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Focus: national and international law in italy: the end of an idyll?

THE NATIONAL CONSTITUTION TRUMPS INTERNATIONAL LAW

Christian Tomuschat

The judgment of the Italian Constitutional Court (CC) of 22 October 2014 comes as a shock to the international legal community. After the International Court of Justice (ICJ) had

declared, in its decision of 3 February 20121, that Italian courts are debarred from entertaining individual suits brought against Germany on account of war crimes committed during World War II, the issue of enforcing such claims before domestic courts outside Germany seemed to have become obsolete. Italy faithfully complied with the judgment by enacting Law No. 5 on 14 January 2013. Pursuant to Art. 3 of this law, in all pending proceedings the judge had to raise ex officio the lack of jurisdiction; decisions already having acquired the force of res judicata could be challenged on that ground, even beyond the reasons listed in Article 395 of the Italian Code of Civil Procedure for the purpose of revision (‘revocazione’). By annulling this provision and thus depriving Germany of its main defense, the CC has embarked on a course with unforeseeable consequences.

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