LA SENTENZA 238/2014 DELLA CORTE COSTITUZIONALE NELLA PROSPETTIVA DI UN’EVOLUZIONE DELLA NORMA INTERNAZIONALE CONSUETUDINARIA SULL’IMMUNITÀ DELLO STATO DALLA GIURISDIZIONE CIVILE.
di Federico Travan
(Università degli Studi di Roma – “La Sapienza”)

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Abstract

In this essay, the fundamental judgment 238/2014 of the Italian Constitutional Court is analyzed from the peculiar point of view of its role in a possible (and, in the opinion expressed by the author, necessary) evolution of the international customary norm about jurisdictional immunity of the States. The judgment is decomposed in three main arguments emerging from it: the first regards the principle of access to justice and shows the very closed relationship between a substantial right and its jurisdictional remedy; the second concerns the logic of «ba-lance of values» in the circumstances of the case, in which it was necessary to find an equitable harmony between sovereignty and human dignity; the third is related to iure imperii acts and the natural impossibility to consider international crimes a species of them.
These arguments appear to be as a sort of proposal to the international community to interpret the norm about jurisdictional immunity of the State in a (methodologically) more correct and (substantially) more just way, and they constitute the essential part of a new pratique des États that aims at considering the human being and its fundamental rights as one of the cen-tral «pivots» of the contemporary international law system.