Thread by @MF_Lando

This is TOO EXCITING not to tweet.

#Germany started proceedings against #Italy at the #ICJ for alleged violations of its sovereign immunity.

It’s been a long time in the making. Many of us are probably not surprised. 🫢

It’s time for Germany v. Italy—Reloaded.

A thread 🪡

After the ICJ’s 2012 judgment in Germany v. Italy (link below), the Italian Parliament passed Law 5/2013. That law required Italian courts to decline jurisdiction in claims against Germany of the kind which had given rise to the ICJ litigation. 👩🏻‍💼

icj-cij.org/public/files/c…

Little did they know that the #ConstitutionalCourt would declare that law unconstitutional a year later, in the now-famous Sentenza 238/2014. 🙅🏻‍♂️

The Constitutional Court declared that the law was incompatible with the fundamental right…

…guaranteeing access to justice under Article 24 of the #ItalianConstitution. Fun fact: the judgment was written by the late Giuseppe Tesauro, an expert in #internationallaw.👨🏼‍⚖️

Yours truly wrote a comment to Sentenza 238 in the @ModernLRev (see below).

onlinelibrary.wiley.com/doi/10.1111/14…

Italian courts started doing what they should have under Italian law: lift Germany’s #immunity, assert jurisdiction and order Germany to pay compensation (many times over). 💶

Germany is not pleased. Therefore, the application instituting proceedings yesterday.

The application seems quite straightforward. Germany founds jurisdiction on the 1957 European Convention for the Peaceful Settlement of Disputes—same as the earlier case. 🔂

Germany made sure to comment on the existence of a “dispute“ with Italy, including by reference to the the “awareness“ requirement introduced in the #MarshallIslands case. 🥊

Germany also mentioned that the ICJ would have jurisdiction ratione temporis…

…which was the focus of Italy’s unsuccessful counterclaim in the earlier case (see link to 2010 order below). Germany *should* have no issues on jurisdiction. But one never knows the limits of a lawyer’s creativity. Italians are a creative people.😬

icj-cij.org/public/files/c…

This is just an off-the-cuff reaction, but I think that where Germany could have a few problems is on admissibility. Although this new case stems from new judgments of the Italian courts, it looks A LOT like the old one.

Did anyone say “res iudicata”? 📣

The case is between the same parties, is based on the same legal basis (customary law on State immunity) and has the same object (to have the Court declare Italy’s responsibility for breaching its jurisdictional immunity).

Anzilotti docet.👨🏻‍🏫

The similarity is not 100%, but…

…there could be room for Italy to come up with a decent argument that res iudicata prevents the ICJ from hearing the merits. 🚦

Germany’s saving grace can be the new requirement that the ICJ added to the notion of res iudicata in its 2016 judgment in #Nicaragua v. #Colombia:…

…the Court must be satisfied that the claim is one which it “has already been definitely settled”. Germany’s claim relates to new developments after the 2012 judgment. In that sense, it may not be one which “has already been definitively settled”. 🆕

Germany also requested #provisionalmeasures.

In my view, there is no problem with prima facie jurisdiction and plausibility. Germany’s jurisdictional position is strong. The rights it invokes surely exist in international law and its claims are supported by evidence.

The issue could be irreparable prejudice and urgency. Germany argued that attachment of its property under Italian law (“pignoramento”) threatens to deprive it of its rights of ownership over its property located in Italy but which is used for public purposes.

But Germany’s rights of ownership are intact for the moment. The only limit that attachment introduces is that Germany cannot sell the seized property, while it can do pretty much anything else with it (Art 2913 of the Italian Civil Code). However,…

…seized property is sold at an auction (Art 567 of the Italian Code of Civil Procedure)—and the Tribunale di Roma has scheduled an auction on 25 May 2022! 😱

This could show irreparable prejudice. Germany has asked the ICJ to decide on provisional measures without a hearing!

Aside from the immediate provisional measures, Germany’s application raises some interesting points.☝🏻

(1) Has a new rule of customary international law emerged since 2012 that could justify Italy’s conduct? My hunch is that this is *quite* unlikely.

(2) Italy’s government seems to take a position opposite to that of the Italian courts. Germany even refers to a 2021 document showing that the government takes that position (see below). Who speaks for Italy? Is it the government or its courts? What if the two disagree?

Italy does not have the same “one voice” doctrine as it exists in UK law (see The Arantzazu Mendi [1939] AC 256, 267 per Lord Atkin). I’m not sure how this aspect would play out.

@WuerthIngrid wrote a piece on these questions some time ago (see below).

scholarship.law.vanderbilt.edu/cgi/viewconten…

(3) Why did Germany start a new case instead of making a request for #interpretation of the 2012 judgment? 🤷🏼‍♂️

If it had made such a request, it should face no res iudicata problems. Requests for interpretation were already used as means to “enforce” ICJ judgments, as in…

…the 2013 #Cambodia v. #Thailand case, which sought to “enforce” the 1962 judgment between those two States. 🇰🇭🇹🇭

These are just some early thoughts, but I do think this case is one to watch. 👀

I am Italian after all…🇮🇹