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An Outlook for Possibility to Restrict Sovereign Immunity - Centering around the Italian Constitutional Court Decision in 2014 -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(1), pp.75-96
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Myoungjun Hwang 1

1한국방송통신대학교

Candidate

ABSTRACT

It deserves attention that the Italian Constitutional Court in 2014, inter alia, found the enactments and subsequent practices of Italy in compliance with ‘Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’ of 2012 to be unconstitutional, blocking the relevant legal effect. The Italian Constitutional Court based its reasoning on the ground that the right of access to justice of Italian victims in pursuit of compensation for forced labor damages caused by the Third Reich constitutes an inalienable fundamental value in the Italian Constitutional Order. The decision implies that the right to compensation attributable to the jus cogens violation must not be neglected on the pretense of sovereign immunity with procedural character. On the Italian Constitutional Court Decision, the controversy can be aroused over the relation between international law and domestic law. Even the concern on the trend of dualism may also be raised. However, the approach must be in accordance with the development of contemporary international law actually. Some consistency of abstract legal theory is rather subsidiary. It is essential for contemporary international law to protect the right of access to court in order to restore and secure human rights and dignity of the victim. In particular, the possibility to remedy by means of access to court is a last resort for the victims to be linked to their raison d’être. To sum up, the doctrine and practice of sovereign immunity need to be constantly adjusted and restricted according to the human rights friendly practice under the contemporary international law. Therefore, the Italian Constitutional Court Decision in 2014 contains a monumental work for the prevention of the abusive exercise of international legal principles.

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