitution. Sovereign immunity principles were generally in conflict with the constitutional right of access to a court, but the justification for sovereign immunity to apply outweighed that right in normal circumstances. However, where the sovereign immunity principles protected unlawful state action, their application was disproportionate in relation to the right of access to a court.

The Italian Constitutional Court’s decision appears to be the first decision in which a national court undertook a balancing exercise between constitutional rights guaranteed to its citizens and the state’s obligations under customary international law.

The decision is also in contrast to the generally prevailing trend to put the principles of sovereign immunity before violations of human rights – see, for example, the decision in Jones v Saudi Arabia in which the United Kingdom’s House of Lords held that compensation claims made against Saudi Arabia for alleged torture and unlawful detention could not proceed as Saudi Arabia was immune from suit (Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26; the decision has been confirmed by the European Court of Human Rights and is covered in our previous blog post).

Implications

The recent decision of the Italian Constitutional Court showed that immunity from suit under customary international law may not be the end of an enquiry into whether a state can be sued for a particular wrongdoing. Even if that state is immune from suit under customary international law, a second line of enquiry is worthwhile to establish how the relevant national court would weigh this sovereign immunity principle against other (constitutionally guaranteed) rights of the claimant.

Its practical effect may be that wronged parties can pursue claims for monetary compensation for tortious acts, expropriation and even breach of contract against a state party which would otherwise be immune from suit. In some circumstances, national courts may be effective fora to pursue claims against foreign states obviating the need to institute proceedings before international arbitral tribunals under bilateral or multilateral investment treaties.

For further information, please contact Dominic Roughton, Partner, Anne Hoffmann, Senior Associate, or your usual Herbert Smith Freehills contact.