Imunidade dos estados

IMMUNITY OF STATES AND THEIR ORGANS: THE CONTRIBUTION OF
ITALIAN JURISPRUDENCE OVER THE PAST TEN YEARS
AndreA AtteritAno*
1. the importAnt role of itAliAn Jurisprudence on mAtters of
JurisdictionAl immunities of the stAte
Italian case law on jurisdictional immunities of foreign States is historically considered to be at the centre of the development of international customary law.
It is enough to highlight that the theory of restrictive immunity was introduced towards the end of the XIX century by Italian and Belgian courts.
According to the customary rules in force at that time, a State could never be sued before the courts of a foreign country, on the basis of the general principle par in parem non habet iurisdictionem. The private party who wished to judicially enforce its right toward a foreign State was obliged to litigate within the latter’s boundaries, unless the foreign State itself relinquished its right to immunity. In other words, the jurisdictional immunity of the foreign State was absolute.
Italian courts managed to restrict the scope of application of existing international norms by granting immunity to foreign States only with regard to controversies involving the exercise of sovereign functions. This restriction was not the result of applying an existing customary norm. Rather, the shift from absolute immunity to restrictive immunity came about through an accurate interpretation of the principle par in parem non habet iurisdictionem. According to Italian judges, if the aim of this principle was to protect the sovereignty of a State, then immunity should not be granted in cases where the State acted as a private entity.
The courts of other countries started to follow the Italian and Belgian trend, developing a general practice able to create a new customary norm, according to which
State immunity was limited to the so-called acta jure imperii. Moreover, Italian insight paved the way for applying the restrictive immunity theory