Articles for category: Focus

After Sentenza 238: A Plea for Legal Peace

1. INTRODUCTORY REMARKS This post summarizes some of the key points of my presentation at the upcoming Villa Vigoni conference organized by the Max Planck Institute and its partners around the theme ›Remedies against Immunity? Reconciling International and Domestic Law after the Italian Constitutional Court’s Sentenza 238/2014‹. There are no easy answers to the questions posed by the title of the conference. In section 2, I venture on a proposal for ›legal peace‹ between Germany and Italy. This proposal does not only arise from frustration with the current impasse, but also from the suspicion that the public good of legal ... continue reading

12. Mai 2017

Judgment 238/2014 and the importance of a constructive dialogue

I will focus here on two facets of Judgment 238/2014 and its legal implications. In the first part, I will shed some light on certain drawbacks of the application of the counter-limits doctrine in the relationship between the Italian Constitutional Court and the International Court of Justice (ICJ). Some of these criticisms show that the dialogue between constitutional courts and the ICJ is quite complex. Opportunities for dialogue are infrequent and the means are not comparable to those available at the European level. In the second part, I will explore how the availability of alternative means of dispute settlement at ... continue reading

12. Mai 2017

Italian Concerns after Sentenza 238/2014

Judicial practice may be a means to overcome the opposition of the State executive to legal development since judicial reliance on customary international law allows for the State’s explicit consent to become less important. At least in democratic constitutional States court networks may, in horizontal dialogues, expedite the development of customary international law even against the expressed intention of the executive branch due to the principle of judicial independence. Thus, while applying the standard of the Italian Constitution Sentenza 238 nonetheless utters the hope that it »may also contribute to a desirable – and desired by many – evolution of ... continue reading

11. Mai 2017

Italian concerns after sentenza 238/2014: possible reactions, possible solutions

Introduction 1. International legal thinking has long been dominated by the perception of the State as a unitary subject. Yet, the »need to look behind the monolithic face of the State”((I borrowed this expression from R. Higgins, ›The Concept of »The State«: Variable Geometry and Dualist Perceptions‹, in L. Boisson de Chazournes and V. Gowlland-Debbas (eds) The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab, The Hague, Kluwer, 2001, at 561.)) becomes crucial for understanding the »Italian concerns« after the Constitutional Court Judgment 238/2014. In parallel with the interstate dispute between Germany and Italy, the ... continue reading

11. Mai 2017

German concerns after Sentenza 238/2014: Possible reactions – possible solutions

Jurisdictional Immunities, or: A Formally Strong German Position On the international plane, Germany has as strong a position as one could wish for. In its 2012 Jurisdictional Immunities judgment, the ICJ in unambiguous terms found Italy responsible for a threefold violation of the customary principles of state immunity: by allowing civil claims against Germany in the first place; by taking measures of constraint against Villa Vigoni which serves a non-commercial government purpose; and by declaring enforceable in Italy decisions of Greek courts upholding civil claims against Germany. The Court also expressly obliged Italy to »ensure that the decisions of its ... continue reading

11. Mai 2017

Introduction: In search for conciliation

Sentenza 238/2014 of the Italian Constitutional Court created a legal and political deadlock between Italy and Germany. In denying Germany’s immunity from civil jurisdiction over claims to reparations for Nazi crimes committed during World War II, the Italian Constitutional Court indirectly challenged the International Court of Justice’s (ICJ) judgment of 2012, which had confirmed the principle of State immunity. The Sentenza warrants renewed attention because a wave of judgments issued by several Italian courts since 2015 started breathing new life into the case. Court decisions in Florence, Rome, Piacenza, Ascoli Piceno reaffirmed Italian jurisdiction and in some cases ordered Germany ... continue reading

11. Mai 2017

Populist Constitutionalism

Populist engagement with constitution-making and constitutional reform forms a distinctive, and in significant ways worrying, tendency. Populism is explicitly present in the constitutional politics of the East-Central European countries of Hungary and Poland (but not reducible to East-Central Europe), and is causing important tensions in the European Union, which proclaims to be grounded in the values of democracy, the rule of law, and fundamental rights. Concern about the populist-constitutional phenomenon has stimulated lively debates on democratic backsliding and illiberal democracy in Europe as well as on the supranational monitoring of democracy.((See C. Closa and D. Kochenov (2016) (eds), Reinforcing the ... continue reading

4. Mai 2017

Judges Speaking for the People: Judicial Populism beyond Judicial Decisions

We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps »go public« and speak out to the people, adopting public relations strategies to make it harder for politicians to ignore or retaliate against their decisions.((See e.g.,Bassok, Or. „The Supreme Court at the Bar of Public Opinion Polls.“ Constellations 23, no. 4 (2016): 573-584; Staton, Jeffrey K. Judicial power ... continue reading

4. Mai 2017

Working Well Is The Best Strategy: Judges under Populism

Introduction: foes of all stripes Let’s start with this truism—no administration, populist or not, wants courts meddling with them and checking on their power. Administrations often react to what they see as hostile decisions made by courts. These reactions may take a form that is congenial with political deliberation—courts in a democracy need to be scrutinized and criticized—but sometimes reach beyond, particularly in contexts of relatively weak institutions. Within these contexts, it is anything but rare to observe an administration, even a non-populist one, trying to curb judicial institutions, particularly as the latter become more »aggressive« in its decisions against ... continue reading

3. Mai 2017

In Defense of Judicial Populism: Lessons from Colombia

In 2005, the Colombian Constitutional Court upheld an amendment allowing presidential reelection. An extremely popular President elected for the 2002-2006 period, Álvaro Uribe, was behind the reform. The Court’s decision was highly controversial because one of the goals of the 1991 Constitution was to check the powers held by the Colombian President since 1886. For some, the Court’s decision was a concession to a populist authoritarian President that had dangerously concentrated power in his hands.((For a summary of the arguments opposing the constitutional reform see: Juan Sebastián Jiménez Herrera, ›La reelección de Uribe fue inconstitucional e illegal‹ in: El Espectador, ... continue reading

3. Mai 2017