Sovereign Immunity and the Enforcement of International Cultural Property Law

This paper revisits the Italian case law on international organizations (IOs) with a view to understanding why transnational judicial dialogues, be they explicit or implicit, horizontal or vertical, may only rarely be identified in the pertinent decisions. Although this jurisprudence is quite voluminous and has frequently advanced innovative solutions, it has developed in an entirely self-contained fashion. The courts have been basically concerned with quoting and building upon their own precedents. This stands in marked contrast to the modern Ferrini jurisprudence about State immunity and human rights, which is replete with extensive references and discussions of the decisions of other domestic and international courts. The paper first offers a brief overview of Italian case law on IOs with a view to outlining its current state. Next, some exceptional cases of explicit judicial dialogue arising from that case law are illustrated, while a separate analysis is devoted to a possible implicit form of transjudicial cross-fertilization disclosed by the Italian decisions endorsing the theory of the availability of alternative remedies as a condition for the immunity of IOs. Certain significant Italian court misinterpretations vis-à-vis the problem of the legal personality of IOs are then recalled, for the purpose of clarifying that a transnational legal methodology would have prompted correct solutions. The overall message of the paper is a plea for enhanced judicial dialogues as a means for boosting the legitimacy and persuasiveness of national decisions at a time where court involvement with the law of IOs is bound to increase exponentially.