Constitutional Justice versus International Justice in the Application of «Generally Accepted» International law
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In its judgment No. 238/2014, the Italian Constitutional Court reaffirmed the primacy
of the fundamental principles of the Constitution over the customary international rule
that grants foreign States immunity from civil jurisdiction with respect to iure imperii acts.
Such principle - which is protected by Article 10, para. 1, of the Italian Constitution - also
covers acts entailing a grave breach to a peremptory norm of international law, as ascertained
by the International Court of Justice in a Judgment delivered on 3rd February 2012.
Judgment No. 238 undeniably leads to a violation of an international obligation. This notwithstanding,
by evoking the technique of the «rinvio mobile» (mobile reference) in line
with the neo-dualist approach to the relationship between the international and national
legal orders, the Constitutional Court acknowledged the normative autonomy of international
law and even interpreted some of the fundamental principles of the Constitution in
harmony with international rules. The right of access to a court enshrined in the Constitution,
moreover, also applies to foreign citizens, and the Italian Government will be called
to adjust its foreign policy accordingly.