The Role of the Italian Judge as ‘Guardian’ of Fundamental Constitutional Values Against International Law.A Brief Reflection on Benedetto Conforti's Thoughts

Abstract

This article addresses the issue, which is very important in Italy, of the role played by national courts in preventing international law provisions that conflict with constitutional principles and values considered fundamental from entering into the national legal system. It highlights a parallel between the complex judicial events that led the Italian Constitutional Court – in its famous judgment 238 of 2014 – to deny the effects of the judgment of the International Court of Justice in the case of Germany v. Italy concerning the immunity of States before the jurisdiction of another State, and the thinking of Benedetto Conforti, a great Italian master of international law. According to Conforti, the incompatibility of a State's constitutional principles with international law constitutes a ground for exclusion of international wrongfulness. In other words, a State may invoke the fundamental principles of its constitution to justify non-compliance with an international obligation that conflicts with those principles. This thesis seems to have been accepted by the case law of the Italian courts and, in particular, by the Constitutional Court in its 2014 ruling, only to be revised until it disappeared from Conforti's textbooks, in parallel with a certain rebalancing carried out in 2023 by the Constitutional Court itself with respect to its previous case law.