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.
Sentenza 238/2014 is not the first time a domestic court refuses to follow an international court. However, while previously defiance was more indirect, the Sentenza stands for a more recent type of jurisprudence, one in which domestic courts do not shy away from openly contradicting international courts. And it is no isolated example. This presentation compares the Sentenza to previous cases in which domestic courts were faced with the implementation of ICJ judgments and with other cases where they fulfil the role of “compliance partners” of international courts. Recognizing that there can be legitimate reasons not to follow an international judgment, it finds that attempts by domestic courts to reintroduce clear boundaries between legal orders lacks the openness and flexibility needed to effectively cope with today’s complex and plural legal reality.
The aftermath of the Jurisdictional Immunities Case has shown that the relationship between constitutional courts and the ICJ cannot rely on highly sophisticated techniques of judicial dialogue apt to resolve potential conflicts of findings, in particular when individual rights are at stake. This encourages us to consider the importance of the potential power of national judges to involve state-level political organs in order to find a diplomatic solution. The opportunity to pursue a diplomatic solution, however, raises the thorny question of whether this availability of alternative means of dispute settlement at the international level might impact on (or somehow restrict) the individual’s right of access to justice. Since a negotiated solution depends upon the willingness of the parties, another crucial question concerns who should bear the risk of failing to find a settlement at the international level and the ensuing costs of lack of protection of the individuals involved.
Given the deadlock in the current negotiations between Germany and Italy and the unavailability of judicial remedies for the victims, the two states could set up a reparation scheme. This presentation sketches some of the main features of such a hypothetical scheme, considering existing internal or international arrangements in the context of transitional justice (the Foundation ‘Remembrance, Responsibility and Future’ scheme; the Australian DART scheme; the deal between Japan and South Korea on reparations to ‘comfort women’; the US/French schemes for reparations and restitution to Holocaust victims; the Eritrea/Ethiopia reparations scheme; and the Iraq/Kuwait scheme). In particular, the emphasis is on the system of identification of the eligible victims, the question of financing and the fate of pending and future judicial claims. Assuming the states’ willingness to explore this project, the presentation outlines some of the ways the scheme could operate in practice.