Article 10 of the Italian Constitution incorporates generally recognized principles of international law. Thus, State immunity from civil suit in the domestic courts of another State—a principle generally recognized in international law—would apply in Italy. However, the protection of fundamental human rights is another generally recognized principle in international law and the ostensible conflict between these two principles has resulted in a series of controversial rulings issued by the Italian Court of Cassation. These rulings allow for the abrogation of State immunity from civil suit in the domestic courts of another State for alleged violations of jus cogens or peremptory norms —what this paper will refer to as the Ferrini doctrine. Although the central premise behind the Court’s reasoning appeals to the values underlying international law, it is by no means authoritative under the international law regime in which rules and principles are developed through consensus of what is generally recognized. As such, the Italian Court of Cassation’s decisions are not just controversial they are technically unlawful under customary international law. However, such deviation is the sole means through which customary international law changes and evolves. Were the Italian Court of Cassation to make its reasoning logically consistent and, at this initial stage, less sweeping in breadth, the Ferrini doctrine arguably has the potential to be effectively exported to other States thereby furthering a change in customary international law on State immunity. This paper will: (1) provide a brief survey of some of the Italian Court of Cassation’s controversial rulings regarding State immunity from civil suit; (2) examine the responses to the decisions from other States and academia to evaluate the validity of such a rule; (3) propose a revised version of the Ferrini doctrine which would enhance its viability and impact on customary international law; and (4) reach a conclusion as to whether such a change is advisable.
Natasha Marusja Saputo,
The Ferrini Doctrine: Abrogating State Immunity from Civil Suit for Jus Cogens Violations,
2 U. Miami Nat’l Security & Armed Conflict L. Rev.
Available at: http://repository.law.miami.edu/umnsac/vol2/iss1/3