The Italian Constitutional Court and ‘Constructive Contestation’ A Miscarried Attempt?

• Published in: Journal of international criminal justice Vol. 14; no. 3; pp. 621 - 627
• Main Author: Kunz, Raffaela
• Format: Journal Article
• Language: English
• Published: Oxford Oxford University Press 01-07-2016
• Subjects: International courts; International law; Judgments; Jurisprudence; Italy
• ISSN: 1478-1387; 1478-1395
• DOI: 10.1093/jicj/mqv074

Subsequent to precedents like Solange and Kadi, Judgment No. 238 handed down by the Italian Constitutional Court, represents novel jurisprudence that raises fundamental questions concerning the relationship between distinct legal orders. The present contribution aims to explore whether the judgment represents an instance of so-called 'constructive contestation' by domestic courts against international law not adhering to fundamental rights. It argues that, even though in the short term the judgment of the Constitutional Court seemingly favours human rights, and therefore, also fosters a certain understanding of the ideals of the rule of law, strong reasons can be brought forward in support of the opposing interpretation. In the long run, this judgment may hamper the system of international adjudication and the (international) rule of law.