Fabrizio Marongiu Buonaiuti

Azioni risarcitorie per la commissione di crimini internazionali ed immunità degli Stati dalla giurisdizione: la controversia tra la Germania e l'Italia innanzi alla Corte internazionale di giustizia

The author comments on the case currently pending before the International Court of Justice between Germany and Italy on the jurisdictional immunities of the State concerning actions for compensation for international crimes committed during the Second World War. The article focuses on the recent case law of the Italian Supreme Court ( Corte di cassazione) which has affirmed an exception to the customary rules on State immunity, due to the higher rank of rules protecting fundamental rights of the person. The author contends that the position maintained by the Corte di cassazione is unpersuasive under various respects. First, for inter-temporal reasons, since the notion of ius cogens was not sufficiently established at the time when the offences were committed. Secondly, even if, for the purposes of jurisdictional immunities, regard were to be had to the rules in force at the moment of the judicial action, it is not sufficiently established that ius cogens norms are likely to prevail not just on conflicting treaties, but on other customary rules as well. Thirdly, the said rules are not conflicting, since their object is different: rules on jurisdictional immunities do not prevent the prosecution of international crimes nor the protection of the fundamental rights involved. Rather, they address the procedural aspect of deciding where the action is to be entertained. Subsequently, the article touches upon other issues addressed by the Corte di cassazione in the said case law, such as the availability of universal jurisdiction concerning these actions, the non-applicability of statutory limitations, the effect of the waiver clauses contained in the peace treaties and in subsequent compensatory agreements, and, ultimately, the existence of an individual right to compensation for international crimes enforceable against foreign States. Concerning the latter, the author concludes that either, as it seems more likely, such a right did not exist at the time of the facts, or, if it then existed, subsequent actions are to be deemed as barred by the said waiver clauses.

The EU Succession Regulation and third country courts

The European Union Succession Regulation (Regulation (EU) No. 650/2012) (hereafter Succession Regulation) provides a comprehensive treatment of the diverse private international law issues concerning succession, encompassing within the same instrument rules on jurisdiction, applicable law and the recognition and enforcement of decisions and authentic instruments in succession matters. At the same time, each of these sets of rules coexisting within the Regulation bears its own regime in terms of spatial applicability. As concerns the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country, by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Still, the rules contained in the Regulation as concerns choice of forum, as well as lis alibi pendens and related actions, are conceived from a purely inter partes perspective. This causes on the one hand the impossibility of re-establishing Gleichlauf where the deceased made a professio iuris in favour of the law of a third country, and, on the other hand, does not ensure a satisfactory coordination with parallel proceedings pending before third country courts. The subsidiary jurisdiction rules may in turn cause an excessive enlargement of the scope of the jurisdiction of Member States’ courts, and could also hinder the unity of the succession. The latter concern is likely to arise also in respect of the mechanism embodied in Article 12(1) of the Regulation, which achieves a rather incomplete coordination with the jurisdiction exercised by third country courts. Some suggestions will be submitted for amendments to be made to the Succession Regulation in order to overcome these shortcomings.The European Union Succession Regulation (Regulation (EU) No. 650/2012) (hereafter Succession Regulation) provides a comprehensive treatment of the diverse private international law issues concerning succession, encompassing within the same instrument rules on jurisdiction, applicable law and the recognition and enforcement of decisions and authentic instruments in succession matters. At the same time, each of these sets of rules coexisting within the Regulation bears its own regime in terms of spatial applicability. As concerns the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country, by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Still, the rules contained in the Regulation as concerns choice of forum, as well as lis alibi pendens and related actions, are conceived from a purely inter partes perspective. This causes on the one hand the impossibility of re-establishing Gleichl...

La sentenza della Corte internazionale di giustizia relativa al caso Germania c. Italia: profili di diritto intertemporale

The author comments on the judgment delivered by the ICJ on 3rd February 2012 in the case of Germany v. Italy, concerning jurisdictional immunity of the State against actions for compensation in respect of crimes committed during World War II. The article focuses on the intertemporal law aspects of the case, commenting that the ICJ, while correctly identifying State immunity rules as having a procedural nature, failed in clarifying that whenever their application requires a qualification of the relevant facts, this is to be performed pursuant to the law in force at the time they were committed. Arguably, at the time of the conflict, the category of jus cogens norms had not yet been sufficiently established, nor had a special regime of State responsibility for international crimes or for serious breaches of peremptory rules of general international law developed yet. Therefore, the supposed prevalence of the breached norms on State immunity rules, which the ICJ has correctly excluded due to the different nature of either set of rules, arguably was to be excluded for intertemporal reasons altogether.