1 Since the Italian legal system includes no statute on foreign states’ immunity, Italian courts routinely apply to state immunity claims the rule par in parem non habet jurisdictionem (no state can be expected to submit to the jurisdiction of another, they being equal) as customary international law under Article 10(1) of the Constitution (see infra note 14).

2 The principle has been lately reiterated by the Italian Court of Cassation in the Lozano and Milde judgments (see infra note 16). Meanwhile, on June 17, 2007, a judicial mortgage was imposed on Villa Vigoni, a cultural German– Italian center located in Italy. Fearing a flood of compensation claims, on December 23, 2008, the FRG instituted proceedings against Italy before the International Court of Justice, claiming that “Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a foreign state.” In a joint declaration issued in Trieste on November 18, 2008, annexed to the German application, Italy stated that it respected Germany’s decision to apply to the ICJ and declared that it is “of the view that the ICJ’s ruling on State immunity will help to clarify this complex issue.” ICJ Press Release No. 2008/44 (Dec. 23, 2008), at <http://www.icj–cij.org/docket/files/l43/14925.pdf.

3 Ferrini v. Repubblica federale di Germania, Cass., sez. un., 11 marzo 2004, n.5044, 87 Rivista di Diritto Internazionale 539 (2004) (English translation available at 128 ILR 658 (2004), reported by Andrea Bianchi at 99 AJIL 242 (2005)). For a comment see Focarelli, Carlo Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision , 54 Int’l Comp. L.Q. 951 (2005)CrossRefGoogle Scholar. The Court of Cassation had already affirmed Ferrini, though as an obiter dictum, in Judgment No. 6532 of May 27, 2005, in Borri v. Argentine Republic (a comment and some extracts, translated into English, are available at <http://ildc.oxfordlawreports.com). On April 12, 2007, in an unpublished decision, the Tribunal of Arezzo, to which the Ferrini case was referred back, denied damages on the ground that the statute of limitations barred the action.

4 Article 41 of the Italian Code of Civil Procedure allows each party to a dispute, until the case is decided on the merits by the court of first instance, to ask the Court of Cassation sitting in plenary session to declare the lack of jurisdiction.

5 Federal Republic of Germany v. Mantelli, Cass., sez. un., 29 maggio 2008, n. 14201, at <http://www.cortedicassazione.it/Documenti/l4201.pdf. All translations from the Italian are by the author.

6 See infra note 7. The FRG had opposed recognition both because the Greek decision was not final and because it was contrary to the Italian public order insofar as it was pronounced without according foreign jurisdictional immunity to Germany. The Court of Cassation rejected both claims, arguing that the denial of foreign state jurisdiction, far from being contrary to the Italian public order, “is perfectly in conformity with the principle which this Court has already stated in [Ferrini], which is here reiterated, in line with fundamental values of freedom and dignity of the human person.” Repubblica federale di Germania c. Amministrazione regionale della Vojotia, Cass., sez. un., 29 maggio 2008, n.14199, paras. 5.1,. 2, at <http://www.cortedicassazione.it/Documenti/14199.pdf.

7 The Greek Supreme Court had denied immunity to the FRG in decision no. 11 of May 4, 2000; see Gavouneli, Maria & Bantekas, Elias Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 95 AJIL 198 (2001)CrossRefGoogle Scholar. This decision was overruled by the Greek Special Supreme Court, however, on September 17, 2002; see Vournas, Elena Prefecture of Voiotia v. Federal Republic of Germany: Sovereign Immunity and the Exception for Jus Cogens Violations , 21 N.Y.L. Sch. J. Int’l & Comp. L. 648 (2002)Google Scholar. An English translation of the latter decision is available in 56 Revue HÉllenique de Droit International 199 (2003).Google Scholar

8 Bundesgerichtshof, June 26, 2003, 115 BGHZ 279, translation in 42 ILM 1030 (2003).

9 Al–Adsani v. United Kingdom, 2001–XI Eur. Ct. H.R. 79; Kalogeropoulou v. Greece, App. No. 59021/00 (Eur. Ct. H.R. Dec. 12, 2002) (admissibility).

10 Bouzari v. Iran, 114 A.C.W.S. 3d 57 (Ont. Super. Ct. Justice 2002), aff’d 71 O.R.3d 675 (Ont. Ct. App. 2004).

11 Bucheron v. Federal Republic of Germany, Cass, le civ., Dec. 16, 2003, Bull. civ. 02–45961.

12 Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, [2006] UKHL26 (June 14, 2006) (reported by Elina Steinerte & Rebecca Wallace at 100 AJIL 901 (2006)).

13 Although the Court did not mention the specific passage from Kalogeropoulou, the likely reference was to the following (from page 9 of that decision): “This is true at least as regards the current rule of public international law, as the Court found in the aforementioned case of Al–Adsani, but does not preclude a development in customary international law in the future.”

14 [Author’s note: Article 10(1) of the Italian Constitution provides: “The Italian legal system shall conform to the generally recognized norms of international law.”]

15 See, e.g., Steinerte & Wallace, supra note 12, at 908. For a more articulated and guarded view, see, for example, Tomuschat, Christian L ‘immunité des Etats en cos de violations graves des droits de I’homme , 109 Revue gÉnÉrale de droit international public 51 (2005).Google Scholar

16 Partly relying upon further arguments (and in even stronger terms), the Court reiterated the orders of May 29,2008, in the Lozano judgment, No. 31171, of July 24,2008, at <http://www.cortedicassazione.it/Documenti/31171_Iraq.pdf, and in the Milde case, No. 1072, delivered on October 21, 2008, and deposited on January 13, 2009, at <http://www.cortedicassazione.it/Documenti/1072.pdf. In the latter case, in particular, the Court found that international customary law is to be ascertained by a “qualitative”—rather than solely by a mere quantitative or “arithmetical”—assessment of international practice, considering interdependence and hierarchy between international rules in the light of the “values generally accepted by the international legal system” (id., para. 4). By this reasoning, the Court concluded that “the customary rules that protect the supreme values inherent in the human person as such, the violation of which imply, at any time and under any circumstances, the application of restoring sanctions even where the conduct is attributable to a state,” take precedence, as jus cogens, over the immunity rule” (id., paras. 6, 7). The problem with this “qualitative” approach is that (1) international practice specifically dealing with sovereign immunity can be easily dismissed, (2) non–immunity, under the general rubric of protecting human rights, can be seen as “accepted” by the international community, whereas (3) non–immunity per se is actually not supported by international practice and not recognized as a customary international rule by the generality of states. For a comment see Carlo Focarelli, Diniego dell’immunita alia Germania per crimini intemazionali: la Suprema Corte si fonda su valutazioni “qualitative,”‘92 Rivista di diritto internazionale (forthcoming 2009).

17 See Lord Bingham’s view in the Jones decision, [2006] UKHL 26, para. 27 (June 14, 2006), whereby “since the rule on immunity is well–understood and established, and no relevant exception is generally accepted, the rule prevails”—although Saudi Arabia was accused of torture, and the prohibition of torture was undisputedly regarded as jus cogens.

18 See, e.g., Fox, Hazel Time, History and Sources of Law Peremptory Norms: Is There a Need for New Sources of International Law? in Time, History and International Law 119, 133 (Craven, Matthew Fitzmaurice, Malgosia & Vogiatzi, Maria eds., 2007).Google Scholar

19 Ferrini v. Repubblica federale di Germania, Cass., sez. un., 11 marzo 2004, n.5044, 87 Rivista didiritto internazionale 539 (2004).

20 On these points see Focarelli, supra note 3, at 955–57.

21 Dec. 2, 2004, at 44 ILM 803 (2005). Article 12 reads as follows: “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission” (emphasis added).

22 See supra notes 7–12. For a case that moves in the same direction as these contrary decisions and that extends to international organizations the principle that there is no humanitarian exception to the immunity rule, see the July 4, 2008, judgment of the district court in The Hague in Ass’n of Citizens ‘Mothers of Srebrenica’v. State of the Netherlands and the United Nations, para. 5.20, at <http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BD6796#x0026;&u_ljn=BD679.

23 The statement, submitted at the hearing of May 6, 2008, is not mentioned in the 2008 orders; though unpublished, it is available at the Italian Ministry of Foreign Affairs. The Italian government’s position echoes Lord Bingham’s view in Jones, para. 20, whereby the “Ferrini decision cannot… be treated as an accurate statement of international law as generally understood; and one swallow does not make a rule of international law.”

24 Al–Adsani v. United Kingdom, 2001–XI Eur. Ct. H.R. 79.

25 Kalogeropoulou v. Greece, App. No. 59021/00 (Eur. Ct. H.R. Dec. 12, 2002) (admissibility).

26 In United States Diplomatic and Consular Staff in Teheran, 1980 ICJ REP. 3 (May 24), the ICJ defined the obligations incumbent upon Iran “under the whole corpus of the international rules of which diplomatic and consular law is comprised” (para. 91)—in particular, under the two Vienna Conventions on Diplomatic Relations and on Consular Relations of April 18, 1961, and April 24, 1963, respectively—as rules of “imperative” (para. 88) and “fundamental character” (para. 91) that are “of cardinal importance for the maintenance of good relations between States in the interdependent world of today” (id), but these descriptions obviously were not intended to imply, in the face of opposite state practice, that the relevant norms were peremptory.

27 In line with what the ICJ held in the South–West Africa cases (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, paras 49, 50 (July 18), where it denied that “humanitarian considerations are sufficient in themselves to generate legal rights and obligations,” even though they “may constitute the inspirational basis for rules of law.”

28 See Focarelli, Carlo I limiti dello jus cogens nella giurisprudenza più recente , 90 Rivista di diritto internazionale 637 (2007)Google Scholar; Focarelli, Carlo Diniego dell’immunità giurisdizionale degli Stati stranieri per crimini, jus cogens e dinamica del diritto internazionale , 91 Rivista di diritto internazionale 738 (2008)Google Scholar; Focarelli, Carlo Immunité des éats et jus cogens. La dynamique du droit international et lafonction du jus cogens dans le processus de changement de la règie sur l’immunité juridictionnelle des états étrangers , 112 Revue GÉnÉrate de droit international public 761 (2008).Google Scholar

29 For a detailed analysis on this point, see Focarelli, Carlo Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’Legal Effects , 77 Nordic J. Int’l L. 429 (2008).CrossRefGoogle Scholar

30 See, e.g., Typaldos Console di Greciav. Manicomio di Aversa, Cass. Napoli, Mar. 16, 1886 Google Scholar, Giur. It. I, 1, 228 (1886).

31 The view taken by Lord Hoffmann m Jones, para. 63, does not wholly reflect state practice and, indeed, does not take into account that courts have contributed to the emergence of certain new customary international law rules: “It is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward–looking and reflective of values it may be, is simply not accepted by other states.”

32 Id.

33 Focarelli, supra note 3, at 957–58.

34 For instance, Sweden was condemned by both the UN Committee on Torture on May 20, 2005, in the Agiza case (Communication No. 233/2003) and the UN Committee on Human Rights on October 25, 2006, in the Alzery case (Communication No. 1416/2005) for breach of Article 3 of the 1984 Convention Against Torture and of Article 7 of the International Covenant on Civil and Political Rights, respectively.