Controversie di lavoro e immunità degli Stati esteri: tra codificazione e sviluppo del diritto consuetudinario

This article examines the relationship between customary international law and Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property, which applies to claims brought against foreign States by their employees. Although Article 11 has been found by the European Court of Human Rights (ECtHR) to codify customary international law in its entirety, it is argued that neither the travaux nor State practice support this conclusion. Rather, both converge to show that Article 11 provides for a significantly wider immunity than is required by customary international law. The paper then analyzes the impact that Article 11 may have on the future evolution of customary international law by influencing domestic and international judicial practice. This impact appears to be ambivalent. While the ECtHR has referred to Article 11 in order to promote a broader access to courts by State employees, the coalescence of State practice and the provisions of Article 11 may well cause immunity to be extended, at least in countries where the approach of national courts is generally more favorable than Article 11 to the protection of the employees’ rights. The recent Italian case law attests to this risk.