Deadlocked in Dualism: Negotiating for a Final Settlement

In the conflict between Germany and Italian courts, the German position is a strong one under international law, albeit only formally. When challenging Sentenza 238/2014, Germany faces a principled contradiction (Wertungswiderspruch), given that she herself is bound to disregard international obligations incompatible with the fundamental rights enshrined in the Grundgesetz. And while there are reasons to argue that the Agreement of 1961 settled all matters of compensation owed to Italy and her citizens, the limitations of that agreement, the erosion of the individual’s mediatisation, and recent German compensation schemes for other WWII victims have fuelled discontent with this final settlement. By questioning the rules on intertemporality, this presentation argues for an international obligatio de negotiando under the principle of just satisfaction that gives to victims in oblivion the opportunity to ‘tell their own story’ and to have a say on any future scheme of retributive justice.