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The domestic effect of international judgments in Italy: the Germany v. Italy case
Journal Title: DIRITTI UMANI E DIRITTO INTERNAZIONALE 
Author/s: Francesco Salerno 
Year:  2012 Issue: Language: Italian 
Pages:  21 Pg. 350-370 FullText PDF:  240 KB
DOI:  10.3280/DUDI2012-002007
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Article 10, para. 1, of the Italian Constitution ensures respect, within the Italian legal order, of the Judgment rendered by the ICJ on the 3rd of February 2012, in the Germany v. Italy case. By condemning Italy, the ICJ prevented those damaged by the wrongful acts perpetrated by Germany during World War II to claim compensation before the Italian courts. According to the ICJ, States can rely on immunity even for acts jure imperii in violation of jus cogens rules on armed conflict. Although this conclusion seems at variance with Articles 40-41 of the ILC Draft Articles on State Responsibility, national judges are bound by it. This obligation arises both from the primary rule Italy has violated, and from the obligation of reparation the ICJ placed upon Italy, calling on it to deprive of any legal effect all national judgments delivered so far against Germany. The Italian Constitution - under Article 10, para. 1, - allows for derogations on the constitutionally protected right of access to justice (Article 24) only insofar as equivalent remedies exist. Since there is no judicial alternative readily available to private individuals damaged by Germany during World War II, such individuals have a constitutionally protected right to call on Italy to exercise its diplomatic protection against Germany.

Francesco Salerno, The domestic effect of international judgments in Italy: the Germany v. Italy case in "DIRITTI UMANI E DIRITTO INTERNAZIONALE" 2/2012, pp. 350-370, DOI:10.3280/DUDI2012-002007

   

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