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Constitutionalising the International Legal Order through Case Law? Judgment No 238/2014 from the Italian Constitutional Court

Maria Elena Gennusa

Keywords: State immunity; Italian Constitution; Counter-limits; Italian Constitutional Court; Dualism

Judgment No 238/2014 of the Italian Constitutional Court held that the customary international law on State immunity, insofar as it covers war crimes and crimes against humanity, has not entered the domestic legal order, and therefore has no effect therein. It also declares unconstitutional Article 1 of Law No 848/1957 and Article 3 of Law No 5/2013, which aimed to ensure the compliance of Italy with the decisions of the International Court of Justice. In its judgment, the CC asserts its aspiration to ‘contribute to a desirable—and desired by many—evolution of international law itself’. By analysing the legal reasoning of the CC, this paper infers the real purpose behind Judgment No 238/2014 and evaluates the appropriateness of the approach used to reach its objectives.

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