The Italian Yearbook of International Law, 14 (2004)

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THE ITALIAN YEARBOOK OF INTERNATIONAL LAW

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW Volume 14

Research for this publication has been made possible by a grant from the Fondazione Monte dei Paschi di Siena and by a grant from the University of Siena, Research Programme 2003-2005

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW Volume XIV 2004

BOARD OF EDITORS BENEDETTO CONFORTI, University of Napoli “Federico II” LUIGI FERRARI BRAVO, University of Roma “La Sapienza” FRANCESCO FRANCIONI, European University Institute, Florence (General Editor) NATALINO RONZITTI, LUISS-Guido Carli University, Roma GIORGIO SACERDOTI, Bocconi University, Milano Assistant Editor: RICCARDO PAVONI, University of Siena

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper. ISBN 90 04 15027 7 © 2005 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Printed and bound in The Netherlands.

ADVISORY BOARD

ROBERTO ADAM University of Macerata GIOVANNI BATTAGLINI University of Ferrara PAOLO BENVENUTI University of Roma “Tre” SERGIO M. CARBONE University of Genova FRANCESCO CARUSO University of Roma “Tor Vergata” ANTONIO CASSESE University of Firenze ANGELO DAVÌ University of Roma “La Sapienza” FRANCESCO DURANTE University of Roma “La Sapienza” PAOLO FOIS University of Sassari LAURA FORLATI PICCHIO University of Padova GIORGIO GAJA University of Firenze ANDREA GIARDINA University of Roma “La Sapienza” FLAVIA LATTANZI University of Roma “Tre” UMBERTO LEANZA University of Roma “Tor Vergata” RICCARDO LUZZATTO University of Milano “Statale” SERGIO MARCHISIO University of Roma “La Sapienza” PAOLO MENGOZZI University of Bologna FRANCO MOSCONI University of Pavia BRUNO NASCIMBENE University of Milano “Statale” MASSIMO PANEBIANCO University of Salerno

PASQUALE PAONE University of Roma “Tor Vergata” PAOLO PICONE University of Roma “La Sapienza” RICCARDO PISILLO MAZZESCHI University of Siena FAUSTO POCAR University of Milano “Statale” MAURO POLITI University of Trento LUCA RADICATI DI BROZOLO University of Milano “Cattolica” ALBERTO SANTA MARIA University of Milano “Statale” MARIA RITA SAULLE University of Roma “La Sapienza” TULLIO SCOVAZZI University of Milano-Bicocca LUIGI SICO University of Napoli “Federico II” VINCENZO STARACE University of Bari GIROLAMO STROZZI University of Firenze GIUSEPPE TESAURO University of Napoli “Federico II” ANTONIO TIZZANO University of Roma “La Sapienza” GIAN LUIGI TOSATO University of Roma “La Sapienza” TULLIO TREVES University of Milano “Statale” ENNIO TRIGGIANI University of Bari GABRIELLA VENTURINI University of Milano “Statale” UGO VILLANI University of Roma “La Sapienza”

Editorial assistance for this volume has been provided by Eniko Horvath and Alessandro Chechi. Manuscripts, books for review and correspondence may be sent to THE ITALIAN YEARBOOK OF INTERNATIONAL LAW c/o Riccardo Pavoni, Via Mattioli 10, 53100 Siena (Italy) and/or by e-mail to [email protected].

Website: http://www.unisi.it/iyil

CONTENTS LIST OF ABBREVIATIONS

XVII

ARTICLES THE REPORT OF THE HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, THE USE OF FORCE AND THE REFORM OF THE UNITED NATIONS Natalino Ronzitti

3

CORPORATIONS AS INTERNATIONAL ACTORS AND INTERNATIONAL LAW MAKERS Vaughan Lowe

23

THE MARGINAL ROLE OF THE INDIVIDUAL IN THE ILC’S ARTICLES ON STATE RESPONSIBILITY Riccardo Pisillo Mazzeschi

39

ISLAMIC LAW ON PRISONERS OF WAR AND ITS RELATIONSHIP WITH INTERNATIONAL HUMANITARIAN LAW Mohamed M. El Zeidy and Ray Murphy

53

HUMAN GENETICS, REPRODUCTIVE TECHNOLOGY AND FUNDAMENTAL RIGHTS Cristina Campiglio

83

“LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY”: A MISSED OPPORTUNITY FOR INTERNATIONAL HUMANITARIAN LAW? Marco Pertile

121

NOTES AND COMMENTS THE FERRINI JUDGMENT OF THE ITALIAN SUPREME COURT: OPENING UP DOMESTIC COURTS TO CLAIMS OF REPARATION FOR VICTIMS OF SERIOUS VIOLATIONS OF FUNDAMENTAL HUMAN RIGHTS Massimo Iovane BALANCING THE HUMAN RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS AFTER DOHA Valentina Vadi

165

195

VIII

CONTENTS

THE REQUIREMENT OF CONTINUOUS CORPORATE NATIONALITY AND CUSTOMARY INTERNATIONAL RULES ON FOREIGN INVESTMENTS: THE LOEWEN CASE Pia Acconci STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA Mariangela Gramola IMMUNITY OF HEADS OF STATE: SOME CRITICAL REMARKS ON THE DECISION OF THE SPECIAL COURT FOR SIERRA LEONE IN THE CHARLES TAYLOR CASE Chiara Ragni THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2004) Tullio Treves REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2004 BY THE EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO INTERNATIONAL LAW Simona Granata THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2004) Federico Lenzerini and Massimiliano Montini

225

237

273

289

303

323

ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW Classification Scheme

339

JUDICIAL DECISIONS (edited by Giuseppe Cataldi and Massimo Iovane) II.

LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

III.

STATES AND OTHER INTERNATIONAL LAW SUBJECTS Immunity of foreign States from jurisdiction in civil matters as a customary rule automatically incorporated into the Italian legal order by virtue of Art. 10, para. 1, of the Constitution – 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters found not applicable to suits relating to sovereign acts – Generally recognised norms of international law protecting the liberty and the dignity of every human being as fundamental values – Acts violating fundamental values as international crimes – Deportation and forced labour as crimes of war prohibited by a jus cogens norm of general international law – Their commission during World War II as part of a precise strategy carried out by the German State – The protection of

341

CONTENTS

X.

IX

fundamental values is entrusted to peremptory norms that prevail over every other norm, whether customary or conventional – Criminal and civil universal jurisdiction – Human rights and tort exceptions to sovereign immunity – Immunity from jurisdiction denied Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044 Ferrini v. Federal Republic of Germany

341

Immunity of State organs from criminal jurisdiction – Prime Minister of a State that is a member of a federal State – State members of a federal State are not subjects of international law – Recognition by other States as a non-constitutive element of international personality Corte di Cassazione (Sez. III penale), 17 September 2004 Re: Djukanovic

341

Sovereign immunity from jurisdiction – Order of Malta – Subjects of international law – Jurisdiction over disputes concerning patrimonial aspects of labour relations Corte di Cassazione (Sezioni Unite), 12 November 2003, No. 17087 (order) Association of Italian Knights of the Sovereign Military Order of Malta v. Spatini

343

TREATMENT OF ALIENS AND NATIONALITY Alien – Public housing – Allocation of housing – Classification list – Additional points to Italian citizens – Discrimination based on race Tribunale di Milano, 21 March 2002

345

Alien – Building consortium – Articles of association – Members – Exclusion of non-EC citizens – Discrimination based on race Tribunale di Monza, 27 March 2003

345

Expulsion order – Art. 8 of the European Convention on Human Rights (ECHR) – Right to respect for family life – Intervention of public authorities on the grounds of national security, crime prevention and protection of public morals – Art. 3, para. 1 of the United Nations Convention on the Rights of the Child – Principle of the best interest of the child – Prejudice for the child living in Italy deriving from deportation of a parent – Necessity of balance between public interest and individual right to family life – Degree of danger actually represented by the alien – Lack of necessity or proportion in State’s interference – Annulment of expulsion Tribunale di Torino, 23 January 2003 (order) Re: Evbadazehi K.E. Tribunale di Torino, 30 July 2003 (order) Re: Stajanovic T. Tribunale di Pordenone, 14 August 2003 (decree) Re: Vehbi E. Tribunale di Bologna, 28 April 2004 (decree) Re: X

348

X

XI.

XV.

CONTENTS

HUMAN RIGHTS 1989 United Nations Convention on the Rights of the Child – Right to Personal Identity – Equality Principle (Article 2 of the Italian Constitution) – 1975 European Convention on the Legal Status of Children Born Out of Wedlock – Children born out of an incestuous union Corte Costituzionale, 28 November 2002, No. 494 Corte di Cassazione, 4 July 2002 (order)

354

European Convention on Human Rights and Fundamental Freedoms – Rights of property – “Occupation-expropriation” rule – Effects of the judgments of the European Court of Human Rights Consiglio di Stato (Sez. I), 9 April 2003, No. 1926/02 (opinion) Presidenza del Consiglio dei Ministri

356

Slavery – Reduction to slavery – International trafficking of human beings – Slavery Convention of 1926 – Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1957 – Article 600 of the Italian Criminal Code – Law No. 228/2003 providing “measures against trafficking of human beings” – Succession of criminal provisions Corte di Assise di Milano, 15 December 2003 Re: Toma and Others

359

Article 6 paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms – Right to “reasonable time” in the length of proceedings – Applicability to tax proceedings – Interpretation of the European Convention on Human Rights and Fundamental Freedoms – Case-law of the European Court – Law No. 89 of 2001 (“Legge Pinto”) Corte di Cassazione (Sez. I civile), 17 June 2004, No. 11350 Ministero dell’economia e delle finanze v. Di Caprio

364

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS Extradition – Minimum rights of a person to be extradited – Right of an individual to judicial control on coercive measures ordered for his/her extradition – Guarantee of adversarial proceedings – Art. 127 of the code of criminal procedure – Favourable decision for extradition proceedings – Its effect in relation to judicial control – European Convention on Extradition – European Convention on Human Rights Corte di Cassazione (Sezioni Unite penali), 18 June 2003, No. 13 Re: Di Filippo

366

Extradition – Coercive measures – Articles 314 and 714 of the code of criminal procedure – Compensation for unfair detention – Absence of conditions favouring an extradition order – Law No. 81 of 16 February 1987 of delegation for enacting the code – Implementation of international treaties – European Con-

CONTENTS

XI

vention on Human Rights, Art. 5, para. 5 – UN Covenant on Civil and Political Rights, Art. 9, para. 5 Corte Costituzionale, 16 July 2004, No. 231

370

Extradition – Coercive measures – Custody in another State pending extradition proceedings towards Italy – Art. 722 code of criminal procedure, as modified by Law No. 356 of 7 August 1992 – Time-limit of period for custody – Art. 3 of the Italian Constitution – Principle of equality Corte Costituzionale, 21 July 2004, No. 253

371

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW Regional competence to undertake international agreements – Agreements between the Region of Friuli-Venezia Giulia and Austria and Slovenia – Competence of the President of the Region Corte Costituzionale, 15 July 2003, No. 242 Presidente del Consiglio dei Ministri v. Regione Friuli-Venezia Giulia

373

Regional competence to undertake international agreements – Coordination with foreign national policy – Consistency of Art. 6 of Law No. 131 of 5 June 2003 with Art. 117 of Italian Constitution Corte Costituzionale, 19 July 2004, No. 238 Provincia di Bolzano v. Presidenza del Consiglio dei Ministri; Regione Sardegna v. Presidenza del Consiglio dei Ministri

373

Regional participation in the formation of European Community law – Coordination with State competence to conduct international and Community relations – Unity of Italian representation to the European Union – Consistency of Art. 5 of Law No. 131 of 5 June 2003 with Art. 117 of the Italian Constitution – Conditions required for a Region to expect the Government to propose a claim before the European Court of Justice at its request Corte Costituzionale, 19 July 2004, No. 239 Provincia di Bolzano v. Presidenza del Consiglio dei Ministri; Regione Sardegna v. Presidenza del Consiglio dei Ministri

373

Regional competence to give direct application to European Community law – Agreements between the Regions of Friuli-Venezia Giulia and Veneto, the Province of Bolzano and the Austrian Länder of Tyrol, Carinz and Salzburg – Execution by Regions of a European Community program of cooperation Corte Costituzionale, 22 July 2004, No. 258 Presidente del Consiglio dei Ministri v. Regione Friuli-Venezia Giulia, Regione Veneto, Provincia di Bolzano; Provincia di Bolzano v. Presidente del Consiglio dei Ministri

373

XII

CONTENTS

DIPLOMATIC AND PARLIAMENTARY PRACTICE (edited by Lara Appicciafuoco, Pietro Gargiulo, Giuseppe Nesi, Marco Pertile and Valeria Santori) II.

VI.

X.

LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 1. RESERVATIONS TO TREATIES LAW OF THE SEA 1. ECOLOGICAL AND FISHERIES PROTECTION ZONE IN THE ADRIATIC SEA 2. THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE 3. THE CONSERVATION AND SUSTAINABLE USE OF BIODIVERSITY IN MARINE AREAS BEYOND THE LIMITS OF NATIONAL JURISDICTION TREATMENT OF ALIENS AND NATIONALITY 1. DIPLOMATIC PROTECTION 2. RIGHT TO ASYLUM A. The Cap Anamur Case B. The Practice of Providing Shelter on Board of Warships to Persons Requesting Asylum

XIII. INTERNATIONAL RESPONSIBILITY 1. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS 2. RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. THE CLONING OF HUMAN BEINGS

XVII. INTERNATIONAL ORGANIZATIONS 1. UNITED NATIONS A. Security Council Reform 2. EUROPEAN UNION A. Human Rights Protection and Democracy (the Ukrainian Case) XX. WAR, NEUTRALITY, AND DISARMAMENT 1. THE IRAQI CRISIS A. Italy’s Participation in the Multinational Force and the Political Transition in Iraq B. Treatment of Prisoners Arrested on Iraqi Territory 2. ITALY’S PARTICIPATION IN INTERNATIONAL MILITARY AND CIVIL OPERATIONS

381

382 384 384

387 388 388 388

390 391

392

393 393 396 396

397 397 401 403

CONTENTS

XIII

AGREEMENTS TO WHICH ITALY IS A PARTY (edited by Federico Casolari, Marcello Di Filippo, Marco Gestri and Marina Mancini) A)

AGREEMENTS SIGNED BY ITALY, PUBLISHED IN THE GAZZETTA UFFICIALE IN 2004

IV.

DIPLOMATIC AND CONSULAR RELATIONS

407

VII.

ENVIRONMENT

411

X.

TREATMENT OF ALIENS AND NATIONALITY 1. IMMIGRATION AND EMIGRATION

411

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION 2. TAXATION 3. INVESTMENTS 4. ECONOMIC DEVELOPMENT AND DEVELOPMENT CO-OPERATION 5. DEBT CONSOLIDATION AND CANCELLATION TREATIES 6. TRANSPORT, TRAFFIC, COMMUNICATION 7. TOURISM 8. SOCIAL AND HEALTH MATTERS 9. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 10. LEGAL AND JUDICIAL CO-OPERATION 11. MILITARY AND SECURITY MATTERS 12. FRIENDSHIP AND CO-OPERATION TREATIES 13. NEIGHBOURLY RELATIONS

412 412 413 413 415 416 417 417 418 419 420 420 421

XV.

XVII. INTERNATIONAL ORGANIZATIONS 1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS 2. EUROPEAN UNION 3. OTHER INTERNATIONAL AGENCIES

421 421 423

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING

423

XX. WAR, NEUTRALITY, AND DISARMAMENT

423

B)

AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2004, THE ENTRY INTO FORCE OF WHICH WAS ANNOUNCED IN THE GAZZETTA UFFICIALE IN 2004

IV.


424

XIV

XV.

CONTENTS

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION 2. TAXATION 3. INVESTMENTS 4. SOCIAL AND HEALTH MATTERS 5. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 6. LEGAL AND JUDICIAL CO-OPERATION 7. MILITARY AND SECURITY MATTERS 8. FRIENDSHIP AND CO-OPERATION TREATIES 9. NEIGHBOURLY RELATIONS

XVII. INTERNATIONAL ORGANIZATIONS 1. OTHER INTERNATIONAL AGENCIES

424 424 425 426 426 430 430 431 432

432

LEGISLATION (edited by Pia Acconci, with the co-operation of Chiara Battistini, Federico Lenzerini, Massimiliano Montini and Gianluca Rubagotti) VII.

ENVIRONMENT

433

X.

TREATMENT OF ALIENS AND NATIONALITY 1. NATIONALITY 2. IMMIGRATION AND EMIGRATION

435 438

XI.

HUMAN RIGHTS

442

XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. FOREIGN TRADE 2. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT 3. CO-OPERATION IN SECURITY MATTERS

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING

448 448 450 450

BIBLIOGRAPHIES ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW 2004 (edited by Giulio Bartolini, Alessandro Chechi, Federico Lenzerini and Massimiliano Montini)

455

CONTENTS

XV

REVIEW OF BOOKS

493

UK MINISTRY OF DEFENCE (ed.), The Manual of the Law of Armed Conflict, Oxford, Oxford University Press, 2004 (Natalino Ronzitti); BRIGITTE STERN and HÉLÈNE RUIZ FABRI (eds.), La jurisprudence de l’OMC/The Case-Law of the WTO, 19961997, Leiden/Boston, Martinus Nijhoff Publishers, 2004 (Giorgio Sacerdoti); ANTONIO CASSESE, International Criminal Law, Oxford, Oxford University Press, 2003 (Silvia D’Ascoli): YORAM DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, Cambridge University Press, 2004 (Marina Mancini).

BOOKS RECEIVED

507

INDEX

509

LIST OF ABBREVIATIONS

Periodicals* AFDI AJIL ASIL AVR BISD BYIL CI CML Rep. CML Rev. Columbia JTL Cornell ILJ CS CYIL DCI DCSI DM DPCE DUE EC Bull. ECLR ECR EdD EG EHRR EJIL EL Rev. ETS Foro It. Giur. Cost. Giur. It. GU GYIL

*

Annuaire Français de Droit International American Journal of International Law American Society of International Law Proceedings Archiv des Völkerrecht GATT – Basic Instruments and Selected Documents British Yearbook of International Law La Comunità Internazionale Common Market Law Reports Common Market Law Review Columbia Journal of Transnational Law Cornell International Law Journal Comunicazioni e Studi Canadian Yearbook of International Law Diritto del Commercio Internazionale Diritto Comunitario e degli Scambi Internazionali Diritto Marittimo Diritto Pubblico Comparato ed Europeo Il Diritto dell’Unione Europea Bulletin of the European Communities European Competition Law Review European Court Reports Enciclopedia del Diritto Enciclopedia Giuridica (Treccani) European Human Rights Reports European Journal of International Law European Law Review European Treaty Series Foro Italiano Giurisprudenza Costituzionale Giurisprudenza Italiana Gazzetta Ufficiale della Repubblica Italiana German Yearbook of International Law

The present list covers only the most frequently cited periodicals.

XVIII

Harvard ILJ HRLJ ICJ Pleadings ICJ Reports ICLQ ILM ILR Int. Lawyer Int. Org. IYIL JDI JICJ JIEL JWT Leiden JIL Max Planck UNYB NILR Nss. DI NYIL OJ EC/OJ EU PCIJ Series RBDI RCADI

RCGI RDE RDI RDIPP RECIEL RGA RGDIP RIDPC RIDU RMUE RTDH Schw. ZIER Texas ILJ


Harvard International Law Journal Human Rights Law Journal International Court of Justice, Pleadings, Oral Arguments, Documents International Court of Justice, Reports of Judgments, Advisory Opinions and Orders International and Comparative Law Quarterly International Legal Materials International Law Reports International Lawyer International Organization Italian Yearbook of International Law Journal du Droit International Journal of International Criminal Justice Journal of International Economic Law Journal of World Trade Leiden Journal of International Law Max Planck Yearbook of United Nations Law Netherlands International Law Review Novissimo Digesto Italiano Netherlands Yearbook of International Law Official Journal of the European Communities/ Official Journal of the European Union Permanent Court of International Justice, Series Revue Belge de Droit International Recueil des Cours de l’Académie de Droit International de La Haye/Collected Courses of the Hague Academy of International Law Rivista della Cooperazione Giuridica Internazionale Rivista di Diritto Europeo Rivista di Diritto Internazionale Rivista di Diritto Internazionale Privato e Processuale Review of European Community and International Environmental Law Rivista Giuridica dell’Ambiente Revue Générale de Droit International Public Rivista Italiana di Diritto Pubblico Comunitario Rivista Internazionale dei Diritti dell’Uomo Revue du Marché Unique Européen Revue Trimestrielle des Droits de l’Homme Schweizerische Zeitschrift für Internationales und Europäisches Recht Texas International Law Journal


UNTS Yale JIL YEEL YEL YIEL YIHL YILC/ACDI ZAÖRV

XIX

United Nations Treaty Series Yale Journal of International Law Yearbook of European Environmental Law Yearbook of European Law Yearbook of International Environmental Law Yearbook of International Humanitarian Law Yearbook of the International Law Commission/ Annuaire de la Commission du droit international Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht

Italian legal acts Law DL

D.Lgs.

DPR DPCM

DM Reg.

Legge (Act of Parliament) Decreto Legge (Decree-Law) (Decree adopted by the Government in case of extreme urgency which has the same, albeit provisional, effect of a Law, and which must be approved by the Parliament within 60 days. On the contrary, it looses its legal effect) Decreto Legislativo (Legislative Decree) (Decree adopted by the Government upon delegation by the Parliament) Decreto del Presidente della Repubblica (Decree of the President of the Republic) Decreto Presidente del Consiglio dei Ministri (Decree of the President of the Council of Ministers or Prime Minister) Decreto Ministeriale (Ministerial Decree) Regolamento (Administrative Regulation)

ITALIAN COURTS Pretore and Tribunale Corte d’Appello Corte di Cassazione TAR Consiglio di Stato Corte Costituzionale

Judge of First Instance Court of Appeals Court of Cassation Administrative Tribunal Council of State (Administrative Jurisdiction Supreme Court) Constitutional Court

ARTICLES

THE REPORT OF THE HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, THE USE OF FORCE AND THE REFORM OF THE UNITED NATIONS NATALINO RONZITTI*

1. INTRODUCTION In his speech before the 58th United Nations General Assembly (GA), in September 2003, the Secretary General (SG) drew Members’ attention to the functioning of the United Nations (UN) and the need for its reform if the organisation is to survive. The Iraqi war and the subsequent US-UK occupation have marginalized the UN and international institutions. Indeed, the war in Afghanistan against the Taliban regime and the subsequent invasion of Iraq were a triumph of unilateralism and ad hoc alliances at the expense of multilateralism. Reform of the UN can no longer be postponed, given that the global organisation’s current structure no longer matches reality. In November 2003, the SG appointed a panel of 16 “eminent persons” to study the current threats to international peace and security and to formulate appropriate recommendations.1 The “High-Level Panel on Threats, Challenges and Change”, as it was named, concluded its work toward the end of 2004, after intensive consultations and a number of regional seminars. Its Report was submitted to SG Kofi Annan on 1 December 2004. The Report deals with some extremely interesting issues and its developments will have to be followed closely,2 since it is, in fact, a necessary premise for any reform of the UN system that may be undertaken in 2005, the year of the organisation’s 60th anniversary. As decided by GA Resolution 59/145, the UN summit in New York from 14 to 16 September 2005 will gather the leaders of 191 member States to see if a reform of the UN, repeatedly advocated, can be put into effect or at least its premises set into motion. In the meantime, “private consultations” with permanent representatives of member States are going on and the SG produced a Report in March 2005 that, as will be seen later, relies on the High-Level Panel Report (HLP Report), as far as security and related issues are concerned. States are also grouping to evaluate the Panel Report.3

*

Of the Board of Editors. See the Note by the SG transmitting the Panel Report to the GA, which also contains the names of Panel members: A/59/565. 2 See “A More Secure World: Our Shared Responsibility”, available at http://www.un.org/ secureworld. 3 See for instance the statement by the Group of Friends for the Reform of the UN: GAOR A/59/705 (18 February 2005). 1

Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.) © 2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 3-22

4

ARTICLES

The subject that raises the most interest is undoubtedly reform of the Security Council (SC), increasing its membership and setting up a new class of permanent non-veto members. But there are also other matters of exceptional interest that need to be reconsidered to avoid the marginalisation of the UN. Above all, the use of force, peace-keeping and peace-enforcement – issues that are interconnected since only a fully operational and legitimate SC can aspire to carrying out its primary function, that of maintaining international peace and security. The same is true for disarmament and non-proliferation, sanctions under Article 41 of the UN Charter and measures aimed at fighting international terrorism. Moreover, the continuing interest shown by the international community, or at least by some member States, in the protection of human rights not only prompted the Panel to revisit the doctrine of humanitarian intervention, but also induced it to make proposals for a reform of the Commission on Human Rights. All these items are object of comment here, with the exception of the reform of SC membership, which has already been widely tackled in newspapers and journals.4 The thrust of the Panel’s work is on security and human rights seen from a security perspective. This is understandable, since the Panel started to work soon after the Iraqi war, which generated much controversy in the UN and among SC members.

2. THE PROHIBITION OF THE USE OF FORCE AND ITS EXCEPTIONS The Report confirms the traditional interpretation of rules on the use of force and its exceptions. On the one hand, it states that the threat or the use of force are prohibited under Article 2(4) of the UN Charter. The Report does not support the opinion that continuous violation of this provision has undermined its cogency. On the other hand, it does confirm that there are two exceptions to the prohibition of the use of force: individual and collective self-defence and the use of force authorised by the SC (authorisation that can be vested upon a State, a group of States or a regional organisation). In order to authorise, the SC has to adopt a resolution under

4

The HLP did not reach an agreement and was obliged to indicate two ways for expanding the SC’s membership from the current 15 members (5 permanent veto members and 10 two-year non permanent members). The two proposals agree that the total number of SC members should be 24. However they differ in that model a) envisages 6 new permanent seats with no veto power and three more two-year non-renewable seats; while model b) calls for no new permanent seats, but rather a new category of 8 four-year renewable seats and one new two-year non permanent and non-renewable seat. The Panel also proposes that the composition of the SC be reviewed in 2020. It was easy to predict that the reform of the SC would be the major source of contention. For instance, the African Union, in its common position of 8 March 2005, claimed at least two permanent seats with veto power for Africa. Expansion of SC membership makes the body more democratically representative, but also makes its decision-making more difficult, in particular when the SC has to authorise the use of force. It is not clear whether the expansion of SC membership is considered a sine qua non condition for the other UN reforms envisaged by the HLP.

THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM

5

Chapter VII of the UN Charter (Chapter VIII in the case of a regional organisation). The Report rejects the idea that security can be preserved by a balance of power or by “any single superpower”. Here, the reference to the United States is transparent. Translated into legal rules, it means that entrusting the United States with the planet’s collective security would create a specific legal order under the aegis and hegemony of the superpower. This would call for a derogation of the principle of the sovereign equality of States, one of the basic principles of the UN. While all States are bound by an absolute prohibition on the use of force, the United States would be able to resort to it to ensure global security. In other words, this would lead to the development of a “hegemonic law” – something already criticised by scholars of international law5 and implicitly rejected by the Panel.

2.1. Self-defence Self-defence is, as mentioned, one of the exceptions to the use of force. This exception has been established by customary law and is set down in Article 51 of the UN Charter. Its provisions restrict self-defence to response to an armed attack. But there are two interpretations: the first is that self-defence is possible only once the attack has actually taken place; the second allows for the reaction when the attack is imminent (missiles do not necessarily have to hit the attacked State’s territory; the State can react if preparations for their launching are underway). The Report supports the latter interpretation embodied in the theory of “anticipatory self-defence”.6 However, it rejects the doctrine of “pre-emption” theorised by US President George W. Bush in the 2002 US National Security Strategy document.7 According to the Report, the existence of a mere threat to security is not sufficient to legitimate an armed reaction. The attack has to be imminent. Thus, the acquisition of weapons of mass destruction by one State, while constituting a threat to security, does not give another State the right to react in self-defence. Therefore, the Report rejects the “pre-emptive selfdefence” theorised by President Bush which makes it possible to take action against “rogue States”, terrorists and States possessing weapons of mass destruction. The Report specifically states that Article 51 of the UN Charter must be neither rewritten nor re-interpreted. However it does interpret Article 51 in a way that

5

See, for instance, VAGTS, “Hegemonic International Law”, AJIL, 2001, pp. 843-848. In his address to the 41st Munich Conference on Security Policy, the UN SG took a more cautious approach to the question of anticipatory self-defence. He endorsed the Panel proposal not to amend Article 51, but only said that “most lawyers recognize that this [Article 51] includes the right to take pre-emptive action against an imminent danger”, 005 M2 Communications LTD, M2 Presswire, 14 February 2005, p. 3 ff. 7 See Chapter V of “The National Security Strategy of the United States of America”, 2002, available at http:/www.whitehouse.gov. 6

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UN bodies have been loath to do until now. For example, the International Law Commission has avoided taking a position on the legality of “anticipatory selfdefence”. The same can be said for the International Court of Justice, which has never pronounced itself on the subject, even though it has now passed judgement on numerous controversies involving the use of force and self-defence. It should be noted that the theory of “anticipatory self-defence” is advocated mainly by the common law countries and Israel. On the European continent, scholars of international law prefer the interpretation by which self-defence is lawful only after the State has suffered an armed attack. The Report, de facto, extends the possibility of resorting to self-defence. The States will have to take a stance on this, taking into account that the narrow interpretation of the right of self-defence no longer matches present reality.

2.2. Use of Force Authorised by the UN Security Council The other exception to the prohibition on the use of force is recourse to armed force authorised by the UN SC. But in what cases can the SC authorise it? The Report gives two cases: 1) When one State poses a threat to another; 2) When there is the threat of genocide. In this case, it asserts the “responsibility to protect”, derived from an emerging norm of international law. The typical case is that of a humanitarian catastrophe with the territorial State unwilling or unable to end the genocide. The notion of “responsibility to protect” is not clarified in the Report. Who is responsible? The members of the international community or the SC? If the SC were responsible, it should be recalled that it can only authorise States to intervene but cannot oblige them – at least, this has been the practice to date and the Report does nothing to clarify the matter. In effect there is no need to construe “an emerging norm of international law” allowing SC intervention in case of genocide. A widespread violation of human rights and mass killing may be construed as a “threat to peace”, demanding SC intervention under Chapter VII. The thesis of “responsibility to protect” is an ideological stance, stressing the urgency of SC intervention rather than a necessary premise for securing SC action. In both cases 1) and 2) recourse to the use of force is lawful as long as the following five criteria are addressed: – seriousness of threat; – proper purpose (intervention must be aimed at countering the threat and not other purposes); – last resort (attempts must be made to solve the question by peaceful means); – proportional means; – balance of the consequences (action must be better than inertia).


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According to the Report, these five criteria should be embodied in a declaratory resolution of the UN SC and GA. Nevertheless, such resolutions cannot change the UN Charter and serve only to guide the action of the States and the Council. Moreover, given the different membership of the GA and the SC it is unlikely that the two organs will adopt a resolution with the same wording. Of course, these criteria do not pertain (or pertain only partially) to the exercise of self-defence. In that case, reference must be made to the usual requirements of necessity and proportionality. It has recently been proposed that self-defence should be conditioned by the existence of a third criterion: immediacy.8 But the Report does not take a position on this point, even though it is anything but insignificant. Think, for example, of a territory long under occupation: can the legitimate sovereign, long dispossessed, resort to self-defence? The Panel, in some way, endorses the doctrine of pre-emption to meet a threat that is not imminent. In spite of the doctrine of pre-emption theorised by the US President, it puts the decision to intervene in the hands of the SC and not in those of the State threatened, which should wait for SC authorization – a perspective criticised by those who advocate unilateral intervention, without SC authorisation,9 but fully endorsed by the UN SG.10 The flaw in the Panel’s proposal is inaction by the SC, an event which is not unrealistic, as practice shows. In this case, as a member of the US Senate questioned, must a State wait for the threat to become imminent before it is lawfully allowed to react?

2.3. Peace-keeping and Peace-enforcement The Report dedicates considerable attention to the question of “collective security” and its instruments: peace-keeping and peace-enforcement. While peace-keeping is a non-coercive operation (characterised by the consent of the territorial State and non use of weapons, except in self-defence, as well as impartiality towards the

8 Immediacy, as a requirement for self-defence, was added by Roberto Ago in his Eighth Report on State Responsibility. The reaction by the victim State often cannot be immediate, since it has to organise its reaction and select the entity responsible, as happened for Operation Enduring Freedom against Afghanistan conducted by the US and its allies after 9/11. Immediacy, as a requirement for self-defence has been endorsed by neither the ICJ (see the Nicaragua and Oil Platform cases and the Advisory Opinion on Nuclear Weapons) nor the ILC Draft Articles on State Responsibility and the appended commentary. 9 GLENNON, “A Stronger SC Is No Solution”, Financial Times (London Edition), 13 December 2004. He also says that in case of genocide an authorization is not necessary. 10 In his address to the Munich Security Policy Conference, cit. supra note 6, he stated: “However, as the Panel points out, in today’s world we may also face threats that are not imminent, but which could become actual with little or no warning, and might culminate in nightmare scenarios if left unaddressed. The SC is fully empowered by the Charter to deal with such threats”.

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forces in the field), peace-enforcement is, on the contrary, the opposite: a coercive operation undertaken against the State in which the operation takes place. The Report asserts that both peace-keeping and peace-enforcement must be authorised by the SC. But this would be a limitation on States’ freedom. Peacekeeping, based as it is on the consent of the State in which it takes place, does not in principle require any SC authorisation. True, some operations may serve multiple functions since a peace-keeping operation could turn into peace-enforcement. But this practical fact cannot distort concepts that are well founded in theory. In addition, because of the often conflicting relations between members of the SC, it could be more convenient to undertake peace-keeping operations without having to seek SC authorisation. What if one of the States involved did not want the operation to be “filtered” through the SC? Finally, such a peace-keeping/SC nexus would make it obligatory for operations to be carried out under the aegis of the UN and for the intervening States to report back to it. The weak point of peace-keeping/peace-enforcement is the chronic lack of personnel, even though Article 43 of the UN Charter sets out that member States should enter into agreements with the SC for putting military contingents at its disposal. The Report completely ignores Article 43 and evidently considers it dead letter. Yet it does not go so far as to suggest its abrogation, as it does instead for other provisions such as the one on establishing the Military Staff Committee composed of SC permanent members. In order to make up for the lack of personnel and to be able to undertake operations that require rapid action, the Report suggests that the States (either individually or through international organisations) make available readily deployable personnel. Mention is made in this context of the European Union’s decision to “establish standby high readiness, self-sufficient battalions that can reinforce UN missions”.11

2.4. The Role of Regional Organisations Regional organisations, like States, have to receive SC authorisation to be able to use armed force, unless they are acting in self-defence in favour of one of their member States (or a third Sate). The Report gives a reading of Article 53 of the UN Charter that is shared by most experts of international law: the Panel rejects the theory, applied for example by the United States during the Cuban naval quarantine (1962) and the intervention in Santo Domingo (1965), by which regional organisations need not necessarily be authorised by the SC. It is significant that the Panel admits that this authorisation can be delivered when military operations have already commenced, as occurred with the ECOWAS operation in Sierra Leone (1997).

11

Para. 219.


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The Report points out that NATO, while it cannot be considered a regional organisation under Chapter VIII of the UN Charter, has nevertheless carried out a number of “out-of-area” missions and is not only an organisation that ensures the defence of its members, but has become an organisation that preserves collective security. Such missions are considered positively in that they contribute to maintaining international peace and security. But the Report states that they should be approved by the SC and that NATO, when undertaking out-of-area operations, should be accountable to the SC for such operations. This is an implicit criticism of the NATO operation undertaken against the Federal Republic of Yugoslavia (1999), which was not however criticised by the UN SG at the time and was legalised with the adoption of SC Resolution 1244(1999).

2.5. The Security Council as an Authorising Body Curiously, in examining peace-enforcement, the Report does not refer to the use of force undertaken directly by the SC. Peace-enforcement is construed exclusively as an action taken by States with SC authorisation. It is true that the hypothesis of direct action on the part of the SC is purely theoretical, but this was nevertheless the original intention of the UN Charter. The Panel evidently considers it dead letter. For peace-keeping as well, the accent is not put on operations headed by the SG under delegation by the SC, of which there have been many – especially in the past. Furthermore, in the Report peace-keeping and peace-enforcement are not clearly distinguished and tend to be blurred. The Panel seems to see the SC as merely an authorising body – operations in the field are undertaken by States upon SC authorisation – while the Charter’s intention was for it to be operational. Article 42 of the UN Charter states that the SC may “undertake” operations with air, naval and ground forces to maintain or restore international peace and security.12 Moreover, the kind of action the SC should take in case of aggression is not adequately considered. True, in this case the States do not require authorisation in that they are acting in collective self-defence, should they decide to intervene in favour of a State that has suffered aggression. But action in self-defence is limited in time in that it should cease when the SC has taken adequate measures to restore international peace and security.

3. POST-CONFLICT PEACE-BUILDING The Report rightly devotes much attention to post-conflict peace-building. This should become one of the UN’s main tasks and real efforts should be undertaken

12

208.

Cf. CONFORTI, The Law and Practice of the UN, 3rd rev. ed., The Hague, 2005, pp. 207-

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for the reconstruction of countries wracked by civil war and, generally, those defined as “failed States”. Often peace-keeping or peace-enforcement actions, which provoke a quick reaction by the SC to a crisis situation, are not followed by a real post-conflict strategy allowing the SC to continue to follow the situation after the end of the conflict. The Panel proposes setting up a body – a Peace-building Commission – charged with managing post-conflict peace-building. This small body would be an emanation of the SC and would not require amendments to the UN Charter, as the Charter allows the SC to set up subsidiary bodies (Article 29). Thus, the SC might continue to operate and supervise the post-conflict situation. Post-conflict peace-building is not only a problem of institutional organisation, it involves such important matters as pacification and rebuilding the economy and the institutional fabric, as well as finding the funds for these tasks.

4. NO ROLE FOR THE GENERAL ASSEMBLY UNDER THE UNITING FOR PEACE RESOLUTION The SC is the only body charged with maintaining international peace and security. Even though most UN Charter experts feel that this falls within the exclusive competence of the SC, it is worth asking whether the GA could be entrusted with some tasks, starting out from the premise (not generally shared by scholars of international law) that the SC has a primary role and the Assembly a subsidiary one. In the 1950s, faced with the Soviet veto, attempts were made during the Korean war to charge the GA with tasks not provided for in the UN Charter. A resolution, known as “Uniting for Peace” (Res. 377 A-V), was passed, authorising the States that had intervened and were operating under unified US command to fly the UN flag. Pursuant to this resolution, the functions of maintaining international peace and security could be exercised by the GA when the SC was paralysed and unable to take decisions because of the veto of one of the permanent members. “Uniting for Peace” was a classic Cold War product, passed by Western countries when they had the majority in the GA. Since the completion of decolonisation, they no longer have that majority. “Uniting for Peace” could have been successfully revived for the NATO intervention in Kosovo, but preference was given to justifying military operations with the theory of humanitarian intervention. The Panel does not resuscitate the 1950 resolution and concentrates on the competences of the SC in the maintenance of world peace and security. Even the Report by the SG, to be examined later, does not mention the “Uniting for Peace” resolution and evidently considers it dead letter.13

13

Resolution 377 A(V) has been recently resurrected by the International Court of Justice in another context: ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, paras. 30-31.


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5. SANCTIONS Sanctions are necessary to coerce the wrongdoer to abide by international law, especially when its conduct is threatening international peace and security or violates human rights. The weak point with sanctions is that they are often disregarded and end up inflicting suffering on the innocent civilian population of the targeted country, while the elite in power profits from sanctions, as proved in Serbia-Montenegro under Milosevic and in Iraq under Saddam Hussein. To remedy these flaws, the Report suggests that the SC adopt “secondary sanctions” in case of violation of “primary sanctions” and inflict “targeted sanctions” to avoid or at least reduce to a minimum the negative humanitarian consequences. These are laudable proposals, even though it is difficult to say if they achieve their goal. If a State does not comply with primary sanctions is it likely that it will comply with secondary ones? The Report suggests that secondary sanctions would be applied against those involved in sanctions-busting. This means that sanctions would be taken against individuals and organisations. Recent SC practice shows that not only States but also individuals and non-State entities may become the target of sanctions. But this practice raises problems. An individual (or a non-State entity) may be subject to penalties without any court determination and without any possibility for him or her to seek judicial redress. To remedy this consequence, the Report proposes that sanctions committees set up a procedure to meet the incorrect mentioning of individuals and entities in the list of those that should be sanctioned. It is difficult to say how the proposed remedy could be acceptable from the perspective of fair and impartial justice. Even more so since the recent SC practice is to impose legislation on member States which they have to implement in their domestic legal order, as happened for instance with Resolution 1373(2001). The SC has begun to exercise quasi-legislative powers, as if it were a supranational institution like the EU, but it is not easy to say if this practice is in keeping with the competence the SC enjoys under the Charter. Targeted sanctions, with minimal consequences for innocent people, are difficult to apply or at best do not work. This depends on the content of the sanctions. An arms embargo surely does not cause any damage to civilians. But what about a comprehensive mandatory embargo, which usually is the only effective means of isolating a country from the international community? The Panel proposes to rely on the already experimented procedure of sanctions committees, which may make exceptions for humanitarian purposes when comprehensive sanctions are decided by the SC. However, sanctions committees do not always work in the best way, as proven by Iraq and the oil-for-food scandal.14

14

See “Independent Inquiry Committee into the UN Oil-for-Food Programme”, Interim Report, 3 February 2005, available at www.iic-offp.org. A second Interim Report was released on 29 March 2005: ibidem.

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The attempts to outlaw sanctions which create grave harm to the population are not new. The Draft Articles of the International Law Commission on State Responsibility, in its Article 50, outlaws countermeasures violating obligations for the protection of fundamental human rights (however, the ILC Draft deals only with countermeasures by States and not with sanctions by the SC). Article 1(2) of the two 1966 Human Rights Covenants states that “in no case may a people be deprived of its own means of subsistence”. GA Resolution 51/242 has recommended that sanctions should take into account individual’s fundamental rights and General Comment No. 8(1997) of the Committee on Economic, Social and Cultural Rights reiterates the same concept. The approach by the HLP is not a legalistic one and the question of sanctions is seen under a humanitarian perspective. Comprehensive sanctions, though far less harmful than war, often have severe humanitarian consequences. Depending on circumstances, they are the only way to avoid armed action.

6. WEAPONS OF MASS DESTRUCTION Weapons of mass destruction (WMD) are perceived as one of the greatest threats to international peace and security. According to disarmament jargon, WMD mainly encompasses nuclear, chemical and biological weapons. All three class of weapons have been the object of non-proliferation or disarmament treaties: Non Proliferation Treaty (NPT), Chemical Weapons Convention (CWC) and Biological Weapons Convention (BWC). The CWC’s main flaw is the slow pace at which CWC arsenals are being destroyed. The original period has been extended until 2012, but the Report points out that it will be difficult to meet the deadline if the pace is not stepped up. The major flaw of the BWC is the lack of a verification procedure. The negotiations for drafting a protocol have been interrupted because of the difficulty in reconciling the intrusiveness of the verification procedure with the interests of the pharmaceutical industry. While the Report points out the threats posed by these kinds of weapons, it underlines that the greatest danger is constituted by the attempts to build nuclear weapons by non nuclear weapon States. The monopoly of nuclear weapon States (NWS) has already been breached, since there are now at least three nuclear States (India, Israel, Pakistan) in addition to the P5 (China, France, Russia, UK, US). Other States, such as Iran and North Korea, are also competing to become nuclear powers. It is not clear whether the former already holds nuclear weapons. The Report proposes a number of measures to curb proliferation. NWS should strengthen their pledge not to use nuclear weapons against non nuclear States and undeclared NWS should, in turn, give negative security assurances (i.e. not to use nuclear weapons against non-nuclear States). Likewise the SC should pledge to take collective action should a non nuclear weapon State be threatened or attacked with nuclear arms (positive security assurances). This proposal is laudable, even though one wonders how SC assurances can be effective


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and really “assure” non-nuclear weapons States, given the SC’s lack of a nuclear deterrent. Other proposals suggest establishing nuclear-weapon-free zones in the Middle East and South Asia, negotiating a cut-off treaty to stop the production of nuclear material and setting up a better verification process. The danger represented by the acquisition of nuclear material by terrorists and other non State entities is also addressed. In this respect, the Panel praises the recent initiatives aimed at impeding the transfer of nuclear material, such as the Non-Proliferation Security Initiative (PSI),15 or current negotiations under IMO auspices for a revision of the 1988 Rome Maritime Terrorist Convention, which should prohibit and criminalise the transportation by sea of unauthorised nuclear material. SC Resolution 1540(2004) is another step in the right direction to curb proliferation and impede shipment of nuclear technology to non State actors.16 Even though Libya and the diplomatic pressure exerted to induce this State to dismantle its nuclear program is a success story, the positive elements do not overcome the negative ones. The Panel fears that the possibility of a collapse of the NPT regime is real and not exaggerated. But the Panel fails to address a number of important points: why do non-nuclear States want to become nuclear? Do they want to conduct an aggressive policy or do they feel threatened? How can the non declared nuclear States (India, Israel and Pakistan) be brought into the non proliferation regime? Are the NWS really progressing toward universal and verifiable nuclear disarmament as advocated by Article VI of the NPT and pointed out by the ICJ in its advisory opinion on the legality of the threat or use of nuclear weapons?17 It seems that the NWS are not willing to keep in step with the principles and objectives on nuclear non-proliferation and disarmament laid down at the 1995 NPT extension and review Conference and the 13 steps for nuclear disarmament adopted by the 2000 Review Conference.18 While the US-Russia bilateral programme to reduce their stocks of nuclear weapons has progressed, recent reversals should also be taken into account. For instance, the United States is doing research for the construction of bunker-busting nuclear weapons, which would limit nuclear fallout and collateral damages and would thus be easier to use.19 Ageing warheads are being repaired or replaced instead of destroyed. As was pointed out during a seminar in preparation for the Panel Report, “you cannot declare a particular type

15 On the content of which, see BYERS, “Policing the High Seas: The Proliferation Security Initiative”, AJIL, 2004, pp. 526-545. 16 See generally SUR, “La résolution 1540 du Conseil de Sécurité (28 avril 2004): entre la prolifération des armes de destruction massives, le terrorisme et les acteurs non étatiques”, RGDIP, 2004, pp. 855-882. 17 ICJ Reports, 1996, pp. 263-264, paras. 98-99. 18 See both documents in GRAHAM and LA VERA, Cornerstones of Security. Arms Control Treaties in the Nuclear Era, Seattle, 2003, pp.113-116 and 131-132. 19 GROTTO, “Nuclear Bunker-Busters and Article VI of the Non-Proliferation Treaty”, ASIL Insight, February 2005.

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of weapon to be illegal and then have states base their national security on that very weapon”.20

7. HUMAN RIGHTS Global human rights have long become a central issue for UN action and policy. The UN has not only drafted several legal instruments for protecting them, but has also established organs for monitoring human rights enforcement within member States. Human rights are no longer a concern only of the GA and the Economic and Social Council (ECOSOC), but have also become a matter for SC action, especially when their disregard threatens international peace and security. Massive human rights violations now fall under Article 39 of the UN Charter and allow the SC to take action. For several years after its foundation in 1946, the Commission on Human Rights did commendable work both in drafting instruments on human rights and monitoring human rights enforcement worldwide. In recent years, the Commission has lost its long-standing positive record and among its 53 member States are some whose record on human rights protection is extremely poor, since human rights abuse and even torture are their usual practice. Those States have been elected by the ECOSOC not to advocate the cause of human rights, but to impede that the Human Rights Commission can adopt resolutions against them. The Commission has been chaired by Libya in 2003. Its current membership includes China, Saudi Arabia and Sudan (the latter is implicated in mass killings and was the object of a Panel nominated by the UN SG, which recommended that the SC charge the International Criminal Court with initiating criminal proceedings against those responsible for the atrocities).21 Cuba, too, has been a member of the Human Rights Commission. It is therefore understandable that the Report focused its attention on the Commission and made proposals for restoring its past record. Three proposals were submitted: – The membership of the Commission should become universal, in the sense that it should be composed of all UN members; – The delegation should be led by prominent human rights figures; – An advisory council or panel of 15 independent experts should be established to help the Commission work. 20 The Stanley Foundation, Capturing the 21st Century Security Agenda: Prospects for Collective Responses, 2004, see under the Chapter “Rethinking the International System”, p. 19 ff. 21 “Report of the International Commission of Inquiry on Darfur to the UN SG, Pursuant to SC Resolution 1564 of 18 September 2004”, Geneva, 25 January 2005. The Panel recommendation has been endorsed by SC Resolution 1593 of 31 March 2005 which deferred the question of the Sudanese international criminals to the ICC. Sudan is not an ICC member.


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In the long term, the Panel proposes to enhance the status of the Commission by transforming it from an auxiliary organ of the ECOSOC into a full body. The Commission should become a “Human Rights Council”. The Panel also proposes strengthening the role of the High Commissioner for Human Rights (HCHR), tasking him/her with reporting on the situation on human rights worldwide – something the HCHR already does but which the Panel evidently thinks should be augmented. More interaction between the SC and the HCHR is also suggested, assigning, for instance, the HCHR the duty to control implementation of SC resolutions containing human rights provisions. It is a shame that the Panel does not mention the work of NGOs in addressing human rights. NGOs have become indispensable, as independent organisations, in watching human rights implementation, denouncing human rights violations and prompting governments to abide by human rights standards. The proposal to increase the membership of the Commission has been criticised, mainly because it already has little time to perform its work (only six sessions per year) and a larger Commission will be more time-consuming. Probably, the Panel’s intention was to allow for the creation of a bloc of democratic nations.22 Whether or not one agrees with the Panel’s proposals, it goes without saying that the Commission on Human Rights has lost its importance and action is needed to restore its original prominence.

8. TERRORISM Terrorism has become a permanent feature of current international relations and the Panel rightly proposes a number of measures to curb it. It identifies the causes of terrorism, inter alia, as despair, humiliation, poverty, human rights abuses and extremism. It also points out that terrorism “flourishes in contexts of regional conflict and foreign occupation”. Almost all the Panel’s proposals for fighting international terrorism are “déjà vu”. It is worth focusing on two points of the Report here: UN SC sanctions against individuals and entities, and definition of international terrorism. The Panel endorses the legitimacy of SC resolutions imposing sanctions against individuals and entities and the compilation of terrorist lists. As noted earlier, this practice raises problems from several points of view, since the compilation of lists is carried out by the UN and governmental bureaucracies without judicial review. Since these kinds of sanctions are usually mandatory, States and international organisations, such as the EU, are obliged to implement them. National courts do not question the legality of SC resolutions or at least there are no instances of SC

22

2005.

BAKER, “UN Member States Need to Set Aside Self-interest”, Bangkok Post, 11 January

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resolutions being declared void by a national court. If an entity or individual is on the list, their assets are frozen and other proceedings may be instituted, such as dissolution of the entity or deportation of the suspected terrorists. Removal from the list is also done by international and government bureaucracies. The Panel suggests that the Sanctions Committees institute “a process for reviewing the cases of individuals and institutions claiming to have been wrongly placed or retained on [the] watch lists”. The Panel proposal applies to the Al-Qaeda and Taliban Sanctions Committee, but should be a concern for every future committee dealing with sanctions against individuals. This is a subject which has not yet been duly examined, and that should be tackled from the access to justice perspective. The second point worthy of interest deals with the definition of international terrorism. The Panel rightly affirms that the UN’s ability to develop a comprehensive strategy against international terrorism has been constrained by the failure to elaborate a definition of this criminal phenomenon acceptable by all States of the international community, notwithstanding the adoption of 12 antiterrorist conventions which deal only with aspects of terrorism. The lack of a definition is one of the causes why the international community has not yet drafted a comprehensive convention on international terrorism.23 The Panel believes that a GA consensus definition on terrorism would pave the way for a comprehensive convention. The Panel proposes a number of elements to be inserted in a GA resolution on terrorism, including a restatement that acts under the existing 12 antiterrorism conventions24 are deemed as terrorist (which is obvious) and that they are crimes under international law (which is less obvious: for instance the Rome Convention on the International Criminal Court does not list terrorism under the international crimes subject to the Court’s jurisdiction). The Panel draws from UN SC Resolution 1566(2004), in particular from its para. 3, and proposes a definition of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and SC resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a Government or an international organization to do or to abstain from doing any act”. The Panel tries to avoid the circularity contained in Resolution 1566 which defines terrorism as a criminal act committed with the purpose “to provoke a state 23

Even if the 1999 International Convention for the Suppression of the Financing of Terrorism tries to give a definition of terrorism in its Article 2(1)(b). 24 Subsequent to the HLP Report the GA adopted the International Convention for the Suppression of Acts of Nuclear Terrorism, that will be opened for signature on 14 September 2005: A/59/766.


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of terror”. The purpose (or dolus specificus) in the Panel’s definition being to “intimidate” a population or “compel” a Government or other international entity to do or to abstain from doing something. The material act in the crime of terrorism is an action aimed at causing death or serious bodily harm to civilians or non-combatants (two categories of persons who deserve to be specified, if it is assumed that they do not coincide). Even so, the Panel’s definition is not exempt from criticism. It gives a narrow definition of terrorism since it encompasses only those acts which are intended to hit human beings. According to the Panel’s definition, a blow or explosion which causes the destruction of an unoccupied building is not an act of terrorism, unless it falls under one of the 12 conventions dedicated to specific aspects of terrorism. The same is true for other assets, such as aircraft and ships. What about blowing up a building without any intention of hitting the civilian population? Unless such acts fall under the scope of a specific anti terrorism convention, they would not be considered as an act of terrorism. The value of the definition on terrorism proposed by the Panel is flawed by the fact that it is not entirely new and is without autonomy. It is in addition to the already existing conventions and UN resolutions, which were drafted during a considerable time frame and are sometimes conflicting each other.25

9. THE SECRETARY-GENERAL’S FOLLOW-UP As said in the introduction, in September 2005 a Summit will review the progress made in implementing the Millennium Declaration (2000). The SG has thus prepared a report and an agenda to act upon at the Summit.26 The report takes up and delves more deeply into several issues, which constitute the bulk of the Millennium Declaration. For use of force and collective security, the SG Report relies on the HLP Report with few – though significant – changes. The SG Report recognises that the main disarmament treaties have done their job, even though there is a danger of erosion, in particular for nuclear disarmament and non-proliferation. It therefore proposes a number of measures to strengthen the current regime, such as an early conclusion of negotiations on a fissile material cutoff treaty and agreement on alternatives to the acquisition of enriched uranium for peaceful purposes. These are laudable proposals. However, the SG forgets to mention Article VI of the NPT and the obligation therein contained, to start negotiations for complete, universal and verifiable disarmament in the nuclear field. 25

See the comment by BETHLEHEM, ASIL Newsletter, January/February 2005. pp. 6-7. UN Doc. A/59/2005: “In larger freedom: towards development, security and human rights for all”. See the first comments by States and international institutions in SFDI, “Dossier special de Sentinelle”, No. 2, 25 March 2005, ibidem, 3 April 2005 (common statement by Brazil, Germany, India and Japan), available at http:www.sfdi.org/actualites/rapport Annan/index.htm. 26

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In the field of collective security, the SG proposes an interlocking system of peace-keeping capacities by both the UN and regional organisations, without taking a position on whether each peace-keeping mission should be authorised by the SC or might be carried out without a UN-endorsing resolution. The SG expands the proposal of the HLP to create a Peace-building Commission and a Peacebuilding Support Office, to be located within the Secretariat. The Peace-building Commission should rely on substantial resources and thus the involvement of financial institutions is recommended. The peace-building tasks should be far-reaching and the establishment of, for instance, a Rule of Law Assistance Unit within the Peace-building Support Office is advised. On the use of force, the UN SG endorses, quasi-verbatim, the HLP proposals. He affirms that Article 51 enables States to respond both to an imminent attack and to an attack that has already taken place, thus embracing the doctrine of anticipatory self-defence and taking a more definite stance than in his Munich address.27 However, when the threat is only latent and not imminent, the response falls within SC competence, which has to consider whether to authorise the use of force. He proposes that the SC adopt a resolution setting out principles to guide it in deciding whether to authorise the use of military force. In the Annex to his Report, the SG spells out those principles. This proposal would add clarity to SC action. However, whether it will be endorsed by SC members, and in particular by the SC permanent members, is open to question.28 States have already drafted a couple of landmark resolutions on the matter of use of force, in particular the 1970 Declaration on Friendly Relations (2625-XXV) and the 1974 Declaration on the Definition of Aggression (3314-XXIX). Those resolutions were adopted by the GA after years spent on their drafting, while the SG proposes a resolution adopted by the SC. It is not clear whether it should be a hortatory or mandatory document. Who is going to adopt such a resolution: the SC in its current composition or an expanded SC?29 Moreover, the SG’s proposal is not in keeping with the UN Charter since it attributes quasi-legislative powers to the SC in the vital field of maintenance of the international peace and security. On human rights the SG Report recognises, as was pointed out in the HLP, that the Commission on Human Rights has become an organism that betrayed its initial mandate and lost its strength.30 However, he does not follow the HLP recom27

Supra note 6. For instance the United States immediately expressed a negative stance on a SC resolution on the use of force, see The Washington Times, 22 March 2005. 29 The SG is not able to make a single proposal for SC composition either. He affirms that the SC should be enlarged. However, he limits himself to endorsing the two proposals put forward by the HLG. 30 The SG affirms that “[…] the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the UN system as a whole”, para. 182. 28


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mendation to institute a Human Rights Commission with universal membership. On the contrary, he proposes to abolish the Commission and to institute a standing Human Rights Council, whose members are elected by the GA, with a two-thirds majority of members present and voting. The Human Rights Council, composed of a small number of members, would become a principal organ of the UN (but the option of making it a subsidiary body of GA is also suggested). The Report does not clarify whether the Council’s members would act in their personal capacity or as representatives of their respective States. The former alternative seems to be what the SG has in mind, since he proposes that “those elected undertake to abide by the highest human rights standards”. This small organ would be a kind of SC for human rights. The SG’s proposal is rather optimistic. Will the democracies present in the GA be capable of assembling the supermajority of votes necessary to elect genuinely democratic countries to the Council or could they, at least, form a blocking minority to prevent a State with a non commendable human rights record from being elected? Most important is that the SG recognises that the current balance of the UN organs is no longer in keeping with the original spirit of the UN Charter and with reality. He says that the founding fathers assigned the responsibility to carry out UN affairs to three Councils: the Security Council, the ECOSOC and the Trusteeship Council. With the completion of decolonisation, the Trusteeship Council exhausted its functions, while the ECOSOC has too often been insignificant and relegated to a marginal role. The SC has gained currency and its functions have been increased, in particular after the end of Cold War. To restore the balance, the SG proposes deleting Chapter XIII on the Trusteeship Council and investing the three Councils (SC, ECOSOC and the newly created Human Rights Council) with competences, respectively, in international peace and security, economic and social issues, and human rights. The balance proposed is difficult to maintain, given the new and far reaching responsibilities assigned to the SC, which fall between the maintenance of peace and security and protection of human rights, for instance in preventing genocide and the responsibility to protect. The same is true, mutatis mutandis, for ECOSOC and the implementation of economic sanctions. The HLP proposal to define international terrorism is fully approved by the SG, who endorses in a more concise manner the definition given by the HLP. In the Annex to his Report, constituting a kind of agenda for the September Summit, he defines terrorism as “any action that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a Government or an international organization to do or to abstain from doing any act”.31 31 In April 2005 work on UN reform speeded up. Informal consultations were held within the GA (6-8 April) and on 6 April the SG appointed four international envoys (former Heads of State and foreign ministers) to visit world capitals to back UN reform. Moreover, the GA President recommended that the GA informal consultations be followed by thematic consultations on the main

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10. CONCLUSION What are the points in the HLP Report and the subsequent SG Report that, from a security angle, touch on the collective security and the national interest of member States? There are many from both perspectives because both Reports point to the central role of the SC but at the same time consider it an authorising body and consequently give particular importance to the role of States. The most important points can be summarised as follows: i) The notion of self-defence. Almost all continental doctrine is rooted in the theory that self-defence can be exercised only when a State has suffered an armed attack. The HLP Report comes out in favour of the thesis by which self-defence can also be exercised when an attack is imminent. The concept of imminence is interpreted in the traditional sense and not extended, as is done in the Bush doctrine on pre-emption.32 States are called upon to take a stance on this point: the HLP Report’s interpretation of the notion of self-defence can be shared in light of the development of new weapons and new threats. It would be absurd to permit reaction only once a missile has already hit the territory of the attacked State and not at the time when preparations for its launching are unequivocally beginning. But note: the two interpretations of self-defence have much in common and if States take a stance on this point it will contribute to the development of international law. The HLP Report does not clarify whether an armed attack, the prerequisite for exercising legitimate self-defence, has to come from a State or can be carried out by a non-State entity such as a terrorist organisation. This has to be cleared up. SC Resolutions 1368(2001) and 1373(2001) passed in the aftermath of the September 11 terrorist strike support, at least in the preamble, that a State victim of a terrorist attack is entitled to react in self-defence. However, the ICJ Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory states that an armed attack has to be attributable to a State in order to fall under the law of selfdefence.33 ii) The SG Report proposes to entrust the SC with the task of “codifying” the existing rules on the use of force. This serves the cause of efficiency, less the cause subjects contained in the SG Report. These will be conducted by ten “facilitators” during the month of April with a view to identifying possible elements of agreement and preparing a draft document in June to be submitted to the September Meeting of Heads of State and Government. 32 Cf. supra, note 7. According to the US President doctrine on “preventive war”, the updated notion of imminence, which would allow the US to react in self-defence, encompasses the new threats, constituted by the possession of WMD by States ready to use them and by terrorist’s movements. Deterrence does not work against the new threats. In the past the imminence of attack was much more visible, since it consisted in the mobilization of army, navy and air forces. Nowadays, terrorist movements operate underground, and rogue States are not deterred by NWS, lawfully detaining nuclear weapons. 33 Cit. supra note 13, para. 139. This statement has rightly been criticized by Judge Rosalyn Higgins in her Separate Opinion, ibidem, para. 33.


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of “democracy”. How is it possible to presume that a narrow body, composed of 15 States, can draft rules for 191 States, the current UN membership? The proposal deviates from past practice, when the task of drafting rules on that issue was entrusted to the GA (Friendly Relations and Definition of Aggression). And things are no different if the resolution is drafted by a future SC of 24 member States. Moreover, as pointed out, it is doubtful whether a quasi-legislative resolution of this kind is in keeping with the UN Charter. iii) The HLP Report does not deal with international humanitarian law applicable to armed conflict under the part dedicated to the use of force.34 It would be important for another criterion to be added to the five criteria relative to the use of force that are to be incorporated into SC or GA resolutions. This one should specify that the use of force has to be in strict conformity with international humanitarian law. iv) One point contained in the HLP Report and that should be rejected is that peace-keeping operations have to be authorised by the UN. If the issue is “real” peace-keeping operations, then authorisation is not required by international law. It should be recalled that military organisations, such as NATO, cannot subordinate their out-of-area operations, when peace-keeping missions are involved, to a SC authorisation. This may also be true for individual States. There could also be political contingencies that make a SC authorisation – subject to the veto of one of the permanent members – inadvisable. At the same time, the risk of a veto could condition the authorising resolution, as the SC members would inevitably have to compromise. As recognised by Gareth Evans, in another context, not every security problem has a UN solution.35 v) The SC takes on a central role when a threat that is not imminent has to be countered (otherwise it would be self-defence). In this case, State intervention should be authorised by the SC. There is agreement on this point. There is also agreement on the observation that the authorisation can be given when the military action is already underway because it increases flexibility. Unilateralism is reduced, while the possibilities of intervention are increased when the threat (for example, illegal possession of weapons of mass destruction by States ready to use them) actually puts international peace and security at risk. vi) One wonders, however, whether the SC has the means necessary to judge if a latent threat constitutes a real danger demanding armed action or whether it has to rely on evidence supplied by the States, which are not always impartial. The SC’s power of inquiry, without the support of an effective intelligence structure, is not sufficient.

34 It deals with that question under the item “Protecting Civilians” (Part. XII, paras. 231238), where it also recommends that all member States should ratify all treaties relating to the protection of civilians, including the Statute of the International Criminal Court. 35 EVANS, “Change for a Stronger UN”, Australian, 13 January 2003.

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vii) Neither the HLP nor the SG Report addresses the case of a stalemated SC facing a threat which is not imminent. This is a major flaw. What do States have to do: wait for the threat to become imminent? (This would allow them to take action in self-defence, according to the HLP’s interpretation of Article 51). Between a latent threat and an imminent attack lies a grey area that should be addressed. viii) With the exception of the instance of self-defence, the use of armed force remains a “last resort”. This position is commendable from the perspective of global peace. But it is not always in the interest of justice and humanity. In case of threat of genocide, early intervention can save lives, while painful negotiations diluting time and modalities of intervention often mean a licence for bloodshed. It seems that third world countries and at least one SC permanent member (China) have already expressed a negative opinion on the part of the HLP Report dedicated to humanitarian intervention and the responsibility to protect. Undermining the role of the SC in this connection opens the door to unilateral intervention by individual States or by regional organisations. ix) According to the HLP, the role of the SC is inversely proportionate to the immediacy of the threat.36 If the danger is actual or imminent, a State may intervene in self-defence without any SC authorisation; on the contrary, if the threat is latent, force should be authorised by the SC. This model is tailored to the interests of the most powerful States and to the remaining superpower, which have the capability to react. It serves less the needs of weaker States, which have to rely on an effective collective security system in case of aggression.

36

This last observation was made by SCOWCROFT during his presentation to the Panel on “Threat, Challenges and Change: The Secretary-General HLP”, 99th ASIL Annual Meeting, 2005. General Brent Scowcroft was a member of the HLP.

CORPORATIONS AS INTERNATIONAL ACTORS AND INTERNATIONAL LAW MAKERS VAUGHAN LOWE*

1. INTRODUCTION Throughout most of the twentieth century the traditional view was, as it was put in early editions of Oppenheim’s International Law, that public international law is a “law between States only and exclusively”.1 If that was ever true,2 it is plainly no longer true. Behind the formalities of cases brought in the names of States, in the WTO dispute settlement process and in the ITLOS, for example, the reality is that it is often the interests of specific companies that are the casus belli, as it were, and that it is the companies that effectively shape and control the character of the litigation. But the face behind the mask is a constant in international life, and in some ways not the most important aspect of this matter. More important are those circumstances in which companies are the overt actors within the international legal system. As far as their fundamental role within the system as participants in the making and development of international law is concerned, there are two mechanisms by which they exercise a direct and very significant influence. The first, already evident in the middle of the twentieth century, is through the making of agreements with States, governed (at least in part) by international law, under which the company has in the event of a breach of the agreement, the right to litigate against the State Party on a footing of judicial equality. A century ago, if a foreign investor was mistreated, its national State would bring an international claim against the alleged wrongdoing State. Under concession agreements, the foreign investor may bring such claims before a tribunal in its own name. The massive growth in bilateral investment treaties (BITs), which now number over 2,000, has *

Chichele Professor of Public International Law, University of Oxford. This paper was originally delivered as a lecture at the session on L’interdipendenza globale e il diritto internazionale contemporaneo: aspetti chiave di un mutamento di paradigma in atto. Il ruolo delle corporations nel law-making internazionale, e gli standards emergenti di natura solidaristica che incombono alle corporations in materia di responsabilità sociale (Global Interdependency and Contemporary International Law: Key Aspects of a Changing Paradigm. The Role of Corporations in the International Law-Making Process and the Emergence of Standards of Solidarity Nature for Corporations in Matters of Social Responsibility), at the XIth Giornata Gentiliana in San Ginesio, September 2004. 1 See, e.g. OPPENHEIM, International Law – A Treatise, 4th ed., Vol. 1, 1928. 2 Which I doubt. Non-sovereign entities have always participated in international legal relations. See, for example, the list of Contracting Parties to the 1899 Hague Convention on the Pacific Settlement of International Disputes.


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consolidated this development by giving such a right to investors in the States Parties in general. Arbitrations arising from such agreements are conducted in a manner that is practically indistinguishable from inter-State arbitrations; and the resulting awards, in cases such as the great Libyan oil arbitrations of the 1970s, are commonly cited alongside inter-State awards as authorities on propositions of international law. The implication is obvious. If, for example in the course of US-Mexican claims concerning the treatment of the property of foreign nationals, claims are put forward and accepted by States, we say that the process – to the extent that it reflects an international consensus, at least – generates customary international law. Why should we not say so if the claim is made or accepted in the course of dealings between companies and States? The answer, it seems to me, is more a matter of taste than of logic. We might insist that it is only the acceptance of corporate claims by States, and not their making by corporations, that is legally relevant. We might say that the powers of corporations all derive ultimately from States, so that any authority their actions may have is the authority of the State. But there is no reason why we must adopt such an approach unless we are first committed to the view that it is the logical basis of a company’s capacity and powers that is the relevant factor; and there is no more reason to be committed to that proposition than there is to be committed to, say, the social contract as the basis of political authority within a State. It is an existential leap or an article of faith; and one cannot ask whether it is correct but only ask whether it is useful. For my part, I do not think that any dogmatic position on the question whether corporations are “subjects” of international law or “international actors” is helpful. They have some characteristics in common with States, the archetypal subjects of international law, and some characteristics in common with human beings, the archetypal “objects” of international law; and they should be recognised as entities sui generis whose treatment, and the treatment of whose actions, in international law needs to be approached on a pragmatic, case-by-case, basis. Before I turn to illustrate that proposition by reference to four specific contexts in which the character of corporate actors is significant, I should explain the second main mechanism by which corporations, and non-State actors more generally, develop international law: that is, through the formation of international standards which moderate the application of broad international principles. Three examples will illustrate the point. The first example arose in the 2003 Land Reclamation case (Malaysia v. Singapore) in the ITLOS,3 in which it was said that Singaporean land reclamation activities were leading to a reduction in the size of a navigable channel that

3 Published at www.itlos.org. See TREVES, “The International Tribunal for the Law of the Sea (2003)”, IYIL, 2003, p. 157 ff., p. 158 ff.

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amounted to an unlawful interference with rights of passage under the 1982 UN Convention on the Law of the Sea. The 1982 Convention establishes rights of innocent passage, and the rights of States to designate sea-lanes and to regulate passage: but nowhere does it say how wide or deep navigable channels must be. Faced with uncertainty over such an issue, the natural response was to turn to whatever instruments do express some measure of international consensus upon the necessary discussion. As is often, perhaps usually, the case the issue was not so much whether international law contained any applicable standards as what the best or most useful evidence of applicable standards might be. In the absence of standards explicitly agreed by Governments as representatives of States, the next best thing is a set of standards agreed by non-governmental agencies representing the relevant interests (in this case PIANC, the International Navigation Association, representing port, navigation and shipping interests) in States. The second example arises commonly in international concession agreements where particular terms, such as the duties of concession operators or the terms upon which concessions are to be renewed, are not spelled out but are instead expressed by reference to “best industry practice” or to “prevailing commercial usages”. The specific obligations are thus tied to the standards set, not by governments (or not by governments alone),4 but by corporations. The final example arises in investment arbitrations where, after issues of responsibility have been addressed, questions of the quantification of losses arise. The valuation of corporate claims is a matter of immense significance. Many millions of dollars can be added to, or subtracted from, the quantum of damages according to the approach that is adopted to the valuation of corporate businesses. Here, again, customary international law as created by States, and international treaties, is silent at the level of detail that is critical in practice. Here again tribunals must reach for the next best thing, which is the body of accounting and valuation practices that have been adopted by international or national professional bodies or that are generally applied within the relevant industry. These three examples all exemplify the role of corporations, both profit-making and non-profit-making, in the creation of international standards that mediate the broad applicable principles of the law created by States. This is not an instance of “privatisation”, of the allocation to the private sector of functions that could as well be performed by governments. Rather, it is a recognition of the limitations upon the capacity of governments, and in particular of ministries of foreign affairs whose over-burdened staff have to cover an astonishing range of subjects, to negotiate international instruments in great technical detail. These matters are best left to those who are familiar with them in all their practical detail.

4 Government-imposed obligations may, of course, influence or even determine what the industry practice is.

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Are corporations “objects” of international law, as human beings are said to be, passively bound by international law and benefiting from its protection, but not actively making international law? Or are they “subjects” of international law like States: international legal persons within the public international law system, actively making its rules, asserting rights and fulfilling obligations? The answer must be that at this stage in the development of international law the classification of corporations is a matter of choice. Doctrinal purists can say that they remain objects; and if one focuses on the abstract normative structure of public international law, that is an entirely plausible view. If, however, one focuses upon what happens in fact, corporations can reasonably be regarded as active subjects of international law. My point is that neither approach is very helpful. Corporations are plainly hybrids, with features of both subjects and objects. They are best approached by looking at the ways in which corporations function in particular contexts. Let me turn to four areas of international law in which the inadequacy of treating corporations as if they are individuals subject to the law is evident. The areas are human rights, State responsibility, diplomatic protection, and jurisdiction.

2. HUMAN RIGHTS There are two aspects of human rights law to consider. In one, concerned with the role of corporations in securing human rights, they behave like States. In the other, concerned with corporations as possessors of human rights, they are more like human beings.

2.1. Corporations as Securers of Human Rights Corporations control much of our lives. When we ask what actually matters to us, and what impacts most directly upon our everyday lives, access to food, water, electricity, communications, fuel, and so on must rank very high up the list. For the most part, the conditions of access to these basic necessities of life, and to employment and the very opportunity to earn a decent living, are controlled by corporations. On a more localised scale, corporate projects such as dam building and oil exploration may have massive impacts upon the local populations, upon the environment, and upon national trade and prosperity. All of these matters may directly and significantly affect the quality of life of very large numbers of human beings. Corporations and States act together in such projects, often as parties to concession agreements or development plans; yet under the traditional conception of international law it is only the State that bears any responsibility under international law for enforcing or securing human rights. That position is, however, now changing.


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The role of corporations in respect of environmental and human rights concerns is well established. For example, the 2000 OECD Guidelines for Multinational Enterprises5 sets out General Policies, as follows: “Enterprises should take fully into account established policies in the countries in which they operate, and consider the views of other stakeholders. In this regard, enterprises should: 1. Contribute to economic, social and environmental progress with a view to achieving sustainable development; 2. Respect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments…”. The accompanying commentary makes plain that these obligations extend beyond simple compliance with the laws of the host State. Corporations are expected to act as partners with governments. Thus, the Commentary to that General Policy states that: “while promoting and upholding human rights is primarily the responsibility of governments, where corporate conduct and human rights intersect enterprises do play a role, and thus MNEs are encouraged to respect human rights, not only in their dealings with employees, but also with respect to others affected by their activities, in a manner that is consistent with host governments’ international obligations and commitments. The Universal Declaration of Human Rights and other human rights obligations of the government concerned are of particular relevance in this regard”. Also in 2000, the UN launched the Global Compact, based upon a proposal made the previous year by Secretary-General Kofi Annan at the Davos Economic summit.6 The Compact consists of ten7 principles, including the following: “Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses. Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;

5 See DAFFE/IME/WPG(2000)15/FINAL, 15 October 2001, http://www.olis.oecd.org/olis/ 2000doc.nsf/LinkTo/daffe-ime-wpg(2000)15-final. 6 See http://www.un.org/News/Press/docs/1999/19990201.sgsm6881.html. 7 Originally nine.

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Principle 4: the elimination of all forms of forced and compulsory labour; Principle 5: the effective abolition of child labour; and Principle 6: the elimination of discrimination in respect of employment and occupation...”.8 Again, the active involvement of corporations in the implementation of human rights norms is clearly indicated. In 2000, the governments of the United Kingdom and United States, together with major corporations in the extractive and energy sectors, and non-governmental organizations, agreed upon a set of Voluntary Principles on Security and Human Rights9 that apply to the security operations of corporations protecting their establishments abroad. The Principles address concerns that corporate security forces can in effect supplant national police forces, and become independent power bases in the host State. Those private forces may themselves engage in human rights violations.10 That situation is particularly acute in States affected by internal conflict and civil war, where internal security may be inadequate to safeguard the corporation’s property. It is not too fanciful to suggest a parallel between the positions of corporations and of belligerent occupants in these circumstances. Both may, in the areas under their control (which, in the case of mining companies for example, may be very extensive), control the only effective police and security systems, as well as controlling the infrastructure. The Principles also address the converse situation, where the State does provide security, but has a reputation for human rights violations. The Principles state that: “Although governments have the primary role of maintaining law and order, security and respect for human rights, Companies have an interest in ensuring that actions taken by governments, particularly the actions of public security providers, are consistent with the protection and promotion of human rights. In cases where there is a need to supplement security provided by host governments, Companies may be required or expected to contribute to, or otherwise reimburse, the costs of protecting Company facilities and personnel borne by public security. While public security is expected to act in a manner consistent with local and national laws as well as with human rights standards and international humanitarian law, within this context abuses may nevertheless occur.

8

Cf. http://www.unglobalcompact.org/Portal. See http://www.state.gov/g/drl/rls/2931.htm. 10 See generally the study by Human Rights Watch, Corporations and Human Rights, available at http://www.hrw.org/about/initiatives/corp.html. 9


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In an effort to reduce the risk of such abuses and to promote respect for human rights generally, we have identified the following voluntary principles to guide relationships between Companies and public security regarding security provided to Companies”. The Principles then proceed to set out substantive principles of conduct to be observed by corporations, including the establishment of procedures to promote compliance with international human rights standards, and the reporting of abuses and monitoring of the handing of such reports.11 To take another example, in 2003 the UN adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.12 The Norms open with a statement of general principle that neatly encapsulates the point being made here about the role of corporations: “1. States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups”. Corporations have become partners with States in the implementation of international human rights. In addition, there are voluntary codes adopted by corporations, in which they commit themselves to compliance with agreed international standards of conduct on matters such as employment and human rights standards.13 In some cases corporations subject their compliance with such codes to an auditing process, which 11

For an account of allegations of human rights violations in this context, see the Human Rights Watch paper, The Price of Oil. Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities, 1999, http://www.hrw.org/reports/1999/nigeria/ index.htm. 12 See UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, http://www.unhchr.ch/ huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En?Opendocument. 13 See the ILO study, Corporate Codes of Conduct, http://www.itcilo.it/english/actrav/ telearn/global/ilo/code/main.htm, and the collection of codes at http://www1.umn.edu/humanrts/ links/conduct.html. Cf. the US Council for International Business study, Corporate Codes of Conduct: A Review of Recent Initiatives, 1999, http://www.uscib.org/index.asp?documentID= 1357.

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reinforces the effect of the code as a mechanism for securing the implementation of human rights norms.14 To this extent, it is evident that international law is developing so as to establish an expectation, if not as yet a legal obligation on corporations, that they will exercise their powers and influence in such a manner as to promote the implementation of human rights. The potential value of corporations as partners of governments in securing human rights is clearly recognized. In other respects, however, corporations are still in a position very different from that of governments. A corporation is not responsible under international law if it simply fails to exercise whatever powers it might have to prevent an infringement of international law. Even in cases where the corporation acts in a manner that is inconsistent with international human rights norms, there is no direct legal redress against the corporation under international law for individuals who suffer as a result. The individual must seek his or her remedy from national courts under national law.15 In some circumstances there are, however, procedures by which pressure can be indirectly applied to the corporation. For example, it may be possible to resort to World Bank Inspection Panels16 and similar procedures,17 with a view to persuading those who fund corporate activity to cut off funds for particular projects – as was done when the World Bank withdrew from the Arun III Hydroelectric Project in Nepal following a report indicating that the project would be incompatible with the environmental and human rights policies of the Bank.18 A similar effect can be achieved in some jurisdictions by legal challenges to decisions of national export guarantee and insurance agencies to support a particular project. Such agencies (for example, OPIC in the USA, SACE in Italy, and the ECGD in the UK) may be required by their constitutions or operating rules to 14 For a critical account see SIMONS, “Corporate Voluntarism and Human Rights: the Adequacy and Effectiveness of Voluntary Self-Regulation Regimes”, Relations Industrielles/ Industrial Relations, 2004, pp. 101-141. 15 In some States international law may have a status in the domestic law which makes it possible to make a claim under national law for a breach of standards and obligations established in international law. See, e.g., Doe I, et al. v. Unocal Corp., et al., Nos. 00-56603, 00-57197, 0056628 and 00-57195, United States Court of Appeals for the Ninth Circuit, 18 September 2002, http://caselaw.lp.findlaw.com/data2/circs/9th/0056603p.pdf. The Burmese plaintiffs claimed that Unocal was liable for violations of their human rights by the Myanmar military. The claim was settled by Unocal in December 2004. 16 See http://wbln0018.worldbank.org/ipn/ipnweb.nsf. 17 See, e.g., the Inter-American Bank’s Independent Investigation Mechanism, http:// www.iadb.org/cont/poli/mecanism.pdf and http://www.adb.org/Documents/Policies/Inspection/ insp100.asp, and further materials at http://www.bicusa.org/bicusa/issues/idb_independent_investigation_mechanism/index.php. 18 The reports are published on the website at http://wbln0018.worldbank.org/ipn/ipnweb.nsf. See also GOWLAND GUALTIERI, “The Environmental Accountability of the World Bank to NonState Actors: Insights from the Inspection Panel”, BYIL, 2001, pp. 213-254.


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support only activities that are consistent with basic human rights and environmental norms. Furthermore, it may be argued that support for projects that are patently inconsistent with such norms would engage the international responsibility of the supporting State for complicity in the violations of international law by the State in which the activities would be supported.19 It may be expected that in time corporations will, as a matter of routine, check all proposed projects for their consistency with basic norms of international law, and in particular human rights and environmental norms, in order to ensure eligibility for governmental support. Such a development would deepen the involvement of corporations in the process of implementing those norms. Other possible developments could have a more dramatic effect. At present, the provisions of bilateral investment treaties (BITs) give extensive protection to the economic interests of investors. There is growing concern that BITs are one-sided agreements and that it is necessary to redress the balance. One way of doing so would be to include in them an obligation on the investor to comply with basic human rights and other specified international norms. Were that done, not only would the investor have an additional reason to promote those norms, but a failure to do so might render the investor liable to proceedings under the dispute settlement provisions in the BIT. Whether or not this were possible would, of course, depend on the wording of the BIT; but the prospect of such a development is not fanciful.

2.2. Corporations as Possessors of Human Rights So far I have been addressing the position of corporations as active enforcers or implementers of human rights. Corporations are also possessors of such rights; and in this respect they are quite unlike States, which have no human rights of their own but only an interest in the human rights of their citizens. The human rights of corporations differ from those of individual human beings. Freedom of the person, freedom from arbitrary arrest and imprisonment, rights to family life, education, food and so on cannot, in the nature of things, apply to an incorporeal corporation. Even those rights that are capable of being enjoyed by corporations will often be applied differently to corporations and to human beings. Freedom of association is an example: trade unions are acceptable, but cartels are not. The reason for such distinctions lies in the different nature of corporations and of human beings. Practically all people are in most respects more or less equal: in size, in life expectancy, in physical power (and even in economic power, as far as the majority of people within a State are concerned), in needs for food and shelter. And no individual is likely to have such immensely greater power than others as to

19 See Article 16 of the ILC Articles on State Responsibility, http://www.un.org/law/ilc/texts/ State_responsibility/responsibilityfra.htm.

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be able entirely to escape the constraints of the law. Corporations, however, may differ dramatically in their size and economic power; and the largest among them may each wield immense power. Those differences between human beings and corporations must be recognized, and may entail differences in the way that “human rights” are applied to them. This is so even though human beings are the ultimate controllers and beneficiaries of corporations, because the nature of the individual interest in a corporation is ultimately financial, and any injury to that interest is accordingly compensable. For example, the right to a fair trial includes a right to a trial without undue delay. But whereas human beings have a finite life span, and the normal course of their lives may effectively be suspended while litigation takes its course, corporations are immortal and at least the larger of them can consign litigation to specialist departments or external lawyers and spend many years in litigation.20 Similarly, if a human being’s home is taken his or her life may be fundamentally disrupted, and if family heirlooms or other possessions are taken they may be wholly irreplaceable. In the case of a corporation’s property, however, the interest of its human owners is by definition limited to a financial interest – a share in its value.21 Arguably, therefore, the only relevant interest is in compensation. Takings of corporate and of individual property can, therefore, be distinguished within international human rights law. In these respects, corporations are persons sui generis within the international legal system, neither the same as States nor the same as human beings, neither wholly subject nor wholly object.

3. STATE RESPONSIBILITY In principle States are internationally responsible for injuries to aliens arising from violations of international law, where there is no remedy available in national courts. For whose acts is the State responsible? Plainly, for the acts of its organs and agents, such as government departments and the police. They are also responsible for the actions of separate entities that are owned and controlled by the State, such as State-owned oil companies or private security firms hired by the State to undertake tasks such as the transportation of prisoners. But what is the position where, for example, security firms are hired by a private corporation? Such firms may be hired to protect oil fields or diamond mines or other facilities. Much of the security of western interests in post-invasion Iraq, for instance, was in the hands of private security firms. What is the position if such firms are involved in human rights violations?

20 21

ship.

The Barcelona Traction saga is one example of protracted litigation. I put to one side the individual interest in participation in a small corporation or partner-


33

Should a State be responsible for the actions of a private security firm where it permits the firm to perform what are essentially State, governmental, functions such as policing? Should it do so in circumstances where the private firms work alongside the national police, or in circumstances where they work independently? That possibility raises the question of what the limits of “essentially State, governmental, functions” are. Is the self-regulation of an industry, such as the Stock Exchange, covered? Does it make a difference if the self-regulation is applied within a statutory framework? And what of, for example, the regulation of accounting and auditing procedures and standards? Is that a matter for which the State may be responsible, if inadequate procedures within a self-regulating profession cause losses?22 These are difficult questions. There is no international consensus on what “State”, governmental functions are; and the problem becomes increasingly difficult with the progressive privatisation of functions that have been discharged by the State for many decades. Moreover, in different cultures the lines are drawn in different places. The position of religious courts in Islamic and western States, for example, may be perceived very differently. The questions are important, and carry a considerable political charge. There is a further aspect of the position of corporations in relation to State responsibility that needs to be addressed. Even in circumstances where a corporation is plainly not an organ or agent of the State, and is engaged in commercial activities, it is still possible that the responsibility of the State may arise from the corporation’s activities. Take, for example, the situation of an Italian corporation building a dam in a third State, where the Italian government provides either foreign aid or export credit guarantees for the project, including those aspects in which the Italian corporation is engaged. Does Italy bear any internationally responsibility if the corporation causes environmental damage, or destroys important cultural artefacts, or forcible displaces the population of the dam site? Is Italy internationally responsible if the Italian corporation is working for a foreign government that does such things? Again, I do not think that a bald “always responsible” or “never responsible” answer can be correct. One must look at the function that the corporation fulfils, and its relation to the State. The provisions of the ILC Articles on State Responsibility concerning complicity in breaches of international law by other States go some way towards providing a helpful framework for analysis. The result, however, must surely be that there are some circumstances in which States bear responsibility for, or at least responsibility arising from, the actions of private corporations. Here, too, we see corporations as actors in international law.

22

The answer to this question would no doubt be of interest to shareholders in Enron (or at least those of them who are nationals of States that have BITs with the US) and other corporations that suffer unexpected collapses.

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4. DIPLOMATIC PROTECTION Corporations have traditionally been treated in the context of diplomatic protection as if they were human persons. As was clearly decided by the International Court of Justice in the Barcelona Traction case, their protection on the plane of international law is a matter for their national State.23 There are considerable problems relating to the concept of corporate nationality. How is it to be determined? Is it enough that the corporation is incorporated in a State? Or must it also have its siège social there? Or is it enough to have the siège social there even though the corporation is incorporated in another State? These questions were left open in the Barcelona Traction case, and remain open today. And what if, as is not uncommonly the case, the corporation has no real connection with its State of incorporation or of its registered office? The implications of the Nottebohm case24 for corporations have not begun to be properly explored. Even if the determination of the nationality of a corporation is made, the consequences remain problematic. The problems flow from the fact that corporations are not like human beings but are masks behind which stand either other corporations or, ultimately, human shareholders. Two problems may be mentioned as examples. The first arises from the fact that it was held in the Barcelona Traction case25 in 1970 that only the national State of the corporation (there, Canada), and not the national States of the shareholders (88% of whom were Belgian in that case) could bring an international claim in respect of an injury to the corporation. That was regarded as a logical consequence of the separate legal personality of the corporation, distinct from the persons of its shareholders. In the ELSI case,26 however, the US brought a claim on behalf of two US (corporate) shareholders in Elettronica Sicula, an Italian corporation, when Italian authorities put that corporation into forced liquidation. The ICJ chamber allowed the claim to proceed. Why? How is that to be reconciled with the decision in Barcelona Traction? In Barcelona Traction the Court had referred to a theory that had been advanced that in cases where the wrongdoing State is itself the State in which the injured corporation is incorporated, the national State of the shareholders should be entitled to make a diplomatic claim against the wrongdoing State.27 The Barcelona 23

See ICJ Reports, 1970, p. 3 ff. See ICJ Reports, 1955, p. 4 ff. 25 Barcelona Traction case, cit. supra note 23, p. 46, paragraph 88. 26 Elettronica Sicula SpA (ELSI) (USA v. Italy), ICJ Reports, 1989, p. 15 ff. 27 Barcelona Traction case, cit. supra note 23, p. 48, paragraph 92. See also JONES, “Claims on Behalf of Nationals Who Are Shareholders in Foreign Companies”, BYIL, 1949, pp. 225258; and see the United Kingdom Rules Regarding the Taking Up of International Claims by Her Majesty’s Government, Rule VI: “Where a UK national has an interest, as a shareholder or otherwise, in a company incorporated in another State and of which it is therefore a national, and 24


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Traction court did not decide whether that is good law; and the ELSI court did not rely upon that theory to support its assertion of jurisdiction. It seems that the jurisdictional basis upon which the ELSI claim was decided is another ground, which was recognized by the Barcelona Traction court as an exception to the principle that in cases where a wrong is done to a corporation it is the corporation’s national State that must bring the claim. The exception, which once stated seems a matter of incontrovertible logical necessity, is that where the wrong is done not to the corporation but to the direct rights of its shareholders as such, the shareholders’ national State(s) may bring the claim.28 In the ELSI case the compulsory liquidation of the Italian corporation was alleged to be an interference with the shareholders’ rights to control the management of the corporation. But on that basis, practically any interference with a company can be said to entail an interference with shareholders’ rights. Indeed, it seems that it was only an accident of pleading that prevented reliance upon that argument to found jurisdiction in the Barcelona Traction case.29 If the Barcelona Traction principle is not to be wholly eclipsed, there must be some limitation upon the notion of shareholders’ rights: some rights must be regarded as attaching to the corporation alone. But which? This is a complex question. It is not even altogether clear what legal system would govern the question of the content of shareholders’ rights. In ELSI three possibilities were contemplated: the law of the place of incorporation (the lex societatis), the provisions of any applicable treaty, and what Judge Oda called “the general principles of law concerning companies”.30 In principle, shareholders ought not to be able to complain that there has been a violation of their rights under international law unless there has been some interference with a right that they possess under the lex societatis, although it is possible that some matters might be determined by other laws. For instance, shareholders’ rights at meetings of the company might be determined by the law of the place where the meeting is held. It may also be the case that shareholders are given wider rights under an applicable treaty. A BIT might, for example, give a wider right to repatriate dividend income than exists under national law. It is also possible that some rights, such as the right to attend general meetings of the company and vote, might be regarded as “general principles of law governing companies”, even if not spelled out in national law. But there is still much uncertainty concerning the distinction between the rights of a corpora-

that State injures the company, [the British Government] may intervene to protect the interests of that UK national”: BYIL, 1983, p. 500 ff. at p. 501. For a treaty-based example, see Article 6 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 1993: BYIL, 1994, p. 666 ff. A comparable position can be achieved under Article 25(2)(b) of the 1965 ICSID Convention. 28 Barcelona Traction case, cit. supra note 23, p. 36, paragraph 47. 29 Ibidem, p. 37, paragraph 49. 30 ELSI case, cit. supra note 26, pp. 87-88.

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tion and the rights of its shareholders. The position of corporations in international law is still far from clear. The second problem concerning the treatment of corporations under international law is that of corporate groups. This is exemplified by the pair of arbitrations launched against the Czech Republic, one in the name of Mr Ronald Lauder, under the Czech Republic-US BIT, and one in the name of CME, a Dutch company owned by Mr Lauder, under the Netherlands-Czech Republic BIT. It was said that the Czech Republic had violated its duties towards CME, and the claims made under the two BITs concerned precisely the same alleged wrongdoing. The twin actions were possible because BITs typically protect both direct and indirect investments, and in consequence shareholders in the corporate chain leading to the ultimate investment can all bring claims in respect of the same wrong. For instance, if a corporation in State A is expropriated, and its shares31 are held by a corporation in State B, which is in turn owned by a corporation in State C, and so on, claims might be brought in respect of an injury to the corporation in State A under BITs between A and B, A and C, etc. This creates two difficulties. First, the claims will not necessarily be resolved consistently. The two Czech cases were, indeed, resolved in diametrically opposed ways; the action under the Dutch BIT failed, while the later award in the action under the US BIT was in favour of Mr Lauder.32 Radical inconsistency of this kind is highly undesirable in any legal system. Second, the positions of the parties become fundamentally unequal. A respondent State must win every case if it is to escape liability: the claimant corporation and its shareholders need only win one of the cases in order to succeed.33 This, too, is a difficult problem. If it is said that investors must be limited to one action, and must choose which of the corporations in the chain of ownership is to be the claimant, they may be deprived of advantages that exist under the different BITs, some of which may provide wider or different protection than that provided by others. Moreover, limiting the action to a single claim would threaten to deprive minority shareholders of their right of action. If, in the example above, the claim were launched under the BIT between States A and C, a minority shareholder in the State B corporation would de deprived of a remedy. The situation is a mess; and the confusion cannot be resolved by treating corporations as if they were like human beings. It is necessary to recognize that they are entities sui generis, and that the rules applicable to them must reflect the functions that they perform.

31

In the Czech cases there were majority shareholdings in the chain connecting Mr Lauder to the ultimate investment. Logically, there seems to be no reason why a minority shareholder might not bring such a claim, albeit only in respect of his or her share. 32 The cases are published at http://www.cetv-net.com/arbitration.asp. 33 Again, if the shareholdings in the chain of ownership are less than 100%, there will be a corresponding reduction in recovery of any damages awarded in respect of injury to the ultimate investment.


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5. JURISDICTION Finally, let me turn to jurisdiction. Human beings are present in one place at any given moment. Corporations are present nowhere. Their activities, through their agents, may be present everywhere; and the location of those activities may change almost instantaneously. Bank accounts may be moved to different jurisdictions; tele-sales departments may be moved from the USA or the UK to India; and so on. This creates problems in relation to the principles of international law concerning jurisdiction. For instance, if a US corporation is forbidden by US law to trade with, say, Russia, at a time when French corporations are not so forbidden by French law, the US corporation may decide to act through a French subsidiary, or even establish a French subsidiary for that purpose.34 May the French subsidiary trade with Russia? If a US bank is forbidden by US law to pay monies out of a frozen account of the Libyan Government, may a branch (not being a separate corporate person) of the bank in London refuse to pay out of the account even if English law contains no such prohibition and the bank’s contract under English law with its Libyan client obliges it to pay?35 Jurisdictional questions involving human beings can always be approached from the principle that the primary obligation to obey the law is owed to the law of the place where the individual is at the time – the primacy of territorial jurisdiction. Jurisdictional questions involving corporations cannot. Corporations can clone and divide themselves, almost spontaneously appearing in different jurisdictions. When they do so, they may be subject to different, conflicting laws. Equally, they may avoid the inconvenience of laws imposing, say, export bans or high taxes by relocating their activities in a foreign affiliate. How should international law deal with this? Again, the answer seems to me to lie in recognizing that corporations cannot simply be assimilated to human beings but must be recognized as entities sui generis. The core question is plainly not whether they are subject to the jurisdiction of a particular State. They may be indisputably subject to more than one jurisdiction (as, indeed, may human beings, who are typically subject to the territorial jurisdiction and also to their national law). The question is, to what extent may each State exercise its jurisdiction in respect of the corporation? The priorities between claims to exercise jurisdiction should then, in my view,36 be established in the light of the consequences of the corporation’s activities for the regulating States. That

34 35

See the account of the Pipeline dispute in GYIL, 1985, pp. 37-108. See Libyan Arab Foreign Bank v. Bankers Trust, All England Law Reports, 1989, p. 252

ff. 36 See LOWE, “Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution”, ICLQ, 1985, p. 724 ff.

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is, however, no easy task; and international law has yet to establish a satisfactory system for resolving jurisdictional disputes of this kind.

6. CONCLUSION The main point that I have tried to make is that corporations are neither subjects nor objects, neither States nor persons like human beings, to use the traditional poles of the classifications in international law. They have features of both, but need to be treated as entities sui generis. It is not possible simply to apply to corporations rules that emerged to regulate the position of human beings. Nor should corporations be regarded simply as passive objects of international law, without any responsibilities for the application and implementation of international law. We must have regard to their special needs, and to their special capabilities to contribute to the development of international law and of the international legal system, for the benefit of the human beings who are the ultimate constituents of all social organizations.

THE MARGINAL ROLE OF THE INDIVIDUAL IN THE ILC’S ARTICLES ON STATE RESPONSIBILITY RICCARDO PISILLO MAZZESCHI*

1. INTRODUCTION As it is well known, the International Law Commission (ILC) finally adopted the Draft Articles on Responsibility of States for Internationally Wrongful Acts in 2001, at the conclusion of one of the most important, and certainly the most difficult, works of codification and progressive development of international law ever attempted by the Commission.1 I do not intend now to propose general comments on these Draft Articles, although they are certainly praiseworthy in many respects. I only wish to make some critical observations on a specific point: the role granted to the individual in the Draft Articles. In my opinion, the issue of the international responsibility of the State toward the individual should have been given greater attention in the Draft, because it constitutes an important element of contemporary international law on State responsibility. In fact, the ILC Draft Articles expressly deal only with the international responsibility of the State toward other States and thereby remain almost completely organized around traditional international law, with its focus on “interstate” relations.2 The Articles only contain some very shy and rather insufficient openings on the role of the individual. From this point of view then, the Draft Articles were already born old and have unfortunately remained so, despite appreciable efforts by some members of the ILC to take into greater account some important developments in contemporary international law relating to the individual, especially in the field of human rights. As a matter of fact, one may maintain that there are two general and fundamental phenomena of development and gradual change in contemporary international law3 which the Draft Articles could and should have taken into account: a) the ever-growing importance of collective, solidarity – and community – based interests; and therefore the progressive overcoming of the bilateral, individualistic and privatistic character of traditional international law;4 b) the increasingly significant *

Professor of International Law, University of Siena. See TAMS, “All’s Well That Ends Well”, ZAÖRV, 2002, p. 760 ff. 2 This point is especially underlined by BROWN WEISS, “Invoking State Responsibility in the Twenty-First Century”, AJIL, 2002, p. 798 ff., passim. See also TAMS, cit. supra note 1, pp. 762-763. 3 On these developments see PISILLO MAZZESCHI, Esaurimento dei ricorsi interni e diritti umani, Torino, 2004, pp.16-36. 4 This progressive overcoming is largely due to the influence of the international protection of human rights. On this point see SIMMA, “International Human Rights and General International 1


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role of the individual (natural or legal person) and of other non-State entities; and therefore the progressive overcoming of the strictly interstate character of traditional international law and of the statist approach to that law. It should be noted that international literature, which easily recognizes the former phenomenon, is on the contrary rather divided about the latter.5 This cautious doctrinal approach has had an influence on the ILC Draft Articles also, as we shall see.

2. THE ROLE OF THE COLLECTIVE AND COMMUNITY INTERESTS It is not necessary to expand upon the phenomenon of the growing importance of the interests of the international community as a whole in contemporary international law, since it is largely dealt with in recent literature. The progressive development and consolidation of the concepts of jus cogens, of obligations erga omnes and of international crimes of States6 is well known. I wish only to underline that one can also strengthen the protection of the interests of the individual through these concepts (which all tend to develop, in a “publicistic” way, the overall system of international law). The protection of fundamental human rights, for instance, can be better ensured at the international level if one recognizes that such rights are established by norms of jus cogens, which create obligations erga omnes, and that their serious violation by a State constitutes an international crime of that State. However (and this is the fundamental point), the concepts listed above still live and work only within the “interstate” world and are capable only of creating an indirect and mediate protection for individuals; that is, a protection only through those “third” States that may, and wish to, take action in response to the violations of human rights committed by a State. If the “third” States do not wish to act, the individual has no protection. Therefore, the trend in international law in favour of community interests may sometimes benefit the individual; but it is, by itself, insufficient to adequately perform the task of real protection of the individual.7 In any case, one should recognize that the ILC Draft Articles on State Responsibility have been greatly concerned, from the time of Special Rapporteur Ago, with the phenomenon of the progressive development of community interests Law: A Comparative Analysis”, Collected Courses of the Academy of European Law, Vol. IV, Book 2, The Hague-Boston-London, 1995, p.153 ff., espec. pp. 167-173. 5 See PISILLO MAZZESCHI, cit. supra note 3, pp. 18-36. 6 As it is well known, the international crimes of States are now described by the Draft Articles as “serious breaches of obligations under peremptory norms of general international law” (see Chapter III of the Draft). 7 On the contrary, some writers maintain that the ILC Draft Articles on State Responsibility constitute a development in favour of human rights and of the individual insofar as they deal with the protection of community interests. See SIMMA, “Staatenverantwortlichkeit und Menschenrechte im ILC-Entwurf 2001”, in FROWEIN ET AL. (Hrsg.), Verhandeln für den Frieden/Negotiating for Peace: Liber amicorum Tono Eitel, Berlin, 2003, p. 423 ff., passim.

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in international law. One may think of the importance that was given to the abovementioned concepts of jus cogens, of obligations erga omnes and of international crimes of States in the work of the ILC,8 even though some of these terms have been deleted from the 2001 Draft. In this regard, the most important norms of the Draft are Articles 40 and 41, which deal with serious violations of obligations arising from peremptory norms; and hence take up again the concepts of jus cogens and of international crimes of States, albeit with a different terminology. Articles 48 and 54 are also important: they deal, respectively, with the invocation of responsibility and with the measures that can be taken by States other than the injured State; and thus reflect the concepts of obligations erga omnes and of measures of reaction against international crimes of States, even if only implicitly. However, one should also admit that the protection of community interests has attained only partial and limited results in the Draft Articles; and accordingly fell short of expectations. This failure does not derive so much from the fact that the Draft Articles have finally abandoned the terminology of “international crimes of States” (in truth they have maintained the substance of that concept);9 but rather from the fact that they are very limited with regard to the consequences of serious violations of peremptory norms (Art. 41). Most of all, the Draft Articles have remained very vague on the “legitimate measures” that may be taken by States other than the injured State that may invoke the responsibility (Art. 54).10 One should note again that these uncertainties in the Draft Articles may also have negative effects on matters of great “indirect” interest for the individual, such as reactions by “third” States against serious violations of human rights and humanitarian law,11 or of international rules on environmental protection. Therefore, even from the point of view of the individual, a clearer and more courageous protection of the interests of the international community would have been desirable. 8 On this point see the papers of various writers (P.-M. DUPUY, NOLTE, SPINEDI, SICILIANOS, WYLER, TAMS, GATTINI, SCOBBIE, ALLAND, KLEIN) collected in “Symposium: Assessing the Work of the International Law Commission on State Responsibility”, EJIL, 2002, p. 1053 ff. 9 See PELLET, “The New Draft Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts: A Requiem for States’ Crimes?”, NYIL, 2001, p. 55 ff., espec. pp. 61-67; WYLER, “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’”, in “Symposium”, cit. supra note 8, p. 1147 ff. 10 On the theoretical problems brought forth by the distinction between injured States and States other than an injured State see, recently, STERN, “Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la CDI sur la responsabilité des Etats”, AFDI, 2001, p. 3 ff., espec. p. 19 ff. On this topic see also, with a more favourable position for the Draft Articles, KOSKENNIEMI, “Solidarity Measures: State Responsibility As a New International Order?”, BYIL, 2001, p. 337 ff. 11 This is recognized also by SIMMA, cit. supra note 7, pp. 446-447. On this point see also PILLITU, “Le sanzioni dell’Unione e della Comunità europea nei confronti dello Zimbabwe e di esponenti del suo Governo per gravi violazioni dei diritti umani e dei principi democratici”, RDI, 2003, p. 55 ff., pp. 96-97.

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3. THE ROLE OF THE INDIVIDUAL As I said before, the overall outcome of the Draft Articles is even less satisfactory with regard to the second general phenomenon of progressive development in contemporary international law mentioned above: the one relating to the new role of the individual and of other non-State entities. In my opinion, this development is very important because it involves the actual structure of the traditional international legal order. As I have tried to demonstrate elsewhere, one can maintain – leaving aside the rather sterile doctrinal debate on the international personality of the individual – that nowadays there are some specific (primary, secondary and tertiary) international norms which are directly addressed to the individual and confer on him true rights or duties. This means that international law now regulates some relationships between States and individuals in a formal manner (and not only in a substantive one).12 This view, which is not new in the literature13 but is still a minority one, finds recent and important confirmation in international case-law. One may cite the famous judgements LaGrand14 and Avena15 of the ICJ and the less known, but important, opinion of 1 October 1999 of the Inter-American Court of Human Rights.16 These decisions recognize that certain international norms immediately and directly create rights for the individual. The ILC Draft Articles on Diplomatic Protection go in the same direction, even with regard to tertiary international norms. In fact, Article 17 of the Draft approved at first reading recognizes that individuals have the right “to resort to actions or procedures under international law other than diplomatic

12 PISILLO MAZZESCHI, cit. supra note 3, pp. 24-35. See also ID., “La dottrina pura del diritto di Kelsen e la realtà del diritto internazionale contemporaneo”, Diritto e cultura, 1994, p. 43 ff., espec. pp. 58-64. This latter article (reproducing a paper given at a conference on philosophy of law) has recently been the object of a very burning, but not impartial, criticism by ARANGIO-RUIZ, “Dualism Revisited. International Law and Interindividual Law”, RDI, 2003, p. 909 ff., p. 966, note 92. The distinguished writer defends his “radical” dualism and especially his famous and often expounded theory on the State internationally conceived as a “de facto collective entity” (or as a “real person” or as a “power”). In order to better perform this defense, he attributes to me certain opinions (espousal tout court of the monistic theory) and affirmations (no difference between the concept of the State as a legal person and as a real one) I never expressed. 13 See, for an examination of the several doctrinal views, DOMINICÉ, “L’émergence de l’individu en droit international public”, Annales d’études internationales, 1988, p. 1 ff. 14 LaGrand Case (Germany v. USA), Merits, 27 June 2001, ICJ Reports, 2001, p. 466 ff. and reproduced in ILM, 2001, p. 1069 ff. 15 Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), 31 March 2004, reproduced in ILM, 2004, p. 581 ff. 16 “The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law”, Advisory Opinion OC-16/99 of 1 October 1999, Inter-American Yearbook on Human Rights, 1999, Vol. 4, p. 4364 ff.


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protection to secure redress for injury suffered as a result of an internationally wrongful act”.17 Therefore, the ILC Draft Articles on State Responsibility could, and in my opinion should, have dealt expressly with the secondary international norms that regulate relationships between States and individuals – that is, with cases of international responsibility of the State toward the individual. On the contrary, as we shall see later, the Draft Articles have, despite recognizing the problem, in practice preferred to avoid dealing with it through the use of saving clauses. I will now try to briefly examine the norms and the points of the Draft Articles in which the role of the individual emerges, in a more or less explicit way. I will also try to demonstrate that these norms could have been formulated in a different manner, in order to express more explicitly and with more courage the concept of international responsibility of the State toward the individual, and in order to affirm more clearly the existence of certain rights of the individual to invoke and implement such responsibility.

3.1. The Concept of International Community A first interesting element of the Draft Articles concerns the concept of “international community”, which is formulated in such a way as to allow for expansive interpretation. In fact, Article 33, which defines the scope of the international obligations of the responsible State with regard to Part II of the Draft, establishes that such obligations may be owed to another State, to several States or to “the international community as a whole” (Art. 33.1). One may infer from the work of the ILC that the Commission did not want to adopt the more traditional expression “international community of States”, in order to signify that nowadays the international community may be understood, with wider meaning, to include individuals and non-State entities.18 The concept of international community is then reiterated, in the same terms, in Article 48, dealing with the invocation of responsibility by a State other than an injured one. Para. 1.b of this rule establishes that any State other than an injured State is entitled to invoke the responsibility of another State if, inter alia, the obligation breached is owed to “the international community as a whole”. In my opinion, this expansive concept of international community is rather promising; but could have been developed with greater clarity. The ILC could have 17 International Law Commission, Fifty-sixth session, A/CN.4/L.647, 24 May 2004, pp. 6-7. See also the Statement of the Chairman of the Drafting Committee, Mr. Rodriguez-Cedeño, pp. 25-27, available at http://www.un.org/law/ilc. 18 On this point see also CRAWFORD, “The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect”, AJIL, 2002, p. 874 ff., p. 888; BROWN WEISS, cit. supra note 2, p. 804; SIMMA, cit. supra note 7, p. 432.

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affirmed explicitly, in the above-mentioned Articles or at least in their Commentary, that the breach by a State of obligations towards the international community may entail not only responsibility toward all other States, but also responsibility toward individuals or non-State entities.

3.2. Reparation The idea that some international secondary norms may nowadays be addressed directly to the individual and may confer upon him certain true rights at the international level should have found full expression in the Draft Articles on the legal consequences of an internationally wrongful act (Articles 28-31) also, and especially in the norms concerning reparation (Articles 31 and 34-39). In fact, these rules are formulated only from the limited perspective of the obligations of the responsible State and do not tell us anything about the persons to whom these obligations are owed; thus, about the persons entitled to claim reparation. This restricted approach compels one to think that the obligations of the responsible State are owed only to other States and that reparation may also be claimed only by the latter. Nonetheless, – still with regard to reparation – an interesting but not adequately developed point may be found in the Chapter of the Draft Articles on invocation of responsibility. Article 48.2.b states that any State other than an injured one “may claim from the responsible State [...] performance of the obligation of reparation [...] in the interest of the injured State or of the beneficiaries of the obligation breached”. One might think that, by means of this rule, the beneficiaries of reparation could also be individuals who are victims of, for instance, a violation of human rights or of humanitarian law.19 However, the term “beneficiaries” is an old and traditional one: it causes one to think of the individual as a de facto beneficiary of norms addressed only to States and not as a true holder of rights. Hence, this terminology still reflects a traditional and strictly “interstate” or “statist” approach to international law. Moreover, Article 48.2.b – strangely – has a very restricted scope of application, because it deals only with the breach of collective or community obligations. This is also confirmed by Article 54 (measures taken by States other than an injured State), which reiterates the concept of “beneficiaries of the obligation breached”.

19 See Commentary to Article 33, para. 4 (in Report of the ILC, Fifty-third session, UN GAOR, Fifty-sixth session, Supp. No. 10 (A/56/10), p. 234 ff.), where it is stated: “In cases where the primary obligation is owed to a non-State entity, it may be that some procedure is available whereby that entity can invoke the responsibility on its own account and without the intermediation of any State. This is true, for example, under human rights treaties which provide a right of petition to a court or some other body for individuals affected. It is also true in the case of rights under bilateral or regional investment protection agreements”. See also BROWN WEISS, cit. supra note 2, p. 815.


45

The restricted scope of application of these two norms would induce one to think, through an interpretation a contrariis, that according to the ILC the individual could not even be a de facto “beneficiary” of an obligation breached in the (different) case of bilateral and reciprocal obligations between States. For instance, in the field of diplomatic protection, the foreign citizen who has been the victim of a breach by the State on whose territory he finds himself could not even have the position of de facto “beneficiary” of the international obligation breached. Neither could he have a right to reparation, separate from that owed to his national State. This approach once again reflects a too traditional and by now obsolete conception of diplomatic protection.20 In my opinion, the Draft Articles should instead have taken a much clearer position with regard to the topic of reparation, especially considering the great practical importance this topic assumes for the individual who has been the victim of certain breaches of international law. The Draft, in the pertinent Articles and in the Commentary, should have developed the view that the obligation of reparation by the responsible State now creates, in some fields of contemporary international law, a double series of holders of the corresponding right to receive reparation: individual victims and other States (injured or otherwise entitled to react). This is especially true for violations of human rights;21 but in certain cases also for breaches of international norms protecting individual interests in other fields, such as humanitarian law, aliens’ treatment and environmental protection. As a matter of fact, one can find in many conventional systems of human rights protection an international State obligation of reparation toward individuals, as well as a corresponding international right of individuals to obtain reparation. Moreover, it is interesting to note that the practice of international judicial and quasi-judicial organs on human rights applies, with regard to reparation toward individuals, concepts and standards which are similar, but not identical, to those adopted with regard to reparation toward States.22 Unfortunately, there is no reference to such practice in the Commentary of the Draft Articles, however. Lastly, one should reaffirm that a similar situation can be found outside the field of human rights. As I said, an international right of the individual to obtain 20 See ORREGO VICUÑA, Interim Report on “The Changing Law of Nationality of Claims”, ILA, Report of the Sixty-Ninth Conference, London, 2000, p. 631 ff., espec. pp. 632-634. 21 Let me take the liberty of citing the following articles: PISILLO MAZZESCHI, “International Obligations to Provide for Reparation Claims?”, in RANDELZHOFER and TOMUSCHAT (eds.), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, The Hague-London-Boston, 1999, p. 149 ff., espec. p. 152 ff., p. 157 ff. and p. 165 ff.; ID., “La riparazione per violazione dei diritti umani nel diritto internazionale e nella Convenzione europea”, CI, 1998, p. 215 ff., espec. p. 218 ff., p. 224 ff. and p. 230 ff.; ID., “Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview”, JICJ, 2003, p. 339 ff. 22 See BARTOLINI, La riparazione per violazione dei diritti umani nell’ordinamento internazionale (Ph.d. thesis), Roma, 2004, espec. pp. 296-317.

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reparation exists, albeit in a lesser degree, with regard to some serious breaches of humanitarian law23 and some breaches of international rules on aliens’ treatment and environmental protection. The right of the individual to obtain reparation for violations of human rights and of humanitarian law is now also reinforced by the developing trend of effectively enforcing this right at the level of procedural guarantees by denying sovereign immunity to States (and functional immunity to State organs) in relation to serious violations. One may cite, for instance, the well known and recent Ferrini judgment of the Italian Supreme Court.24

3.3. Content of the International Responsibility of a State and Invocation of such Responsibility The idea that there are cases of international responsibility of the State toward the individual could have found room not only among the legal consequences of the wrongful act, such as reparation; but, in a more general way, also in the part of the Draft Articles dealing with general principles on the content of international responsibility (Articles 28-33) and in the part dealing with the invocation of responsibility (Articles 42-48). In truth, there is a norm among the general principles which, at first sight, seems to be very important in this respect: para. 2 of Article 33, according to which the section of the Draft Articles on the content of responsibility “is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State”. One might think that, by means of this phrase, the ILC means to recognize that individuals (and other non-State entities) may be holders of true rights deriving from international secondary norms. 23

See PISILLO MAZZESCHI, “Reparation Claims”, cit. supra note 21. On this topic see also, recently, FRULLI, “When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law? The Marković Case”, JICJ, 2003, p. 406 ff., espec. pp. 422-427; BENNAFTALI and MICHAELI, “Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel’s Policy of Targeted Killings”, ibidem, p. 368 ff.; and, for a different view, GATTINI, “To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals’ Claims for War Damages?”, ibidem, p. 348 ff., pp. 350-351; ID., Le riparazioni di guerra nel diritto internazionale, Padova, 2003, p. 625 ff. and pp. 667-668. 24 Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044, Ferrini v. Federal Republic of Germany, reproduced in RDI, 2004, p. 539 ff. Cf. infra in this volume IOVANE, “The Ferrini Judgment of the Italian Supreme Court: Opening Up Domestic Courts to Claims of Reparation for Victims of Serious Violations of Fundamental Human Rights”. See also Judgment No. 11/2000 of the Greek Supreme Court (Areios Pagos) of 4 May 2000, Prefecture of Voiotia v. Federal Republic of Germany, reproduced (in the Greek version) in Nomiko Vima, Vol. 49, 2001, p. 212 ff.; and the first comments by MICHA, YIHL, Vol. 3, 2000, p. 511 ff.; and by GAVOUNELI and BANTEKAS, AJIL, 2001, p. 198 ff. More in general, on the law suits following the Distomo massacre, see GATTINI, “To What Extent”, cit. supra note 23, pp. 356-362.


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However, on closer scrutiny one understands that Article 33.2 has only the limited goal of creating a saving clause.25 In fact, the ILC Commentary on Article 33 clearly states that the Articles of the Draft “do not deal with the possibility of the invocation of responsibility by persons or entities other than States”.26 In order to justify this gap, the Commentary affirms that the responsibility of a State towards an individual is a matter pertaining to primary rules.27 But this explanation is not convincing; since, as I said before, that responsibility is in fact a matter relating to secondary rules. One may underline that Special Rapporteur Crawford has himself recently confirmed the latter view, since he has admitted that a “detailed regulation of the ways in which state responsibility may be invoked by nonstate entities [...] could have been brought within the scope of the project, which covered the responsibility of states and was not confined to their responsibility to other states”; but that this approach was not followed, because such an issue “raises novel and difficult questions, and could have given rise to significant controversy” and because “the acceptability of the text as a whole might have been put in question”.28 Instead, in my opinion, the Draft could and should have inserted among the general principles on the content of responsibility (Articles 28-33) an explicit norm (and not a mere saving clause), stating that the responsible State undertakes international responsibility also towards individuals (and other non-State entities) when the international obligation breached by the State is owed also to the latter.29 In other words, individuals and other non-State entities can be holders of true rights deriving from secondary norms of international law. Besides, the more specific norms of the Draft Articles on the invocation of responsibility (Articles 42-48) also could and should have taken into account the – by now rather frequent – cases of individual access to international judicial or quasi-judicial remedies against the responsible State. As is well known, and as the Commentary of the Draft itself recognizes, there are by now many fields of international law (human rights, investments, environment, European Community law) which provide for such remedies30 and which, therefore, contemplate the possibility of the individual invoking the international responsibility of a State. In my

25

Another saving clause that according to some writers (BROWN WEISS, cit. supra note 2, pp. 815-816) could work in order “to save” the topic of State responsibility towards the individual is Article 55, according to which the Draft Articles do not apply when the international responsibility of a State is governed by special rules of international law. 26 Commentary to Art. 33, para. 4, cit. supra note 19. 27 Ibidem. See also CRAWFORD, cit. supra note 18, p. 888 ff. 28 CRAWFORD, ibidem. 29 For a similar, but more elaborate proposal, see BROWN WEISS, cit. supra note 2, p. 816 ff. See also, recently, DOMINICÉ, “La prétention de la personne privée dans le système de la responsabilité internationale des Etats”, in Studi di diritto internazionale in onore di Gaetano ArangioRuiz, Vol. II, Napoli, 2004, p. 729 ff., espec. p. 734 ff. 30 See PISILLO MAZZESCHI, “La dottrina pura”, cit. supra note 12, pp. 59-63; ID., cit. supra note 3, pp. 28-30; BROWN WEISS, cit. supra note 2, p. 909 ff.

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opinion, this means that individuals and other non-State entities can be holders of true rights deriving also from tertiary norms of international law. But Chapter I of Part III of the Draft Articles is very far from this idea, because it deals only with the invocation of responsibility by States.

3.4. Exhaustion of Domestic Remedies Still with regard to the invocation of responsibility, the rule of prior exhaustion of domestic remedies has great importance. In fact, this rule has always had a fundamental role both in the field of State responsibility and that of co-ordination between domestic and international procedures of dispute settlement.31 Moreover, the rule is useful to explain and clarify the complex relationships between State responsibility in domestic and in international law. Furthermore, it represents very well a moment of balance (and a point of agreement) between the interests of States and those of individuals in international law. Lastly, the rule applies nowadays not only in the field of diplomatic protection of aliens, but also in other fields of international law that concern the individual, especially in the area of human rights.32 The ILC thus had many valid reasons to go into this issue in more depth and to formulate an elaborate norm on exhaustion of domestic remedies, in the manner Special Rapporteur Ago had formerly tried to do.33 In fact, Special Rapporteur Crawford and the ILC decided to simplify the topic considerably; and the final outcome of the Draft Articles is very disappointing. Article 44.b of the Draft is a very elementary norm that tells us very little about the rather complex and debated rule of exhaustion of domestic remedies. The justification given by Crawford and by the ILC is seemingly based on their choice not to deepen the content of the rule in the Draft on State Responsibility, in view of the fact that the ILC Draft on diplomatic protection was going to deal with the same rule.

31 More precisely, the writers who are in favour of the substantive nature of the rule prefer its systematic arrangement in the framework of State responsibility, while the writers in favour of the procedural nature of the rule prefer its collocation in the field of settlement of disputes. 32 See, e.g., Art. 35.1 of the European Convention on Human Rights; Art. 41.1.c of the International Covenant on Civil and Political Rights; Arts. 2 and 5.2.b of its Optional Protocol; Arts. 11.3 and 14.7 of the International Convention on the Elimination of All Forms of Racial Discrimination; Arts. 46.1.a and 46.2 of the American Convention on Human Rights; Arts. 50 and 56.5 of the African Charter on Human and Peoples’ Rights; Arts. 21.1.c and 22.5.b of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See also, in general and for the case-law, PISILLO MAZZESCHI, cit. supra note 3, passim. 33 I do not agree with the substantive theory on the nature of the rule maintained by Special Rapporteur Ago, however. See PISILLO MAZZESCHI, cit. supra note 3, espec. Chap. II; ID., “Exhaustion of Domestic Remedies and State Responsibility for Violation of Human Rights”, IYIL, Vol. X, 2000, p. 17 ff.


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This choice is, in my opinion, a serious mistake, simply because the rule on exhaustion of domestic remedies has, in contemporary international law, a much larger scope of application than the field of diplomatic protection. The rule of prior exhaustion should therefore have been examined and deepened in the Draft on State Responsibility, as it has a broader scope of application than the Draft on diplomatic protection. Besides, the rule should have been analysed and formulated not only from the (limited) point of view of interstate responsibility, but also from the wider perspective of the international responsibility of States toward individuals.34 In other words, the rule should also have been studied from the point of view of the relationships between the State and the individual, which are now formally and directly regulated by international law (as I said before); and therefore also from the perspective of the international rights of the individual toward the State. If the ILC had adopted this approach it could have come, first of all, to formulate a more elaborate and complete rule in the text and Commentary of Article 44.b. Secondly, it could finally have adopted, in an explicit way, the procedural theory about the nature of the rule.35 Thirdly, the ILC could have affirmed not only the non-applicability of the rule in case of ineffective domestic remedies (and in many other cases) but also, in an opposite and corresponding way, the right of the individual to obtain effective domestic remedies on the basis of international law.

3.5. The International Criminal Responsibility of the State Organ There is a final issue that, from the point of view of the role of the individual, should have been developed in the Draft: the international criminal responsibility of the State organ. In fact, this responsibility may not only be added to the responsibility of the State, but may also constitute an element of the content of the latter; that is, one of the legal consequences of the wrongful act of the State. It is true that the Draft Articles deal with the international responsibility of the State and not with that of the individual; and that this choice finds confirmation in another saving clause of the Draft – Article 5836 – according to which the Draft Articles “are without prejudice to any question of the individual responsibility

34

For violation both of norms on human rights and of contemporary norms on aliens’ protection. 35 According to which the rule of exhaustion of domestic remedies must be considered a rule of procedure; that is, a condition for exercising the right to resort to international procedures of dispute settlement. Actually, the collocation of Article 44.b in the Chapter on the invocation of responsibility (and the criticism by the last Special Rapporteur, Crawford, of the theory of the first Rapporteur, Ago, who was in favour of the substantive nature of the rule) cause one to think that the final Draft is implicitly in favour of the procedural theory on the nature of the rule. 36 Entitled “Individual responsibility”.

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under international law of any person acting on behalf of a State”. However, one should underline that, especially in the practice of international organs supervising the protection of human rights, the punishment by the responsible State (by means of its domestic law) of its organs guilty of violations is considered an appropriate form of reparation (satisfaction), especially for the most serious violations. This point had been rightly caught by a provision on the legal consequences of the wrongful act contained in the 1996 Draft Articles.37 But unfortunately the 2001 Draft has deleted the provision. This omission constitutes, in my opinion, a true shortcoming of the Draft. Moreover, the 2001 Draft also could and should have taken into account in a more incisive way,38 at least with regard to serious breaches of peremptory norms, the important development of contemporary international law relating to the international criminal responsibility of individuals responsible of international crimes. This is a field in which a clear separation of the responsibility of States and the individual responsibility of State organs is rather unnatural, especially with regard to international crimes committed by political leaders.39

4. CONCLUSION In arriving at a concise conclusion, I hope to have demonstrated that the too statist (or interstate) approach to international law adopted by the ILC since the beginning of its work on State responsibility has not evolved sufficiently during the long period of preparation. This approach has led to a final Draft with serious gaps from the point of view of the role of the individual (and of other non-State entities). The issue of the international responsibility of the State toward the individual today forms part of the topic of the international responsibility of the State in all respects, and should therefore have been dealt with directly and explicitly; and not through mere saving clauses or brief and shy hints in the Commentary. The suggested approach would have led the ILC to make some important modifications to the Draft, making it less conservative and rendering it more in harmony with some fundamental developments of contemporary international law.

37 Article 45.2.d of the Draft approved in 1996 (in UN Doc. A/51/10, YILC, 1996, II.2, p. 63) established that satisfaction may take the form of disciplinary action against, or punishment of, those responsible, when the internationally wrongful act arose from the serious misconduct of officials, or from the criminal conduct of officials or private parties. 38 And not only through the above-mentioned saving clause of Article 58. 39 See PELLET, cit. supra note 9, p. 77, who rightly speaks of the principle of “transparency of the State”, which can “entail criminal consequences when the leaders of a state responsible for an internationally wrongful act are brought before a criminal court, either national or international, to account for their acts”. See also ID., “Remarques sur une révolution inachevée: le projet d’articles de la CDI sur la responsabilité des états”, AFDI, 1996, p. 25 ff.


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Therefore, the view of some writers – according to whom the ILC Draft takes adequately into account the role of the individual and the international protection of human rights – appears to be quite optimistic; even more so because this view is based primarily on the norms of the Draft that concern community interests and not on those which regard the individual more directly.40 On the contrary, the admission of Special Rapporteur Crawford,41 according to which the ILC has not expressly dealt with the problem of the international responsibility of the State toward nonState persons or entities because of the fear of facing a new and difficult issue which would have much postponed the approval of the Draft, seems more realistic. This affirmation is perhaps, in its turn, a pessimistic one, however, because I believe that the above-mentioned gaps in the Draft could have been filled in reasonable time, without too much undermining a rapid conclusion. One might think, perhaps, that States would have received a more courageous and innovative Draft with less favour. However, I may object that the ILC has the duty not only to codify, but also to progressively develop international law; and that its influence in this latter respect may, in the long run, also have important effects on State behaviour.

40 See, for instance, SIMMA, cit. supra note 7, passim. This writer, at that time a member of the ILC, even maintained that the protection of human rights had constituted a lighthouse which had always led ILC work on State responsibility, in an oral intervention at the Conference on “Breaches of Obligations under Peremptory Norms of General International Law and the International Responsibility of States” (EUI and EJIL, Florence, 7-8 December 2001). 41 See supra note 28.

ISLAMIC LAW ON PRISONERS OF WAR AND ITS RELATIONSHIP WITH INTERNATIONAL HUMANITARIAN LAW MOHAMED M. EL ZEIDY* and RAY MURPHY**

1. INTRODUCTION The dilemma of how to deal with prisoners of war (POWs) is not new, and even the Qur’an and the Old Testament call for humane treatment of those captured in the course of armed conflict.1 The issue has assumed significant contemporary relevance as a result of the consequences of recent armed conflicts in Iraq and Afghanistan. The rights of POWs/detainees during armed conflict are governed by the law of armed conflict (formerly referred to as the laws of war), or what is probably better known today as international humanitarian law (IHL). There is an obligation on all States and armed forces to ensure that IHL is upheld. This branch of international law has always come under pressure during armed conflict, and the recent armed conflicts in Iraq and Afghanistan are no exception. In ancient times the concept of POWs was unknown. Captives were regarded as part of the spoils of victory, and they were frequently killed or enslaved.2 Not surprisingly, POWs have traditionally been among the most vulnerable groups in

*

Senior Public Prosecutor, Office of the Prosecutor General, Egyptian Ministry of Justice; LLB & Police Sciences (Cairo, 1993); LL.M. (International Human Rights-Irish Centre for Human Rights, Galway Ireland, 2001); LL.M. (Public Law, Cairo, 1999); Ph.D. (cand.). I am grateful to Judge Khaled Gazy (Egyptian Ministry of Justice) for his comments on an earlier draft, and Judges Cherif Atlam (Head of the ICRC Advisory Service, Cairo delegation), and Mohamed Maher (ICRC Legal Advisor, Cairo delegation) for allowing me to access the ICRC library. ** Senior Lecturer in Law, Irish Centre for Human Rights, National University of Ireland, Galway; BA, LL.B. (NUI Galway), M. Litt. (Dublin), Ph.D. (Nottingham), Dip. Arb. Law, Barrister-at-Law. 1 KINGS, 6:21, 22 and MALEKIAN, Concept of Islamic International Criminal Law: Comparative Study, London, 1994, p. 6; KHADDURI, “Islam and the Modern Law of Nations”, AJIL, 1956, p. 358 ff., p. 359. 2 On account of the developments of this practice, see GREWE (ed.), Fontes Historiae Iuris Gentium: Sources Relating to the History of the Law of Nations, Vol. 1, BC-1493, Berlin, New York, 1995, pp. 131-133; LE BOHEC, The Imperial Roman Army, London, 2000, p. 145; GOLDSWORTHY, The Roman Army at War: I00 BC-AD 200, Oxford, 1998, pp. 259-260; KEEN, Studies in Political History: The Laws of War in the Late Middle Ages, London, 1965, p. 156; WALKER, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia 1648, Vol. I, Cambridge, 1899, pp. 317-318; BLACK, European Warfare: 1660-1815, London, 1994, p. 231; GIVEN-WILSON and BERIAC, “Edward III’s Prisoners of War: The Battle of Poitiers and Its Context”, The English Historical Review, 2001, p. 802 ff., pp. 804, 808; LEVIE, “Penal Sanctions for Maltreatment of Prisoners of War”, AJIL, 1962, p. 433 ff., p. 434.


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situations of armed conflict. Their treatment is a question with which the laws of war have been particularly concerned. Their detention is a form of permissible internment, and it should come as no surprise to learn that that the laws governing armed conflict lay down detailed rules for their protection. The recent conflicts in Afghanistan and Iraq have been characterized by predominantly non-Muslim States fighting Islamic States or Muslim groups within such States. Prior to this the major conflict in the Gulf Region occurred between two Islamic States, Iran and Iraq. Owing to the special protection and privileges accorded to POWs, the question of recognition of POWs status in current situations of armed conflict is often contentious. Not all persons captured in the course of armed conflict are entitled to the status of POWs and its consequent legal protections. Generally only persons recognized as “combatants” under the 1949 Geneva Convention III and the 1977 Additional Protocol I are entitled to treatment as POWs upon capture by an adverse party in armed conflict. According to the commentary on the Convention, any “difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the parties denies the existence of a state of war”.3 If both parties deny the existence of a state of war,4 a question that arises is do the Conventions apply?5 On a literal reading, it may be argued that Article 2 fails to address the issue. An examination of the purpose of the Geneva Conventions suggests, however, that even in such a case States could not, by tacit agreement, prevent the applicability of the Conventions. It must be remembered that the

3

DE PREUX et al., Commentary on Convention III Relative to the Treatment of Prisoners of War, Geneva, 1960, Art. 2, p. 23 ff. [hereinafter Commentary]; see also Prosecutor v. Tadic Case No. IT-94-1-AR72, 2 October 1995, para. 70, where the Appeals Chamber stated: “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”, ibidem; Prosecutor v. Zejnil Delalic` et al. Case No. IT-96-21-T, 16 November 1998, para. 204, where the Prosecution quoted the aforementioned ICRC Commentary on Article 2, and thus, argued that “Bosnia and Herzegovina and its armed forces were one of the parties to this international conflict and the other parties were, first, the SFRY and its army, the JNA, and then the FRY and its army, the VJ, along with the SRBH (becoming the RS) and its army, the VSRBH (becoming, and here referred to as the VRS). It contends that the military involvement of the SFRY and FRY in Bosnia and Herzegovina and the existence of de facto hostilities between them, along with the SRBH/RS whom they controlled, and the state of Bosnia and Herzegovina, was thus sufficient to render the conflict international”, ibidem. 4 Geneva Convention III, Art. 2; Gasser argues that even if a state of war is not recognized by all parties to the conflict, the Conventions still apply. The only criterion is the “circumstances of an armed conflict”, GASSER, “International Humanitarian Law”, in HANS HAUG (ed.), Humanity For All: The International Red Cross and Red Crescent Movement, Vienna, 1993, pp. 510-511. 5 This problem as well has been raised in the commentary. See Commentary on Art. 2, p. 23; YINGLING and GINNANE, “The Geneva Conventions of 1949”, AJIL, 1952, p. 393 ff., p. 394.

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Conventions, like the relevant provisions of Islamic law, were drafted to protect individuals and not to serve State interests, even if the existence of a state of war is disputed. It is noteworthy that the issue of the Conventions’ applicability arose during the Falklands/Malvinas conflict, when neither side formally declared war.6 However, the conflict was classified as an armed conflict within the meaning of Article 2, and thus, the provisions of the Conventions applied.7 There may be instances where there is doubt regarding the status of persons who have fallen into the hands of the enemy. However, the Convention is clear in one respect. According to Article 5 such persons shall enjoy the protection of the Convention until a competent tribunal determines their status.8 The current controversy regarding the status of those in the custody of the United States and held at Guantanamo Bay in Cuba highlights the problems that can arise regarding recognition of POWs status during armed conflict. It also provides an example of the application of Geneva Convention III by a non-Muslim State in respect of Muslim POWs. If a captive is denied POW status, then as the current situation shows, evading the protections and responsibilities provided under IHL is all too easily achieved.9 The basic standard of treatment is set out in Article 13 of Geneva Convention III, which states that “prisoners of war must at all times be humanely treated”.10 According to the Commentary, the word “treated” must be construed in a wide sense “as applying to all aspects of life”. This is predicated on the assumption that each individual is desirous of the treatment corresponding to his or her status, and this should therefore determine and judge the most suitable way to treat a fellow human being.11 Accordingly, POWs must not be unlawfully killed or endangered,

6 MEYER, “Liability of Prisoners of War for Offences Committed Prior to Capture: The Astiz Affair”, ICLQ, 1983, p. 948 ff., p. 957. 7 Ibidem. 8 As to the application of Article 5, see Public Prosecutor v. OIE HEE KOI, A.C., 1968, p. 829, ILR, 1971, Vol. 42, p. 441; see also Prosecutor v. Zejnil Delalic et. al., Case No. IT-96-21-T, 16 November 1998, para. 242, where the Prosecution argued that some of the detainees were civilians while the others were POWs. Should any doubt exist regarding their status, Article 5 of the Third Geneva Convention applies, ibidem. The Trial Chamber upheld this view and concluded that “While there may [...] have been a duty upon the Bosnian forces controlling the Celebici prison camp to treat some of the detainees as protected by the Third Geneva Convention until their status was properly determined and thus treat them with appropriate humanity, the Trial Chamber has found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence of ‘grave breaches of the Geneva Conventions’ on this latter Convention”, ibidem, para. 273. 9 MURPHY, “Prisoner of War Status and the Question of the Guantanamo Bay Detainees”, Human Rights Law Review, 2003, p. 257 ff., pp. 257-278. 10 Geneva Convention III, Art. 13; LEVIE, cit. supra note 2, pp. 446-448. 11 Ibidem. It should be noted, however, that a POW is precluded by Article 7 of the 1949 Convention III from renouncing the rights conferred by the Convention and any additional special agreements that may have been entered into for the benefit of POWs.

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physically mutilated or subjected to medical or scientific experiment not justified by their medical needs.12 Moreover, the Article explicitly prohibits reprisals against POWs; likewise, any form of violence, intimidation, insults, or making POWs objects of public curiosity is forbidden.13 During the first Persian Gulf War, all United States POWs suffered physical abuse at the hands of their Iraqi captors, in violation of Article 13.14 Most of them were tortured;15 some were forced to make public

12

LEVIE, cit. supra note 2, p. 448 ff. These acts took place during the World War II against POWs by the German captors. See for example Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. II (“The Medical Case”), p. 181 ff. “With the out break of World War II criminal medical experiments on non-German nationals, both prisoners of war and civilians, including Jews and ‘asocial’ persons, were carried out on a large scale in Germany and the occupied countries. These experiments were not the isolated and casual acts of individual doctors and scientists working solely on their own responsibility, but were the product of coordinated policy-making and planning at high governmental, military, and Nazi Party levels, conducted as an integral part of the total war effort”, ibidem. See also Law Reports of Trials of War Criminals, Vol. XIV, 1949, pp. 1-2, 7. (Trial of Takashi Sakai). In its judgment, the IMT also made reference to the experimental work that took place during the preparation of bacteriological warfare. The Court observed that “In July 1943, experimental work was begun in preparation for a campaign of bacteriological warfare; Soviet POWs were used in these medical experiments, which more often than not proved fatal”, IMT Judgment, p. 228. 13 1949 Geneva Convention III, Art. 13; see also MCCOUBREY, International Humanitarian Law: Modern Developments in the Limitation of Warfare, 2nd ed., England, 1998, p. 148. Article 13 should be read in conjunction with Article 130 of the Convention, for the latter considers such acts listed under the former as grave breaches. Reprisals have been defined as “an act illegal in itself but permissible in reasonable proportion and with proper safeguards as a response to illegal acts already committed by the enemy and as a deterrent to their recurrence”, DIXON et al. (eds.), Archbold: International Criminal Courts Practice, Procedure and Evidence, London, 2003, p. 351, quoting BEST, War & Law since 1945, p. 192. However, reprisals are also prohibited against the civilian population or civilians and civilian objects under articles 51 (6), 52 (1) of Protocol I Additional to the Geneva Conventions. It is moreover covered by article 3 of the ICTY Statute, and has been examined under Rule 61 hearing, and not at trial. Thus, in the Martic Case (review of the indictment pursuant to Rule 61), the Trial Chamber said: “The prohibition against attacking the civilian population as such as well as individual civilians must be respected in all circumstances regardless of the behavior of the other party. The opinion of the great majority of legal authorities permits the trial Chamber to assert that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party. The exclusion of the application of the principle of reprisals in the case of such fundamental humanitarian norms is confirmed by Article 1 Common to all Geneva Conventions”. Prosecutor v. Martic, para. 15, quoted in DIXON et al., ibidem, p. 351 ff. 14 Conduct of the Persian Gulf War: Final Report to Congress Pursuant to Title V of the Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991 (P.L. 10225), Appendix O, April 1992, pp. 1-19 [hereinafter Conduct of the Persian Gulf War]. 15 Ibidem. These atrocities appeared also during the Bosnia and Herzegovina conflict. “In the evening, groups from outside the camp would appear, would call out particular POWs from their rooms and attack them with a variety of sticks, iron bars or lengths of heavy electric cable. Sometimes these weapons would have nails embedded in them so as to pierce the skin”, see also Prosecutor v. Tadic, Case No. IT-94-1, T. Ch.II, 7 May 1997, para. 164.


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propaganda statements,16 equally in violation of Article 13. The development of the treaties regulating the status of POWs appears satisfactory. However, State practice has undermined the extent of protection afforded to POWs. This is evident from the conduct of Iraq during the First Gulf War (Iran-Iraq), the Persian Gulf War, and more recently in relation to the treatment of detainees at Guantanamo Bay.17 Clear violations of laws and customs of war, which are reflected in Convention III, were perpetrated by Iraqi captors. Since Iraq is an Islamic nation, which is supposedly governed by the norms and regulations of the Islamic Shari’a, this poses a question of great significance: does Islamic law confirm such practices? If not, then, what is the Islamic perspective on the treatment of enemy forces captured in situations of armed conflict? Although much has been written in relation to POWs status and rights under IHL, there is little knowledge of the important provisions governing POWs under Islamic law. This paper analyses the development of POWs status under Islamic law. It aims to examine the main provisions governing their recognition and treatment under Islamic law, and to determine if there are any contradictions between the principles governing POWs under Islamic law and IHL. There is no shortage of IHL provisions applicable during international armed conflict. The weakness of IHL is the lack of an effective universal enforcement mechanism when States and parties to conflicts fail to respect these principles. The paper describes the Islamic law applicable in time of war according to primary and secondary sources. It then goes on to clarify the application of the Islamic concept of humanitarian law to the treatment of POWs. Ultimately, it addresses the similarities and distinctions between the principles of IHL and those of Islamic law applicable in time of armed conflict, and the problems in applying these in practice. The paper also seeks to demonstrate that the failure of an Islamic State such as Iraq to adhere to humanitarian law provisions is not due to a lacuna in the Islamic legal framework, but on a failure of Iraq (and by implication, other Islamic States) to respect and apply both Islamic law and IHL principles in the course of armed conflict.

16 MCCOUBREY, cit. supra note 13, pp. 148-149. Protection against insult and public curiosity became a matter of serious concern in the 1990-1991 Gulf Conflict; captured coalition air force personnel were shown on Iraqi television with the marks of brutal treatment, reciting – clearly involuntarily – statements of Baath party propaganda. 17 On the status of the Guantanamo Bay detainees under IHL, see PAUST, “Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions”, Notre Dame Law Review, 2004, p. 1335 ff., pp. 1348-1361; MURPHY, cit. supra note 9.

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2. SOURCES OF ISLAMIC LAW Sources of Islamic law are called adillah in Arabic terminology, i.e. proofs of the law.18 Islamic law of war (siyar) is based on the same legal sources as any other branch of Islamic jurisprudence. Therefore, shari’a is also the source of normative relations between Muslim States and other States, which applies universally to all circumstances and all human beings.19 Islamic law like other branches of shari’a is based primarily on two fundamental sources: the Qur’anic revelations (Qur’an), and traditions of Mohammad (Sunnah).20 They are the only authoritative Holy enactments of Islamic jurisprudence. The secondary sources are based on opinion (ra’y),21 consisting of consensus of opinion (Ijma) and analogy (Qiyas). These sources are not unlike the sources of the modern law of nations. The Qur’an represents the authoritative source of laws where traditions are equivalent to customs. Here, the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason. Both sources are explored in this chapter.

2.1. The Primary Sources Qur’an The meaning of Qur’an is “to read” or “recite” as in surah Al Keyama: “It is for us to collect It and recite It”.22 Caliph Uthman used the name Qur’an for the entire collection of revelations made to the Prophet Mohammad. Originally, it related to each separate revelation made to the Prophet.23 Following the death of the Prophet, by order of the first Caliph Abu Bakr, Zaid Ibn Thabet brought the Qur’an together in one authentic collection.24 Qur’an contains the entire philosophy of Islam, and thus, regulates the rules, obligations and duties which must be respected in normative State conduct.25

18 MAHMASSANI, “The Principles of International Law in the Light of Islamic Doctrine”, RCADI, 1966, Vol. 117, p. 201 ff., p. 231. 19 MALEKIAN, cit. supra note 1, p. 6; KHADDURI, cit. supra note 1, p. 359. 20 BASSIOUNI and BADR, “The Shari’ah: Sources, Interpretation, and Rule-Making”, UCLA Journal of Islamic and Near Eastern Law, 2002, p. 135 ff., pp. 138-139; MALEKIAN, cit. supra note 1, p. 2. 21 MALEKIAN, cit. supra note 1, p. 230. 22 QUR ’AN, 75: 17. 23 TABANDEH, A Muslim Commentary on the Universal Declaration of Human Rights, Guildford, 1970, p. 94. 24 MAHMASSANI, cit. supra note 18, p. 229. 25 MALEKIAN, cit. supra note 1, p. 6.


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Sunnah Sunnah is the prophetic discourse or traditions, providing the detailed teachings of Islam and its application.26 While the Qur’an is the constitution, the Sunnah is the explanation and practical application of the Qur’an. Sunnah confirms and establishes the independent rules within the scope of what (Qur’an) means as a whole.27 The Sunnah of the prophet means “tradition” and includes the following three categories: (1) sayings of the Prophet; (2) his deeds; and (3) his silent or tacit approval of certain conduct (i.e., wars, the exchange of letters or envoys, reception of delegations, negotiations of international treaties, dealings with enemy property, POWs, etc).28 The record of the Prophet’s words and deeds were recorded in the narrative Ahadith. These reports were transmitted before being compiled in authoritative collections decades after the death of the Prophet.29 Although both Qur’an and Sunnah serve as primary sources of Islamic Law, Sunnah provides more rules than the Qur’an. It is in terms of quality, however, that the Qur’an is superior, because the authenticity of tradition is hard to prove.30 But neither the Sunnah nor the secondary sources should contradict the Qur’an. In case of conflict, the Qur’anic norms prevail.31 Furthermore, secondary sources of Islamic law should not contravene the Sunnah. Thus, the practice of the secondary sources may run parallel to, but not be in contradiction of the Sunnah.32 It is noteworthy that Sunnah also refers to customs of war of Arabia, and was also used for the Arabian customary law (jus gentium).33

2.2. Secondary Sources Ijma The secondary source of Islam, Ijma, stands for the unanimous agreement of Muslim jurists in any particular age on a juridical rule not already covered by a holy 26 27 28

AL QARADAWI, Introduction To Know Islam, 1995, p. 312. Ibidem. GHAZI, The Shorter Book on Muslim International Law, Islamic Research Institute, 1998,

p. 3. 29 MUSLIM WOMEN’S LEAGUE, Intellectual Background: Islamic Sources of Information and Their Development Into Islamic Law, available at http://www.mwlusa.org/pub_book_ sources.html (hereinafter MWL). 30 HAMIDULLAH, Muslim Conduct of State, 2nd ed., Lahor, 1945, p. 21. 31 BASSIOUNI (ed.), The Islamic Criminal Justice System, London, 1982, p. xiii; see also ABD AL ATI, Islam in Focus, 3rd ed., Saudi Arabia, 1999, p. 21. 32 HAMIDULLAH, cit. supra note 30, pp. 22-23. 33 KHADDURI, War and Peace in the Law of Islam, Baltimore, 1955, p. 126.

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enactment.34 It may be express or tacit.35 If questions arise concerning a Qur’anic interpretation or an issue where the Qur’an and Sunnah lack guidance, jurists applied their own reasoning (ijtihad) in order to find a proper interpretation.36 Through time, an increasing number of doctors of law would accept one interpretation. Looking back in time at the evolved consensus of the scholars, it could be concluded that an ijma of scholars had been reached on an issue.37 Unfortunately, unanimous agreement rarely happened. However, if unanimous agreement was reached, the decision has the same validity as a verse of the Qur’an or the most reliably proven tradition of the Prophet.38 Therefore, ijma has been supported by various traditions of the Prophet, who proclaimed: “My people will never be unanimous in error”.39 Likewise, Qur’an supports the use of consultation in the following verse: “Take counsel with them in the conduct of affairs; and when you are resolved, put your trust in God. God loves those that are trustful”.40

Qiyas or Analogy Qiyas is the application of a certain legal rule set for a specific situation or case to a new one on the ground of a “common effective cause (illat)”, which is “identical in both cases”.41 Abu Hanifa who was an advocate of analogy (Qiyas) considered it as a source of law.42 However, it should be noted that custom and reason played a more important role in the development of Islamic law than other sources.43 Because the initial classical legal theory adopted a strict analogy which caused injustice, a liberal form of reasoning emerged on the basis of Istihsan (seeking the most fair and reasonable solution or the “least harmful”) or Istislah by pro-

34

MAHMASSANI, cit. supra note 18, p. 230. Ibidem. 36 MWL, cit. supra note 29. 37 Ibidem. 38 HAMIDULLAH, cit. supra note 30, p. 24. 39 Ibidem, pp. 23-24. 40 QUR ’AN., 3:159. 41 MAHMASSANI, cit. supra note 18, p. 231; COULSON, Conflicts and Tensions in Islamic Jurisprudence, Chicago, 1969, p. 6. 42 KHADDURI, “Nature and Sources of Islamic Law”, in EDGE (ed.), Islamic Law and Legal Theory, Aldershot. Singapore, Sydney, 1996, p. 96 (hereinafter “Nature”); KHADDURI, The Islamic Law of Nations, Baltimore, 1966, p. 29 (hereinafter Law of Nations). 43 KHADDURI, Law of Nations, cit. supra, p. 9. The secondary sources could be expanded to include: 1) Orthodox practice of the early Caliphs; 2) Treaties, pacts and other covenants; 3) Official instructions to commanders, admirals, ambassadors and other State officials; 4) The internal legislation for conduct regarding foreigners and foreign relations; Custom; 5) Reason and equity (such as, Istihsan, Al-Masalih al-Mursalah, Istidlal). 35


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viding the “best solution for the general interest”.44 The provisions provided by the Islamic law for the protection of captured personnel emerged from these sources.

3. POWS AND THE ISLAMIC LAW The Islamic concept of humanitarian law differs in two ways from the classic theory of the law of war, which long prevailed in positive international law. First, Islamic humanitarian law does not require the existence of a war in the traditional sense of the term. Thus, apart from the actual use of weapons, there is an implicit obligation of a declaration of war between two or more parties.45 According to the classic theory of the law of war a state of war exists despite none of the parties had recourse to arms.46 By contrast, the Islamic conception applies humanitarian norms once weapons have been used, and armed forces have been deployed, even “without a declaration of war”.47 Thus, every able-bodied man that joined the armed forces or engaged in hostility is considered a “potential combatant” and, accordingly, if captured, attains the status of POW.48 In addition the Islamic concept of humanitarian law, unlike the classical theory of IHL, does not differentiate between the different categories of armed conflicts. Hence, the general treatment of POWs is similar. Under the classic theory, application of the rules was conditional on the existence of an international conflict between States. In the event of conflict within a single State, “these rules could not apply unless the nature of the conflict was that of civil war, and even then required the condition that the insurgent party was recognized as the belligerent [force]”.49 This situation changed with the adoption of the four Geneva Conventions of 1949, which applied these rules to all armed conflicts.50 The reason for the lack of distinction under Islamic law between international and non-international armed conflicts is probably due to the fact that when Islam came into being, the very notion of a State was unknown, or at least was insufficiently defined. Consequently,

44 COULSON, cit. supra note 41, p. 7; see also KHADDURI, “Nature”, cit. supra note 42, p. 96; BASSIOUNI and BADR, cit. supra note 20, p. 141. 45 EL-DAKKAK, “International Humanitarian Law Lies between the Islamic Concept and Positive International Law”, International Review of the Red Cross, 1990, p. 101 ff., pp. 102103. 46 Ibidem. 47 Ibidem. 48 HAMIDULLAH, Muslim Conduct of State, 6th ed., Lahor, 1973, p. 383. 49 EL-DAKKAK, cit. supra note 45, pp. 103-104. 50 Such as: “all cases of declared war or of any other conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (Common Article 2 of the Geneva Conventions) and “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” (Common Article 3).

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the Islamic concept of humanitarian law, as “based on an unlimited belief in Divine Authority”, is applicable everywhere and in all circumstances. The range of application of its rules extends through time and space to all categories of armed conflicts.51

3.1. Legality of Captivity and Humane Treatment Under Islamic humanitarian law, taking captives is legally permissible according to the Qur’anic verses: “Kill the unbelievers whenever you find them and seize them and confine them [...].52 So when you meet the unbelievers in battle, smite their necks, then, when you have overcome them, take them as prisoners”.53 Fundamental Islamic principles include and support respecting the dignity and integrity of the human person from the moment of captivity until their final release.54 Captives or POWs are deemed to be in the hands of the Muslim Power, but not of the individuals or military units that captured them.55 This seems to be compatible with the provision of Article 12 of the Third Geneva Convention.56 “In this sphere, Islam broke with the past”. The tenets of Islam require the avoidance of all unnecessary suffering. Muslim scholars are unanimous with regard to the illegality of inflicting degrading or inhuman treatment on enemy POWs.57 Although Islam is still biased and influenced by its original methods of warfare, there is no doubt, that it has taken a significant positive step towards “the moralization and humanization of war”.58 Under Islam, POWs should be granted humane treatment, which is “comparable to an act of charity”.59 The hadith books mention a number of important facts which are instructive and supportive of such treatment. At the battle of Badr, the Prophet ordered his fellow warriors to show goodwill towards POWs.60 He ordered that POWs who have been fighting under the hot sun should be prevented from further suffering. They

51

EL-DAKKAK, cit. supra note 45, pp. 103-104. QUR ’AN, 9:5. This verse emphasizes that the unbelievers must be killed in the battle, and those who are not killed, may be taken as POWs. 53 Ibidem, 47: 4. 54 MAHMOUD, Hemaiet Dahaia Al Nezaat almosallahah Fee Al Kanoon Al Dowaly Al Insany Wa Al Shariah Al Islamiah (The Protection of Victims of Armed Conflicts in International Humanitarian Law and Islamic Shari’a), Cairo, 2000, p. 36. 55 Ibidem. 56 Geneva Convention III, Art. 12. “Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them”. Ibidem. 57 BEN ASHOOR, “Islam and International Humanitarian Law”, International Review of the Red Cross, 1980, p. 61 ff., p. 64; MAHMASSANI, cit. supra note 18, p. 303. 58 Ibidem. 59 EL-DAKKAK, cit. supra note 45, p. 110. 60 BEN ASHOOR, cit. supra note 57, p. 64. 52


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should not experience the heat of the day in addition to the heat of their weapons.61 This is clear from the Prophet’s say: “[F]ree them from enclosure until they render cold”.62 Furthermore, the Prophet is said to have ordered his fellow warriors: “Take heed of the recommendation to treat the prisoners fairly”.63 The latter hadith is of general application and covers all aspects of humane treatment of POWs. The practices of the orthodox Caliphs may be a good reference to demonstrate the observance of humanity. Chaybani, one of the famous scholars, reports in his siyar that Caliph Abu Bakr condemned the practices of mutilation, torture and drowning of combatants, whether they are engaged in the battle or as POWs.64 It is reported that he told the commander of his army: “You will find people who claim that they are safe because they stay inside the mosques. Let them be […]. I give you ten orders: do not kill children, women or old people; […] do not be tyrannical towards captives and do not put them in irons”.65 By the end of the eleventh century, Salah Al-Din Al-Ayyubi (Saladin), who conquered Baital-Maqdis (Jerusalem), followed the Islamic religious orders and thus authorized the hospitallers of St. John of Jerusalem to enter his camp to aid wounded captive Crusaders.66

3.2. Camps, Food and Clothing of POWs Camps were nonexistent throughout the development of the Islamic State. However, there were other alternatives. POWs were either interned at the mosque or vested to Muslim combatants for detention.67 This does not mean, however, that Islamic law opposes the view that POWs may be interned in special buildings or premises and provided with living conditions outlined in the 1949 Third Geneva Convention. Since the norms of Islamic law are based on the principles of humanity, which draws its rules in favor of individuals, these norms and regulations might 61

Ibidem. The battle of Badr was the first battle in which the Prophet of Islam personally took part against infidels. 62 EL FAR, Asra Al Harb (Prisoners of War), Cairo, 1975, p. 194. 63 HAMIDULLAH, cit. supra note 48, p. 221. 64 BEN ASHOOR, cit. supra note 57, p. 65. Caliph Abu Bakr was the first Caliph after the death of the Prophet. 65 EL-DAKKAK, cit. supra note 45, p. 111. The hadith is referring to the human methods of capturing the enemy combatants, thus, prohibiting manacling of captives with iron. However, one commentator argues that Islamic Law of War does not distinguish between combatants and noncombatants. Thus, he drew an analogy to the prevailing practice in western Europe until the 16th century, which permitted “inflicting severe pain” even on “fellow humans”, OSIEL, “Obeying Orders: Atrocity, Military Discipline, and the Law of War”, California Law Review, 1998, p. 939 ff., p. 1011. Nevertheless, one may counter argue that the previously mentioned practice of the Prophet and the Caliph Abu Bakr evinces that this argument has no merit. 66 BOISARD, “On the Probable Influence of Islam on Western Public and International Law”, 11 Journal of Middle East Studies, 1980, p. 429 ff., p. 444. 67 MAHMOUD, cit. supra note 54, p. 36.

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be extended to cover essential needs. This is supported by the Qur’anic verse: “We have honored the children of Adam”.68 The word honour is given a broad meaning, covering all aspects of life. Accordingly, the respect for the honor of POWs is not limited to specific aspects of living, but extends even to location and condition of internment. The feeding of POWs is, inter alia, a principle derived from the tenets of the Islamic Shari’a,69 and is clearly expressed in the following verse: “And they feed, from the food that they most love, the needy, the orphan and the captive”.70 This practice was illustrated in the battle of Badr, when Muslim soldiers “nourished” themselves with dates and fed their POWs bread. Those POWs in need were provided with clothes.71 The jurist Abu Yusuf remarks that POWs must be fed and treated well until a decision is reached regarding their status. Yusuf contends that POWs are not to be charged for food, as the capturing Muslim State should be responsible for those expenses.72 Furthermore, Omar Ibn Hossayn once stated: “[T]he enemy captured two companions of the Prophet, and one of the enemy soldiers was captured by other companions of the Prophet […]. Once the prisoner told the Prophet: O! Mohammad, I am hungry and thirsty. The Prophet replied: ‘Here are your needs’”.73 According to scholarly interpretation, the word “needs” refers to food and water.74 The Prophet’s compliance with the prisoner’s request suggests that rights of POWs are similar to a positive obligation derived from the precepts of Islamic law and should not be denied.

3.3. Equality of Treatment Article 16 of the Third Geneva Convention refers to the prohibition of discrimination based on, inter alia, race, nationality, and religious belief.75 Likewise, the 68

QUR ’AN, 17:70. In this context the phrase “children of Adam” refers to all human be-

ings. 69

AL DAHOOL, The Protection of Victims of Armed Conflicts: Comparative Study between the Rules of International Humanitarian Law and the Islamic Shari’a, Cairo, 1998, p. 390. 70 QUR ’AN, 76:8. This verse is a clear message to Muslims, which emphasizes the priority of POWs to be fed; see also MAHMASSANI, cit. supra note 18, p. 308 (supporting this view). 71 HAMIDULLAH, The Battlefields of the Prophet Muhammad: A Contribution to Muslim Military History, Hyderabad, 1973, p. 21. 72 AL-ANSARY, A Collection of the Qur’anic Rule, Vol. 19, 1967, p. 129; see also HAMIDULLAH, cit. supra note 48, p. 222. The word Ibn means son. 73 AL-SHAFI’A, The Book of the Nation: El Ohm (The Mother), Vol. 4, 1968, p. 169; see also AL DAHOOL, cit. supra note 69, p. 391. 74 Ibidem. 75 Geneva Convention III, Art. 16. Article 16 reads: “Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse


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Islamic law grants POWs the same, if not a greater degree of protection against unjustified discrimination.76 The primary authoritative source of Islamic law (Qur’an) expresses this view on equality in the following verse: “O! Mankind, be conscious of your sustainer, who has created you out of one living entity, and out of it created its mate, and out of the two spread abroad a multitude of men and women”.77 Jurists argue that this verse expresses the view that human beings are created out of one nafs (living entity).78 Accordingly, no one being is superior to another. Furthermore, the Sunnah played an indispensable complementary role in this respect. The Prophet in his farewell sermon adopted this view, when he said: “O people! Your lord is only one; your father is only one, all of you emanated from Adam and Adam emanated from earth, it is only piety, which distinguishes Arab from non-Arab and a red from a white”.79 In this context, the reference to the word piety implies the appropriate interpretation of the text and demonstrates that the only distinctions drawn between human beings should be those based strictly on their piety. Thus, by analogy, “piety” is equivalent to rank,80 or state of health as set out in the Convention. Under comparable circumstances, all acts of discrimination are barred.

3.4. Acts of Torture and Reprisals The Islamic law is clear regarding POWs who are subjected to any act of torture or reprisal. In the sphere of Arabia, there was a “custom of mutilating the bodies of enemy combatants” as a reprisal.81 On occasion, women participated in these “sinister practices”, sometimes “devouring” the enemy’s liver to avenge a husband or brother killed in battle.82 This practice was reflected in the battle of Uhud, where Hind, mother of the future Caliph Muawia, “indulged” in this kind of mutilation of “enemy corpses”.83 In particular, Hind concentrated on Hamza, the Prophet’s uncle,

distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria”. 76 See infra note 77. 77 QUR ’AN, 4:1. 78 The word nafs can mean soul, spirit, mind, human being, etc. 79 ALI, “Women’s Human Rights in Islam: Towards a Theoretical Framework”, in COOK (ed.), Human Rights of Women: National and International Perspectives, Philadelphia, 1994, p. 123; see also GAAFAR, The Political Rights of Women in Islam: Concept and Contemporary Legislation, Egypt, 1997, p. 15. 80 See, e.g., 1949 Geneva Convention III, Art. 45, which provides that: “[…] Prisoners of war of equivalent status shall be treated with the regard due to their rank and age […]” 81 STAFRAKI, “The Human Concept in Islamic International Law”, International Review of the Red Cross, 1991, p. 33 ff., p. 39; BEN ASHOOR, cit. supra note 57, p. 64. 82 BEN ASHOOR, cit. supra note 57, p. 64. 83 Ibidem.

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by “eviscerating” him and “crushing” his liver.84 When the enemy retreated and the Moslems returned to search for their dead, the Prophet, who had considerable affection for Hamza found his uncle lying on the battlefield. Suggesting an intention to take revenge, the Prophet exclaimed: “By God, if God gives us victory over them, I shall punish them as no Arab has ever done”.85 However, the interpreters of the Qur’an explain that, at this point, the following verses were revealed: “Let thy punishment befit the crime thou hast suffered, but thou woudst do well nonetheless to arm thyself with patience. Therefore be patient, thy patience will be possible only with the help of God. Grieve not because of them, and let not their plot cause anguish in thee. God is with those who are kind and who fear him.86 And the recompense of an evil is an evil equal to it, but whoever forgives and seeks reconciliation, his reward is with God. Surely He does not love the evildoers”.87 Based on these texts, the Sunnite scholars condemn acts of reprisal including, inter alia, mutilation and torture, whether the POWs are dead or alive. Such is the standpoint of Imam Chaf’i.88 In addition, another practice at the time consisted of beheading and sending the head to the authorities. When Caliph Abu Bakr was informed of enemy behaviour of this nature, he is reported to have said: “Are we going to follow in the footsteps of the Persians and Byzantines?”89 The same principle of non-retaliation was adhered to later by Saladin who conquered Baital-Maqdis (Jerusalem). In his book La civilisation des Arabes, Gustave Le Bon, the French historian mentioned that when the British King Richard Lion Heart ordered his soldiers to kill 3,000 Muslim POWs after he had sworn to secure them a safe life, Saladin followed the tenets of Islam and refused to apply the law of retaliation.90 These precedents suggest that Islamic law condemns various forms of inhuman acts and bars collective punishment, relying instead on individual criminal responsibility.

84

Ibidem. Ibidem, pp. 64-65. 86 QUR ’AN, 16: 126-127-128. 87 Ibidem, 42:40. 88 STAFRAKI, cit. supra note 81, p. 39; see also BEN ASHOOR, cit. supra note 57, p. 65. 89 BEN ASHOOR, cit. supra note 57, p. 65. 90 LE BON, La civilisation des Arabes: Livres III (L’empire des Arabes), Paris, 1884, p. 184, an electronic version is available at www.uqac.uquebec.ca/zone30/Classiques_des_sciences_sociales/classiques/le_bon_gustave/civilisation_des_arabes/Arabes_livre_3.doc. (“Richard Cœur de Lion continua les actes de sauvagerie par lesquels s’étaient signalés les premiers croisés. Il commença par faire massacrer en face du camp des musulmans trois mille prisonniers qui s’étaient rendus, et auxquels il avait juré la vie sauve, et se livra à toutes sortes de meurtres et de pillages. On conçoit l’effet que durent produire des actes pareils sur le chevaleresque Saladin, qui 85


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3.5. Escape of POWs Islamic law seems to function similarly to the Third Geneva Convention in respect of POWs who escape from their captors. According to Articles 91 and 92 of the Convention, a POW who is recaptured following an attempt to escape “shall not be liable to any punishment in respect of his previous escape”.91 However, a POW who fails in his initial attempt to escape shall be liable to disciplinary sanction only.92 Likewise, according to Islamic regulations, a POW attempting to escape or otherwise violate discipline might be punished. If he/she reached Maaman (safety) and is recaptured, the escape attempt might not be considered grounds for punishment, except in so far as it might constitute a “breach of parole”.93

3.6. Acts of Killing and Release of POWs According to the Islamic law regulations, the killing of POWs and their release are two topics that are linked and should be studied in conjunction. Islamic norms prohibit unjustified killing of POWs. This view is stressed in provisions of the laws of Islam that are quoted from the Glorious Qur’an and the practices of the Orthodox Caliphs. The Qur’an defined the way in which POWs must be treated in Sura Mohammad: “So when you meet the unbelievers in battle, smite their necks, then, when you have overcome them, take them as POWs, until the war lays down its burdens, then you may set them free, either by grace or by ransom […]”.94 This text from the Qur’an is categorical in limiting the fate of POWs to gratuitous release (grace) or release by ransom. Accordingly, a prisoner may not be killed. Ibn Rushd records a consensus of the Companions of the Prophet to avait si généreusement épargné les habitants chrétiens de Jérusalem, et pendant une maladie de Philippe Auguste et de Richard Cœur de Lion leur avait envoyé des provisions et des rafraîchissements. Il entrevit l’abîme qui séparait alors la façon de penser et de sentir d’un homme civilisé de celle d’un barbare, et comprit qu’on ne pouvait traiter de semblables forcenés que comme des animaux sauvages”, ibidem. In 1187 Saladin led his army and captured Jerusalem. As a result, Philip Augustus of France, Richard I of England, and Emperor Fredrick Barbarossa marched to a Third Crusade (1189-1192). Despite the fact that Richard captured Acre, he failed, however, to re-capture Jerusalem. In this respect, see DAVIS, Encyclopedia of Invasions and Conquests: From Ancient Times to the Present, Oxford, 1998, p. 78; see also DE TAUBE, “Études sur le développement historique du droit international dans l’Europe Orientale”, RCADI, 1926, Vol. 11, p. 341 ff., p. 394 (noting that in the middle ages, where Europe had barbaric practices such as the Byzantium regime which killed 15,000 Bulgarian prisoners of war who were Christians as well, Islam contributed to the humanization of humanity to a wider extent than in Europe). 91 Geneva Convention III, Art. 91. 92 Ibidem, Art. 92. 93 HAMIDULLAH, cit. supra note 48, pp. 444-445. 94 QUR ’AN, 47:4.

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the same effect.95 However, during the time of the Prophet the practice of execution was permitted on occasion. Some legal experts conclude that, according to the Sunnah, execution of captives was a possible option.96 Based on the latter opinion, it might be argued that the execution of captives is inconsistent with Article 130 of the Third Geneva Convention. But the Convention prohibits only acts of killing which are not legally justified. Likewise, Islamic law permits executions and does not preclude the trial and punishment of POWs for crimes “beyond acts of belligerency”. This is “proscribed by the high authority of the practice” of the Prophet97 when Ibn Gharra was the only POW captured at the battle of Uhud. The Prophet released him on promise (without ransom). However, this was on the condition that he would not speak “calumnies” regarding Mohammad.98 Yet upon returning to Mecca, Ibn Gharra broke his word. The Prophet ordered his arrest and execution as a punishment for breaking the commitment made. Thus, an examination of the provisions of the Third Geneva Convention suggests that a prisoner who is released on parole or who promises and subsequently breaches his promise, may be tried and sentenced according to the laws of the Detaining Power. Similarly, the practice of the Prophet sustains the same view. Furthermore, the practices of Orthodox Caliphs are another example of how the killing of POWs is prohibited unless there is evidence of criminal acts beyond belligerency. It is said that Al-Hadjadj brought one of his captives to the Caliph Omar’s son and asked him to execute the man.99 Omar’s son replied that such acts are contrary to “divine precepts” that require that a POW either to be released for ransom or unconditionally.100

3.6.1. Release by Ransom This process enshrines two practices: release for the payment of a sum of money or release by exchange of POWs (reciprocity).101 It is clear from practice that 95

HAMIDULLAH, cit. supra note 48, p. 441; cf. EL DAKKAK, “Genocide from the Perspective of International and Islamic Law”, in ABDEL HALEM et al. (eds.), Criminal Justice in Islam: Judicial Procedure in the Shari’a, London/New York, 2003, p. 140. 96 EL-DAKKAK, cit. supra note 45, p. 109. Indeed, based on an early Qur’anic verse that says “It is not for any Prophet to have captives until he slaughters in the land”, Abu Hanifa argues that captives should be either killed or enslaved, but never set free or ransomed. However, the majority of jurists rely on the verse cited above in the text and concluded that the Chief of the Islamic State may choose according to his judgment one of five course. Killing of male captives (children and women however cannot be killed), enslavement, exchange for a Muslim prisoner, redemption by ransom, and the benevolent release (mann). In this respect, see MAHMASSANI, cit. supra note 18, pp. 306-307. 97 EL-DAKKAK, cit. supra note 45, p. 110. 98 Ibidem. 99 Ibidem, p. 109. 100 Ibidem. 101 Ibidem.


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the Head of the Muslim State may require payment of a special amount of money to the treasury, which can differ from case to case. This practice appeared during the battle of Badr, where the Prophet fixed four thousands drachmas as the rate for ordinary POWs. Even the Prophet’s relatives were not exempted. This process, however, was applied humanely. For example, when ransom could not be paid, the Prophet would ask those literate among the POWs to teach ten Moslem boys reading and writing.102 There are many examples in the life of the Prophet of such practices. Later, this principle developed into a “complicated institution” involving the release of thousands of POWs at a time.103 This practice seems to be compatible with the provisions of the Third Geneva Convention.

3.6.2. Gratuitous Release According to Islamic law, the process of gratuitous release conforms to that of international humanitarian law, since both distinguish between release of POWs during hostilities and release at the end of hostilities.

3.6.2.1. Release During Hostilities Islamic regulations on the release of POWs on parole or promise appear to be compatible with Article 21 of the Third Geneva Convention. The practice was known during the Islamic era, and there are precedents which show that cases of release on parole or promise existed during the time of the Prophet.104 For example, the Prophet’s release of Ibn Gharra described above illustrates this practice. Furthermore, according to Hammidullah, there were cases of actual release on parole in the life of the Prophet when POWs accepted that they would not take part in further hostilities against Muslims.105

3.6.2.2. Release Subsequent to Hostilities According to Hamidullah, the Qur’an recommends release when hostilities have ceased.106 Surah Mohammad stipulates that: “[W]hen you have overcome them, take them as POWs, until the war lays down its burdens, then you may set 102

HAMIDULLAH, cit. supra note 71, p. 21. HAMIDULLAH, cit. supra note 48, p. 455. 104 Ibidem. 105 Ibidem, p. 456. 106 Ibidem. Mahmassani observed that “cessation of hostilities” is one of the causes in Islamic Law for the termination of war, MAHMASSANI, cit. supra note 18, p. 295. 103

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them free, either by grace or by ransom”.107 Thus, this Qura’nic verse is consistent with the provision of Article 118(1) of the Third Geneva Convention. However, it might be argued that Article 118(1)108 should apply at the close of actual warfare. Furthermore, no delay is justified by the continuation of the legal state of war, which is not clarified in the Qur’anic verse. Despite this argument, the Prophet’s precedents and practices prove the contrary. During this period, the Islamic State was in a continuous state of war against the infidels (starting with the battle of Badr and ending with the conquest of Mecca). Thus, the Prophet’s release of POWs subsequent to the battle of Badr suggests that the main criterion in this respect is the close of actual warfare (cessation of fire), and not the continuation of the legal state of war. There were few occasions during the life of the Prophet when gratuitous release (release without anything in exchange) took place. As narrated by Anas Ibn Malik, the Treaty of Huddaibiah mirrors one of those rare cases. Eighty infidel soldiers from the Eltan’aim Mountains attempted to attack the Prophet.109 Although they were arrested, the Prophet freed them and received nothing in exchange.110 After Mecca was conquered, the Prophet famously proclaimed to his POWs: “Go your way, you are free!”111 The practices of Saladin provide the best examples of such methods of release. Subsequent to the conquest of Baital-Maqdis (Jerusalem), many enemy combatants were taken as POWs. POWs’ families, especially women, urged Saladin to release those captured due to the fact that women and children would suffer as result of loosing their husband’s support. In response, Saladin ordered that all husbands, sons and fathers of those women be released.112 This not only confirms the practice of gratuitous release, but also demonstrates the humanity of treatment provided by the norms of Islamic law.

3.7. Treatment of the Dead The Third Geneva Convention provisions governing the treatment of deceased POWs are similar to those of Islamic law, which mandates that all enemy POWs who have died in captivity should be honorably buried. According to the Glorious Qur’an: 107

QUR ’AN, 47:4. MERON, “The Humanization of Humanitarian Law”, AJIL, 2000, p. 239 ff., p. 254. 109 AL DAHOOL, cit. supra note 69, p. 398. 110 Ibidem. Imam Al Bukhari narrated that after the battle of Hunayn (A.D. 631) the Prophet ordered the unconditional release of 6,000 POWs captured from the Hawazin tribe. Moreover, AlTabari reported that the Prophet ordered the unconditional release of more than one hundered families of the Bani Mustaliq Tribe who were captured, BENNOUNE, “As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence”, Michigan Journal of International Law, 1994, p. 605 ff., p. 634. 111 EL-DAKKAK, cit. supra note 45, pp. 109-110. All captives were set free by the order of the Prophet without anything in exchange. 112 See ZAHOOR, Morality in War, at http://users.erols.com/gmqm/sibai6.html. 108


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“Then his soul prompted him to kill his brother and he killed him, and became among the losers. Then God sent a crow scratching into the earth to show him how to bury the corpse of his brother. He said, ‘Woe is me, am I unable to do as this crow, and so bury my brother?’ And he became among the remorseful”.113 The verses clarify the required treatment of the dead. Specifically, the verses signify that all deceased beings should be buried after death. Furthermore, in Sura (Abasa), God emphasized the same meaning in the following verses: “Perish mankind! How ungrateful he is! Of what did He create him? From a small quantity of liquid, God fashioned him in due proportion and ordained his fate. Then He makes his path smooth for him; Then He causes him to die, and buries him”.114 Thus, the aforementioned verses reveal the general rule to be followed in treating all deceased persons, including POWs. The practice concerning treatment of the deceased emerged after the battle of Badr, where all Muslim and enemy dead were given proper burials. Mutilation or any other dishonor was strictly prohibited.115 This raises a question regarding the cremation of dead bodies in accordance with Article 120 of the Third Geneva Convention. The Convention permits cremation only for “imperative reasons of hygiene”, the religion of the deceased or in accordance with his express wishes.116 However, under Islamic law, cremation appears to be prohibited. Caliph Aliy Ibn Abi Talib is reported to have ordered his troops: “When you defeat them, do not kill their wounded […] do not mutilate their dead”.117 In this context, it is submitted that acts of cremation and mutilation should be treated the same. Finally, according to Islamic principles, POWs have the right to draw up wills for their property at home. Obviously, this process would be communicated to enemy authorities through a proper channel.118

4. ISLAMIC LAW: EXTENT OF APPLICATION AND POSSIBILITY OF CONFLICT WITH IHL From the outset, it should be noted that all Islamic States are parties to the 1949 Geneva Conventions. Thus, they are bound by the norms enshrined in those conventions. The same applies with regard to Islamic law. Islamic States are bound

113 114 115 116 117 118

QUR ’AN, 5: 30-31. Ibidem, 80: 17-21. HAMIDULLAH, cit. supra note 71, p. 21. Geneva Convention III, Art. 120(5). HAMIDULLAH, cit. supra note 48, p. 360. Ibidem, p. 441.

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by the law of God, which is the common constitution of the Islamic community of States. Thus, there is a clear hierarchy that always gives precedence to Islamic law.119 It follows that, from the outset, all Islamic countries engaged in an armed conflict are bound by the relevant norms of Islamic law. To a certain extent, Islamic law, however, does not preclude the possibility of applying positive laws such as the Geneva Conventions. In this context, both IHL and Islamic law are likely to be applied in a conflict involving an Islamic State, subject to the consistency of those international norms (positive law provisions) with the principles of the Islamic Shari’a as enshrined in the Qur’an, and the Sunnah.120 A common way of applying both laws is to ensure the full compliance of the relevant positive law with the principles of the Islamic Shari’a. As a result, both laws can apply simultaneously. It should be noted however that the rules emanating from the main sources of Islam have a similar status under Islamic law as a jus cogens norm under international law.121 It follows from this conclusion that any treaty or a provision that does not conform to the principles of the Islamic Shari’a is null and void.122 In this respect, it is only the inconsistent provision and not the entire treaty (as is the case 119 See for example Said Hassaneen v. Prime Minister, President of the Peoples Assembly, Egyptian Supreme Constitutional Court, Case No. 5, Constitutional Judicial Year No. 8, 6 January 1996 (noting that there is a prohibition when a provision set out in positive law (enactment) contradicts the main rules and principles of the Islamic Sharia). 120 The Egyptian Supreme Constitutional Court clarified the idea behind the principles of the shari’a as it confirmed that “no provision set out in any law may contradict or deviate from the general principles and the immutable sources of the Islamic shari’a as they are not open to interpretation and cannot not be changed”, Egyptian Supreme Constitutional Court, Appeal No. 7, Judicial Year No. 8, 15 May 1993. In a later decision, the Egyptian Supreme Administrative Court held the same view when it concluded that: “The principles of the Islamic shari’a are the major source of legislation. This imposes a limitation curtailing both the legislative and executive power, through which they are obliged that whatever laws or decrees they enact, no provision contained in them may contradict the provisions of Islamic law which are definite in terms of their immutability and their meaning. Because these priciples […] are not accessible to [ijtihd] as they represent the general principles and immutable sources of the Islamic shari’a which are not open to interpretation and cannot be changed […]. It is[therefore] not permitted to deviate from them or to depart from their meaning. Whatever legislative enactment contravenes them must be declared null and void”, quoted in BÄLZ, “Human Rights, the Rule of Law and the Construction of Tradition: The Egyptian Supreme Administrative Court and Female Circumcision (Appeal no. 5257/43, 28 December 1997)”, quoted in COTRAN and YAMANI, The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process, London, 2000, p. 35 ff., p. 39; also Asmaa Ali v. President, Prime Minister, Egyptian Supreme Constitutional Court, Appeal No. 6, Constitutional Judicial Year No. 9, 18 March 1995; Atef Ibrahim v. Prime Minister, Minister of Justice, Egyptian Supreme Constitutional Court, Appeal No. 4, Constitutional Judicial Year No. 15, 6 July 1996; AUDA, El Tashriaa El Jenaai Al Islami Moukaranan Bel Kanoun Al Wadai (Islamic Criminal Legislation: A Comparison with Positive Law), Cairo, 1984, Vol. I, p. 223. 121 ABOULWAFA, Kitab Elilam Bekawaeid Al Kanoun Al Dewaly Wa Al Elakat Al Dewaliah (A Book for Information on the Rules of International Law and International Relations in the Islamic Sharia), Cairo, 2001, Vol. I, p. 16. 122 AUDA, cit. supra note 120, pp. 223-237.


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under Article 53 of the Vienna Convention) that will be rendered null and void.123 It is submitted that in essence Geneva Convention III provisions appear consistent with Islamic law. Moreover, had any inconsistencies been evident, Islamic States would either not have ratified the Geneva Conventions, or made reservations based on the inconsistent provision.124

5. THE SITUATION OF POWS IN THE ISLAMIC REPUBLIC OF IRAN AND IN IRAQ The armed conflict that started between Iran and Iraq in 1980 presented an opportunity to assess how Islamic solidarity might affect each party’s conduct during hostilities.125 Public statements and documents indicated that both States were willing to respect the principles of IHL in the conduct of hostilities.126 However, as is often the case in situations of armed conflict, the reality of State practice proved different. Iran looked to Islamic norms, while Iraq looked to international law.127 Nevertheless, the Iraqi High Command justified its deliberate targeting of civilians on the basis that this was a “war of survival”, and that it was legitimate to target Iranian civilians to reduce their support for the “Iraqi non-Muslim Ba’thist” blasphemer (Saddam Hussein) and his military policy.128 In contrast, the Iranian leadership adopted the notion of a “people’s war”. In so doing military planners aimed to do away with conventional warfare methods, in favour of “Islamic warfare”.129 In time the Islamic system and IHL were perceived to be in competition.130 The issue of the treatment of POWs by Iran and Iraq was contentious. In response to requests from both States, the United Nations Secretary-General decided, in the light of his humanitarian responsibility under the Charter of the United

123

Ibidem, p. 237. In this respect, it has been recorded that the Prophet said “Every requirement or condition that is not emanated from the book of God is void” (emphasis added), in ABOULWAFA, cit. supra note 121, p. 169, n. 259; see also the Vienna Convention on the Law of Treaties, 23 May 1969, Art. 53. 124 Only thee Islamic States have entered reservations to the Third Geneva Convention (Islamic Republic of Iran, Pakistan, and Yemen). However, none of these reservations reflects any clear inconsistency between the Convention and the Islamic Sharia, available at www.icrc.org. 125 COCKAYNE, “Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations”, International Review of the Red Cross, 2002, p. 597 ff., p. 617. 126 See Letter dated 28 June 1984 from the Deputy Permanent Representative of Iraq to the United Nations Addressed to the Secretary-General, UN Doc. S/16649, 28 June 1984; and Statement dated 17 July 1989 by the Foreign Ministry of the Islamic Republic of Iran, UN Doc. S/20470, 19 July 1989, Annex. 127 COCKAYNE, cit. supra note 125, p. 618. 128 KELSAY, “Islam and the Distinction between Combatants and Non-Combatants”, in JOHNSON and KELSAY (eds.), Cross, Crescent, and Sword: The Justification and Limitation of War in Western and Islamic Tradition, Westport, 1990, pp. 197 ff., pp. 207-208. 129 Ibidem, pp. 215-216. 130 COCKAYNE, cit. supra note 125, p. 619.

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Nations, to dispatch a special mission to Iran and Iraq.131 Its task was to endeavor to ascertain the facts and enquire into the concerns expressed by both governments regarding the treatment of POWs with a view to ensuring observance of the relevant rules of IHL. During the conflict there was no Protecting Power, and both sides denied or hindered the ICRC access to POWs camps. The report of the mission provides one of the few impartial sources of information on the treatment of POWs by two Islamic States. The members of the mission were mindful of the need not only to apply norms of a universal character such as the Third Geneva Convention, but also to have regard to the prevailing cultural and religious traditions and characteristics of the region.132 It was their considered judgment that, based on the conditions observed and statements repeatedly heard, they were able to obtain a representative and reliable picture.133

5.1. General Information and Policies of the Islamic Republic of Iran Concerning POWs The view of the Iranian authorities was that, according to the precepts of Islam, the POWs were guests of the Iranian authorities and enemies of yesterday become friends of today. According to the law of Islam, POWs are treated as human beings who have legal and spiritual rights and those in charge of POWs must apply Islamic law. In accordance with Islam, they cannot mistreat a POW, and no abuse or physical pressure is permitted.134 The Iranian authorities considered that the Geneva Conventions were adhered to a greater extent in Iran than elsewhere in the world. All POWs were said to be on the same footing and to have the same facilities as Iranian soldiers. The camp authorities tried to create a good atmosphere and living conditions, both physical and mental. It was claimed that at the time the living conditions of POWs were superior to eighty five per cent of the Iranian population. The mission found that most of the POWs it met “said they were treated as guests of the Iranian Government, that they had no complaints and that there was no reason to investigate their situation. Food, accommodation and health condi-

131 See Report of the Mission Dispatched by the Secretary-General on the Situation of Prisoners of War in the Islamic Republic of Iran and Iraq, Security Council Doc. S/20147, 29 August 1988 (hereinafter UN Iran/Iraq POW Report), p. 1 ff. An earlier mission in 1985 had found numerous violations of the Third Geneva Convention by both sides, see Prisoners of War in Iran and Iraq: The Report of a Mission Dispatched by the Secretary-General, UN Doc. S/16962, 22 February 1985. 132 The members were Maj-Gen. R. Bats (Belgium), Prof. W. Karl (University of Salzburg, Austria), and Prof. T. Opsahl (University of Oslo, Norway). 133 UN Iran/Iraq POW Report, cit. supra note 131, pp. 9-10. 134 Ibidem, p. 11.


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tions seem to be acceptable. No prisoner gave the impression of being hungry”.135 However, the psychological conditions of detention proved more problematic. The POWs were found to have been exposed to practices that the Iranian authorities called “spiritual guidance” provided by so called Cultural Committees. Many POWs complained that the “guidance” amounted to brainwashing in a way that put them under permanent heavy mental pressure. The results of this treatment were striking. In each of the camps visited, there were fanatical, hysterical and sometimes violent demonstrations by the POWs. This took the form of chanting slogans against Saddam Hussein and the super-powers, and in favour of Islam and Iman Khomeini. Flags of the United States and Israel were burned, and there were denunciations of the United Nations and the ICRC. Although large numbers of POWs were involved (around fifty per cent), it appeared that they were under the influence of a small minority of ten to twenty per cent of POWs. The mission considered this to be indistinguishable from mental pressure. It found that greater efforts needed to be made to meet the religious needs of minorities free of coercion or discrimination. The demonstrations also hindered the mission. Nevertheless, the interior sections of many camps were visited and POWs expressed concerns about communication with their families and repatriation issues. Because they were said to have great autonomy as guests of the Iranian Government, they were allowed to protest openly and the authorities were reluctant to do anything to prevent the demonstrations.136 Iraq had requested the mission to “inquire about the fate of more than 20,000 POWs whose names had not been registered with the ICRC since they were captured” several years earlier. The Iranian authorities accepted that there were thousands of POWs in Iran who had not been registered with the ICRC. It claimed that many POWs did not want contact with either the ICRC or Iraq, and it was the policy of Iran not to force a POW to be registered. As “guests”, they could decide for themselves. Sometimes, POWs gave false names. While the mission accepted this possibility, especially in an atmosphere of hatred of international organizations, there were indications that a certain proportion of POWs, especially officers, were never given the opportunity to register. The mission was very critical of the failure to comply with Article 122 of the Third Geneva Convention. This requires that all relevant information on POWs be forwarded via the national information bureau to the Power on which they depend. The mission also expressed concern about the over seven thousand POWs who were registered by the ICRC prior to 1984 but not seen by it subsequently. A number of factors contributed to this situation. These included the difficulties faced by the ICRC in Iran, some misunderstandings, and the characteristic failure of both

135 136

Ibidem, para. 41. Ibidem, para. 47.

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Iran and Iraq to give information about those captured as required by the Third Geneva Convention.137 The mission did not see any direct evidence of atrocities, torture, or beating. However, it noted that from the conversations with some POWs, allegations that such acts occurred could not be dismissed.138 Furthermore, although the Iranian authorities claimed to adhere strictly to the Geneva Conventions, they did not seem to have a full understanding of the independence of the ICRC and the way in which it had to carry out its role.

5.2. Situation of POWs and Interned Civilians in Iraq In general, the material conditions of the POWs whom the mission could meet were acceptable, although in some instances improvements were necessary. There was evidence of ill-treatment as a consequence of guard violence. POWs were also suffering from psychological pressure, though long-term captivity contributed to this. There was, however, no proof of systematic indoctrination. The Iraqi authorities had reserved the right to resort to measures of reprisal as a result of the alleged failure of Iran to abide by its obligations under the Geneva Conventions.139 The mission stated that such policies were clearly erroneous in the context of humanitarian issues where reprisals are strictly forbidden under international law. In some of the camps visited the mission found overcrowding and poor morale among the POWs. However, the non-registration of POWs and the decision to halt ICRC registration activities was a serious problem. By so doing the intention of the Iraqi government was to put pressure on the Iranians to account fully for the POWs in its custody. This was inconsistent with both, the obligations under Article 113 of the Third Geneva Convention, and the norms of Islamic law, which prohibits measures of reprisals against POWs. In addition, it was not legitimate to insist on conditions of reciprocity or reprisals. Iran had claimed that Iraq was holding tens of thousands Iranian civilians, both as civilian internees and as POWs in camps under miserable conditions.140 The mission found the situation of the Iranian Kurds more akin to internees than that of refugees. Their primary concern was the issue of asylum and repatriation. The mission also found evidence of Iraqi deportations of civilians from border areas under Iraqi occupation. Their primary concern was the uncertainty over the future. The mission could reach no conclusions in relation to the allegations of murder and massacre. However, it did find that while it could not exclude the fact that such 137 138 139 140

Ibidem, paras. 81-83. Ibidem, para. 63. Ibidem, para. 88. Ibidem, para. 109.


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practices may have existed in the past, there was reasonable ground to conclude that the situation had improved.141

5.3. Repatriation It was argued by some that Security Council Resolution 598 (1987) had introduced an element of uncertainty into what would otherwise be a clear obligation to release and repatriate POWs without delay.142 While the resolution did call for the release of POWs without delay after the cessation of active hostilities, this was made in paragraph three of the resolution. Paragraph one, on the other hand, demanded “as a first step towards a negotiated settlement, Iran and Iraq observe an immediate ceasefire, discontinue all military actions […] and withdraw all forces to internationally recognized boundaries without delay”.143 Relying on this, Iran took the position that a release of POWs should be considered only as part of a package arrangement that would include Iraq’s withdrawal from Iranian territory, and that the requirements of paragraph one be fulfilled before those of paragraph three. Iraq disputed this interpretation. Article 118 of the Third Geneva Convention requires that POWs be released and repatriated upon the cessation of hostilities.144 It is not contingent on the conclusion of a peace treaty, withdrawal from occupied territories, or any reciprocal arrangement with the other State or States involved. During hostilities, Iran and Iraq released similar numbers of wounded, sick and elderly POWs. However, both States later suspended the repatriation of POWs. Each blamed the other for not abiding by agreements made. Iran claimed that some POWs did not want to be repatriated, but this was impossible to confirm, as the ICRC was not granted access to the POWs.145 Article 118 does not specifically address the issue of the wishes of the POW, however, State practice since 1949 indicates that their wishes are taken into account.146 The Secretary-General’s mission of 1988 noted that those POWs unwilling to register and be repatriated represented a significant problem. It recommended consideration of special procedures to assist the ICRC, but that these not be forced

141

Ibidem, para. 118. Security Council Resolution 598 of 20 July 1987; UN Doc. S/Res/598 (1987). See QUIGLEY, “Recent Developments in International Organizations – Iran and Iraq and the Obligations to Release and Repatriate Prisoners of War After the Close of Hostilities”, American University Journal of International Law and Policy, 1989-1990, p. 73 ff., p. 76. 143 Ibidem. 144 Commentary on Article 118, p. 54 ff.; LEVIE, “The Nature and Scope of the Armistice Agreement”, AJIL, 1956, p. 880 ff., p. 898; MERON, cit. supra note 108, p. 254. 145 QUIGLEY, cit. supra note 142, p. 79. 146 Ibidem, p. 83. 142

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in any way. This was especially so given that the prevailing attitude among the Iraqis in the camps in Iran could make cooperation with such POWs difficult.147 It also recommended that procedures and guarantees be put in place to protect against forced repatriation, and noted that it was essential to reduce the fears of some POWs of reprisals against their families if they opposed repatriation. At the same time it was acknowledged that it was important to make sure that any process put in place did not favour non-repatriation, as this could be open to abuse. A matter of real concern to the mission was the evidence obtained from independent sources that both sides seemed to have taken more POWs than they were ready to account for.148 This made determining the whereabouts of the missing POWs, which was of major concern to both governments, more problematic. It was a source of some satisfaction to the mission that with the co-operation of the Iranian authorities, they were able to provide some information about the whereabouts of over seven thousand missing POWs.

6. CONCLUSION The Islamic concept of humanitarian law, while not identical to that of IHL, is not inconsistent with it. Indeed, the principles of Islamic law often coincide with those of IHL. However, occasionally, they diverge on specific points. For example, the provisions of the Third Geneva Convention149 relating to the determination of combatant and POW status are complex and can give rise to varying interpretations. As the policy of the United States indicates, determining the status of those participating in contemporary armed conflicts is problematic. Determining the status of partisan or guerrilla fighters in accordance with IHL is difficult. In contrast, the Islamic law avoids much of the complexity of IHL and is more flexible in this respect. Thus, every able-bodied individual taking part in the armed forces or in acts of aggression may be considered a potential combatant and acquires the status of POW if captured. It must be borne in mind that the ultimate purpose of IHL and relevant Islamic law norms is to ensure that humanitarian principles are upheld in situations of armed conflict. IHL aims to ensure that the categories of persons in need of protection can be identified and afforded the appropriate status and treatment in accordance with the relevant Convention. Moreover, the rules contained in the Geneva Conventions apply according to common Article 2150 either in cases of declared war or other armed conflict, which may arise between two or more States. In contrast, the Islamic law approach avoids

147 148 149 150

UN Iran/Iraq POW Report, cit. supra. note 131, para. 139. Ibidem, para. 150. Geneva Convention III, Art. 4. Ibidem, Art. 2.


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complication by applying the humanitarian rules as soon as weapons have been used and armed forces have been deployed. The Islamic concept of international humanitarian law avoids legal debates that might impede the process of protection of POWs because it does not require a declaration of war. Finally, because the Islamic concept of IHL does not categorize or define the type of war, its rules extend to all armed conflicts. This broad categorization facilitates the process of protecting POWs through the prompt implementation of its provisions, thus avoiding any delay that might arise when applying Geneva law separately. The methodology adopted by Islam is founded on intellectual effort (ijtihad).151 Accordingly, it is the duty of contemporary Muslim jurists to adapt classical solutions and interpretations to avoid any critical divergence. Consequently, the two branches can work perpetually alongside each other. This does not mean that their general principles are inconsistent with each other. Their norms and concepts often overlap, although some provisions and Qur’anic texts in the Islamic law require clarification to respond to the needs of the time. The only condition is that the results should not run counter to the principles of the Islamic Shari’a. Otherwise, the outcome would have the effect of nullity. “[I]jtihad is only allowed in matters where no reference is made in the texts, or when the texts are not definite or have no definite meaning”.152 Thus, if there exists an explicit ruling to the legal problem in either the Qur’an or the Sunnah, it should be applied. However, if such an explicit ruling is lacking, the problem may be solved by way of intellectual effort (ijtihad).153 Since the main principles and norms of IHL and the Islamic law are not in contradiction, the latter might offer a solution to problems raised during the First Gulf War (Iran-Iraq), and the 1990 Persian Gulf War. Iraq’s treatment of POWs during the two conflicts was contrary to both the principles of IHL and Islamic law. The impact of this should result in a focus on the main source of the problem, which can be summarized into three points. i) It must be acknowledged that these infringements were committed by an Islamic country (i.e. Iraq) ignoring precepts mandated under the Islamic law. The problem is not Islamic law itself, but the failure to respect and apply this law. Furthermore, the lack of an independent mechanism to monitor the implementation of the relevant principles compounds the problem. Unlike the universal instruments, which provide for supervision of the implementation process through legal bodies, no such mechanism exists for monitoring compliance with Islamic law during armed conflict. Inevitably, the latter concerns only the Islamic community. Thus, proper implementation of the Islamic law is the duty of each Muslim State and not the international community as a whole. Since the Muslim community is not willing to respect such precepts, it is therefore difficult, if not impossible, to monitor their application. This shortcoming was reflected during the First Gulf 151

ARABI, Studies in Modern Islamic Law and Jurisprudence, The Hague, 2001, pp. 198-200. Ibidem, p. 200. 153 Ibidem, p. 202. 152

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War, and the Persian Gulf War when Iraq violated both the Islamic and the international precepts. However, the monitoring responsibility was placed upon the Islamic community, which failed to react appropriately. ii) Problems arise in the implementation of IHL. Despite the broad scope of IHL, which consists of more than six hundred rules, the reality is that these treaties, even if accepted by States, could well remain dead letters unless domestic legal and practical measures are taken to guarantee their application.154 The mechanisms for the implementation of IHL are comprehensive and varied. In practice, they are often not applied, because of a lack of a willingness on the part of the States to “respect and ensure respect”155 for the relevant treaties in all circumstances. This is evident from the conduct of Iraqi captors during the First Gulf War, the Persian Gulf Conflict, and that of the United States in relation to the Guantanamo Bay detainees. iii) During the Persian Gulf Conflict, and the Iran-Iraq War, the ICRC partially demonstrated its failure to protect POWs. This failure occurred even though the ICRC had the right to take any humanitarian initiative in accordance with its role as an independent and neutral institution.156 Despite the ICRC’s commitment as a

154

For an excellent discussion regarding the monitoring process, see generally DRZEWICKI, “National Legislation as a Measure of International Humanitarian Law”, in KALSHOVEN and SANDOZ (eds.), Implementation of International Humanitarian Law, Dordrecht, 1989, pp. 109-131; see also SUOMINEN, “Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts?”, Journal of Conflict and Security Law, 2000, p. 63 ff., p. 69. 155 DRZEWICKI, ibid., pp. 110-111. For a thorough discussion regarding the duty to “respect and ensure respect”, see KARLSHOVEN, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, YIHL, 1999, p. 3 ff.; KESSLER, “The Duty to ‘Ensure Respect’ Under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts”, GYIL, 2001, p. 498 ff. See also Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports, 1986, para. 218. The Court stated: “[T]here is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’ […]”, ibidem. Thus, each State has a duty to make an effort to ensure that violations of the provisions of the Convention do not take place. Moreover, Meron has highlighted the danger that might result from a failure to respect and comply with the provisions of the Conventions when he said: “If states fail to observe the provisions of the Geneva Conventions in conflicts in which they are involved or resort to numerous reservations having a significant adverse impact on the actual observance of the norms in the Conventions, the claims of the Conventions to customary law status will naturally be weakened. Taken cumulatively, frequent evasions by states of those norms by reliance on the specific circumstances of particular situations (sui generis claims) can only erode the position of the Conventions as crucial instruments of humanitarian law and as claimants to customary and a fortiori to jus cogens status”: see MERON, “The Geneva Conventions as Customary Law”, AJIL, 1987, p. 348 ff., p. 370. 156 SASSOLI et al., How Does Law Protect in War?, Geneva, 1999, p. 275. Article 5(3) of the Statute of the ICRC reads: “[T]he ICRC may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediate, and may consider any question requiring examination by such an institution” (ibidem).


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Protecting Power to ensure and monitor the application of IHL through its activities in the field, it failed to comply with the provisions of Article 126 of the Third Geneva Convention with regard to visiting all locations of POW internment. In effect, Iraq succeeded in hiding some locations where POWs were being interned. Perhaps attempts to create a system of international supervision similar to other treaties by requiring periodic reports might assist in overcoming this quandary.

HUMAN GENETICS, REPRODUCTIVE TECHNOLOGY AND FUNDAMENTAL RIGHTS CRISTINA CAMPIGLIO*

1. THE IMPACT OF GENETICS ON HUMAN REPRODUCTION Among the topics that a possible universal “code” of bioethics should deal with, according to the Report published in June 2003 by the International Bioethics Committee (IBC) of UNESCO, are reproduction and human genetics.1 In particular, the Report mentions, on the one hand, control over reproduction made possible today by medical techniques aimed at preventing unwanted pregnancies, obtaining otherwise impossible pregnancies, and selecting healthy embryos or foetuses; and, on the other hand, the development of gene therapy and genetic engineering. The Report states: “A universal instrument on bioethics can provide a mechanism for directing people’s attention to essential questions about humanity that human beings ought to address in harmony, mindful of the long-term and possibly irreversible implications for the continuing evolution of the human species”. Less than two months earlier (April 2003), the IBC had published a Report specifically devoted to “Pre-implantation Genetic Diagnosis and Germ-line Intervention”.2 Also, on 16 October 2003 the General Conference of UNESCO adopted the International Declaration on Human Genetic Data, in which it acknowledges that “[h]uman genetic data have a special status because […] they may have a significant impact on the family, including offspring, extending over generations” (Article 4(a)). Actually, already in 1995, on the occasion of the Report on “Human Rights and Scientific and Technological Developments. Human Rights and Bioethics”,3

*

Professor of International Law, University of Pavia. See UNESCO, Report of the IBC on the Possibility of Elaborating a Universal Instrument on Bioethics, (rapporteurs G. Berlinguer and L. De Castro), 13 June 2003, SHS/EST/02/CIB-9/5 (Rev. 3), pp. 19-20. 2 See UNESCO, Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention, (rapporteur H. Galjaard), 24 April 2003, SHS/EST/02/CIB-9/2 (Rev. 3). 3 UN Doc. E/CN.4/1995/74, sec. 1. Among the rights protected by the International Covenant on Civil and Political Rights of 1966 those most threatened would be the right to life (Art. 6), the right not to be subjected to medical or scientific experimentation without one’s free consent (Art. 7), the right to security of person (Art. 9), and the right not to be subject to arbitrary or unlawful 1


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the Secretary-General of the United Nations4 had stressed the need “to ensure that scientific progress benefits individuals and develops in a manner respectful of fundamental human rights” and pointed out possible abuses in the use of new reproductive techniques, such as the unrestrained handling of human embryos, the modification of human cells, cloning, and the creation of chimeras or of hybrid beings.5 No less alarming were the remarks of the Commission on Human Rights which, in its Resolutions of 2001 and 2003 on “Human Rights and Bioethics”, expressed the concern “that the rapid development of the life sciences opens up tremendous prospects for the improvement of the health of individuals and mankind as a whole, but also that certain practices may pose dangers to the integrity and dignity of the individual”.6 As a matter of fact, the same concerns were shared by the General Assembly, which in 2001 entrusted an ad hoc committee (the ad hoc Committee on an International Convention against the Reproductive Cloning of Human Beings) with the task of drafting a convention text that would prohibit human cloning.7 interference with privacy, family, home or correspondence (Art. 17) (ibidem, sec. 21). “The very idea of human rights arguably rests on a certain conception of what it means to be human, on a reverence for life and for autonomy, all of which could conceivably be undermined if the production, maintenance, manipulation and termination of embryos became commonplace, and particularly if this activity were carried on to a considerable extent for profit” (ibid., sec. 22). On the subject, see in general FURKEL and JUNG (eds.), Bioethik und Menschenrechte – Bioéthique et Droits de l’Homme, Köln/Berlin/Bonn/München, 1993; WEERAMANTRY (ed.), The Impact of Technology on Human Rights: Global Case-Studies, Hong Kong, 1993; LENOIR and MATHIEU, Les normes internationales de la bioéthique, Paris, 1998; and more recently SICILIANOS and GAVOUNELI (eds.), Scientific and Technological Developments and Human Rights, Athens, 2001. On the nature of international law in the field of bioethics, see BYK, “Le droit international de la ‘bioéthique’: ‘jus gentium’ ou ‘lex mercatoria’?”, JDI, 1997, p. 913 ff. 4 Following the International Conference on Human Rights held in Teheran, the Secretary General was entrusted with the mission of monitoring the effects of scientific and technological developments on the enjoyment of human rights and of drafting periodical reports on the subject matter. 5 UN Doc. E/CN.4/1995/74, sec. 112. The terminology employed – chimeras and hybrid beings – is quite generic and alludes to different phenomena, according to its application. In general, chimera means an organism characterized by tissues and organs not genetically identical, while a hybrid being is the result of a crossbreeding between organisms not genetically homogeneous. In the context of assisted reproduction, the two terms are normally given specific meanings. I quote the definitions employed by the Swiss legislator (Art. 2 of the law on reproductive medicine of 1998): “making of chimeras: a union of totipotent cells coming from two or more genetically different embryos so as to obtain a cellular complex. A totipotent cell means a cell of the embryonal state that possesses the ability to change into any specific cell whatsoever: making of hybrid beings: introduction of a non-human spermatozoon in a human oocyte or of a human spermatozoon in a non-human oocyte”. 6 Commission on Human Rights, Resolutions 2001/71 and 2003/69, Human Rights and Bioethics. See also the Report of the Secretary-General submitted pursuant to Commission resolution 2001/71, 10 February 2003 (Annex: Report of the Expert Consultation on Human Rights and Biotechnology, 24-25 January 2002): E/CN.4/2003/98. 7 International Convention Against the Reproductive Cloning of Human Beings, A/RES/ 56/93, 12 December 2001. The work of the Committee, begun in 2002, has been hindered by

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The close connection between reproductive techniques and genetics had already been acknowledged at the end of the 1980s by the European Communities. I will limit myself to mentioning, among others, the resolutions of the European Parliament of 1989 dealing with the ethical and legal issues of genetic manipulation, and with in vivo and in vitro fertilization,8 as well as the more recent resolutions on the cloning of human embryos (1993) and of human beings (1997). Presently, though, we owe the most interesting initiatives in this field to the Council of Europe.9 In 1983 the Committee of Ministers set up an ad hoc Committee on Genetic Manipulation which transformed itself – initially into the ad hoc Committee of Experts on Ethical and Legal Issues of Human Genetics (CAHGE) and then – into the ad hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI, since 1992 substituted in its turn by the Steering Committee on Bioethics (CDBI)). In 1989, CAHBI drafted a valuable “Report on Human Artificial Procreation”: among the twenty-one principles set out in that Report, some are devoted specifically to “Acts and procedures carried out on embryos” (Principles 16–21), and in particular to diagnostic and therapeutic interventions on embryos.10 Among the many other initiatives promoted by the Council of disagreements among the States on the approach to be followed. Some countries, such as the United Kingdom and France, believe that the Committee should follow the instructions of the General Assembly and so prohibit only reproductive cloning; other countries, such as the United States, instead uphold the necessity of forbidding any kind of human cloning whatsoever, despite its goals, whether reproductive or therapeutic (that is, for the creation of embryos intended for research or the production of stem cells). Given the time required for the drafting of the Convention, a group of scientists, lawyers and human rights activists asked the Secretary General to urge the General Assembly to apply to the International Court of Justice for an advisory opinion declaring cloning a crime against humanity: since the issue is only theoretical, and not related to an actual case, the request is likely to be rejected. See the draft Declaration on Human Cloning introduced by Italy to the Sixth Committee (A/C.6/59/L.26, 17 November 2004): this draft resolution replaces two earlier texts aimed at a treaty, one proposed by Costa Rica and the other by Belgium. 8 The two resolutions, both dated 16 March 1989, are published in OJ EC C 96 of 17 April 1989, p. 171. Both documents reverse the classic approach by focusing on the child and protecting human life (the zygote) from fertilization. The Resolutions are connected since, on the one hand, testing of embryos is often intended to improve the procedures of in vitro fertilization and, on the other, these same procedures supply abundant material for testing (both by creating embryos for the sole purpose of testing and by making redundant embryos available). 9 More recently, the ethical implications of new medical technologies have also been taken into account by the Organization of African Unity. On 10 July 1996 the Assembly of the Heads of State and Government adopted a Resolution on bioethics, reaffirming several universally accepted principles: the inviolability of the human body and of the genetic inheritance of the human species; the prohibition against commercial exploitation of the human body and its parts, and in particular of genes; the prohibition against procedures for embryo selection according to sex or with a view to eugenic purposes in the field of medically assisted reproduction. See Doc. AHG/Res. 254 (XXXII). 10 The Report came out a few years after the preliminary project of a recommendation on the issues raised by artificial human reproduction drafted by CAHGE (doc. CAHGE (85) 2), in the

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Europe,11 it is worth mentioning the adoption of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine),12 signed at Oviedo on 4 April 1997, and in force since 1 December 1999. This Convention draws upon the conviction that “the misuse of biology and medicine may lead to acts endangering human dignity” and that “progress in biology and medicine should be used for the benefit of present and future generations” (Preamble, recitals 10 and 11); it devotes a Chapter (IV) specifically to the protection of the “Human Genome” (Articles 11-14). To the additional protocols originally envisaged – concerning Transplantation of Organs and Tissues of Human Origin,13 and Biomedical Research14 – in 1993 the Committee of Ministers added two further Protocols concerning the Protection of the Human Embryo and Foetus, and Human Genetics; an

wake of the project of a recommendation on artificial insemination with sperm from an anonymous donor, dated 5 March 1979. 11 During the European Ministerial Conference on human rights held in Vienna on 19-20 March 1985, Resolution No. 3 on human rights and scientific development in the fields of biology, medicine, and biochemistry was adopted, while at the 17th Conference of European Ministers of Justice, held in Istanbul on 5-7 June 1990, Resolution No. 3 on bioethics was drafted. For an analysis of the activity of the Council of Europe, see ROGERS and DURAND DE BOUSINGEN, Une bioéthique pour l’Europe, Conseil de l’Europe, Strasbourg, 1995. 12 Canada, the United States, Japan, as well as the Holy See and the European Community took part in the drafting of the Convention. The text of the Convention was adopted on 19 November 1996: Doc. DIR/JUR (96) 14 of the Directorate General of Legal Affairs of the Council of Europe. Unlike the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, it is worth stressing that the 1997 Convention grants the European Court of Human Rights the competence to issue advisory opinions on legal questions concerning the interpretation of the Convention (Art. 29), while it reserves to the individual States the determination of the appropriate sanctions in case of violation of the provisions of the Convention (Art. 25). Such a solution looks odd, to say the least, not only because it does not make the most of the potential of the European Court, but also because it hints at a dangerous resort to the principle of reciprocity, while the traditional principle inadimplenti non est adimplendum should not be applied in the field of rights States cannot freely dispose of. (For further remarks on this issue I refer to COLARD, “Le principe de l’indivisibilité des droits et des devoirs de l’homme”, in MEYERBISCH (eds.), Les devoirs de l’homme. De la réciprocité dans les droits de l’homme, Les Actes du V Colloque interdisciplinaire de Fribourg 1987, Fribourg/Paris, 1989, p. 17, and to my Il principio di reciprocità nel diritto dei trattati, Padova, 1995, pp. 124 and 293). The Explanatory Report to the Convention limits itself to clarifying that States, in their reactions, must take into account certain criteria, such as necessity and proportionality: “[a]s a result, in order to measure the expediency and determine the nature and scope of the sanction, the domestic law must pay special attention to the content and importance of the provision to be complied with, the seriousness of the offence and the extent of its possible repercussions for the individual and for society”. 13 On 24 January 2002, the Additional Protocol Concerning Transplantation of Organs and Tissues of Human Origin was opened for signature. 14 On 25 January 2005 the Additional Protocol concerning Biomedical Research was opened for signature. The Protocol deals with research on embryos in vivo also, but does not concern embryos in vitro (Art. 2.2).


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Additional Protocol on the Prohibition of Cloning Human Beings was signed on 12 January 1998 (and is in force since 1 March 2001)15 in the wake of the emotional reactions brought forth by the announcement of the birth of the first animal obtained by nuclear transfer cloning (the famous sheep Dolly) in 1997. Back in 1997, CDBI’s Working Party on Human Genetics drafted a paper in which the possible uses of personal genetic data were analysed.16 This paper highlights how diagnosis and disclosure of disease-causing genetic impairments can be used not only for medical purposes but also for social ones: the paper refers, in particular, to the use of genetic tests for recruitment, for judicial purposes (in civil or criminal proceedings) and for access to education, in addition to its utilization by insurers. As to the medical applications of genetics, the Working Party identifies six different problems: genetic screening and diagnosis; access to the results thereof; therapies; access to therapies and genetic testing; genetic counselling; and genetic research. Based on this paper, a “Working document on the applications of genetics for health purposes” was published in 2003.17 Finally, as far as the CDBI Working Party on the Protection of the Human Embryo and Foetus is concerned, in 2003 it published a detailed Report on “The Protection of the Human Embryo In Vitro”:18 in addition to the problems related to in vitro fertilization (IVF) and to research on embryos (and in particular on embryonic stem cells), this Report deals with the topic of pre-implantation genetic diagnosis (PGD). The use of new genetic technologies, combined with medically assisted reproductive processes to ensure or prevent the inheritance of particular genes, raises questions of the conformity of such techniques with fundamental rights. It is this specific issue I would like to address in the remarks that follow.

2. CLASSICAL EUGENICS: THE SELECTION OF PROCREATORS The idea of selecting the “best” elements of society dates back to antiquity. It is well known that in Sparta it was customary to throw from a cliff infants that were ill or too weak; likewise, the ideal society imagined by Plato is governed by a superior 15

Up to January 2005, the Convention of 1997 has been ratified by nineteen States, while the Additional Protocol of 1998 on the Prohibition of Cloning Human Beings has been ratified by fifteen: neither of them has been ratified by Italy yet, even though in 2001 Parliament passed the law authorizing ratification (Law No. 145 of 28 March 2001, GU No. 95 of 24 April 2001). 16 Steering Committee on Bioethics (CDBI), Working Party on Human Genetics (CDBI-COGT4), DIR/JUR (97) 13 bis, 27 October 1997. 17 Working Party on Human Genetics (CDBI-CO-GT4), Working Document on the Applications of Genetics for Health Purposes, CDBI/INF (2003), 7 February 2003, p. 3. See also Explanatory note, CDBI/INF (2003), p. 4. 18 Working Party on the Protection of the Human Embryo and Fetus (CDBI-CO-GT3), The Protection of the Human Embryo In Vitro, CDBI-CO-GT3 (2003) 13, 19 June 2003.

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class that is created and maintained thanks to controls over reproduction.19 It is only in the nineteenth century, however, that eugenics emerges as an ethical-scientific line of thought which champions the improvement of the human species through the social control of reproduction, or better, the selection of individuals deemed best-suited for procreation. Although Charles Darwin already aired the possibility of human selection in his theory of evolution,20 the father of eugenics is considered to be Francis Galton, Darwin’s cousin. It was Galton who – after having maintained that everyone had the power, but also the duty, to put his own gifts at the service of future generations21 – in 1883 worked out a theory (that he himself named eugenics, from the Greek eugenés, êu–good and génos–race) aimed at providing, on a scientific basis, “the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had”.22 Later, this theory was realized in two different programmes: that of positive eugenics, based on the improvement of the race through the reproduction of “socially useful” individuals; and that of negative eugenics, based on the purification of society through the forced sterilization of “socially inadequate” individuals.23 From 1907 onwards, scientific and medical associations began to spring up, first in the United Kingdom and then in other countries (from France to Brazil, from Cuba to New Zealand). These associations carried out research on eugenics on the one hand and, on the other, awakened the public to the problems of so-called social medicine. In the same period, the United States adopted the first statutes forbidding the marriage of genetically inferior individuals (including immigrants from Eastern Europe and from the southern US states, who were thought to threaten the purity of American blood) and providing for the sterilization of criminals (epileptics and

19 “The good must be paired with the good, and the bad with the bad, and the offspring of the one must be reared, and of the other destroyed […] and by an ingenious system of lots the rulers will contrive that the brave and the fair come together, and that those of inferior breed are paired with inferiors – the latter will ascribe to chance what is really the invention of the rulers. And when children are born, the offspring of the brave and fair will be carried to an enclosure in a certain part of the city, and there attended by suitable nurses; the rest will be hurried away to places unknown”: PLATO, The Republic, Book V, paras. 459-460. 20 DARWIN, On the Origin of Species, London, 1859; The Descent of Man and Selection in Relation to Sex, London, 1871 (especially pp. 402-403). 21 “I conclude that each generation has enormous power over the natural gifts of those that follow, and maintain that it is a duty we owe to humanity to investigate the range of that power, and to exercise it in a way that, without being unwise towards ourselves, shall be most advantageous to future inhabitants of the earth”: GALTON, Hereditary Genius I, London, 1869, p. 57. 22 The quotation from GALTON (Inquiries Into Human Faculty and Its Development) comes from “Eugenic Artificial Insemination: A Cure for Mediocrity?”, Harvard Law Review, 1981, p. 1850 ff., p. 1852. 23 Actually, at least at the very beginning, given the limited knowledge in the field of genetics, eugenics was based most of all on the idea of race and ethnos.


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maladjusted persons were later added).24 In 1927 the US Supreme Court upheld a Virginia statute providing for the sterilization of hospitalized patients suffering from hereditary forms of illness or mental deficiency.25 Two years later a long list was drafted containing categories of the “socially inadequate” (the so-called social parasites): persons who would undergo forced sterilization, among whom were alcoholics, drug addicts, the blind, the deaf, those with tuberculosis, syphilis or a deformity, as well as orphans, homeless and the indigent.26 In this way approximately 50,000 people were sterilized between 1907 and 1949: California had the highest rate of sterilization, mostly to the detriment of immigrants and blacks. Leaving aside any other considerations, it goes without saying that present-day science cannot but judge groundless the assumptions on which such programmes relied and which attributed to genetic factors – and therefore to Mendel’s laws of heredity – pathologies exclusively of an infectious nature or situations of hardship connected purely with behavioural or environmental factors. It was in keeping with experiences overseas that German eugenic societies – exploiting the widespread sense of frustration in the country following the outcome of the First World War and the severe economic crisis in its wake – advanced the theory of “racial hygiene”, proposing the adoption of all measures necessary for the protection and perpetuation of the Aryan race. On 14 July 1933, and thanks to the active support of eugenicists from California,27 a statute was passed for the prevention of hereditary diseased offspring (the so-called statute on sterilization), which provided for the forced sterilization of certain categories of individuals, including the blind, the deaf, those with congenital mental illness, schizophrenia or 24 In the 1920s and 1930s, twenty-four American states passed eugenic laws that remained in force till the end of the 1970s. The American Eugenics Society, organized in twenty-eight states, counted famous jurists, academics, and Nobel prize holders among its members. For an analysis of the American situation between the two World Wars, see KEVLES, In the Name of Eugenics: Genetics and the Uses of Human Heredity, New York, 1985, p. 96 ff. Similar laws were passed almost simultaneously in Canada: the law of the province of Alberta was repealed only in 1972. 25 Buck v. Bell, 274 US 200, 1927: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices […] in order to prevent our being swamped with incompetence. It is better for the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes […] Three generations of imbeciles are enough” (p. 207). For an analysis of American regulations, see, e.g., BURGDORF and BURGDORF, “The Wicked Witch is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons”, Temple Law Quarterly, 1977, p. 995 ff., especially p. 998; SMITH II, Human Rights and Biomedicine, The Hague/London/Boston, 2000, p. 118 ff. 26 LAUGHLIN, The Legal Status of Eugenical Sterilization: History and Analysis of Litigation under the Virginia Sterilization Statute, Chicago, 1930, p. 65 ff.; REILLY, The Surgical Solution: A History of Involuntary Sterilization in the United States, Baltimore, 1991, p. 34 ff. 27 KLINE, Building a Better Race: Gender, Sexuality and Eugenics from the Turn of the Century to the Baby Boom, Berkeley, 2001, pp. 103-104.

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epilepsy, as well as chronic alcoholics. It is estimated that in the first two years after the statute came into force between 200,000 to 250,000 people were sterilized. In 1935 the statute on the protection of German blood forbade marriage and sexual relations between Germans and individuals belonging to “other races” (above all Jews); while the statute on the protection of the genetic heritage of the German people prevented nuptials with carriers of a hereditary or mental illness. In 1939 the Nazi regime launched a programme of euthanasia (Gnadentod) for “persons whose lives are not worth living”, called “Aktion T4” (after the building located in Berlin at Tiergartenstrasse No. 4 from which the operation was coordinated). Originally intended for mentally impaired children and adults, the programme was later extended to Jews and to all those who did not belong to the German race, most of all after the conquest of Poland. The programme was officially suspended in 1941, after the death of approximately 70,000 people. From 1941, elimination of the (mentally or otherwise) ill continued in the concentration camps, based either upon “medical” criteria or on the “anti-social and potentially criminal” nature of the individual or, finally, because of the “uselessness” of certain individuals.28 In the years following the end of the Second World War, if the extremes to which eugenics lent itself during the Nazi regime led Germany to champion at all (medical, political and legal) levels a particularly cautious and restrictive approach, and to break off from the very beginning any policy suspected of (even indirectly) encouraging selection of human beings, other European29 and non-European30 coun-

28

See ROGERS and DURAND DE BOUSINGEN, Une bioéthique pour l’Europe, cit. supra note 11, p. 17 (where further bibliographic references can be found). 29 With a view to ethnic eugenics, Roma have been victims of forced sterilization due to their high rate of crime and life style. It is worth mentioning the policies adopted in Norway and above all in Czechoslovakia, where an ordinance of 1988 (repealed in 1990) promoted sterilization by offering a reward, but without providing any information on the irreversible character of the process. As far as the Norwegian situation is concerned, see the second Report on Norway adopted by the European Commission against racism and intolerance on 10 December 1999, and made public on 27 June 2000 (CRI (2000) 33, sec. 41). The discrimination against Roma women is denounced also by Recommendation on general policy 3 (“Combating racism and intolerance against Roma/Gypsies”) issued by the same Commission against racism and intolerance. 30 Policies of ethnic eugenics have been adopted in Vietnam and Peru (see the final observations of the Human Rights Committee of 15 November 2000, during the examination of the report presented by Peru, CCPR/CO/70/PER, sec. 21). The Japanese law on eugenics protection of 1948, repealed only in 1996, is also worth pointing out as it aimed at preventing so-called reverse natural selection (gyaku-tota): the government had learned that families with a certain level of education, belonging to the upper middle class, made use of contraceptives, while lower class families continued to have children; and as a consequence the population of “inferior quality” was on the rise. The law of 1948 allowed medical doctors to sterilize by force individuals suffering from physical and mental handicaps identified by the law itself (handicaps that to a great extent are not at all hereditary). Between 1949 and 1995 approximately 17,000 people were sterilized; the government denies them any kind of indemnity whatsoever. Eugenics practised in Singapore is based on socio-economic factors. In the 1980s the government launched two


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tries showed themselves much more open toward eugenic policies justified through various means (for reasons of race, demographics, health or simply economics). I will limit myself to pointing out the eugenic programmes promoted, in the name of social progress, by the Scandinavian countries31 who, during the drafting process of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, opposed an amendment whose goal was to include forced sterilization in the list of acts contrary to the right to security (Article 5).32 It is worth mentioning the particular situation of China. Dating back to 1950, the statute on marriage prevented people afflicted with serious illnesses, venereal diseases, mental impairment or leprosy from getting married.33 The reform enacted in 1981 confirmed the prohibition, which was extended to other groups of individuals in 1986 by regulations issued by the Ministers of Health and Civilian Affairs.34

different programs of positive and negative eugenics. The former (Graduate Mums Scheme: 1983) aims to encourage the reproduction of educated women by favouring marriage between public servants and university graduates; the latter (1984) provides economic incentives for sterilization of individuals whose income is lower than one thousand five hundred dollars (the incentive amounts to ten thousand dollars). The former program, subject to much criticism, was already suspended in 1985, while the latter is virtually not in force, owing to a lack of applications. With a view to crime prevention and reduction, numerous American states have adopted laws allowing chemical or surgical castration of individuals found guilty of sexual crimes, in exchange for a sentence reduction: the Californian law in force since 1997 is illustrative of the model. 31 Between 1935 and 1949 more than 20,000 people were sterilized: 75% of them women. In Sweden the practice of forced sterilization continued until 1975 and involved 63,000 individuals. Since 1999 they can claim damages from the government (see HOCKING, “Confronting the Possible Eugenics of the Past Through Modern Pressures for Compensation”, Nordic Journal of International Law, 2000, p. 509 ff. 32 See BYK, Les progrès de la médicine et de la biologie au regard de la Convention européenne des droits de l’homme, Strasbourg, 1994, p. 54. 33 In the 1970s, the Beijing government first ordered (1973) that every family could have no more than two children separated by at least four years, and later (1979) adopted the policy of “one child per family”, condemned by the Special Rapporteur of the United Nations on violence toward women. Indeed, the policy limiting to one the number of children violates “a woman’s right to physical integrity and security of person, and the right of both parents freely to determine the timing and spacing of their children”: UN Doc. E/CN.4/1996/53, sec. 95, which continues, “Additionally, in a culture where son preference is widespread, this policy encourages and, ultimately, sanctions sex-selective abortions of female foetuses and female infanticide”. Actually, such a practice is widespread in other Asian countries, too (see KRUGMAN, “Being Female Can Be Fatal: An Examination of India’s Ban on Pre-Natal Gender Testing”, Cardozo Journal of International and Comparative Law, 1998, p. 217 ff.); anyway, in case of the birth of a daughter, parents often decide not to register her (it is estimated that at present more than one million Chinese women have not been registered). In spite of this policy, it is anticipated that between 1990 and 2030 the Chinese population will increase by 490 million individuals. 34 It is worth mentioning also the Gansu People’s Congress Regulations Concerning Prohibiting Reproduction by Intellectually Impaired Persons, that in a single year led to the sterilization of a thousand women: in reality, the pathologies affecting the population of this region are caused by a lack of iodine.

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According to Western sources, in December 1993 the Minister of Public Health stated that births of “inferior quality” were frequent among “the old revolutionary base, ethnic minorities, the frontier, and economically poor areas”:35 each year half a million new-born babies showed congenital defects and disabilities which could have been diagnosed by prenatal or even preconception genetic tests. Given that the number of disabled people in China was around 52 million (out of a population of 1 billion and 250 million) and that the national economy was no longer able to support this “social burden”, the government intended to start a eugenic programme (the Minister spoke openly of a bill for yousheng, a term that can be translated into English as “eugenic law”).36 Western countries reacted immediately to this announcement, which seemed to revive the ideology of the first eugenicists, ascribing to the anomaly of single genes the frequency in certain social groups of cases of insanity, criminality, alcoholism, poverty, mental retardation and prostitution. The government initiative resulted in a law on maternal and infant health care, enacted on 27 October 199437 and in force since 1 June 1995, which aims to “avoid new births of inferior quality and heighten the standards of the whole population”.38 Perhaps owing to international pressure, the text of the statute appears to have been “sweetened” since the initial draft. According to the present text, all couples are to undergo medical examinations prior to marriage for the purpose of determining “whether they suffer from any disease that may have an adverse effect on marriage and childbearing”. Severe genetic illnesses (“that may totally or partially deprive the victim of the ability to live independently, that are highly possible to recur in generations to come, and that are medically considered inappropriate for reproduction”: Art. 38), infectious diseases (such as AIDS, gonorrhoea, syphilis or leprosy) and serious mental disorders (in particular, schizophrenia and manic-depressive psychosis) all appear among the diseases targeted. If an illness “considered to be 35 DICKSON, “Concern Grows over China’s Plans to Reduce Number of ‘Inferior Births’”, Nature, Vol. 367, 1994, p. 3 ff. 36 Chinese demographic policy is rooted in Confucian culture, according to which only the individual enjoying a “healthy birth” (yousheng) performs Tao (Xun Zi, 300–237 BC). Therefore, on the one hand, abortion is morally and socially acceptable since life begins with the birth (the fetus is not regarded as a human being); and, on the other, congenital diseases and malformations are thought to be the evidence of sins committed by the parents or by their ancestors in previous lives. On the relationship between yousheng and eugenics, see WANG, “A Call for a New Definition of Eugenics”, Eubios Journal of Asian International Bioethics, 1999, p. 73 ff. 37 Order of the President of the People’s Republic of China no. 33. Law of the People’s Republic of China on maternal and infant health care. Legislative Affairs Commission, Standing Committee of the National People’s Congress, People’s Republic of China, 27 October 1994. 38 These are the words of New China News Agency, reported in NGO Bulletin, Information Service (27 January 1995), 3. See PENG, “Population Policy and Program in China: Challenge and Prospective”, Texas ILJ, 2000, p. 51 ff. Art. 25 of the Chinese Constitution and Art. 12 of the law on marriage provide that the couple is obliged to put into practice family planning. As a matter of fact, reproductive choices made by individuals must meet State directives in the field of economic and social development.


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inappropriate for childbearing from a medical point of view” is diagnosed, the doctor is bound to provide “medical advice” to the couple who can get married “only if both sides agree to take long-term contraceptive measures or to take ligation operation for sterility” (Art. 10). At the time of marriage registration, a couple must exhibit a medical certificate proving that the check-up took place. During the pregnancy mandatory prenatal tests are provided; if a serious genetic pathology or serious deformity is diagnosed, the doctor is expected to provide the couple “medical advice for a termination of pregnancy” (Art. 18).39 Both sterilization and abortion require the written consent of the party concerned; however, the statute provides that the couple “shall take measures in accordance with the physician’s medical advice” (Art. 16). Therefore, it is realistic to think that in practice “advice” turns into an order, most of all in the underdeveloped rural areas, where there are very few clinics up to the task of giving advice on medical genetics. In the face of the indignation expressed by Western countries and from within scientific circles, and in light of the threat to revoke financial aid to the country, China recalled that it is not a Party to the International Covenant on Civil and Political Rights (1966) and that any “practice of interfering in China’s internal affairs has not only deviated from the basic principle set up in the field of population by the international community, but it has also violated the established principles of international law”.40 In any event, one must emphasize that since 1980 China has been a Party to the Convention on the Elimination of All Forms of Discrimination against Women (1979), which sanctions the right to family planning (Articles 10(h), 12.1, and 14.2(b)).

3. A NEW EUGENICS: THE SELECTION OF UNBORN CHILDREN (REPROGENETICS) The Chinese experience shows that the “purification” of society can still be pursued by the selection of individuals deemed best-suited for procreation – that is, thanks to a policy of deliberate sterilization41 or to a ban on marriage for those who

39

On the contrary, it is forbidden to identify the sex of the foetus, unless this is necessary for medical reasons (Art. 32). In other words, the law tries to stem the custom to favour the birth of males that has caused a reduction in the female population (see supra note 33). 40 Information Office of the State Council of the People’s Republic of China, Family Planning in China, Beijing, 1995, p. 34. See the remarks by ERIKSSON, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law, The Hague/Boston/London, 2000, p. 257, as well as the wide-ranging study by DIKÖTTER, Imperfect Conceptions, Medical Knowledge, Birth Defects, and Eugenics in China, New York, 1998. 41 For a picture of the present policy of forced sterilization in the United States, see SMITH II, Human Rights, cit. supra note 25, p. 119. It is worth mentioning LITTLE, “Non-Consensual Sterilisation of the Intellectually Disabled in the Australian Context: Potential for Human Rights Abuse and the Need for Reform”, Australian Yearbook of International Law, 1993, p. 203 ff., p. 205 (who clarifies the situation in common law countries). As far as the sterilization of the

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are thought “socially inadequate” – easily identifiable today through simple screening (preconception diagnosis of genetic or infectious pathologies).42 As we have seen, the same result may be attained by taking steps after conception by getting rid of foetuses suffering from pathologies, or to be precise, through the selection of individuals deemed best-suited to be born. If in China such a selection is compulsory, in the rest of the world it takes place on a voluntary basis. As a matter of fact, it is quite common today to resort to prenatal diagnostics in order to verify whether the foetus suffers from genetic pathologies (e.g. cystic fibrosis, beta-thalassaemia, etc.), infectious diseases (e.g. AIDS, hepatitis, etc.), or congenital diseases (e.g. hydrocephaly, spina bifida, etc.), and to decide, if necessary, to interrupt the pregnancy (the so-called therapeutic abortion).43 Therapeutic abortion is considered to be a form of negative eugenics. In reality, it is necessary to specify that, in light of present-day scientific knowledge, the word eugenics should be used to mean a selection based solely on genetic characteristics (i.e., elimination of genetically originated diseases or steps taken to foster the birth of individuals carrying favourable genetic characteristics), and not – as it commonly happens – in reference to selection based on congenital characteristics, regardless of their origin (a defined genetic cause, a defect in the development of the embryo, the consequence of an infection or a trauma). Even more sophisticated interventions are technically possible where procreation is medically assisted. A few years ago, an American scientist came up with the appellation of “reprogenetics” to refer to the combination of new genetic and mentally handicapped in France is concerned, one can recall the law of 4 July 2001 n. 588: this law, supposedly inspired by the need to prevent individuals unable to take care of their offspring from having children, has caused bitter controversy. 42 In general, prenuptial genetic diagnosis is employed in two cases: in communities in which a high incidence of the mutation of a certain gene is recorded, and in families which often give birth to individuals suffering from a certain genetic disease. The case of Cyprus provides a good example, where beta-thalassaemia (see infra, note 47) affects approximately 15% of the population (so that 1 out of 158 could be suffering from that disease). Genetic screening, which initially (1972-1976) concerned only families with a member suffering from beta-thalassaemia, later (1977-1983) was extended to all pregnant women, as well as to couples that were about to get married. As relating to the latter, the Cypriot Orthodox Church has accepted to subordinate the release of pre-nuptial certificates to the enforcement of genetic screening. At present, the diagnosis is already made at school age, and it is accompanied by a serious health information campaign, which is intended to allow interested individuals to decide about their reproduction in a conscious and responsible way. It is well known that beta-thalassaemia is very common in Sardinia too, where it affects about 12.5% of the population: since 1977 a campaign of information and prenatal diagnosis has been launched, which has resulted in terminations of pregnancy in approximately 99% of the cases (almost 2,000) in which thalassaemia has been diagnosed. See ROGERS and DURAND DE BOUSINGEN, Une bioéthique, cit. supra note 11, p. 119 ff. 43 It is worth pointing out the thin line dividing mass screening from classic eugenics, if one takes into account that the advice that accompanies the tests – and most of all genetic tests – can actually be a way to impose on the aspiring parents the interests and the priorities of the community and therefore to orient the evolution of future generations.


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reproductive technology.44 Through reprogenetics, genetic knowledge and technology are used to ensure or prevent the inheritance of particular genes. Specifically, it provides couples at risk for producing children affected by a genetic disease with a viable alternative to heterologous fertilization or therapeutic abortion. In principle, however, this possibility to influence the genetic makeup of unborn children at the stage of fertilization is suited to satisfy the desire of parents to give all conceivable advantages to their offspring. To environmental advantages after birth, parents may be willing to add genetic advantages, so as to enhance the probabilities of a “good life”; that is, to increase the chances of health, happiness and success.45 Genetic testing can be viewed as simply a more powerful and effective means for continuing to do what humans have always done: resisting disease and death, and promoting well-being. Reprogenetics can be conceived as a logical extension of the parental duty to promote the health of one’s offspring, a duty now expressible in a significantly more proactive way at the antenatal level. As mentioned earlier, the goal is the prevention of so-called genetic diseases. In reality, these diseases are very different from one another, both in their nature and in their consequences: they can be linked to chromosomal abnormalities, monogenic diseases, polygenic and multifactorial diseases, mitochondrial diseases or diseases involving infectious agents.46 True prevention is possible only for diseases 44

SILVER, Remaking Eden: How Genetic Engineering and Cloning Will Transform the American Family, New York, 1998. 45 SILVER, “Reprogenetics: Third Millennium Speculation”, EMBO (European Molecular Biology Organization) Reports, 2000, p. 375 ff., p. 376. 46 Diseases linked to chromosomal abnormalities depend on the loss or the addition of whole chromosomes and cause serious physical and intellectual handicaps. The frequency of such diseases increases with the age of the mother. The most common example is Down’s syndrome, which affects 1 child out of 800. Monogenic diseases depend instead on the mutation of a single gene. There are more than 5,000 kinds of monogenic diseases, which can be divided into three sub-categories: dominant autosomal diseases (the parents appear healthy, but they transmit the disease: for instance familial hypercholesterolaemia, Huntington’s chorea, neurofibromatosis); recessive autosomal diseases (they are transmitted only if both parents are carriers of an impaired gene: for instance, cystic fibrosis, Tays-Sachs disease, beta-thalassaemia – see supra note 42); and diseases linked to the sex chromosomes (especially to the X chromosome: for example, haemophilia). Differing from the other “genetic” diseases, polygenic and multifactorial diseases do not follow the Mendelian method of transmission, but are caused by the impact of numerous genes or by the interaction of numerous environmental factors with several genes. They are the most frequent and least known diseases: and include, for instance, diabetes mellitus, congenital malformations and heart defects. Moreover, it is also possible to ascribe to the category of multifactorial diseases somatic-cell diseases in which the genetic anomalies occur not in all of the organism’s cells (including the germ cells) but only in specific somatic cells. Most cancers can be classified in this category. Somatic-cell diseases are not transmitted according to Mendel’s laws, but are genetically influenced. Mitochondrial diseases suggest anomalies in mitochondrial DNA; they are hereditary, but also often appear spontaneously. Alzheimer’s disease, for instance, belongs to this category. Finally, diseases involving infectious agents are actually “non-genetic” diseases, but often influenced by genetic factors. Some individuals have genes that determine a special sensitivity to certain infectious diseases (e.g. HIV and Creutzfeld-Jacob disease).

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following a simple Mendelian heredity, i.e., those that descend from combinations of the alleles of a single gene (among which the most common illnesses with polygenic and multifactorial origins cannot be safely numbered). On the contrary, no medical goal can be ascribed to reproduction by cloning, a technique by which an individual could perpetuate himself or herself in one or more genetically similar clones. For that reason, but also because reproductive cloning is not yet feasible from a technical point of view, this essay will not deal with the subject.

3.1. Germinal Gene Therapy Reprogenetics presupposes resorting to techniques of assisted procreation (i.e., to IVF). In theory, it can be carried out in two ways: through genetic engineering of the germ line or through embryo selection. Germinal gene therapy is aimed at eliminating the genes responsible for the hereditary pathology – carried by one or both of the aspiring parents – and substituting them with healthy ones. The process relies on the genetic manipulation of gametes in such a way that the pathology does not pass along to the child, nor to his or her offspring. In sum, by means of this technique it becomes possible to bring to life a transgenic human being “programmed” even before the embryo stage, that is, from the moment of fertilization. In reality, germinal gene therapy cannot be performed on human beings yet because of technical difficulties, as well as the high risk of newly induced mutations and unanticipated negative side effects. Also, the possibility of “programming” individuals bearing certain physical, behavioural and intellectual characteristics still belongs to the realm of science fiction, given that such characteristics are multifactorial.47

47

According to SILVER, “Reprogenetics”, cit. supra note 45, p. 377, in theory it could be possible to think of providing the unborn child with a genotype substantially equivalent to one that people receive naturally (for instance, mutation that provides absolute resistance to HIV infection or cancer protection) or even with a genotype that no human being receives naturally. These would be interventions of positive eugenics, the former of which is substantially equivalent to the one that is already performed through in vitro fertilization (as opposed to the manipulation of gametes) with gametes from donors having pre-determined characteristics, nowadays easy to find even online. The field has been partially harmonized by the Directive 2004/23/EC of the European Parliament and of the Council, of 31 March 2004, on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells (in OJ EU, L 102 of 7 April 2004, p. 48 ff.). The idea of using (male) gametes from genetically “superior” donors for artificial insemination dates directly back to 1935, when the American Herbert Brewer coined the term “eutelegenesis” to describe in words the above-mentioned phenomenon: BREWER, “Eutelegenesis”, Eugenics Review, 1935, p. 121 ff., p. 123. Actually, Brewer himself acknowledged that he had taken up the term from a


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The mere prospect of implementing germinal gene therapy has given rise to great alarm in Europe.48 As far back as 1989, the Resolution of the European Parliament concerning the ethical and legal issues of genetic manipulation mentioned above prohibited any kind of genetic engineering on the human germinal line, considering that a partial recombination of genes (modification of the genotype) alters the identity of the individual: this alteration is both irresponsible and unjustifiable because a highly personal good is involved (sec. 30).49 It is therefore not surprising to find in European Community Directive 98/44 on the legal protection of biotechnological inventions, the express exclusion of the patentability of “processes for modifying the germ line genetic identity of human beings” (Article 6.2(b)). It is worth pointing out that in Common Position (EC) No. 4/94 the prohibition concerned more generally the “processes for modifying the genetic identity certain Marion Piddington, who in 1916 had spoken of eutelegenesis “as a means of populating Australia, and creating a race combining high moral worth with sound physical development” (at 126). More recently, on the same topic see GALTON, “Eugenic Artificial Insemination”, cit. supra note 22, p. 1850. In the United States a sperm bank (Repository for Germinal Choice) collecting gametes from “first-rate” donors for the fertilization of women selected according to their IQ has been active for more than twenty years (BROAD, “A Bank for Nobel Sperm”, Science, Vol. 207, 1980, p. 1326 ff.). On this subject see also BEJIN, “Du choix des procréateurs au choix des gamètes. Sur quelques avatars de l’eugénisme”, in HUBER and JALBERT (eds.), L’heure du doute. Insémination artificielle: enjeux et problèmes éthiques, Paris, 1994, p. 155 ff.; GLOVER, “Eugenics and Human Rights”, in BURLEY (ed.), The Genetic Revolution and Human Rights, Oxford, 1998, p. 101 ff., and RYAN, “Eugenics and Genetic Manipulation”, ibidem, p. 125 ff. The case-law of the European Court leads to considering legitimate the intent of fostering the integration of the child into his family (Marchx v. Belgium, 13 June 1979, Series A No. 31, para. 31; Keegan v. Ireland, 26 May 1994, Series A No. 290, para. 50; Kroon et al. v. the Netherlands, 27 October 1994, Series A No. 297-C, para. 32), so that it could be accepted that, in case of heterologous fertilization, a couple selects a donor with racial ethnic, and physical characteristics similar to their own (of course, integration into the family does not justify aberrant choices such as those made by couples suffering from deafness or dwarfism, who, after having resorted to IVF, have requested the selection and the implantation of embryos affected by their own genetic disease. See DENNIS, “Deaf by Design”, Nature, Vol. 431, 2004, p. 894 ff.). The techniques of assisted procreation should not be exploited with a view to obtaining particular characteristics in the unborn child, since they are not really in the name of his better integration into the family but for the desire to have a “made to order” child. Actually, almost no State explicitly forbids resorting to gametes from specific donors, since that does not imply any technical intervention on the genome (SMITH II, Human Rights, cit. supra note 25, p. 124), making this rough eugenic method rather attractive. 48 An analysis from a comparative law standpoint can be found in the national reports collected in the volume by MEULDERS-KLEIN, DEECH and VLAARDINGERBROEK (eds.), Biomedicine, the Family and Human Rights, The Hague/London/New York, 2002. 49 An author notes that germinal gene therapy is not in itself contrary to the dignity of the person concerned, but does create risks for the human species (see MATHIEU, Génome humain et droits fondamentaux, Paris, 2000, p. 94). In January 2001, the European Parliament established a temporary Commission on human genetics and other new technologies in the field of modern medicine; the Commission has set up a website for a “dialogue” with EU citizens (http: //www.europarl.eu.int/comparl/tempcom/genetics/intro_it.htm).

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of the human body […] contrary to human dignity”, whereby the expression “human body” lent itself to interpretation as “its body”, that is, single tissues or single cells. Consequently, on the one hand, the prohibition would apply only insofar as the process at stake was deemed contrary to human dignity; on the other, even somatic gene therapy – that is, therapy which repairs genetic diseases by introducing non-hereditary alterations – could have been excluded from being patented. The margin of discretion inherent in the evaluation of whether a process is contrary to human dignity according to subjective ethical standards met with a negative reaction in Parliament and resulted in the rewriting of the rule. As far as germinal gene therapy is concerned, the wording of Article 6.2(b) of the Directive today does not leave any room for discretion (while not taking any express position on the issue of somatic gene therapy).50 Naturally, the Council of Europe is the European organization most attentive to attempted attacks on human dignity. The Parliamentary Assembly, in Recommendation 934 (1982) on genetic engineering and in Recommendation 1046 (1986) on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes,51 stated that the right to life and to human dignity guaranteed by Articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 imply “the right to inherit a genetic pattern which has not been artificially changed”52 and invited the Committee of Ministers to take steps so as to have this right expressly recognized in the context of the Convention.53 The suggestion was not accepted, but it probably forms the basis of Article 13 of the Convention on Human Rights and Biomedicine (1997) with which the Council of Europe meant to prevent the risk of “intentional modification of the human genome so as to produce individuals or entire groups endowed with particular characteristics and required qualities”.54 Article 13 allows interventions in the human genome only for preventive, diagnostic or therapeutic purposes, and

50

See GAL,“Le droit communautaire en matière de procédés de clonage et de brevetabilité des inventions portant sur le génome et certaines cellules de l’être humain”, RMUE, 2000, p. 834 ff. See infra, note 59. 51 Also worth noting is recommendation of the Committee of Ministers R (84) 16 – concerning the notification of work that implies the use of recombinant DNA – that takes back and extends to the members of the Council of Europe what is provided for in recommendation CEE of the Council of 30 June 1982 (82/472) relative to the registration of work which requires the use of recombined DNA. On this topic see also SERUSCLAT, Les sciences de la vie et les droits de l’homme, Paris, 1992, p. 275 (also for an analysis of comparative law); ERIKSSON, “The Legal Position of the Unborn Child in International Law”, GYIL, 1993, p. 86 ff., p. 113. 52 Sec. 4 i) of Recommendation 934 (1982). 53 Sec. 7 b) of Recommendation 934 (1982) and sec. 1 of Recommendation 1046 (1986), which uphold therapeutic applications. Recommendation 934 (1982) hoped for the drafting of a list of serious diseases that could be treated with gene therapy (sec. 7 c)). 54 Explanatory Report, sec. 89.


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only if they do not aim to introduce modifications in the genome of descendants.55 Therefore, as specified in the Explanatory Report to the Convention,56 genetic modifications of spermatozoa or ova destined for artificial insemination are prohibited. Modifications of spermatozoa or ova carried out in vitro with aims other than procreation are permissible only with the approval of an ethics or regulatory body. Finally, the “Working document on the applications of genetics for health purposes”, drafted by the CDBI Working Party on Human Genetics in 2003,57 reaffirms the legality of only somatic gene therapy and specifies that “[a]n intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants” (Article 27); and furthermore that “the risk of unintentional modification of the genome which can be transmitted to any descendants as a result of [a somatic gene therapy research project] shall be assessed and minimised as far as possible” (Article 29). So, to give an example, interventions such as radiotherapy and chemotherapy may bring about unpredictable collateral changes in the germ line; changes which can be avoided by taking the gamete cells from the interested person before the beginning of the therapy, with a view to a subsequent in vitro fertilization.58 In light of the general principle of precaution, germinal gene therapy is still prohibited due to its inherent risks and irreversibility. It thus appears that, at the European level, a personal right to inherit a nonmanipulated genetic pattern has emerged.59 At a universal level, the only rule

55 “An intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modification in the genome of any descendants”. On the contrary, Article 11 of the UNESCO Universal Declaration on the Human Genome and Human Rights does not explicitly deal with the topic, limiting itself to prohibiting practices contrary to human dignity, “such as reproductive cloning of human beings”. Finally, it is worth mentioning the draft of guidelines on bioethics prepared and discussed by the Assembly of the World Health Organization in May 1999, which centred on the implications of medical genetics and biotechnology for public health. The report accompanying the draft emphasized that some techniques are morally unacceptable (human cloning and scission of embryos for reproductive purposes), specifying that “[a]t present, germ-line therapy is not acceptable, but this should be reviewed with advancing knowledge”. 56 Explanatory Report, sec. 91. 57 CDBI/INF (2003) 3, 7 February 2003. 58 In this sense see principle 7 of the above-mentioned Report on Human Artificial Procreation issued by the Council of Europe in 1989. 59 See BYK, “Bioéthique et Convention européenne des droits de l’homme”, in PETTITI, DECAUX and IMBERT (eds.), La Convention européenne des droits de l’homme. Commentaire article par article, Paris, 1995, p. 101 ff., p. 112. It has also been suggested that the duty to respect the identity of every child, according to the Convention on the Rights of the Child of 1989 (Art. 8) would include genetic identity too, and would therefore exclude any intervention whatsoever that intended to modify it ab origine. The right of the child to his genetic identity has been inferred also from principles 3 and 4 of the Declaration of the Rights of the Child of

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concerning germinal gene therapy is Article 24 of the Universal Declaration on the Human Genome and Human Rights, adopted by General Conference of UNESCO on 11 November 1997 (and later endorsed by the General Assembly of the United Nations in the resolution “Human Rights and the Human Genome” of 1998),60 according to which the International Bioethics Committee should make recommendations addressed to the General Conference and give advice concerning the follow-up of the Declaration “in particular regarding the identification of practices that could be contrary to human dignity, such as germ-line interventions”. On this subject it must be observed that the “Report of the IBC on Pre-Implantation Genetic Diagnosis and Germ-Line Intervention” of 2003 associates interventions in germ cells with interventions which “aim at the correction of a specific genetic abnormality in [the…] early embryo or at the introduction of genes that may confer to the embryo additional traits like increased resistance to certain diseases”,61 even though, strictly speaking, these interventions – which do not involve (the parents’) germ cells – do not belong to germinal gene therapy. However, one must emphasize that it is difficult to grant legal protection to the right to inherit a non-manipulated genetic pattern, in the sense that it is not clear in what way and against whom (one’s parents? The State?) this right can be claimed.62 Recent experimental studies63 suggest the prospect of fighting the transmission of mitochondrial genetic diseases through a process of “cytoplasmic rejuvenation”, that is, by the use of the nucleus of an oocyte and the cytoplasm (which contains normal mitochondria) of another. One may wonder whether the substitution of the mitochondrial genome (which contains only a few genes) can be assimilated to the modifications of the nuclear genome, something prohibited by the above-mentioned international standards. The ban on modifications at the germinal level applies a fortiori whenever the envisaged goal is to prevent the transmission of minor pathologies, to avoid

1959, which recognize, respectively, the right to a name and a nationality, and the right to grow and develop in health. On the contrary, somatic gene therapy that is intended to “repair” genetic disorders by causing permanent but non-hereditary alterations or to perform genetic engineering in order to cure some diseases (for instance, tumours) would be lawful. Different from germinal gene therapy, somatic gene therapy modifies the genetic inheritance of a single individual without being transmitted to descendants. 60 Human Rights and the Human Genome, A/RES/53/152, 9 December 1998. 61 Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention, sec. 79. 62 See COHEN-JONATHAN, “Progrès scientifique et technique et droits de l’homme”, in Droits et libertés à la fin du XXe siècle: Influence des données économiques et technologiques. Études offertes à Claude-Albert Colliard, Paris, 1984, p. 123 ff., p. 143. 63 The document of the Working Party on Human Genetics mentions the study by COHEN, SCOTT, SCHIMMEL, LEVRON and WILLADSEN, “Birth of Infant after Transfer of Anucleate Donor Oocyte Cytoplasm Into Recipient Eggs”, Lancet, Vol. 350, 1997.


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physical defects or to satisfy purely aesthetic requirements. The creation of one’s offspring on the basis of “standards of construction”, to the extreme of the construction of the “ideal” human being, is indeed unacceptable in the name of human dignity,64 even if suitable techniques were devised to prevent the transmission of the alterations performed to offspring. Indeed, such an extreme use of genetic engineering potential would embody a real “intergenerational tyranny”,65 all the more so since, inevitably, genetic enhancement would reinforce discrimination toward and the stigmatization of those who do not match the accepted standard of desirable features. 3.2. Selection of Embryos in vitro The second method of reprogenetics is based on the selection of embryos. Owing to the fact that it does not involve modification of the genome, this kind of selection appears more acceptable ethically than interventions on the germ line; and, given that the foetus has not yet developed, it appears more acceptable ethically than the interruption of a pregnancy whenever foetal diseases are revealed by prenatal diagnosis (since, in the case in question, the pregnancy has not even begun). The selection of embryos presupposes the use of genetic tests aimed at identifying the presence or absence of certain genes in the embryos themselves: the socalled pre-implantation genetic diagnosis (PGD), performed at the first embryonic stage (more precisely, when the embryo consists of eight cells – that is, on Day 3 of development). Once the embryos have been analysed in vitro, the “best” ones, chosen through a true and proper selection process, are implanted in utero. If this selection takes place according to pathological standards (that is, discarding unhealthy embryos and implanting healthy ones), we are dealing with negative eugenics; whereas, if it takes place based upon purely genetic criteria (implanting embryos with certain characteristics or of a certain sex), it is rather a form of positive eugenics. However, there is a third use of pre-implantation diagnosis: one which brings the embryo to a certain stage of development, or even to the birth of a child (“saviour child”), with characteristics such that cells, tissues and organs can be obtained in order to treat a living sibling who is suffering from particular diseases (such as Fanconi’s, Huntington’s or beta-thalassaemia). In these cases, the diagnosis aims at performing a selection not in the interest (so to speak) of the embryo, but in the

64

See HENDRIKS and NOWAK, “Western European Case-Study: The Impact of Advanced Methods of Medical Treatment on Human Rights”, in WEERAMANTRY (ed.), cit. supra note 3, p. 243 ff., p. 264; and MATHIEU, cit. supra note 49, p. 73. 65 See the Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention, sec. 97.

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interest of an individual already born (the embryo that is histocompatible with the ill sibling is chosen from among the healthy ones).66 Pre-implantation genetic diagnosis represents a new approach to the early diagnosis of genetic diseases; it implies the development of specially refined techniques for the analysis of chromosomes and genes at the level of a single cell. The first applications of pre-implantation genetic diagnosis date back to the beginning of the 1990s; and dealt with the majority of chromosome aberrations and approximately thirty single-gene disorders. An alternative procedure is the genetic analysis of the polar body of the oocyte, ethically more “comfortable” (given that it does not concern the embryo), but useful only to diagnose hereditary pathologies on the maternal side.67 It is clear that only strict control over the access to pre-implantation diagnosis and likewise to assisted procreation could, in part, limit the eugenic drift. It was in this sense that in 1989 the European Parliament expressed itself in the Resolution on in vivo and in vitro fertilization, in which it provides that in no case is recourse to methods of extra-corporeal fertilization for the selection of certain embryos allowed; and therefore requires the prohibition of any kind of genetic test on embryos outside of the mother’s body (sec. 7). The temporary Committee on Human Genetics and Other New Technologies in Modern Medicine, set up by the European Parliament, in its Report of 8 November 2001 likewise expressed a negative judgement on pre-implantation genetic diagnosis, highlighting its eugenic uses; in any event, it must be said that the Report was totally rejected by the Parliament. While waiting for the adoption of the Additional Protocol to the Convention on Human Rights and Biomedicine, on the Protection of the Human Embryo and Foetus – which is also supposed to govern interventions on embryos in vitro – the position taken by the Council of Europe in regards to embryo selection can be reconstructed through some acts adopted since the 1980s.

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It is a morally controversial procedure, assuming that “la finalité de la procréation n’est pas la naissance d’un nouvel être humain pour lui-même, mais la sauvegarde d’un autre enfant”: see MATHIEU, “De la difficulté d’appéhender l’emploi des embryons humains en termes de droits fondamentaux”, RTDH, 2003, p. 387 ff., p. 400 (this author speaks of the creation of an “enfant médicament”). On the subject, see also the interesting Réflexions sur l’extension du diagnostic pré-implantatoire in the interest of a third party, accompanying Opinion No. 72 of the French Comité Consultatif National d’Ethique pour les sciences de la vie et de la santé (dated 4 July 2002), as well as the comment to a British case by BROWNSWORD, “Reproductive Opportunities and Regulatory Challenges”, Modern Law Review, 2004, p. 304 ff. 67 The methodologies are presented briefly by GIANAROLI, MAGLI and FERRARETTI, “Pre-implantation Genetic Diagnosis”, in Current Practices and Controversies in Assisted Reproduction, Report of a Meeting on “Medical, Ethical and Social Aspects of Assisted Reproduction” (WHO Headquarters, Geneva, 2001), 2002, p. 210 ff. The probability of mechanically damaging the embryo while taking samples of genetic material is less than 0.5%, while the probability of failing to diagnose chromosomal or genetic alterations is a little higher (1% and 3%, respectively).


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Recommendation 1046 (1986) of the Parliamentary Assembly on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes, already discussed, forbids sex-selection by genetic manipulation for non-therapeutic purposes. The Appendix containing the rules governing the use and removal of embryonic and foetal tissue for diagnostic and therapeutic purposes provides that all therapies on embryos in vitro, similar to those on embryos or foetuses in utero, must be in response to the necessity of treating “very clear and precisely diagnosed embryonic maladies, with grave or extremely bad prognosis, where no other solution is possible and therapy would offer reasonable guarantees of successful treatment of those illnesses.” It also establishes that a list of the above-mentioned illnesses should be compiled and periodically updated; and states that therapy conducted on the embryo “must never influence non-pathological hereditary characteristics, nor have racial selection as its aim”. The CAHBI “Report on Human Artificial Procreation” of 1989 prohibits recourse to techniques of human artificial procreation with the aim of obtaining particular characteristics in the unborn child or for the purpose of selecting the sex of the child, except in the case in which the parents are carriers of a serious pathology linked to the sex (Principle 1.2): a disease of such kind is, for instance, haemophilia, which shows up only in males (females are merely carriers).68 In addition to observational studies that do not damage the embryo (such as examinations under a microscope for a short time and with proper light intensity), all – and only – interventions that are in the interest of the embryo can be conducted on it in vitro (Principle 17.1);69 that is, those whose goal is to increase the chances of the survival

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“2. The techniques of human artificial procreation must not be used for obtaining particular characteristics in the future child, in particular for the purpose of selecting the sex of the child except where […] a serious hereditary disease linked with the sex is to be avoided”. The Report prohibits, inter alia, the transfer of an embryo from the uterus of a woman to that of another (principle 12). On sex selection and its unlawfulness from an international point of view, see ERIKSSON, “Family Planning as a Human Right Issue”, in EEKELAAR and ŠARČEVIĆ (eds.), Parenthood in Modern Society, The Hague/London/Boston, 1993, p. 191 ff., pp. 197-198. See also supra note 33. 69 “1. No act or procedure shall be permitted on any embryo in vitro other than those intended for the benefit of the embryo and for observational studies which do no harm to the embryo. 2. When a State allows, in addition, investigative and experimental procedures other than those mentioned in the preceding paragraph for a preventive, diagnostic or therapeutic purpose for grave diseases of embryos, it shall require that the following conditions be fulfilled: a. the purpose cannot be achieved by any other method; and b. the embryo shall not be used after fourteen days from fertilisation, any period of storage by freezing or by any other means not included; and c. the consent of the couple has been given according to paragraph 3 of Principle 8 and, if the embryo has resulted from fertilisation in vitro using donor’s gametes, their consent shall also be required; and d. a properly constituted multidisciplinary ethical committee has given its approval. 3. The splitting of the cells of an embryo may be allowed by member States only in order to use a part of it for diagnostic purpose if it is designed to establish a serious illness or anomaly in the future child and if conditions b, c and d mentioned in paragraph 2 above are satisfied”. The

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of the embryo or, alternatively, to prevent or to treat a disease which has already manifested itself or is likely to. Such procedures must of course be consistent with the general principles of medical practice and ethics. The Report neither allows nor forbids genetic manipulation of embryos in vitro, since at that point in time the Committee was not in possession of the scientific data enabling it to proceed with a sound evaluation of the issue.70 As far as the Convention on Human Rights and Biomedicine is concerned, it limits itself to prohibiting recourse to techniques of medically assisted procreation for the purpose of so-called embryo sexing – i.e., for the purpose of choosing an unborn child’s sex – while providing for a unique exception in the case of a serious hereditary disease linked with the sex (Article 14). Therefore, it is prohibited to exploit new reproductive techniques for the sole purpose of selecting the sex – through the selection of the chromosomes of the father’s semen71 – for religious, social or legal reasons (such as those related to inheritance issues or to issues having to do with the conveyance of titles of nobility) in the name of the principle of non-discrimination between couples who can have children naturally and couples who must resort to medical assistance to have children. The Convention does not expressly take any side on sex-selection performed at the pre-implantation stage, however, in case of recourse to in vitro fertilization for therapeutic reasons (such as sterility or transmissibility of diseases); therefore, the selection of sex in the context of an in vitro fertilization procedure motivated by therapeutic reasons would not be expressly ruled out. In the field of procedures for the selection of sex justified by the aim of avoiding an unborn child’s suffering from a disease linked with that sex, the Explanatory Report makes it clear that the seriousness of such diseases must be determined according to the procedures envisaged by national law. Guidelines on the subject matter enacted by public authorities, national ethics committees and professional bodies are already in force in some States; in any

text is not very clear, most of all as far as the difference between the procedures falling within point 1 and those ones falling within point 2 are concerned: do the latter ones perhaps encompass procedures performed on embryos in vivo? It must be added that even though some experts had suggested the inclusion of research intended to prevent, diagnose and treat some particularly serious pathologies in adults (for instance, tumours), the ad hoc Committee did not want to authorize forms of research other than those carried out in the interest of embryos themselves for ethical reasons, therefore falling into line with what the European Parliament had hoped for in the resolution on ethical and legal problems of genetic manipulation. 70 Report on Human Artificial Procreation, p. 33. According to principle 18, “[t]he introduction into a woman’s uterus of a human embryo which has been subjected to any act or procedure other than those mentioned in paragraphs 1 and 3 of the preceding principle – that is, research not directly targeted to the embryo’s health – shall be prohibited”. This is an application of the precautionary principle, assuming that at present the long-term consequences of the research techniques employed are not predictable. “Once it has been implanted, an embryo resulting from fertilisation in vitro shall not undergo experimentation in uterus”: principle 19.


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event, it is necessary to guarantee to the interested parties appropriate genetic counselling. The Convention dictates a generally restrictive approach with regard to predictive genetic tests (Article 12)72 and does not take any specific position on the issue of pre-implantation genetic diagnosis: indeed, the Explanatory Report to the Convention takes pains to specify that predictive genetic tests do not, in themselves, involve limitations on the right to proceed to diagnostic interventions at the embryonic stage with the aim of identifying the presence of hereditary characteristics susceptible to give rise to “serious diseases” in the unborn child. Evaluation of the seriousness of the likely diseases to justify pre-implantation diagnosis and possible consequent selection rests with the States. The Paper on human genetics drafted by the CDBI Working Party on Human Genetics in 1997 suggests pre-implantation genetic diagnosis only if both parents are carriers of a genetic disease transmissible to their offspring, or if there is a real risk of transmitting the altered gene. That also holds true, naturally, for sex-selection of the embryo, which can take place only if the parents are carriers of a disease which is sex-chromosome linked. Determination of any diagnosis must be possible without risk to the embryo. The more recent Report on “The Protection of the Human Embryo In Vitro”, drafted by the CDBI Working Party on the Protection of the Human Embryo and Foetus in 2003, obviously pays more attention to the topic and assumes three alternative approaches to the use of pre-implantation diagnosis. The first one consists of the preparation of a fixed list of diseases for which pre-implantation diagnosis is allowed; the second one permits such diagnosis only with a view to serious, noncurable diseases that are not, however, precisely listed; finally, the third one leaves diagnostic intervention to the parents’ subjective evaluation of the seriousness of the disease. Furthermore, the Report stresses the need for consistency between pre-implantation diagnosis and prenatal diagnosis in the sense that an excessively strict treatment of the former as opposed to the latter would bring about the absurd outcome of proclaiming the absolute intangibility of embryos in vitro as opposed to a relative intangibility of both embryos in vivo and foetuses. The Report does not go any further, but I believe it is possible to conclude that in a given legal system pre-implantation diagnosis and the suppression of embryos in vitro should be allowed (at least) to the same degree to which prenatal diagnosis and the interruption of the pregnancy for reasons having to do with the health of the embryo or foetus

71

Such a practice has been performed for quite some time, and today has a high rate of success (we are speaking of 75% for males and 90% for females). 72 According to Art. 12, “[t]ests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”. The reference is to sec. 83 of the Explanatory Report.

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are permitted, naturally taking into account the technical limits faced by diagnosis on a few embryonic cells.73 Finally, in the previously cited IBC Report dedicated to “Pre-implantation Genetic Diagnosis and Germ-Line Intervention”, pre-implantation genetic diagnosis is presented as an option additional (and not alternative) to prenatal diagnosis74 for parents showing a heightened risk of having a child suffering from a disease or a deformity of genetic origin. As a matter of fact, pre-implantation genetic diagnosis is still an experimental procedure (until now performed only in a few thousands cases); it can identify – as has been seen – a still-limited number of diseases and is highly specialized, which explains its elevated cost (between $ 40,000 and $ 100,000, mostly borne by the parents). On the contrary, prenatal diagnosis (amniocentesis, sampling chorial villosities, foetal blood sampling) can reveal the presence of approximately 1,500 single-gene disorders – in addition to infectious diseases; moreover, it is a procedure that has been tested for thirty years and is performed every year on hundreds of thousands of foetuses with relatively low cost (varying between $ 580 and a few thousand dollars; in most industrialized countries the national healthcare services bear such costs). The IBC Report looks to the future, too. Many adult diseases (cancer, diabetes, etc.) are caused by the interaction of numerous genes and environmental factors. Given the high incidence and the social impact of these diseases, research is moving more and more toward the study of adult multifactorial diseases. According to the IBC, it will perhaps soon be possible to diagnose at the embryonic level, prior to implantation in the uterus, not only all monogenic diseases, but also the presence

73

This conclusion represents a sort of balance between the right to dignity of the embryo and the right of the unborn child to enjoy the best possible state of health (based upon Art. 24 of the Convention on the Rights of the Child). 74 Such diagnosis presents a certain risk of abortion and therefore should not be made mandatory, even in the cases with the highest risk of pathologies. According to the paper of the Working Party on Human Genetics (p. 15), in case parents refuse prenatal diagnosis and the child is born ill, States should not be allowed to limit the enjoyment of social rights; instead, it could perhaps be lawful to provide for an action for damages brought by the child against his parents (in the United States and the United Kingdom the principle of damage to life has sometimes been acknowledged). Leaving aside the economic aspects, it is necessary to leave the parents free to decide whether to take a test only for the disease for which a high risk exists or for a wider range of diseases. If the test is positive and the mother wants to carry on with the pregnancy, it is necessary to respect such a choice, even if the child will represent a burden to society. Which genetic defects can be looked for? Recommendation R (90) 13 of the Committee of Ministers to member States of the Council of Europe – on prenatal genetic screening, prenatal genetic diagnosis and associated genetic counselling – excludes searching for characteristics that are unrelated to genetic alterations presenting a “serious risk” of triggering a disease (principle 2). One can seek out only incurable diseases or diseases whose therapeutic treatment must begin as soon as possible – even in uterus – while the use of prenatal diagnosis for the identification of genetic diseases whose treatment implies (only) burdensome limitation on the interested person is controversial.


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of susceptibility genes:75 in practice, therefore, to eliminate embryos with a high risk of developing a certain disease in adulthood. In this case, however, even taking into serious consideration the risk of mortality, the persistence of the handicap, and the personal perception of seriousness, are there no longer limits to selection – that is, to “baby design”? Within the IBC “there is […] no unanimous opinion about the acceptability of testing for susceptibility genes”, which remains “a low priority” in pre-implantation genetic diagnosis.76

4. DOES AN INTERNATIONAL PROHIBITION ON CLASSIC (COMPULSORY) EUGENICS EXIST? According to a line of thought, collective programmes of negative eugenics (that is, as noted, compulsory interventions undertaken in a systematic way in order to prevent certain categories of individuals from reproducing) are outlawed by the Convention on the Prevention and Punishment of the Crime of Genocide (1948);77 and are, in particular, emphasized in Article 2(d), which depicts so-called biological genocide as consisting of “measures intended to prevent births within the group”, in other words measures such as the prohibition of marriage and the impossibility of procreation (through compulsory abortion or forced sterilization).78 Such a theory, although attractive, seems risky to me. In fact, the Convention, in spite of what the draft prepared by the Secretariat provided for, does not contain a real, general definition of genocide (for instance, generally speaking, it could have been the “destruction of human groups”), but limits itself to listing a series of specific acts that are considered genocide for the purpose of the application of

75 Since features such as personality, weight and physical appearance as a whole are influenced by large numbers of genes (that is, they are multifactorial), it is not possible to predetermine them according to a genetic basis. 76 Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention, sec. 91. 77 See MATHIEU, “Force et faiblesse des droits fondamentaux comme instruments du droit de la bioéthique: le principe de dignité et les interventions sur le génome humain”, Revue de droit public, 1999, p. 93 ff., p. 107, and Génome humain, cit. supra note 49, p. 71; and, with reference to the above-mentioned Chinese law, PACKER, The Right To Reproductive Choice. A Study in International Law, Åbo, 1996, p. 91. 78 With regard to this, see the preparatory works concerning Art. 2(d) of the Convention on the Prevention and Punishment of the Crime of Genocide; for an application, see International Criminal Tribunal for Rwanda, Akayesu, 2 September 1998, ICTR-96-4, para. 507. LEMKIN (in “Genocide as a Crime under International Law”, AJIL, 1947, p. 145 ff., p. 148) defines such techniques as “sterotechnics”, from the Greek words steiros (sterile) and steirosis (sterility). In addition to so-called biological genocide, there is also so-called physical genocide, which consists of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in parts” (Art. 2(c)).

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the norms established by the Convention.79 In particular, the Convention identifies four categories of protected groups (national, ethnic, racial and religious groups). Today, leaving aside particular instances in which eugenic programmes affect well-identifiable racial or ethnic groups – I am thinking of the laws passed in the 1920s and in the 1930s directed at preserving the purity of American or German blood and of those in the 1980s to the detriment of the Roma in Norway and Czechoslovakia80 – such activities are intended to destroy groups of individuals joined together not by belonging to a certain nation, ethnicity, race or religion, but by the presence of (actual or presumed) hereditary or transmissible diseases. Consequently, the situation in point is not within the scope of the Convention of 1948, nor does it fall within the jurisdiction of the International Criminal Court on the basis of Article 6 of the Rome Statute (titled “Genocide”), which maintains the limitation – now customary – of protecting the above-mentioned four groups. Rather, it is in Article 7 of the Rome Statute, which defines crimes against humanity, that it is possible to find a probable basis for the prohibition of systematic practices of negative eugenics.81 Article 7 counts among crimes against humanity enforced sterilization (para. 1(g)) and the persecution of groups not only on national, ethnic, racial and religious grounds, but also on political, cultural and gender grounds (para. 1(h)), if performed systematically “pursuant to or in furtherance of a State […] policy” (para. 2(a)). Moreover, “other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health” (para. 1(k)) also constitute crimes against humanity. This last category is a residual one, whose function is to stress that the list contained in Article 7 is not exhaustive. All acts contrary to human dignity, even if they do not cause physical harm to the human body, fall within the scope of the Rome Statute whenever they are committed in a planned or concerted way.82 Any national policy of systematic interference in the exercise of the right of specific categories of those suffering from (or carriers of) a certain disease to found a family and to have children, even if conducted with methods other than forced sterilization, could well amount to a crime against humanity. Recently, it has been advanced that the notion of crimes against humanity should include those behaviours, seemingly respectful of human life, which place in question humanity, understood as a set of “unique” beings.

79

See ROBINSON, The Genocide Convention. A Commentary, New York, 1960, sub Art. 2, pp. 57-58. 80 See supra section 2. 81 See also the corresponding rule of the Draft Code of Crimes against the Peace and Security of Mankind of 1996 (Art. 18 – “Crimes against humanity”). 82 On this issue, see the remarks made by the International Tribunal for the Former Yugoslavia in Tadic, Judgment of 7 May 1997, IT-94-1-T, pp. 728-729.


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In this manner, even programmes of positive eugenics (as well as, in particular, reproductive cloning)83 are placed within the scope of the Rome Statute.

5. DOES AN INTERNATIONAL PROHIBITION ON (VOLUNTARY) REPROGENETICS EXIST? What is instead lacking is any general norm for a prohibition on voluntary eugenic interventions.84 Reprogenetics and (classic) eugenics are fundamentally different from one another. Classic eugenics, in fact, – supposedly – aimed at improving a society’s gene pool by controlling the breeding practices of its citizens; it was managed by the government and implied a restriction on reproductive freedom. Reprogenetics, on the contrary, aims at bringing forth children with a higher likelihood of being healthy; it is controlled by the parents and consequently implies – in principle, at least – broadened reproductive freedom.85 In short, there is a change as much in those who are responsible for eugenic interventions (no longer State authorities, but the aspiring parents) as in those who are the target of the interventions (no longer the potential parents, but the potential children) because the stage at which the selection takes place is different. It is, in fact, during the phase preceding conception (germinal gene therapy) or immediately following it (embryo selection) that, in respect of individual reproductive freedom, the unborn child is “programmed”. So far, only germinal gene therapy – which, it is worth recalling, still cannot be undertaken due to technical limitations86 – is expressly forbidden at the international level. However, the prohibition, contained in Article 13 of the Convention on Human Rights and Biomedicine, is in force to a limited extent only in a few European countries. By contrast, a clear stand has not yet been taken on the issue of pre-implantation (and prenatal) diagnosis, as well as on that of the possible consequent embryo selection. The only rule that deals with embryo selection – Article 14 of the Convention on Human Rights and Biomedicine – concerns sex-selection and limits itself to prohibiting recourse to techniques of medically assisted procreation

83

See DELMAS-MARTY, “Interdire et punir: le clonage reproductif humain”, RTDH, 2003, p. 429 ff., p. 437. Likewise see LAHALLE, “Clonages et dignité humaine”, ibid., p. 441 ff., p. 478. See supra note 7. 84 International regulations “ne condamnent pas l’eugénisme, en tant qu’il conduit à sélectionner des êtres humains en fonction de leurs caractéristiques génétiques, mais les pratiques eugéniques tendant à l’organisation de la sélection des personnes”: MATHIEU, Génome humain, cit. supra note 49, p. 73. 85 In this sense also SILVER, “Reprogenetics”, cit. supra note 45, p. 376. But see infra the final remarks made in section 6. 86 Germ-line intervention and cloning are two cases in which, contrary to what usually happens, international law is ahead of science, prohibiting what is not yet technically feasible.

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aimed uniquely at delivering a child of a determined sex. What is more, the rule does not deal with sex-selection in the context of in vitro fertilization motivated by reasons of sterility. The difficulty of qualifying embryo selection from a legal point of view lies in the lack of conflict between individual reproductive freedom and the interest of society to improve: the kind of conflict that characterizes classic eugenics. Selection is decided and implemented within the nuclear family on the assumption that birth under optimal conditions is responsive also to the interests of the child; and that, accordingly, in the presence of a disease diagnosed during the pre-implantation (or prenatal) phase, the parents’ decision not to begin (or to interrupt) the pregnancy does not in any way harm the unborn child, but can rather be promoted as an expression of good parenting.87 For the rest, even if things were different – meaning even if one could imagine an absolute right to life for the conceived88 – it is not

87

On the issue and on French case law and legislation, I refer to the interesting remarks by KIVILCIM-FORSMAN, “Eugénisme et ses diverses formes”, RTDH, 2003, p. 515 ff., pp. 530-531. 88 In contrast to the 1969 American Convention on Human Rights (“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception”: Art. 4.1 (italics added)), the European Convention provides generically that “[e]veryone’s right to life shall be protected by law” (Art. 2.1). Furthermore, the Convention on Human Rights and Biomedicine of 1997, although it grants to “everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine” (Art. 1.1), does not define the term “everyone” (“[I]n the absence of a unanimous agreement on the definition of these terms [everyone, in English; toute personne, in French] among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention”: see the Explanatory Report produced by the Directorate General of Legal Affairs at the Council of Europe, sec. 18). Even in 2004, the European Court of Human Rights preferred not to take a position on the applicability of Art. 2 CEDU to the embryo/foetus; that is, on the delicate issue of whether an unborn child enjoys the right to life, even though the case at issue did not in any way raise the sensitive issue of voluntary termination of pregnancy (with the clashing interests of the foetus to complete its development, on the one hand, and of the mother not to procreate, on the other). The case, brought to the Grand Chamber, concerned a woman who had to undergo a therapeutic abortion because of medical negligence; according to the woman, the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the State to protect by law the right to life within the meaning of Art. 2 of the Convention (Vo v. France [GC], Application No. 53924/00, Decision of 8 July 2004). The Court, also in light of the European Commission’s case law, ruled that “the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention […]. The reasons for that conclusion are, firstly, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate […] and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life” (para. 82). The Court limited itself to pointing out that “it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person –


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clear – owing to the uncertainty of its legal status89 – whether, by whom and in what way the interests of the embryo could be asserted.

enjoying protection under the civil law, moreover, in many States […] in the context of inheritance and gifts […] – require protection in the name of human dignity, without making it a ‘person’ with the ‘right to life’ for the purposes of Article 2” (para. 84). In other words the Court was convinced that “it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention […]. However, in the circumstances of the […] case, the life of the foetus was intimately connected with that of the mother and could be protected through her, especially as there was no conflict between the rights of the mother and the father or of the unborn child and the parents, the loss of the foetus having been caused by the unintentional negligence of a third party” (para. 85 and para. 86). The Court could have stopped here, but – drawing on an “assuming that” argument already employed in almost all previous cases on the issue of the legal status of the embryo (see finally Boso v. Italy, Application No. 50490/99, Decision of 5 September 2002) – it took the trouble to clarify that if, as in the case at stake, “the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case” (para. 90), remedies in the civil courts and disciplinary measures being deemed sufficient (see Mastromatteo v. Italy [GC], Application No. 37703/97, Decision of 24 October 2002, para. 90; Calvelli and Ciglio v. Italy [GC], Application No. 32967/96, Decision of 17 January 2002, para. 51). Hence the opinion, by fourteen votes to three, that, “even assuming that Article 2 was applicable in the instant case […] there has been no violation of Article 2 of the Convention” (para. 95). Probably, the reluctance of the Court to deal with the problems of who is a person and when life begins in the framework of Art. 2 is due to a concern that the incidental acknowledgment of the right to life of the embryo/foetus would be seen as automatically implying a protection of life before birth similar to the protection afforded to life after birth (with obvious consequences on the legality of national laws allowing voluntary terminations of pregnancy). That does not hold true, since – as the European Commission of Human Rights stated already in 1980 (X. v. the United Kingdom, Application No. 8416/79, Decision of 13 May 1980) – “[i]f one assumes that [Art. 2] applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the ‘right to life’ of the foetus” (a similar position has been adopted by the American Commission regarding the above-mentioned Art. 4 of the American Convention. See Resolution 23/81, Case 2141 (United States), 6 March 1981). Moreover, in the past the European Commission itself pointed out that, although the term “everyone” in several articles of the Convention could not apply prenatally, “such application in a rare case – e.g. under Article 6, paragraph 1 – cannot be excluded”, and that in certain circumstances the foetus may enjoy a certain protection under Art. 2 “notwithstanding that there is in the Contracting States a considerable divergence of views on whether or to what extent Article 2 protects the unborn life” (H. v. Norway, Application No. 17004/90, Decision of 19 May 1992). As some judges remarked in the Vo case (Separate Opinion of Judge Rozakis, joined by Judges Caflisch, Fischbach, Lorenzen and Thomassen), “[b]y using the ‘even assuming’ formula as to the applicability of Article 2, and by linking the life of the foetus to the life of the mother (‘the life of the foetus was intimately connected with that of the mother and could be protected through her’), the majority has surreptitiously brought Article 2 of the Convention to the fore of the case. Yet, it is obvious from the case-law that reliance on the procedural guarantees of Article 2 to determine whether or not there has been a violation presupposes the prima facie applicability of that Article”. Moreover, the Court should not avoid “identify[ing] the notions – which may, if necessary, be the autonomous notions the Court has always been prepared to use

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At first sight it would seem that the Charter of Fundamental Rights of the European Union (2000) perceived the problem. As a matter of fact, it is in general – that correspond to the words or expressions in the relevant legal instruments […] even if we are […] concerned with philosophical, not technical, concepts”, all the more given that, as far as Art. 2 is concerned, “the Court has broadened the notions of the right to life and unlawful killing, if not the notion of life itself” (Separate Opinion of Judge Costa, joined by Judge Traja, para. 7 and para. 8, in which the conclusion reached by the Court that the mother has a right to life of her unborn child is criticized (para. 9) and in which it is instead maintained that “there is life before birth, within the meaning of Article 2[;] […] the law must therefore protect such life, and […] if a national legislature considers that such protection cannot be absolute, then it should only derogate from it, particularly as regards the voluntary termination of pregnancy, within a regulated framework that limits the scope of the derogation” (para. 17)). If the aim of the European Convention on Human Rights is to provide extended protection, then the foetus may also enjoy protection (as the Court itself states within the framework of Article 8.2 in the case of Odièvre v. France [GC], Application No. 42326/98, Decision of 13 February 2003, para. 45). As Judge Ress underlines, “the obligation to protect human life requires more extensive protection, particularly in view of the techniques available for genetic manipulation and the unlimited production of embryos for various purposes. The manner in which Article 2 is interpreted must evolve in accordance with these developments and constraints and confront the real dangers now facing human life” (Dissenting Opinion, para. 5). Correctly, Ress maintains that “[t]here can be no margin of appreciation on the issue of the applicability of Article 2. A margin of appreciation may […] exist to determine the measures that should be taken to discharge the positive obligation that arises because Article 2 is applicable, but it is not possible to restrict the applicability of Article 2 by reference to a margin of appreciation. The question of the interpretation or applicability of Article 2 (an absolute right) cannot depend on a margin of appreciation. If Article 2 is applicable, any margin of appreciation will be confined to the effect thereof” (para. 8). 89 The European Group on Ethics in Science and New Technologies of the European Commission, in his opinion on the Ethical Aspects of Research Involving the Use of Human Embryo in the context of the 5th framework programme (23 November 1998), reached the following conclusions: “(2.2) The human embryo, whatever the moral or legal status conferred upon it in the different European cultures and ethical approaches, deserves legal protection. Even if taking into account the continuity of human life, this protection ought to be reinforced as the embryo and the foetus develop. (2.3) The Treaty on European Union, which does not foresee legislative competence in the fields of research and medicine, implies that such protection falls within the competence of national legislation (as is the case for medically assisted procreation and voluntary interruption of pregnancy). However, Community authorities should be concerned with ethical questions resulting from medical practice or research dealing with early human development. (2.4) However, when doing so, the said Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research, in the 15 Member States. It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code”. As far as the Report on the “Protection of the Human Embryo In Vitro” (2003) by the Working Party on the Protection of the Human Embryo and Foetus (already examined) is concerned, even acknowledging the “broad consensus on the need for the protection of the embryo in vitro”, it is admitted that “the definition of the status of the embryo remains an area where fundamental differences are encountered, based on strong arguments. These differences largely form the basis of most divergences around the other issues related to the protection of the embryo in vitro. Nevertheless, even if agreement cannot be reached on the status of the embryo, the possibility of re-examining


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terms that Article 3.2 provides for the prohibition “[i]n the fields of medicine and biology […] of eugenic practices, in particular those aiming at the selection of persons”. However, in the Explanations relating to the complete text of the Charter one may read: “The reference to eugenic practices […] relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others”, acts qualified by the Statute of the International Criminal Court as international crimes. The reference, in other words, is to classic forms of eugenics. It does not seem reasonable to me to deduce a prohibition on voluntary eugenic practices from the general principle of non-discrimination, and in particular from the principle of genetic non-discrimination expressly sanctioned – besides the same Charter of Fundamental Rights of the European Union (Article 21.1) – by the Convention on Human Rights and Biomedicine (Article 11). It is rather the UNESCO Universal Declaration on the Human Genome and Human Rights of 1997 (endorsed, as mentioned, by the General Assembly of the United Nations in the resolution on “Human Rights and the Human Genome” of 1998) which furnishes some direction in respect of voluntary eugenic procedures. In addition to forbidding any discrimination based on genetic characteristics (Article 6), the Declaration affirms that the dignity of every human being “makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity” (Article 2(b)). Although formally devoid of any binding force, these principles bear witness to a sense of respect for the uniqueness and individuality of each human being, and for the protection of diversity. As biological diversity (in the sense of the set of all possible combinations of genes present in animal and plant species) represents the “genetic repository” necessary to maintain life on earth – that is, the best guarantee of the ability to adapt in the future to dietary and environmental changes (so much so as to be defined by the Convention of Rio de Janeiro in 1992 as a “common concern of humankind”) – human diversity represents the potential salvation of our species. It is really for this reason that the human genome, seen as the “fundamental unity of all members of the human family”, but also as the “recognition of their inherent […] diversity”, is – symbolically – the “heritage of humanity” (Art. 1). The Universal Declaration on the Human Genome and Human Rights indirectly condemns genetic pre-determination, genetic “reductionism” and therefore any eugenic practice either positive or negative, of both the classic and the new

certain issues in the light of the latest developments in the biomedical field and related potential therapeutic advances could be considered. In this context, while acknowledging and respecting the fundamental choices made by the different countries, it seems possible and desirable with regard to the need to protect the embryo in vitro on which all countries have agreed, that common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro” (para. 37).

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type; it sanctions the principle of respect for diversity on the basis of ethical considerations, but also (I dare say) on the basis of utilitarian considerations for the self-preservation of the human species. Parents’ expectations can be satisfied insofar as they are consistent with general interests, understood as the interests of the whole of human society90 (the interests of the embryo and the foetus instead have a weight depending on their legal status, which is still uncertain). States (at least the technologically advanced ones) are implicitly delegated to preserve the human genome, in essence the heritage of humanity, since the Declaration neither provides for the establishment of any international ad hoc authority, nor does it furnish other directions on the point. This is truly a question of management of a very delicate nature. On the one hand, there is the risk that States, alleging motivation in the interests of humanity to select the “best” elements, will actually support parents’ expectations in the search for an ideal perfection. On the other hand, there is the opposite risk that States will adopt a set of generally prohibitive rules and in this way interfere in the private sphere of procreation; something which is forbidden at the international level (Article 16 of the Universal Declaration of Human Rights; Article 23 of the International Covenant on Civil and Political Rights; and Article 12 of the European Convention on Human Rights).91 What is more, an absolute prohibition – such as, for example, the one present in the recent Italian law on medically assisted procreation (Law No. 40 of 2004)92 – would violate, in my opinion, the obligation of the State to promote the birth of healthy individuals and to watch over prenatal health so as to allow timely interventions intended to reduce the incidence of possible diseases. This is an obligation that appears to be recognized by a judgement issued in 1998 by the European Court of Human Rights93 which – if read

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KIVILCIM-FORSMAN, “Eugénisme”, cit. supra note 87, p. 535. I dealt with the topic in my Procreazione assistita e famiglia nel diritto internazionale, Padova, 2003. 92 See infra in this volume, Legislation XI (Human Rights). The first case in which Law No. 40 of 2004 has been applied was decided by the Court of Catania which, with an order issued on 3 May 2004 (reproduced in Famiglia e Diritto, 2004, p. 372), rejected a claim brought by a (sterile) couple suffering from beta-thalassaemia, who requested permission to have their embryos submitted to pre-implantation diagnosis and to exclude the implant of embryos found ill (the couple has since raised the question of the legitimacy of the law in respect to the rules of the Italian Constitution protecting the fundamental rights of individuals (Art. 2), the principle of equality (Art. 3) and the right to health (Art. 32)). 93 L.C.B. v. United Kingdom, Application No. 23413/94, Decision of 9 June 1998. In short, the circumstances of the case are the following. The applicant, who had been diagnosed with leukaemia, was the daughter of a British serviceman who had taken part in some nuclear tests performed by the British army. The applicant became aware of the fact that a high incidence of cancers including leukaemia had been detected in the children of other veterans involved in the same nuclear tests. The woman appealed to Strasbourg and complained that the State authorities’ failure to adopt all necessary measures to prevent the effects of radiation on servicemen amounted to a violation of some rights granted by the European Convention (specifically the right to 91


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from the perspective of assisted procreation – seems to imply that those who risk (on account of genetic or environmental reasons) transmitting to the child a serious disease, somehow avoidable by the use of modern reproductive technology (such as in vitro fertilization, pre-implantation genetic diagnosis or embryo selection), must be able to use such technology, even when – it is worth noting – problems of sterility or reduced fertility are not present. From the observations above, I would conclude that in light of present international law norms, the straightforward way for States to limit selection is through a rigorous regulation of access to (prenatal and) pre-implantation diagnosis – and to assisted procreation – and, above all, regulation of its use.94 Any kind of genetic test must aim exclusively at the prevention of the birth of individuals afflicted with serious diseases.95 Also, the task of deciding which pathologies are so serious as to life, the prohibition of inhumane or degrading treatment, and the right to respect for private and family life: Arts. 2, 3 and 8). In particular, the applicant complained that British authorities, not having warned the servicemen about the possible effects on their health of exposure to radiation, had indirectly damaged their children. According to the Court, the duty of information and prevention would have existed only if it had appeared “likely at that time that any such exposure of her father to radiation might have engendered a real risk” to health. Furthermore, the existence of a causal link between the father’s exposure to radiation and the daughter’s disease should have been proved; and it should have been established that monitoring of the applicant’s health in utero and from birth would have allowed an earlier diagnosis and medical intervention so as to diminish the severity of her disease. Failing such evidence, the Court found no violation of the Convention. 94 In this sense see KIVILCIM-FORSMAN, “Eugénisme”, cit. supra note 87, pp. 532-534. It is worth remembering that, like other “services normally supplied on payment” (Art. 50 of the EC Treaty), medical services enjoy freedom of movement within the European Community, a freedom which could be invoked in the most restrictive countries with a view to liberalization and bring about migratory movements toward the countries where restrictions are fewer. At present, the legal landscape in European countries is diversified. Some States explicitly authorize preimplantation diagnosis with more or less strict limitations: the strictest is the Swedish one, which permits diagnosis only in case of serious hereditary and progressive diseases leading to premature death and for which there is neither any treatment nor any chance of recovery (Law No. 115 of 14 March 1991, and directives issued in 1995 by the Department of Health and Social Affairs on prenatal diagnosis and pre-implantation diagnosis). In contrast, other States explicitly outlaw this type of diagnosis: this is the case of Austria (Law No. 275 of 1992 on reproductive medicine), Germany (law on the protection of embryos of 1990), and Ireland (based on the eighth amendment of 1983 to the Constitution). Finally, there are States where, in the absence of specific regulations, pre-implantation diagnosis is allowed as a matter of fact: among these one can list Belgium, Finland, Greece, the Netherlands and the United Kingdom. In Italy, the above-mentioned Law No. 40/2004 on medically assisted procreation forbids, on the one hand, “any form of embryo selection for eugenics purposes” (Art. 13(3)(b)), and, on the other, the suppression of embryos, leaving intact what is provided for by Law No. 194 of 1978 on the termination of pregnancy (Art. 14(1)). The guidelines issued by the Department of Health clarify that pre-implantation diagnosis is not allowed, while it is legal to submit embryos to morphological tests (i.e. under a microscope), and – in case of an irreversible anomaly – not to proceed with the implantation of the embryo. 95 See the remarks made in section 3.2 with reference to Art. 12 of the Convention on Human Rights and Biomedicine.

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justify selection and of carrying out their responsibility as guardians of the heritage of humanity, a responsibility entrusted to them by UNESCO and by the United Nations, is in the last analysis really to be left to States.

6. FUTURE PERSPECTIVES: LESS OF EUGENICS, MORE OF EUPHENICS AND EUTHENICS An aspect that should not be underestimated is that the severity of a genetic disease is to some degree influenced by social and environmental factors, which are in turn under the State’s guidance. For this reason, the State should orient itself to formulate its regulations and support in a flexible way. In case of incurable diseases likely to lead to premature death (for example, Tays-Sachs disease) or in case of those requiring prolonged, intensive and very expensive medical care (for example, beta-thalassaemia), an unfavourable prognosis of the disease and its objective unbearability represent the decisive factor. In the face of a foreseeable situation of this kind, the State should – in my opinion – allow procedures of negative eugenics, ensuring, what’s more, adequate medical and financial support to those families that make the heroic choice to give birth to an ill child.96

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Obviously, the problem arises even when procreation takes place without medical assistance and prevention occurs after the pregnancy has begun. As far as beta-thalassaemia is concerned, Italy is among the countries where the disease has a relatively high incidence (see supra note 42). The Italian law on termination of pregnancy (Law No. 194 of 22 May 1978) allows the mother to undergo an abortion within the first ninety days of the pregnancy in a list of cases in which the pregnancy itself, the delivery or motherhood “would involve a serious danger to her physical or mental health”; these cases include “the anticipation of anomalies or deformities in the unborn child” (Art. 4). After the first ninety days, voluntary termination of pregnancy is allowed only in case of “pathological processes, such as those related to anomalies or deformities in the unborn child, that are likely to produce a serious danger to the physical or mental health of the woman” (Art. 6(b)). These rules have not been modified by Law No. 40 of 2004 on assisted procreation, which, on the one hand, prohibits the suppression of embryos and the embryonic reduction of multiple pregnancies, and, on the other, expressly upholds what is provided for by Law No. 194 of 1978 (Art. 14(1)(4)). Therefore, the Court of Cagliari was right in admitting the claim brought by a woman expecting a pair of twins, one of which was suffering from beta-thalassaemia, in order to have the ill foetus terminated at the eleventh week of pregnancy (Emergency Decree of 5 June 2004, reproduced in Famiglia e diritto, 2004, p. 500). Finally, it is worth mentioning a ruling by the Italian Corte di Cassazione (21 June 2004, No. 11488, and 29 July 2004, No. 14488, reproduced in Foro It., 2004, I, p. 3327 ff. and p. 3328 ff.) according to which the doctor who – in an area where the rate of thalassaemic disease is high – did not perform on the husband of a woman with thalassaemia all the tests necessary to detect the presence of the disease, in order to ascertain the danger of transmission to the unborn child, is responsible for the damages caused by the denial of the possibility to make a choice in favour of the termination of pregnancy and the consequent birth of a thalassaemic baby girl. The doctor is responsible toward both parents, but not toward the daughter, since in the Italian legal system the protection


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In case of chronic, non-fatal diseases that are not economically unbearable but which may be viewed as a burden for the family and society (for example, Down’s syndrome), the State should take a different course of action. The individual affected by such a disease, and his family, are doomed indeed to a low quality of life not so much on account of the disease itself as on account of the low level of acceptance society shows toward most disabling diseases, and the little material and economic support provided by the State. In other words, in these cases it is society that de facto encourages the parents’ eugenic choice, a choice which as a consequence is not completely free (exactly as in China and in India, where it is society that pushes for the abortion of female foetuses).97 Therefore, in such cases the State, rather than supporting an eugenic choice that is partially compulsory, should discourage it by putting into effect restrictions – even strong ones – and at the same time by committing itself to removing the social and economic factors of coercion through interventions at both the personal and the social level: that is, interventions designed to improve, on the one hand, the state of health of the ill and disabled, and on the other, the environmental context in which they and their families find themselves living (education, social acceptance of the disease and social assistance). With regard to this, we must remember that the UN Convention on the Rights of the Child (20 November 1989) – ratified by all States with the exception of the United States and Somalia – provides for the obligation to guarantee to the mentally or physically disabled child the right to enjoy “a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community” (Art. 23.1); the right “to special care and […] assistance” (Art. 23.2) free of charge whenever possible; the right of access to “education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s of the unborn child consists (solely) in the acknowledgment of the “right to be born”, that is, it consists in the right to receive all the treatments necessary to promote birth and health. As a matter of fact, the contract between a pregnant woman and her doctor is qualified as a contract with protective effects in favour of a third party: Vertrag mit Schutzwirkung für Dritte. However, there is no space for the alleged “right not to be born, if birth then implies a wrongful life”, or a life devoid of dignity by reason of serious personal limitations. In other words, there is no principle of “prenatal eugenesis or euthanasia”, such as the principle supposedly recognized by the French Code de la Santé Publique, which provides for the possibility to terminate pregnancy up till the birth when there is a high probability that the unborn child will carry a very serious disease, recognized as incurable at the moment of diagnosis (see new Art. L.2131-4, Bioethics Law No. 800 of 6 August 2004). Leaving aside that such a right, up till the birth, would lack a holder and, after the birth, would vanish, a further problem could arise – according to the Court of Cassation – as to determining the level of handicap required for exercising such a right. Furthermore, in the face of such a right an obligation for the woman to terminate the pregnancy would begin to take shape: so that, if she failed to do that, the child could sue his mother. In the case at issue, the lack of information did not worsen the unborn child’s state of health, since the disease was not treatable at the prenatal stage. See infra note 98. 97 See supra note 33.

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achieving the fullest possible social integration and individual development” (Art. 23.3); all “in the spirit of international cooperation” (Art. 23.4).98 But there is a third category of diseases with which the State will have to cope in the near future: not “devastating” diseases nor disabling ones, but “potential” diseases, in other words those for which the unborn has a mere genetic predisposition and for which surgical and/or pharmacological therapies already exist in a few cases. On this subject, some concerns are raised by the licence recently granted to a UK clinic to subject embryos in vitro to pre-implantation tests intended to identify genetic mutations – related to a couple of oncosuppressor genes – responsible for an hereditary predisposition to breast tumours.99 For one who writes, it seems dangerous to support this kind of selection, since it is tied to risk factors evaluated on the basis of uncertain statistics and can lead to a eugenic drift without limits. It is easy to anticipate that the next step could involve a negative selection of susceptibility genes related to old age pathologies and eventually of characteristics, even multifactorial, that are outside the medical sphere, but unwelcome by the parents – for example, genes influencing the physical features or the intelligence of the unborn child. In this way, the possibility for the child to be born would end up depending on the availability of the right blend of “susceptibility genes” or favourable genes. It seems reasonable to demand that such a drift be halted, starting from a strict set of rules on the use of predictive genetic tests.

98

Article 23 of the Convention on the Rights of the Child is the only universal human rights provision concerning disabilities, since the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights do not contain provisions expressly relating to disabled persons. In 1994 the UN Committee on Economic, Social and Cultural Rights issued General Comment No. 5 on persons with disabilities, in which it was recognized that “it is […] very widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specially designed laws, policies and programmes” and that “[c]hildren with disabilities are especially vulnerable to exploitation, abuse and neglect and are, in accordance with Article 10.3 of the [International Covenant on Economic, Social and Cultural Rights] (reinforced by the corresponding provisions of the Convention on the Rights of the Child), entitled to special protection”. It would be desirable for the UN General Assembly – which has so far elaborated, for the protection of disabled individuals, only soft law rules (Declaration on the Rights of Mentally Retarded Persons, 1971; Declaration on the Rights of Disabled Persons, 1975; World Programme of Action concerning Disabled Persons, 1982; Standard Rules on the Equalization of Opportunities for Persons with Disabilities, 1993) – to support the adoption of an ad hoc convention. The same holds true for the Council of Europe: the European human rights treaties, in fact, protect only indirectly (through the case-law of the European Commission and of the European Court of Human Rights) the rights of persons with disabilities. See the recent document prepared by the Secretariat General, The Council of Europe and the Rights of Persons with Disabilities, 10 May 2004, DG II (2004) 11. 99 BMJ, 2004; 329:1061 (6 November 2004). Together, the genes at issue (Brca1 and Brca2) are responsible for approximately 1 in 20 cases of breast tumours and raise the risk of developing tumours by 80%. A proposal has been advanced to also follow a similar approach relative to the predisposition to tumours of the intestine.


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Certainly, it is difficult in actual fact to make a distinction between the three categories of diseases illustrated above, also considering that, with the increase in genetic knowledge, on the one hand, the list of genes involved in specific ailments will go on progressively growing; on the other, it will perhaps be possible to mitigate the seriousness of certain diseases which, although devastating today, could become compatible with an almost normal life. One may think, for instance, of the eventuality that in the near future technical improvements will make somatic gene therapy effective in the treatment of a wide spectrum of genetic diseases. In sum, the subject is evolving constantly; in this way, its legal discipline must do the same. One consideration I think can hold true for today as well as tomorrow. If taken to extremes, the goal to bring to life only perfectly healthy individuals, noble in itself, can have a negative effect on the destiny of those who – although ill – come to be born. This goal can, moreover, lead to a system in which, degree by degree, the sick and the disabled are unwelcome since they are “avoidable”; and the disease or the handicap is seen purely in terms of social costs. The not too theoretical risk is that of a move toward the alienation of individuals afflicted with an incurable disease or handicap;100 whereas, on the contrary, society should appreciate as a value – suitable for measuring its own degree of civilization – its capacity to cope with disease and handicap (Articles 21 and 26 of the Charter of Fundamental Rights of the European Union, on the principle of non-discrimination based on handicaps, and on the right of persons with disabilities to benefit from measures designed to ensure their social integration are exemplary in this regard).101 If, as one may read in the UNESCO Universal Declaration on the Human Genome and Human Rights, the individual cannot be reduced to his genetic characteristics (that is, to his genotype, as per Article 2(b), in other words there can be no “genetization” of the human being)102 because physical characteristics and individ100

“The public understanding of disabilities, namely as ‘illnesses’ or ‘deformities’ to be eradicated, is difficult to maintain when the eradication of difference through genetic manipulation is within reach. This can be seen as an attempt to manipulate science to carry out a form of ‘disability cleansing’. It reflects a stereotyped conception of the perfect child, which itself can be manipulated by the media and public opinion”: UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Human Rights and the Human Genome, Preliminary Report submitted by the Special Rapporteur Motoc, UN Doc. E/ CN.4/Sub.2/2004/38 of 23 July 2004, paras. 38-39. See also Italian Corte di Cassazione, 29 July 2004, No. 14488, supra note 96. According to United Nations estimates, over 600 million people (approximately 10% of the world’s population) have a disability and are united in one common experience: being exposed to various forms of discrimination and social exclusion. The eugenics drift risks making the situation even worse. 101 Provisions specifically addressing the issue of disability are contained in the American Convention on Human Rights (Art. 18.4) and its Additional Protocol in the Area of Economic, Social and Cultural Rights (Art. 18) too. See supra note 98. 102 LIPPMAN, “Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities”, American Journal of Law and Medicine, 1991, p. 15 ff.

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ual aptitudes (the phenotype) in which the genome expresses itself compete with non-genetic factors internal and external to the organism, then efforts should not be concentrated exclusively on the improvement of the set of genes of the individual. Instead they should aim above all at the optimization of the environment in which the individual is born and develops. It is desirable, therefore, for States to promote a limited use of eugenics, and commit themselves as far as possible to ensure euphenics (as coined by the Nobel Prize winner Joshua Lederberg, father of modern genetics, to indicate the spread of prevention and treatment strategies intended to bring about a healthy or less ill phenotype103) and euthenics (from the Greek word euthēnía, that is, prosperity104), through the improvement of everyone’s quality of life. This is the invitation UNESCO extended to States when – in the Declaration already mentioned (Article 3) – it reminded them that the human genome, of which they are the custodians, “contains potentialities that are expressed differently according to each individual’s natural and social environment including the individual’s state of health, living conditions, nutrition and education” (emphasis added). It is exactly this invitation that UNESCO should renew to States in the universal “code” of bioethics it is preparing, especially with regard to the use of assisted techniques of reproduction.

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It seems that the word was used for the first time in 1963 by LEDERBERG, “Molecular Biology, Eugenics and Euphenics”, Nature, Vol. 198, 1963, p. 428 ff. (“The emphasis on eugenics as the point of application of molecular biology overlooks the most immediate prospects for the understanding and then control of human development. To dramatize the antinomy, I propose the term ‘euphenics’ as the counterpart of ‘eugenics’, in the same sense that ‘phenotype’ is opposed to ‘genotype’”). 104 The combination of eugenics, euthenics, and euphenics is drawn from an online essay by WOLBRING, research scientist at the University of Calgary, available at http://www.thalidomide.ca/ gwolbring/Eugenics,%20Euthanics,%20Euphenics.html. The reduction of the human being to his genes is criticized also by ROCK, “Genetic Norms, Eugenic Logic and UNESCO’s International Bioethics Committee”, Eubios Journal of Asian International Bioethics, 1997, p. 108 ff.

“LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY”: A MISSED OPPORTUNITY FOR INTERNATIONAL HUMANITARIAN LAW? MARCO PERTILE*

1. INTRODUCTION On 9 July 2004 the International Court of Justice (ICJ) rendered its Advisory Opinion on the legal consequences of the construction of what had been defined by the UN General Assembly as a wall in the Occupied Palestinian Territory (OPT).1 The Court clearly sanctioned the illegality of the wall and identified various legal consequences with respect to Israel, third States, the UN General Assembly and the Security Council.2 The Opinion, which is giving rise to a heated debate, is divided into three parts.3 In the first the Court dealt with the preliminary issues of jurisdiction and propriety, which required extensive discussion in view of the legal objections that many participants in the proceedings had put forward.4 The second part concerns the identification and application of the substantive norms considered relevant to

*

Ph.D., Research Fellow, Department of Legal Sciences, University of Trento, [email protected]. 1 See Resolution ES-10/13, 21 October 2003, and Resolution ES-10/14, 8 December 2003. According to the different points of view of the commentators, the barrier which is being erected in the West Bank has been termed “Wall”, “Apartheid Wall”, “Separation Fence”, “Fence”, “Obstacle”, “Barrier”, “Separation Barrier”. For reasons of consistency with the Advisory Opinion of the ICJ, in the present article the term “wall” will be used. Cf. SCOBBIE, “Smoke, Mirrors and Killer Whales: the International Court’s Opinion on the Israeli Barrier Wall”, German Law Journal, 2004, p. 1107 ff., p. 1108, note 4. 2 The Advisory Opinion on “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (hereinafter: Opinion), as well as the Separate Opinions, the Written Statements and the Oral Pleadings of the participants in the proceedings, and the Dossier prepared by the Secretary-General are available at: www.icj-cij.org. 3 See Resolution A/ES-10/ L.18/ Rev.1: the United Nations General Assembly voted overwhelmingly (150 against, 6 with, 10 abstentions) in favour of a resolution calling upon Israel to comply with the Opinion. For a comprehensive debate on the Advisory Opinion, see FISLER DAMROSCH and OXMAN (eds.), “Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory”, AJIL, 2005, pp. 1-141, with contributions by WATSON, POMERANCE, FALK, WEDGWOOD, MURPHY, SCOBBIE, KRETZMER, IMSEIS and DENNIS. 4 For an overview of the jurisdictional arguments presented by the participants in the proceedings, see AKRAM and QUIGLEY, “The International Court of Justice Advisory Opinion on the Legality of Israel’s Wall in the Occupied Palestinian Territory”, Annex 4, p. 24, available at www.palestinecenter.org (last accessed on 23 April 2005).


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assess the legality of the construction of the wall. The legal consequences are quite concisely stated in the last part. Amongst the legal sources relied on by the Court, a major role is played by international humanitarian law. The West Bank and East Jerusalem being considered almost unanimously occupied territories, reliance on the law of war comes as no surprise.5 Therefore, one can safely say that the Opinion of the Court was expected to elucidate the possibility and scope of application of humanitarian law in this type of cases. Contrary to this expectation, the Court, as pointed out in Judge Higgins’ Separate Opinion, has interpreted and applied the body of rules at hand in a “light” way and a “detailed analysis” of the applicable norms has been avoided.6 In this sense, the present Opinion might perhaps be considered a missed “opportunity to elaborate and develop international law”.7 In view of this criticism, it is the purpose of the present article to focus on the way the Court applied and interpreted international humanitarian law and, given the brevity of some focal points of the Opinion, to suggest alternative and supplementary lines of reasoning to support its conclusions. After briefly describing the factual background (section 2), we shall discuss the applicability of the relevant instruments (section 3). Then, we shall proceed with the analysis of the substantive issues connected to the illegality of the wall (section 4) and the legal consequences arising from it (section 5). Some concluding remarks will follow (section 6).

2. THE BACKGROUND 2.1. The Main Features of the “Wall” and of Its Associated Legal Régime The so called wall is actually a complex and multishaped structure, which, depending on location, consists of the following components: four-meter deep ditches on either side with stacks of barbed wire; a dirt path access to which is forbidden; a trace path to discover footprints; an electronic warning fence; a patrol road; a road for armoured vehicles; observation systems and guard towers at regular intervals.8 Where Palestinian populated areas are nearby Israeli towns, the structure can take the form of an 8 meters high concrete wall allegedly to prevent

5

See infra section 3. Separate Opinion of Judge Higgins, paras. 23-24. 7 Ibidem, para. 23. 8 WORLD BANK, The Impact of Israel’s Separation Barrier on Affected West Bank Communities, Report of 4 May 2003 to the Humanitarian and Emergency Policy Group (HEPG) and the Local Aid Coordination Committee (LACC) – The Impact of Israel’s Separation Barrier on Affected West Bank’s Communities, (hereinafter HEPG May 2003 Report), para. 6. See also the description given by the ICJ, Opinion, para. 82. 6

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gunfire.9 At times buffer zones of varying depths are established next to it. In some areas, the main structure is accompanied by secondary barriers composed of ditches and barbed wire and aimed at diverting the traffic to and from the Palestinian towns and villages to a checkpoint.10 The final location and the total length of the structure are not certain.11 The route is the outcome of an ongoing bargaining process in which the decisions of jurisdictional bodies are taken into account.12 The Israeli High Court issued a number of injunctions concerning the route, prohibiting the completion of certain sections.13 The route then underwent a major revision to address a decision of the same Court affirming that the planned route contravened the principle of proportionality as envisaged by international law and Israeli administrative law.14 It is not to be excluded that also the international criticism raised by the present Advisory Opinion may have been a factor in the Israeli Government’s decision to re-deploy part of the structure. Apparently, the Report prepared by the Secretary-General pursuant to General Assembly Resolution ES-10/13 constituted the main source for the Court in analysing the facts of the issue. According to it, due to the winding nature of the route, the total length of the structure would exceed 700 km, nearly twice as long as the green line.15 As a result of the construction, more than 16 per cent of the West Bank would come to lie between the structure and the green line.16 Reports on the aver-

9

Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES10/13, A/ES-10/248 (hereafter Report), p. 4. 10 Ibidem, p. 10. 11 Updates available at the “Seam Zone” web-site of the Government of Israel: www.seamzone.mod.gov.il. 12 See Preliminary Response on behalf of the Respondents, in Hamoked v. The Government of Israel, Judgement of the Supreme Court of Israel sitting as the High Court of Justice, HCJ 9961/03, p. 10, available on line at http://www.hamoked.org/items/3827_eng.pdf (accessed on 18 September 2004). 13 See Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, E/CN.4/2004/6. With regards to the temporary injunctions issued by the High Court before the present decision, see B’tselem, Changes to the Barrier – Israeli and International Ruling Issued, available at www.btselem.org/English/Special/040715_Barrier_Updates.asp (last accessed on 10 September 2004). 14 Beit Sourik Village Council v. The Government of Israel, Judgment of the Supreme Court of Israel sitting as the High Court of Justice, HCJ 2056/04, available on line at http: //elyon1.court.gov.il/eng/verdict/framesetSrch.html (last accessed on 20 September 2004). 15 The project was later revised on 30 June 2004 and on 25 February 2005. See UNITED NATIONS OFFICE FOR THE COORDINATION OF THE HUMANITARIAN AFFAIRS, Preliminary Analysis of the Humanitarian Implications of Latest Barrier Projections, 8 July 2004, available on line at www.humanitarianinfo.org/opt/docs/UN/OCHAupdate3barrierprojections9July04_ maps.pdf (last accessed on 29 February 2005). The updated map of the route is available on-line at www.seamzone.mod.gov.il (last accessed on 15 June 2005). 16 Report, para. 8.

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age width vary from 50 to 70 metres; and it has been maintained that it reaches 100 metres in some sectors.17 The route is located almost entirely in the occupied territory and encompasses the most populous Israeli settlements. Had the structure been completed as planned, around half of the Israeli settlers would reside between it and the Green line.18 As a result of the twisting route, several Palestinian villages are totally encircled; some of them are reachable only through a single road controlled by a checkpoint. The building of the wall requires appropriation of land in the OPT by the Israeli authorities. Private land is requisitioned on the basis of military orders issued for military needs (West Bank) or acts of the Ministry of Defence (East Jerusalem).19 The orders are temporary, their validity being limited to a period of three or five years, but are renewable without limits.20 Validity is not conditioned to deliverance to the interested owners. The part of the territory located between the green line and the structure is subject to a new legal régime, being declared a “closed zone”.21 In order to be allowed to stay, residents must obtain a permit from the Israeli authorities, which is issued for a limited period.22 Entrance by Palestinian non-residents is possible through a number of gates and is conditional on the possession of a personal permit.23 17

Ibidem, para. 9. According to the Report, para. 8, 320,000 settlers (178,000 in East Jerusalem) would be “incorporated” by the route of the Barrier. 19 Requisition orders in East Jerusalem are issued by the Ministry of Defense. Given the annexation of the area by Israel, the military commander does not have the authority to issue military orders there. Some orders of seizure are available on line at: www.hamoked.org (last accessed on 24 September 2004). The orders do not explicitly bring about a change in the ownership of the land, which is temporary requisitioned for a time of three or five years. On the process of seizure of the land, see HEPG May 2003 Report, paras. 34-45. 20 Ibidem. Orders of seizure are available on line at: www.hamoked.org (last accessed on 19 September 2004). 21 See Order Regarding Defense Regulations (Judea and Samaria) (No. 378), 5730 – 1970, Regulations Regarding Crossing in the Seam Area, and Regulations Regarding Permits to Enter and Stay in the Seam Area, available on line at: www.domino.un.org (last accessed on 16 September 2004). Cf. Preliminary Response, cit. supra note 12, p. 9. 22 The Israeli government maintained that “the permit” for residents in the closed area is actually an “identity card”, but that does not seem to change the essence of the problem. Terminological debates notwithstanding, residence on the territory is conditional on the possession of an authorisation released by the Israeli authorities, be it a permit or an identity card. Cf. Report, Annex I, Summary Legal Position of the Government of Israel, para. 10. See Declaration Concerning the Closure of Area Number s/2/03, 2 October 2003, Article 5(a), available at: http: //domino.un.org/unispal (accessed on 16 September 2004). 23 It is reported that permits are valid for entrance through one of the gates only. See WORLD BANK, The Impact of Israel’s Separation Barrier on Affected West Bank Communities, Follow Up Report of 30 November 2003 (Update No. 3) to the Humanitarian and Emergency Policy Group (HEPG) and the Local Aid Coordination Committee (LAAC) – The Impact of Israel’s Separation Barrier on Affected West Bank’s Communities (hereinafter HEPG Report November 2003), paras. 18-29. 18


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Palestinian landowners and farmers whose land is caught on the “other” side of the structure, are subject to the same legal régime. Israeli citizens, Israeli settlers, persons fulfilling the conditions for immigration to Israel according to the law of return, and tourists with a regular visa do not need a permit to enter the closed area.

2.2. The Request of the General Assembly to the International Court of Justice After an unsuccessful attempt to bring the matter before the Security Council, the General Assembly first addressed the legal issues arising from the construction of the wall in its resumed tenth emergency special session.24 By adopting resolution ES-10/13, the Assembly found that the wall contravened relevant international law and demanded Israel to “stop and reverse” its construction activities in the OPT.25 The same resolution also instructed the Secretary-General to periodically report on compliance by the Israeli authorities. The first report affirmed that Israel had not stopped or reversed construction activities.26 The General Assembly then adopted resolution ES-10/14 and asked the ICJ to render an Advisory Opinion on the following question: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?”.27

3. THE APPLICABLE SOURCES OF INTERNATIONAL HUMANITARIAN LAW In its request for the Advisory Opinion, the General Assembly emphasised the relevance of international humanitarian law. The question put to the Court qualified the territory on which the wall is built as occupied and explicitly referred to the Fourth Geneva Convention (IV GC). The preceding paragraphs of Resolution ES-10/14 reaffirmed “the applicability of the Fourth Geneva Convention as well as Additional Protocol I” and recalled the Hague Regulations.

24

A draft resolution was vetoed by the United States on 14 October 2003, see UN Doc. S/2003/980 (2003). 25 See UN Doc. A/RES/ES-10/13 (2003). 26 Report, para. 3. 27 Resolution ES-10/14 is reprinted in Opinion, pp. 5-7.

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The Court is not bound by those legal determinations, but, in any event, it took a different approach as to the applicable sources of international humanitarian law. The Court held that: the Hague Regulations are applicable by way of customary law; the Fourth Geneva Convention is applicable de jure as a treaty ratified by Israel and relevant to the Occupied Palestinian Territory of the West Bank and East Jerusalem; no reference was made to the First Additional Protocol. The starting point of the reasoning is the qualification of the territory on which the wall is being built as “occupied”. That is a prerequisite for the application of the law of occupation, a specific body of rules of international humanitarian law. The Court referred to Article 42 of the Hague Regulations, which was said to reflect customary law, and defined occupation as a factual phenomenon: “[T]erritory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised”.28 Since the relevant territory (situated between the Green Line and the former eastern boundary of Palestine under the Mandate) was occupied during the armed conflict between Israel and Jordan, Israel is to be considered the Occupying Power under customary international law. Despite the negotiating process which has developed over the years and the number of agreements aimed at transferring part of the administrative power to the Palestinian authorities, the status of occupation has not changed since the end of the conflict. According to the Court that process has remained “partial and limited”.29 It is submitted that the finding is correct. Somewhat paradoxically, one might think that the most striking evidence that Israel still holds the West Bank and East Jerusalem as an Occupying Power is the wall itself.30 Construction activities require on-site studies, inspections by experts, seizure of property through an elaborate procedure. Without the control of the territory, the erection of such a complex structure would not be possible.

3.1. The Hague Regulations The Hague Regulations deal with military occupation in section III and are relevant to the facts of the issue. Israel never ratified the Hague Convention to which the regulations are annexed, but their customary nature is generally beyond doubt.31

28

Opinion, para. 78. On the factual nature of the test for military occupation, see ROBERTS, “What is a Military Occupation?”, BYIL, 1984, p. 249 ff., p. 250. 29 Opinion, para. 77. 30 OXFORD PUBLIC INTEREST LAWYERS, Legal Consequences of Israel’s Construction of a Separation Barrier in the Occupied Territory, University of Oxford, 2004, p. 21, para. 115. 31 GREENWOOD, “Historical Development and Legal Basis”, in FLECK (ed.), Handbook of Humanitarian Law in Armed Conflict, Oxford, 1999, p. 1 ff., pp. 24-25, para. 126.


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In the present Opinion the Court affirmed the customary nature of the Hague Regulations relying on its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and on a decision of the International Military Tribunal.32 The Court further noted that the point was recognised by all the participants in the proceedings. The finding rests on solid grounds as State practice is clear.33 However, taking into account the Nuclear Weapons Opinion, the present determination by the Court that the “Hague Regulations have become part of customary law”34 is no statement of the obvious. Admittedly, in the Nuclear Weapons Opinion, the Hague Convention (as well as the Fourth Geneva Convention) were placed amongst the treaties which had acquired customary nature.35 Yet the question as to whether only some fundamental norms, and in this case which ones, were to be regarded as customary in nature was left open.36 On the contrary, in the present case the language seems to determine that the whole body of rules of the Hague Regulations is part of customary law.

3.2. The Fourth Geneva Convention In order to ascertain the applicability of the Fourth Geneva Convention to the OPT no reference to customary law is necessary. Israel is a party to the Convention but objects to its relevance in the case at hand. The subject is threadbare but fundamental and the Court discussed it in detail. As it is probably known, the relevant parts of Article 2, paras. 1 and 2 IV GC read: “[…] [T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

32

Opinion, para. 89. See, however, MERON, “The Continuing Role of Custom in the Formation of International Humanitarian Law”, AJIL, 1996, p. 238 ff., pp. 239-240, on the tradition of relying mainly on verbal evidence rather than operational practice in assessing customary humanitarian law. 34 Opinion, para. 89. 35 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, pp. 256-259. 36 In the Nuclear Weapons Opinion (ibidem, para. 79), the Court referred to “a great many rules of humanitarian law applicable in armed conflict”. 33

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Israel mainly relies on a literal interpretation of the second paragraph of Article 2 of the Convention, assuming that applicability is limited to the occupation of territories belonging to “a High Contracting Party”.37 According to the Israeli authorities, before the Israeli occupation, the West Bank never actually fell under Jordanian sovereignty. The fact that Jordan is a party to the Fourth Geneva Convention since 1951 would thus be totally irrelevant because the territory occupied by Israel still is not a territory of a High Contracting Party. The Government has nevertheless repeatedly maintained to be ready to apply de facto the humanitarian provisions of the instrument.38 The Court confuted this approach through a textual and teleological interpretation of Article 2, in line with the requirements of Article 31 of the Vienna Convention considered as part of customary law.39 Accordingly, it held that the first two paragraphs of Article 2 are to be examined together: paragraph one puts forward the general rule of applicability, while paragraph two is aimed at clarifying that also the peculiar exception of an occupation meeting with no armed resistance falls under the application of the Convention. The only relevant elements for the Convention to be applicable are the existence of an armed conflict and that the armed conflict has arisen between two or more contracting parties. All instances of occupation originating from such an armed conflict are covered, irrespectively of the previous status of the occupied territory. As a consequence, ascertaining whether Jordan had acquired sovereignty over the West Bank and East Jerusalem before the 1967 war is

37

See SHAMGAR, “The Observance of International Law in the Administered Territories”, Israel Yearbook of International Law, 1971, p. 262 ff.; BLUM, “The Missing Reversioner: Reflections on the Status of Judea and Samaria”, Israel Law Review, 1968, p. 279 ff. The international community, in contrast, almost unanimously regards the Fourth Geneva Convention as applicable to the occupied Palestinian territory, cf. ROBERTS, “Prolonged Military Occupation: The Israeli-Occupied Territories since 1967”, AJIL, 1990, p. 49 ff., pp. 69-70. 38 According to ROBERTS, ibidem, p. 62, the distinction between de jure and de facto applicability of the Fourth Geneva Convention was first put forward at the beginning of the Seventies by the then Attorney General of Israel, Meir Shamgar. See SHAMGAR, ibidem, p. 262 ff., p. 266. As concerns the practical value of this approach, one may wonder what the non-humanitarian provisions of an instrument that could be considered humanitarian in nature are. Cf. GASSER, “Protection of the Civilian Population”, in FLECK (ed.), cit. supra note 31, p. 209 ff., p. 242, para. 524. In this respect, it is to be noted that the Israeli authorities have never officially clarified which are the provisions of the Convention that they regard as humanitarian. Considering the law of occupation in its entirety, one might affirm that the Hague regulations contain both humanitarian provisions and provisions regarding the protection of the interests of the ousted sovereign. Cf. BENVENISTI, The International Law of Occupation, Princeton, 1993, pp. 3-6. Yet it is clear that the Fourth Geneva Convention seems to be exclusively concerned with the protection of civilians and the validity of the humanitarian criterium to discriminate amongst its provisions is doubtful. See Palestine Written Statement, para. 411. 39 Opinion, para. 94. Cf. IMSEIS, “Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion”, AJIL, 2005, p. 102 ff., pp. 103-105, who argues that “Israel’s position is more detailed than the Court relates”.


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irrelevant. That war having been an armed conflict between contracting parties, the subsequent Israeli occupation is to be regulated by the Convention. The approach is in line with the aim of the Convention. The Court recalled that the intention of the drafters was to “protect civilians who find themselves, in whatever way, in the hands of the occupying Power”.40 Article 47 was said to demonstrate the irrelevance of any question regarding the status of occupied territories with respect to the protection of civilians. The intention of the drafters was therefore considered in an objective way as mirrored by the text of the Convention. Subsequently reference to the travaux préparatoires was made, but only to confirm the interpretation already put forward. While the interpretation of Article 2 provided by the Court is pellucid, the final part of the analysis is somewhat weak. The Court referred to a number of additional elements to corroborate its finding. Several documents, declarations, and resolutions in which the High Contracting Parties, the ICRC, the General Assembly, the Security Council, and the Supreme Court of Israel affirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory were mentioned. “In view of the foregoing” – the Court concluded – “the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties”.41 The legal qualification of those elements is not totally clear. The Court seemed to treat them as judicial precedents and did not advance any explanation of their legal value.42 It goes without saying that the mentioned documents – the General Assembly and the Security Council resolutions in particular – can be interpreted as evidence of a practice demonstrating the opinio juris of the international community on the applicability of the Fourth Geneva Convention. Under certain conditions the existence of a customary norm could be inferred from them.43 Yet one might doubt whether such a norm could concern a single situation and simply oblige a recalcitrant State to comply with a conventional body of rules.44 Admitting

40

Opinion, para. 95. Ibidem, para. 101. 42 On the “quasi judicial” role of the Security Council and the General Assembly, see Palestine Oral Pleading, p. 42, quoting SCHARFFER. As concerns the Court’s attitude to rely heavily on Security Council Resolutions, PELLET, “Strengthening the Role of the ICJ”, The Law and Practice of International Courts and Tribunals, 2004, p. 159 ff., pp. 168-169. 43 On the intricacies which are inherent in treating UN Resolutions and votes in UN organs as evidence of customary norms, see however ARANGIO RUIZ, The UN Declaration on Friendly Relations and the System of the Sources of International Law, Alphen aan den Rjin, 1979, pp. 61-62. 44 It is of interest to note that the Court, dealing with the questions of jurisdiction and in particular with the evolution of the interpretation of Article 12 UN Charter, referred to “the accepted practice of the General Assembly”. The acceptance of the practice was mentioned even if the evolution was considered “consistent with Art. 12, paragraph 1, of the Charter”. See Opinion, para. 28. 41

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that a customary norm, when not accepted by a party to a treaty, can modify the conditions of applicability of that same treaty is problematic. In the context of a multilateral treaty the relevance of an emerging customary norm, if not of a peremptory character, is probably limited to the parties engaged in the relevant practice or acquiescing to it.45 It follows that reference to the above mentioned elements would add nothing to the result already reached by the textual and teleological interpretation of Article 2. Perhaps one should better ascertain whether a general rule extending the applicability of humanitarian or even also human rights treaties has come into existence. From this perspective it is to be underlined that the Court seemed to generalise the scope of its finding referring to “any occupied territory”.46 Nor could one easily consider the elements at stake – even the decisions of the contracting parties – as part of a subsequent practice according to Article 31, para. 3(b), of the Vienna Convention on the Law of Treaties.47 It is to be underlined that the norm requires the practice to have probative value of the existence of an agreement between the parties to a treaty. The travaux préparatoires demonstrate that the active participation of all the parties is not needed.48 Nevertheless in order for an agreement to be concluded all the parties should, at least tacitly, accept the relevant practice. In view of the firm opposition of Israel to the de jure applicability of the Convention, the existence of an agreement can be doubted. It is also doubtful that the decisions of the Supreme Court, given that the Government has repeatedly taken a different view at the international level, can be qualified as evidence that Israel acquiesced to the practice.49

45

Article 68 of the 1964 ILC Draft on the Law of Treaties stated that a treaty can be modified “by the subsequent emergence of a new rule of customary law relating to matters dealt with in the treaty and binding upon all the parties”. The matter was subsequently dropped mainly because the Special Rapporteur Waldock regarded it as concerning “acts done outside the treaty and not in relation to it”. Some governments and the Special Rapporteur however affirmed that they doubted that the emergence of a new customary rule binding between the parties to a treaty is necessarily to modify the particular relations between them. That could have defeated their intention, which is most of the times to set up a special legal régime. See Sixth Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, Doc. A/CN.4/186, YILC, Vol. II, 1966, pp. 90-91. 46 Opinion, para. 101. 47 Contra, see Palestine Written Statement, para. 392. 48 See Report of the International Law Commission on the Work of its Eighteenth Session, YILC, 1966, Vol. II, p. 222 ff. On the role of acquiescence with reference to a “série” of resolutions, CONFORTI, “Le rôle de l’accord dans le système des Nations Unies”, RCADI, 1974-II, p. 203 ff., pp. 246-250. 49 Explaining the position of Israel, the Court also referred to a single act of the Military Commander adopted in 1967, which affirmed the applicability of the Fourth Geneva Convention to the Occupied Territory. That is also incompatible with implicit acceptance of the practice, simply because it was adopted at the beginning of the occupation, in a moment when the relevant conduct had not yet emerged in the international community.


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To sum up, while the reasoning of the Court as concerns the textual and teleological interpretation of Article 2 IV GC is clear and well established, the legal qualification of the practice subsequently referred to is missing. It is therefore plausible to think that the additional elements mentioned above only constitute subsidiary means with regard to a legal result that was already determined.

3.3. The First Additional Protocol The First Additional Protocol to the Geneva Conventions has not been ratified by Israel. In the present case the Court never referred to it and did not address the issue of its possible customary nature.50 In view of the Nuclear Weapons Opinion one could think that the Court does not regard the Protocol as containing relevant customary norms. In that occasion only the norms restating previously existing principles were held to be customary in nature.51 The norm mirroring the Martens clause as well as the principle of distinction and the principle prohibiting weapons causing unnecessary suffering were mentioned.52 Nonetheless, in addition to the General Assembly Resolution ES-10/14, a number of participants in the proceedings referred to Additional Protocol I.53 In the abstract the Protocol contains a number of norms that could have been relevant to qualify the facts before the Court. One could refer to Article 3(b), which could have neutralised the one-year limit to the application of the whole body of norms of the Fourth Geneva Convention,54 or to Article 11, concerning the protection of physical health of persons who are within the power of the adverse party. Article 69 would have extended and specified the duties of the Occupying Power with regard to the basic needs of the civilian population. It is also worth noting that Article 85, para. 4(a), qualifies as a grave breach the transfer of population of the Occupying Power to the occupied territory. The conduct is prohibited by Article 49, para. 6, IV GC, but does not constitute a grave breach according to Article 147 IV GC. Subsequently the Statute of the International Criminal Court criminalised the prohibition, but its customary nature

50

On the point, see GREENWOOD, “Customary Law Status of the 1977 Geneva Protocols”, in DELISSEN and TANJA (eds.), Humanitarian Law of Armed Conflict – Challenges Ahead, Dordrecht, 1991, p. 93 ff. 51 Cf. ABI SAAB, “The 1977 Additional Protocols and General International Law”, in DELISSEN and TANJA (eds.), ibidem, p. 115 ff., pp. 119-121, who argues that “the main contribution of the Protocols” lies in “reaffirming pre-existing law”. See also POCAR, “Protocol I Additional to the 1949 Geneva Conventions and Customary International Law”, Israel Yearbook on Human Rights, 2001, p. 145 ff. 52 Legality of the Threat or Use of Nuclear Weapons, cit. supra note 35, paras. 74-84. 53 See Jordan Written Statement, p. 63; Palestine Written Statement, para. 414. 54 See infra subsection 4.2.

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is still doubtful.55 Since the Court explicitly found that Israel breached Article 49, para. 6, one might have expected the issue of criminalisation to come up for discussion. However, no particular meaning can be attached to the decision not to address the point. As it will be seen below, the Court openly chose to ignore issues of individual criminal responsibility.56

4. THE INTERPRETATION AND APPLICATION OF INTERNATIONAL HUMANITARIAN LAW With respect to the facts of the case, a distinction can be made between activities connected to the construction of the wall and their adverse consequences on the affected population. That could simplify the analysis of the substantive aspects of the decision.57 For the first category, one might put into question the legality of the seizure and the destruction of the land. Is the seizure of the land legal? Is the destruction of the property in the seized land lawful? What are the norms applicable to those acts? The evaluation of the facts does not seem difficult: one has to assess the activities that are strictly connected to the erection of the structure. Secondly, one may evaluate the consequences arising from the existence of the wall and from the legal régime associated to it in order to understand to what degree the life of the population is affected. In the early stages of the construction of the wall this kind of judgement is rather complicated in that it requires the assessment of the situation in the future. The Court followed the partition but addressed the facts in quite a curious manner. As a first step, it identified the relevant legal framework. As to the Hague Regulations, Article 23(g) – i.e. the main legal justification relied on by Israel for the seizure of property –58 was considered not applicable on the basis of a contextual argument. With regard to the Geneva Convention, the Court further noted that Article 6 applied and that, more than one year having passed after the general close of hostilities, only the provisions identified by the third paragraph could have been relevant to the case at issue. Secondly, the Court identified some relevant provisions of international humanitarian law and human rights law, as the two bodies of norms are considered together. A number of provisions are merely listed and the text of some of them is reproduced in its entirety. Articles 43, 46, 52 of the Hague Regulations and Articles 47, 49, 52, 53, 59 of the Fourth Geneva Convention were referred to.

55

See CASSESE, International Criminal Law, Oxford, 2003, pp. 59-60. See infra subsection 5.3. 57 For the same approach see Palestine Oral Pleading, p. 49. 58 Report, Annex I, cit. supra note 22. 56


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Then, out of the blue: “From the information submitted to the Court […] it appears that the construction of the wall has lead to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention”.59 A detailed factual description of the hardships that the wall imposes on the affected population followed. Figures from different sources were quoted, examples were given. But then again, without any further elaboration: “[…] the Court is of the opinion that […]” the construction of the wall and its associated legal régime impede the liberty of movement, the right to work, to health, to education and to an adequate standard of living.60 All human rights violations were dealt with in the framework of the conventional instruments for human rights protection. As for international humanitarian law, the Court stated that the wall contravened Article 49, para. 6, IV GC, the prohibition of transferring population of the Occupying Power to the occupied territory. The issue of military necessity was concisely dealt with. The route chosen for the wall was not considered to be necessary to attain Israel’s security objectives. In the following sections, we shall try to assess the Court’s findings under international humanitarian law. We shall also point out other possible violations that were ignored by the Court.

4.1. The Seizure and the Destruction of Property As has been said above, in dealing with the activities strictly connected to the erection of the wall, the Court found that destruction and seizure of property had been carried out in breach of Articles 46 HR, 52 HR, and 53 IV GC. Article 23(g) HR, in contrast, was not regarded applicable. It is submitted that such findings are legally tenable albeit incomplete. As a first step, Article 46 HR spells out the general rule on the status of private property in the occupied territory. The provision explicitly requires respect for private property and prohibits confiscation. Derogation to the prohibition of destruction and appropriation of private property in the occupied territory is exceptional in nature and is to be grounded in other specific provisions.61

59

Opinion, para. 132. Ibidem, para. 134. 61 Cf. DAVID, Principes de droit des conflits armés, Bruxelles, 2002, pp. 519-520. 60

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In a similar vein, Article 23(g) HR prohibits in general terms the destruction and the seizure of enemy property, but allows the exception that they “be imperatively demanded by the necessities of war”. The provision is aimed at precluding deliberate attacks against civilian property in time of armed conflict. Destruction is permissible only when inevitable and justified by military necessity in the form of the necessities of war.62 As the Court rightly noted, in the legal system envisaged by the Hague Regulations, the present Article is placed in section II, concerning the regulation of hostilities and in chapter I, which is titled: “means of injuring the enemy, sieges, and bombardments”. As demonstrated also by the explicit reference to the “necessities of war” in the text of the provision, a necessary precondition for its application is the existence of a state of hostilities.63 On the other hand, when a state of occupation occurs, the applicable norms are to be found in section III of the Hague Regulations and in the relevant provisions of the Fourth Geneva Convention. On systematic grounds, applicability of Article 23(g) HR to the facts of the present issue is therefore highly doubtful. Systematic interpretation clarifies that the provision is applicable during a state of hostilities and the view might be taken that in the West Bank and Israel a classical armed confrontation is not taking place.64 The situation may perhaps be classified as a low intensity conflict. The terrorist attacks and the attacks against the IDF – despite their seriousness and number – may be viewed as isolated and not part of a protracted armed confrontation between an army and an organised armed group.65 Moreover, it is to be noted that, since the

62

KOLB, Ius in Bello, Bruxelles, 2003, p. 121 ff. Cf. DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, 2004, pp. 218-219; DAVID, cit. supra note 61, pp. 268-269. 64 For a definition of non-international armed conflict, see Article 1 of the Protocol II additional to the Geneva Conventions. Compare the “Tadic case”, Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeal on Jurisdiction, Judgment of 2 October 1995, para. 70. Both definitions seem to revolve around the following elements: a) protracted armed violence; b) confrontation between a State and (at least) one organised armed group; c) control over a part of territory by the organised group. Cf. JINKS, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts”, Harvard Program on Humanitarian Policy and Conflict Research, pp. 4-6, available at www.ihlresearch.org (last accessed on 23 April 2005). On the effect of hostilities on occupation, see ROBERTS, “The End of Occupation: Iraq 2004”, International and Comparative Law Quarterly, 2005, p. 27 ff., pp. 33-35. 65 See Question of the Violation of Human Rights in the Occupied Arab Territories – Report of the Human Rights Enquiry Commission Established Pursuant to Commission Resolution S-5/1 of 19 October 2000, E/CN.4/2001/121, paras. 38-40. In general terms, the Inquiry Commission seems to leave the question of the qualification of the present situation as an armed conflict open. The Commission however stated: “[…] there is enough doubt in the minds of the members of the Commission as to the prevailing situation to place in question the assessment of the situation as an armed conflict by the IDF justifying its resort to military rather than police measures”. Cf. KRETZMER, “The Advisory Opinion: The Light Treatment of International Humanitarian Law”, AJIL, 2005, p. 88 ff., p. 95. 63


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beginning of the second intifada, the complete control of the territory by Israel has been rarely put into question. It is also submitted that the different wording and the systematic position of Article 53 IV GC and Article 23(g), both dealing with destruction of property, preclude their contextual applicability in that a relationship of speciality would exist between them. The purpose of Article 53 IV GC, which, in light of the peculiar situation of occupied territories, was meant to specify and restrict the scope of the general rule put forward in Article 23(g), would be frustrated by the concurrent applicability of the latter.66 In this respect, Article 53 IV GC, after stressing the general prohibition of deliberate destruction of private property, permits such destruction when carried out by the occupying power and “rendered absolutely necessary by military operations”. The Article was meant to be framed more restrictively than Article 23(g), reinforcing its protection and extending its effects on the occupied territory.67 In general terms, during combat, destruction might be permitted provided that it is necessary for war. In activities carried out in the occupied territory, destruction must be linked to the necessities of military operations. Both provisions recognise that under certain conditions the destruction of property is inevitable and aim to link it with the activities connected to the overcoming of the enemy forces.68 As directly concerns the destruction of property and Article 53 IV GC, the central question is whether the destruction of the land for the purpose of building the wall can be considered absolutely necessary for military operations. Before examining the meaning of absolute necessity a preliminary question arises: can the erection of the wall qualify as a military operation? A negative answer seems unavoidable. The relationship between Articles 53 IV GC and 23(g) HR demonstrates that the concept of “military operations” relates to combat activities and the active operations that an army may have to carry out also in occupied territories.69 The construction of the wall, as a complex project, planned over a span of years and substantially preventive in nature is quite different from the traditional concept of military operations. A flexible interpretation of the text of Article 53 IV GC would be necessary in order to include the wall amongst military operations. Such a solution however seems to be precluded by the wording of the Article which, after stressing the overall prohibition of the destruction of property, recognises the

66

Cf. SCHWARZENBERGER, The Law of Armed Conflict, London, 1968, p. 253, who states that Article 23(g) could be applied to occupied territories only on the basis of “analogy”. 67 PICTET (ed.), IV Geneva Convention – Commentary, Geneva, 1958, pp. 300-301. 68 DINSTEIN, cit. supra note 63, pp. 218-219; BOTHE, PARTSCH and SOLF, New Rules for Victims of Armed Conflicts, The Hague, 1982, p. 320 ff. 69 Cf. DINSTEIN, cit. supra note 63, pp. 218-219. See also SCOBBIE, “The Wall and International Humanitarian Law”, Yearbook of Islamic and Middle Eastern Law, 2004, p. 495 ff., p. 504, arguing that the Commentary on Article 51(1) of Additional Protocol I demonstrates that the concept of military operations is connected to violent activities.

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necessities of military operations in the form of a derogatory clause. As for all derogatory clauses strict interpretation is required. Even assuming that the wall could be considered a military operation, the measure must be put to the test of necessity. The Court’s approach to military necessity will be commented upon in subsection 5.3. For the time being, it will suffice to note that the minimum requirement to pass the test of necessity is that the measure adopted be relevant (i.e. effective) to the objective sought. Necessity being qualified by Article 53 as “absolute”, one may moreover think that a generic military advantage would not be sufficient. To sum up, as concerns the destruction of the land, the possibility of finding in Article 53 IV GC a legal basis as well as the overall applicability of Article 23(g) to the facts of the issue is to be excluded. The legal basis of the appropriation of the land – the other preliminary activity for the building of the wall – is uncertain as well. In contrast with Article 23(g) HR, which explicitly deals with destruction and seizure, Article 53 IV GC does not mention any form of appropriation of private property by the Occupying Power. A legal tool with which the occupying power may gain possession of private property in the occupied territory is provided for by Article 52 HR, which deals with “requisitions in kind” and services for the “needs of the army of occupation”. The provision entitles the Occupying Power to requisition private property on the condition that: they are proportionate to the resources of the country; they are demanded on the authority of the military commander of the area; and payment is given as soon as possible. The application of Article 52 HR to the case at issue requires the preliminary assessment of the concept of “requisition in kind” and the analysis of the scope of the expression “needs of the army”. First, it is to be considered whether the extensive appropriation of land carried out to build the wall is compatible with the concept of requisition as envisaged by the provision. Secondly it is to be assessed whether the needs of the army include the building of the wall. With regard to the first question, two arguments cast serious doubts on the applicability of Article 52 HR to the seizure of the land on which the wall is located. According to the travaux préparatoires the concept of requisition was meant to be applicable only to the seizure of properties strictly connected to the maintenance and the supplying of the occupying forces in the occupied territory. Goods such as clothing and footwear, foodstuffs, attelage, and vehicles were referred to.70 The

70

MECHELYNK, La Convention de La Haye d’après les Actes et Documents des Conférences de Bruxelles de 1874 et de La Haye de 1899 et 1907, Gand, 1915, p. 369 ff. Cf. the statement of Baron Jolimini, representative of Russia at the Bruxelles Conference of 1874: “quand l’armée d’occupation, par des nécessités de guerre, exige de la population locale des objects d’approvisionnement, d’habillement, de chaussures et autres nécessaires à son entretien, elle est tenue ou d’indemniser le personnes qui lui cèdent leur propriété, ou de leur délivrer des quittances” (emphasis added).


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emphasis is on movable property while reference to immovable property mainly concerned housing. Thus, it is not clear whether the concept of requisition in kind is applicable to large-scale requisitions of immovable property such as land.71 With regard to the legal effects of requisition, according to the analysis of the travaux préparatoires, transfer of the right to property would be possible on the condition that a payment is given.72 As for the second argument, when private immovable property is concerned requisition is generally regarded as temporary.73 The systematic interpretation of Article 52 HR would render the concept of requisition incompatible with a permanent transfer of immovable property. The word “requisition” should be read in opposition to “confiscation”, which is prohibited in general terms in the occupied territory by Article 46 HR. Article 52 HR is framed as an exception to the principle of respect for private property and prohibition of confiscation, sanctioned by Article 46 HR. As a result of the combined reading of the two provisions, permanent appropriation of immovable private property in the occupied territory would be ruled out, while only temporary use would be lawful under the concept of requisition, provided that the conditions mentioned above are fulfilled. A distinction based on the nature of the requisitioned properties seems to be relevant. When goods for consumption such as foodstuff and clothing are at issue, the transfer of property is unavoidable, while for immovable goods or durable goods the general principle of the prohibition of confiscation applies and only temporary use is admitted.74 71 VON GLAHN, The Occupation of Enemy Territory – A Commentary on the Law and Practice of Belligerent Occupation, Minneapolis, 1957, p. 186 ff.; contra DINSTEIN, “The International Law of Belligerent Occupation and Human Rights”, Israel Yearbook of Human Rights, 1978, p. 104 ff., p. 134; cf. SCHWARZENBERGER, cit. supra note 66, pp. 268-288; OPPENHEIM, International Law, 7th ed., London, 1952, Vol. 2, p. 405 ff., who admitted the (temporary) quartering of soldiers and their horses on private property as a special form of requisition not specifically referred to by Article 52, but implied by it. 72 MECHELYINK, cit. supra note 70, pp. 373-374. 73 GASSER, cit. supra note 38, pp. 246-247, p. 261, paras. 532 and 558; SCOBBIE, “Natural Resources and Belligerent Occupation: Mutation through Permanent Sovereignty”, in BOWEN (ed.), Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territory, The Hague, 1997, pp. 229-230. At least formally, the Israeli High Court recognised in its case law concerning the settlements that requisition of private land could only be carried out on a temporary basis. See Ayyub v. Minister of Defense (the Beth El case), Judgement of the Israel Supreme Court sitting as the High Court of Justice, excerpted in English in Israel Yearbook of Human Rights, 1979, p. 345 ff.; Dwaikat and Others v. The State of Israel and Others, (the Elon Moreh case), HC 390/79, Judgement of the Israel Supreme Court sitting as the High Court of Justice, English translation in ZAMIR and ZYSBLAT (eds.), Public Law in Israel, Oxford, 1996, p. 389 ff. In a case concerning the quartering of IDF soldiers on privately owned land (Goha v. Military Commander of the Judea and Samaria Region, Judgement of the Supreme Court of Israel sitting as the High Court, HCJ 290/1989, excerpted in Israel Yearbook of Human Rights, 1993, p. 323 ff.), the HCJ stressed that “except in circumstances of continuing actual warfare, the seizure must be limited to a defined period of time”. 74 Cf. SCOBBIE, ibidem, p. 230; SCHWARZENBERGER, cit. supra note 66, p. 276.

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Applying the legal framework described above, the requisition of the land carried out to build the wall seems incompatible with Article 52 HR. Although the orders of requisition formally comply with the requirements of the provision, qualifying the extensive seizure of the land as a temporary requisition is very problematic.75 In particular, it is to be noted that after the seizure the land is completely transformed and cultivation is permanently destroyed. The view might be taken that, in light of such a permanent alteration of the land, the facts of the issue might be better qualified as a de facto expropriation, which is incompatible with the temporary nature of requisition.76 Furthermore, as has been said before, one should consider that despite formal statements to the contrary the wall is inherently a long-term measure, which precludes the future restitution of property. Historical precedents have to be taken into account in this respect. The issuing of (formally) temporary orders of requisition lies at the basis of the seizure of the land on which the Israeli settlements have been located in the occupied territory.77 At present, the prospects of future restitution of such requisitioned property seem to be minimised.78 Finally, with regard to the scope of the phrase “needs of the army” it is to be recalled that the concept was conceived as connected to the logistical needs and the practical necessities related to the maintenance of the army in the occupied territory.79 Neglecting the analysis of the historical framing of the provision, which is not legally conclusive on the point, one might perhaps take the view that the needs of the army are related to the functions of the military. Accordingly, since the first duty of the military is defending the country, one might therefore assume that an allegedly defensive measure falls under the scope of the concept at issue. Again, it has to be pointed out that the expression “needs of the army” constitutes an exception in a provision formulated as a prohibition. In such a case, strict interpretation is to be preferred.

75

See supra subsection 2.1. On de facto expropriation, cf. INTERNATIONAL COMMISSION OF JURISTS, Israel’s Separation Barrier – Challenges to the Rule of Law and Human Rights, pp. 40-42 available at www.icj-cij.org (last accessed on 24 November 2004); Jordan Written Statement, pp. 134-138. 77 See LEIN, Land Grab: Israel’s Settlement Policy in the West Bank, B’Tselem Report, 2002, p. 31 ff.; HEPG Report November 2003, para. 52. Cf. GASSER, cit. supra note 38, para. 558. 78 At present, in the West Bank, the expansion of the existing settlements is continuing steadily, being authorised by the Government, see BENN, Israel still Expropriating Land to Expand Settlements, (Haaretz article, 26 September 2004) available on line at: www.haaretz.com (last accessed on 6 October 2004). Apparently up to 13 per cent of the territory of the West Bank is undergoing a process of review possibly to be designated as State Land. After the Elon Moreh case (cit. supra note 73), the designation of a land as “State Land” is the habitual method for the Israeli authorities to appropriate the land where settlements might be established. In the same context, illegal outposts are being established by the settlers. See SHRAGAI and HAREL, Court Turns Down Petition Against Removal of Outposts, (Haaretz article, 27 September 2004) available on line at www.haaretz.com (last accessed on 1 October 2004). 79 Cf. League of Arab States Written Statement, para. 9.13. 76


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In such a legal framework and considering the facts before the Court, one fails to understand why no reference was made to Article 55 HR, which could have better clarified the obligations of the Occupying Power with respect to real property and natural resources. The norm is certainly relevant and sets the standard of the “usufructuary and administrator”.80 Under the law of occupation, the seizing of public land is thus strictly limited as the Occupying Power does not exercise any form of sovereignty over the territory. Permanent changes in the destination of the land, in particular, are by definition precluded to the usufructuary. It may be submitted that in order to fulfil its obligations under the law of occupation, the Occupying Power might change the destination of some portion of public land, to restore ordre public under Article 43 HR, for instance. A limited intervention of this kind would be compatible with the role of the administrator who, for a legitimate purpose, and with the interests of the administered territories in mind, changes the destination of the land. Yet such an approach is highly questionable since it requires a non-literal interpretation of the word “usufructuary”. The text of the Article is quite clear: the Occupying Power must act as concerns public property only as administrator and usufructuary. The role of the administrator is connected to the legal status of the usufructuary and the Occupying Power must be administrator and usufructuary at the same time. An administrator might bona fide and in the interest of the administered territories change the legal status of the land, but that would certainly be precluded to the usufructuary. Unless one does not regard reference to usufructus as a mere indication of a general principle stating the necessity to minimise the changes to the land, any alienation of public land is thus prohibited. The text seems to preclude this interpretation since the final phrase of paragraph 1 reinforces the need to “administer in accordance with the rules of usufruct”. The explicit reference to the “rules” of usufruct seems not to allow any doubts on this point. At the very least, Article 55 IV GC, together with the other provisions of the Hague Regulations and of the Fourth Geneva Convention mentioned above, can be regarded as the expression of a principle underlying the law of occupation: changes of whatever nature to the occupied territory by the Occupying Power must be kept to the minimum.81 The rationale is grounded in the nature of the legal status of the Occupying Power: occupation is an inherently temporary situation and the Occupying Power cannot acquire sovereignty over the occupied territory through the lapse of time.82 80 Article 55 HR reads: “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct”. See SCOBBIE, cit. supra note 73, p. 232 ff. 81 Cf. GASSER, cit. supra note 38, pp. 245-246, para. 530. Several provisions demonstrate that the international law of occupation embodies a strong presumption against the legality of any change to the legal order, to public life and to the physical features of the occupied territory. See, inter alia, Articles 47 IV GC, 43 HR, 48 HR and 49 IV GC. 82 Cf. Palestine Written Statement, para. 431.

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4.2. The Consequences of the Wall and of Its Associated Legal Régime As has been seen, reliance by the Court on international humanitarian law is rather limited when it comes to the consequences of the wall and of its associated legal régime. The Court found that the erection of the wall constituted an (indirect) violation of Article 49, para. 6, IV GC.83 No other provisions were referred to. Human rights issues were addressed through the application of specific conventional instruments dealing with human rights protection. As for this latter aspect, it is to be noted that the scope of the applicable norms of international humanitarian law was considered to be limited by Article 6, para. 3, IV GC. According to that provision “one year after the general close of the military operations” only some norms of the Fourth Geneva Convention are applicable in occupied territories. Two assumptions lie at the basis of the application of Article 6, para. 3, IV GC in the present case. First, the phrase “general close of the military operations” refers to the military operations that lead to the occupation of the territory and does not apply to any military operation or policing action that is subsequently carried out by the Occupying Power.84 The Court seemed to imply that it is to be excluded that any subsequent use of military force in the occupied territory may bring about the applicability of the entire Fourth Geneva Convention. Secondly, the Court clearly took the view that Article 3(b) of the First Additional Protocol has not achieved customary nature. As noted in para. 3.3 above, that provision would have extended the applicability of the entire content of the Fourth Geneva Convention until the end of the occupation.85

4.2.1. The Duty not to Transfer Parts of the Occupying Power Population to the Occupied Territory: Article 49 para. 6 IV GC The interpretation of Article 49, para. 6, IV GC has long since been a cardinal question in the context of the Israeli-Palestinian conflict. The provision reads: “The

83

Opinion, para. 134. On the “one-year after” provision, ROBERTS, “Prolonged Military Occupation: The Israeli-Occupied Territories 1967-1988”, in PLAYFAIR, International Law and the Administration of Occupied Territories, Oxford, 1992, p. 25 ff., pp. 55-56; DINSTEIN, “The International Legal Status of the West Bank and the Gaza Strip – 1998”, Israel Yearbook of Human Rights, 1998, p. 37 ff., pp. 42-45. 85 Both assumptions are debatable and the view may be taken that the Court should have explained the point in more detail. With particular reference to the textual interpretation of the phrase “general close of hostilities”, see IMSEIS, cit. supra note 39, pp. 105-109. See also KRETZMER, cit. supra note 65, p. 91, note 23, stating that Israel, while not being a party to Additional Protocol I, never relied on the one-year rule. 84


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Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. It is clearly an absolute prohibition, which admits no derogation whatsoever, not even under the concept of military necessity. Relying mainly but not only on such provision, the establishment of the Israeli settlements in the Occupied Palestinian Territory has been considered illegal by the international community and by the majority of legal scholars.86 The settlement activity, which dates back to the Seventies and has never ceased, has been strongly supported, funded and projected by the government of Israel.87 Quite interestingly the Court mainly dealt with the issue in its analysis of the right of the Palestinian people to self-determination. The building of the wall was thus placed in the wider context of questions connected to the demographic equilibrium in the Occupied Territory. Measures altering the population balance to the detriment of the Palestinian people or creating a fait accompli on the ground were said to impede the right to self-determination. That does not imply that the constituting elements of such a breach may not also qualify as a violation of international humanitarian law. The reasoning is as follows. The settlements are illegal under international law and breach Article 49, para. 6. Since the route of the wall may perpetuate their existence, the wall itself constitutes a violation of the same provision.88 The combined existence

86

DREW, “Self Determination, Population Transfer and the Middle East Peace Accord”, in BOWEN (ed.), cit. supra note 73, p. 119 ff., pp. 144-146; BENVENISTI, cit. supra note 38, pp. 140141; GASSER, cit. supra note 38, p. 530, note 33; KRETZMER, cit. supra note 65, p. 91. International reactions to settlements mainly qualify them as a violation of international law, see, inter alia, SC Resolution 452/1979, SC Resolution 465/1980; cf. ROBERTS, cit. supra note 84, pp. 85-86. It has been maintained that in the Oslo process the settlements were considered as one of the issues that should have been settled during the final status negotiations. Apparently, Israel infers from the point the existence of a conventional obligation between the parties to regard the status of the settlements as not in principle illegal but subject to the negotiating process. Cf. Israel Written Statement, para. 3.49, para. 3.52. Yet this approach runs contrary to the explicit content of Article 47 IV GC, which states that the protected persons shall not be deprived of their rights under the Convention nor in any manner nor by “any agreement concluded between the authorities of the occupied territories and the Occupying Power”. Cf. QUIGLEY, “The PLO – Israeli Interim Arrangements and the Geneva Civilians Convention”, in BOWEN (ed.), cit. supra note 73, p. 25 ff., pp. 27-28. 87 In the Sixties the Israeli Government and the World Zionist Organization established the Government Settlement Division, whose activities were officially recognised in 1998. See COHEN, PM Mulls Abolition of Gov’t Settlement Division (Haaretz article, 20 October 2004). The funding of the settlements by the Israeli Interior Ministry is continuing also at present. See KHROMCHENKO, Study: Settlements Get More Aid Money than Other Towns (Haaretz article, 20 October 2004), available on line at www.haaretz.com (last accessed on 20 October 2004), stating that the inequality in funding “persists also when towns on opposite sides of the green line are ranked on the same socio-economic class”. On the incentives to the settlers see BENVENISTI, cit. supra note 38, p. 136. 88 As noted by Judge Buergenthal in his Declaration appended to the Advisory Opinion of the Court, every measure aimed at perpetuating the existence of the settlements, especially when it is a permanent or long-term measure, is precluded. The sections of the Barrier built in order to protect the settlements would be ipso facto forbidden as a direct consequence of the unlawfulness of the settlements: Declaration of Judge Buergenthal, para. 9.

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of the settlements and the wall prejudices the future possibility of achieving self-determination. As will be demonstrated below, it is of particular interest for our purposes that the Court seemed to establish the existence of a finalistic link between the wall and the settlements. The route of the former would have been designed to perpetuate the latter.89 In such a framework the wall qualifies as a violation of Article 49, para. 6, IV GC only in an indirect manner. It is thus fundamental to determine whether the settlements contravene the provision at issue. The Court clarified that the prohibition encompasses: “[N]ot only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organise or encourage transfers of parts of its own population into the occupied territory”.90 The statement aims to dismiss the Israeli interpretation according to which Article 49, para. 6, would cover only direct and forcible activities carried out by the Occupying Power.91 A voluntary transfer of the occupying Power’s population tolerated or merely assisted by the Occupying Power would be legal. The Court clearly stated that not only coercive activities, but also organisation and encouragement are precluded.92 Regrettably no corroborating legal arguments were provided. Reference can be made to the teleological interpretation of the provision.93 The concept of transfer should be interpreted according to the objective of the 89 Opinion, para. 119: “It is apparent from an examination of the map […] that the wall’s sinuous route has been traced in such a way as to include the great majority of the Israeli settlements […]” (emphasis added). See also para. 121: “[the Court] cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudice the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access” (emphasis added). 90 Opinion, para. 120. 91 The approach of the Court also scales down the debate on Article 8, para. 2(viii), of the Rome Statute of the International Criminal Court, which criminalizes “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies […]”. The controversial points are the customary nature of the crime and the scope of the phrase “directly or indirectly”. While the present Opinion leaves unprejudiced the first point, the position of the Court might offer some guidance as to the second. The insertion of “directly and indirectly” might be considered simply as a clarification of a meaning already compatible with the scope of Article 49, para. 6, IV GC. Contra DINSTEIN, cit. supra note 63, pp. 232-233. On the point, see also: BOTHE, “War Crimes”, in CASSESE, GAETA and JONES (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford, 2002, p. 379 ff., p. 413. 92 The Court, however, stopped short of finding that also the mere toleration of the transfer is prohibited and that the occupying Power has a general duty to prevent the transfer of parts of its population to the occupied territory. 93 Arguing that the Government of Israel assisted and facilitated the population transfer and that such a transfer would require both the consent of the transferees and of the indigenous population in order to be defined voluntary, see DREW, cit. supra note 86, pp. 144-145; contra DINSTEIN, cit. supra note 71, p. 124.


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norm, which aims to prohibit demographic changes to the occupied territory, no matter how they are brought about. The provision should be considered in its entirety. Paragraph 1 precludes the deportation of the inhabitants of the occupied territory. Evacuation of protected persons is strictly regulated by the following paragraphs. It is quite clear that Article 49, considered in its overall content, aims at freezing the demographic equilibrium and that demographic changes are to be avoided.94 In this perspective, one may further argue that the wall and its legal régime, forcing local inhabitants to leave the area, defeat the aim of Article 49. In dealing with the effects of the wall on the right to self-determination, the Court noted explicitly that the wall (and the settlements) threaten to alter “the demographic composition of the Occupied Palestinian Territory”.95 The same aspect was considered with regard to the violations of human rights provisions.96 Yet the Court failed to consider that, in the framework of international humanitarian law, the hardships imposed on the population may qualify not only as an indirect violation of Article 49, para. 6, but also as a direct violation of Article 49 when considered in its entirety. In this context, it is of some interest to note that the illegality of the settlements does not imply that the settlers are to be exposed to security threats, especially when their right to life is at stake. One has to remember that under Article 43 HR, the Occupying Power is bound to restore and ensure ordre public. From this provision stems the obligation to protect the right to life of all the persons residing in the occupied territory, be their presence legal or not. The concept of ordre public is not compatible with life threats and murders. It is also to be noted that the settlers, irrespective of their status under international humanitarian law, are individuals under the jurisdiction of Israel. If not under customary international law, Israel has the duty under conventional human rights law to protect the right to life of persons under its jurisdiction. That does not imply that the settlers have an individual right to security in the framework of international humanitarian law. They are not protected persons and their country’s duty of protection is a mere corollary of the obligation to ensure and enforce ordre public.97 Settlers’ protection must be guaranteed temporarily, without infringing the local population’s rights under the law of occupation, with a view to ensure ordre public, and while operating to cease the illicit conduct and to remove the settlements. One cannot invoke the right to life of the settlers and assess its proportionality with the infringement of the rights of

94

On Article 49, para. 1, see DINSTEIN, “The Israel Supreme Court and the Law of Belligerent Occupation: Deportations”, Israel Yearbook of Human Rights, 1993, p. 1 ff., pp. 12-24. 95 Opinion, para. 122. 96 Ibidem, para. 133. 97 Cf. PICTET (ed.), cit. supra note 67, p. 45 ff. The application ratione personae of the Fourth Geneva Convention is defined by Article 4, which explicitly excludes nationals of the occupying Power.

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the protected persons. International humanitarian law does not admit the balancing between the two values.98 Having taken up the issue of the legality of the settlements, perhaps one might have expected the Court to advance some additional reasoning of this kind. Indeed, the point was made in general terms in the reasoning on the existence of a state of necessity in the present case. While excluding that the conditions of any circumstances precluding wrongfulness were fulfilled, the Court stated that Israel has nonetheless “the right, and indeed the duty, to respond in order to protect the life of its citizens”, but contextually noted that the measures taken must “remain in conformity with applicable international law”.99

4.2.2. The Consequences of the Wall and of Its Associated Régime as a Violation of Protected Persons’ Human Rights Several participants to the proceedings pointed out that the wall infringed upon a number of rights of the local inhabitants.100 Leaving aside the right to property, the possible infringement of which was analysed before, reference was made, inter alia, to freedom of movement, right to work, the right to education, and the right to an adequate standard of living. The limitation of the freedom of movement can be considered as the starting point from which other human rights violations derive.101 The difficulties that the inhabitants encounter in going from place to place give rise to consequences connected to all the aspects of their life: work, education, medical care, relationships. As to this, reference can be made to two general provisions of the Hague Regulations and of the Fourth Geneva Convention (Article 46 HR and Article 27 IV GC), deriving from their somewhat vague text the protection of some human rights of the affected population. The relevant part of Article 46 states that “family honour and rights, the lives of persons, and private property, as well as religious convictions and practice must be respected”. Article 27, affirming the general principle of human treatment, supplements and clarifies Article 46. Paragraph 1 reads: “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs”.

98 Cf. OXFORD PUBLIC INTEREST LAWYERS, cit. supra note 30, para. 105; INTERNATIONAL COMMISSION OF JURISTS, cit. supra note 76, p. 22. 99 Opinion, para. 141. 100 See for instance, South Africa Written Statement, para. 56; Ireland Written Statement, para. 2.14; Lebanon Written Statement, para. 37. 101 See Palestine Written Statement, para. 495.


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The protection deriving from Article 27 is limited by the recognition in the last paragraph that “the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war”. Both provisions are framed in general terms and, although it is clear from their wording that they are meant to provide for a wide protection of human rights, the specific rights protected are not clearly defined. However the phrase “in all circumstances” makes it clear that the rights deriving from the values spelled in Article 27, para. 1, are to be considered absolute rights.102 The derogating clause introduced by the last paragraph, in contrast, clarifies that freedom of movement is conceived as a relative right, which is to be balanced with reasons of security.103 Articles 46 HR and 27 IV GC are not the only norms dealing with human rights protection in the framework of international humanitarian law. The Fourth Geneva Convention has been described as a bill of rights for the population of occupied territories, since it contains a number of provisions dedicated to the protection of human rights and stating in detail the obligations of the Occupying Power.104 Some of them could have been considered relevant to the facts at hand. In particular, Article 55 IV GC binds the Occupying Power to ensure food and medical supplies to the population “to the fullest extent of the means available to it”. Along the same line, Article 56 concerns the duty of ensuring and maintaining “the medical and hospital establishments and services, public health and hygiene in the occupied territory”. According to Article 50 the Occupying Power has the duty to “facilitate the proper working of all institutions devoted to the care and education of children”. As for all welfare rights, it is quite difficult to ascertain precisely the minimum threshold under which a violation occurs. One could point out that the degree of protection required is quite strict since two of the quoted provisions are qualified by the phrase “to the fullest extent of the means available”.105 Nevertheless such a remark does not seem to be conclusive in that the requirement of the “fullest extent” is limited by the arbitrary concept of availability to the Occupying Power. Notwithstanding the abstract relevance of the above mentioned norms, if one assumes – as the Court did – that the present situation in the West Bank and East Jerusalem is covered by Article 6 of the IV GC, the conclusion must be that Article 55, Article 50 and Article 56 are not applicable to the case at issue. While Article 27 IV GC is part of the norms regulating a situation of “post belligerent” occupation, several provisions dealing specifically with human rights protection are denied applicability if occupation continues beyond one year after “the general close of hostilities”.

102

PICTET (ed.), cit. supra note 67, pp. 204-205. Ibidem, pp. 201-202; DAVID, cit. supra note 61, pp. 487-491. 104 GASSER, cit. supra note 38, p. 242, para. 524. 105 Article 55 IV GC and Article 56 IV GC. 103

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With such provisions thus excluded, it is understandable that the emphasis shifted from international humanitarian law to the international instruments dealing with human rights protection. In line with its precedents and with the case law of human rights treaty monitoring bodies, the Court noted that the relationship between the two bodies of norms is one of speciality, with the law of war derogating from the law of human rights.106 Relying on the doctrine of the extraterritorial applicability of the treaties dealing with human rights protection, the Court affirmed that the ICCPR, the ICESCR, and the UN Convention on the Rights of the Child were applicable within the Occupied Palestinian Territory.107 With reference to the consequences of the wall and of its associated régime on the affected population, the Court thus found that several provisions of the above mentioned conventional instruments ratified by Israel had been infringed.108 One might perhaps wonder why no reference was made to Article 27 IV GC and Article 46 HR. As noted above, albeit generally, those provisions set a humanitarian law framework for the protection of human rights of the affected population. By interpreting their content, an opportunity to shed light on the limits of human rights protection as derived from international humanitarian law could have been seized. Especially so because in future cases the set of applicable human rights

106

The majority of the legal scholars affirm the contextual applicability of human rights treaties and humanitarian norms. See FROWEIN, “The Relationship between Human Rights Regimes and Regimes of Belligerent Occupation”, Israel Yearbook of Human Rights, 1998, p. 1 ff.; POCAR, “Human Rights under the International Covenant on Civil and Political Rights and Armed Conflicts”, in CHAND VOHRAH, POCAR, FEATHERSTONE, FOURMY, GRAHAM, HOCKING and ROBSON (eds.), Man’s Inhumanity to Man – Essays on International Law in Honour of Antonio Cassese, The Hague, 2003, p. 729 ff.; HEINTZE, “On the Relationship between Human Rights Law Protection and International Humanitarian Law”, International Review of the Red Cross, 2004, p. 789 ff. With reference to the ICJ Nuclear Weapons Advisory Opinion, see GARDAM, “The Contribution of the International Court of Justice to International Humanitarian Law”, Leiden JIL, 2001, p. 349 ff., pp. 360-364. On the relationship between international humanitarian law and human rights protection in the “jurisprudence” of the human rights monitoring bodies, see MARTIN, “Le droit international humanitaire devant les organes de contrôle des droits de l’homme”, Droits fondamentaux, 2001, p. 121 ff. Contra: DENNIS, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, AJIL, 2005, p. 119 ff. 107 Opinion, paras. 107-113. Amongst the international conventional instruments dealing with human rights protection, Israel ratified: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Israel, however, denies that human rights treaties might involve extraterritorial application. For a comprehensive survey, see BEN NAFTALI and SHANY, “Living in Denial: The Application of Human Rights in the Occupied Territories”, available at www2.colman.ac.il/law/concord/ (last accessed on 22 October 2004), pp. 5-15. 108 Opinion, para. 134. The Court referred to the liberty of movement, and the rights to work, to health to education and to an adequate standard of living.


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conventional instruments may well be more limited. Moreover, the Court might have clarified how those general norms interact with the more specific ones provided by human rights treaties. Hypothetically, the crux is the relationship between the derogating clause put forward by Article 27, para. 4, IV GC and the relevant conventional norms for human rights protection. It is however to be noted that, on the basis of the Court’s assessment of the facts, such a clause is irrelevant. The applicability is conditioned on the existence of a state of war, which is not the present situation in the West Bank and East Jerusalem.

4.2.3. The Wall as a Form of Collective Punishment? Despite representations to the contrary by the participants in the proceedings,109 the Court did not consider the wall a form of collective punishment. As emerges from the description of its general features in the Opinion, the wall fails to discriminate in any manner between the persons attacking Israeli civilians and the Palestinian population at large. The hardships that it imposes are to be carried by all Palestinian residents, irrespectively of their involvement in terrorist acts. One might thus think that the wall qualifies as collective punishment under Article 33 IV GC. Collective punishment runs contrary to a general prohibition of international human rights and humanitarian law mirrored by Article 50 HR and Article 33 IV GC.110 Article 33 IV GC, which supplements and clarifies Article 50 HR,111 reads in its relevant part: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited”. The prevailing interpretation reads the present provision in its broadest sense as covering also non-judicial decisions and acts such as “sanctions and harassment of any sort, administrative, by police action or otherwise”.112 Yet, the point remains that a measure having overall adverse effects on a number of individuals is not by itself a collective punishment. An objective and a subjective element invariably compose punitive measures. The objective element is fulfilled when a measure has unfavourable effects and is “collective”, in the sense

109

Jordan Written Statement, para. 5.164. See JESCHECK, “Collective Punishment”, in BERNHARDT (ed.), Encyclopaedia of Public International Law, Amsterdam, 1992-2003, p. 646 ff. 111 On the relationship between Article 33 IV GC and Article 50 HR, see MCDOUGAL and FELICIANO, The International Law of War, New Haven, 1994, pp. 796-797; PICTET (ed.), cit. supra note 67, p. 225. 112 See PICTET (ed.), cit. supra note 67, paras. 3054-3055, quoted in Jordan Written Statement, para. 5.165. 110

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of failing to distinguish between responsible and non-responsible affected persons. For the subjective element to be fulfilled, not only the effects on the population, i.e. the consequences of the wall, but also the intention that informed the decision to erect the wall must be considered. A penalty, whatever its legal form, requires the intention to punish.113 Ascertaining the existence of punitive intent when an act does not formally qualify as punitive requires a complex analysis of the facts. It is also to be noted that a measure is rarely adopted for a single purpose, but is rooted in a variety of reasons.114 What if the measure is partly punitive and partly adopted for security reasons? From this point of view, one has to recognise that Article 33 is an absolute prohibition and that no derogation is thus possible. Even if the punitive intention represents only one of the reasons that brought the administration to adopt the act, the act must be considered unlawful.115 When punitive intent lies partially behind the decision to seize or destruct the land on which the wall is located, the orders of seizure must be declared void irrespective of the existence of other reasons at the basis of the act. As regards the analysis of the facts, it is to be underlined that ascertaining the real motives (not the purported ones) that justified the adoption of an administrative act is very difficult most of the times. It is clear that explicit governmental declarations stating that the “separation fence” is intended to punish the Palestinians are quite unlikely to be found. Perhaps the circumstances of the case might have been considered in order to understand whether punishing the population was an undeclared purpose of the measure. The way the wall was being built and its location might have been examined in this respect. If no rational connection is found between the activities undertaken and security reasons, one could presume that the purpose of the measure is an improper one. In this perspective some paragraphs of the Opinion hint openly at the possibility that security might not be the only justification for the building of the wall.116 Yet the Court seemed to take the view that the undeclared purpose of the measure is annexation rather than punitive intent.

113

INTERNATIONAL COMMISSION OF JURISTS, cit. supra note 76, pp. 28-29. On the problem of “plurality of purpose” in administrative action, see J. Landau in the Elon Moreh case, cit. supra note 73, p. 389, who adopts the following test: “What was the dominant purpose for which the power was exercised? If the authority is seeking to achieve two or more purposes when one is permitted, expressly or impliedly: the legality of the act is judged according to the dominant purpose” (emphasis added). 115 The Human Rights Committee regarded the demolition of houses in the Occupied Territory as “partly punitive” and constituting a form of collective punishment. Cf. UN Human Rights Committee, Concluding Observations: Israel, 21 August 2003, UN Doc CCPR/CO/78/ ISR, para. 16, quoted in OXFORD PUBLIC INTEREST LAWYERS, cit. supra note 30, para. 129. 116 Opinion, paras. 119, 121, 135. 114


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4.3. The Scope of Military Necessity After having found that the wall infringed upon a number of provisions of international humanitarian law, the Court dealt with the possibility that abstract violations could be justified on the grounds of military necessity. The reasoning is extremely brief and is composed of three steps. As a first step the Court noted that the relevant international humanitarian law contains provisions taking into account military exigencies. While some provisions admit no derogation whatsoever (amongst them Articles 46 HR, 47 IV GC, and 49 para. 6 IV GC), Article 53 IV GC is referred to in that it admits destruction of property when “rendered absolutely necessary by military operations”. Then, as a second step, the Court stated in general terms that such exigencies may be invoked even after the general close of the military operations that lead to the occupation. The third step consists in finding that the destruction carried out in the present case is not covered by the mentioned derogation clause. The Court hardly elaborated on the point and stated that, on the material available: “[It] is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen and its associated régime gravely infringe a number of rights of Palestinians residing in the territory […] and the infringements resulting from that route cannot be justified by military exigencies […]”.117 As regards the first step, the reasoning of the Court is ordinary. Military necessity is framed in a different form in the context of each norm of humanitarian law and is always conceived as an exception to prohibitive norms. Since the Lieber Code, the core meaning of military necessity is that all use of armed force, all destruction of life or property that is not necessary to achieve military goals is prohibited.118 In modern international humanitarian law, that does not imply, however, the admissibility of every conduct somehow related to military goals. Necessity cannot be considered an authorising principle detached from single provisions.119 Every 117

Ibidem, para. 137. Cf. Lieber Code, Article 14, quoted in CARNAHAN, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity”, AJIL, 1998, p. 215 ff. On the concept of military necessity, see DINSTEIN, “Military Necessity”, in BERNHARDT (ed.), cit. supra note 110, p. 395 ff.; DOWNEY, “The Law of War and Military Necessity”, AJIL, 1953, p. 251 ff.; MCDOUGAL and FELICIANO, cit. supra note 111, pp. 521-530; VENTURINI, Necessità e proporzionalità nell’uso della forza militare in diritto internazionale, Milano, 1988, p. 123 ff.; GREENWOOD, cit. supra note 31, pp. 30-33, paras. 130-132; JAWORSKI, “‘Military Necessity’ and ‘Civilian Immunity’: Where is the Balance?”, Chinese Journal of International Law, 2003, p. 175 ff. 119 The concept of kriegraison, as an authorising principle potentially derogating from all the laws of war, is nowadays universally considered unacceptable. Cf., inter alia, DOWNEY, ibidem, p. 253; VENTURINI, ibidem, pp. 123-125. 118

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provision is the outcome of a balancing process between the two conflicting values lying at the very basis of humanitarian law: humanity and military concerns.120 Military necessity can be defined as a principle underlying humanitarian law in that all its provisions are drafted taking into account its existence. Nevertheless the balancing of the opposing values is different according to the norms that come into consideration. The scope of the admitted derogation varies with regards to elements such as the degree of the necessity required, the nature of the circumstances from which the necessity arises, and the objective pursued in derogating to the prohibition. Considering all the provisions referred to by the Court, one might realise that each conceives military necessity in a different form. Therefore, as the Court noted, provisions that do not admit explicitly a derogation clause are to be considered absolute and underogable. The violations of Article 46 HR and Article 49, para. 6, are unjustifiable on grounds of military necessity. One might perhaps wonder why the Court singled out Article 53 IV GC and did not examine the scope of the derogation clause provided for by Article 52 HR. As has been seen above, the latter concerns requisitions in kind in the occupied territory and was found to be breached by the Court. Since the norm admits an exception grounded on the needs of the army of occupation, one might have expected the Court to analyse its scope while dealing with military exigencies. The second step involves a general statement on the nature of the clauses admitting derogation from the norms concerning occupied territories. Stating that they are applicable even after the general close of military operations that lead to the occupation, the Court qualified the nature of military necessity. In this perspective, the latter would have a wider scope than the military activities carried out in an occupied territory and strictly connected to the general conflict continuing elsewhere. The reasoning of the Court implies that military necessity can arise also in situations taking place in the occupied territory. In that case the cessation of the general hostilities is obviously irrelevant. The third step consists in noting that the threshold of absolute necessity has not been met in the present case. As the Court did not elaborate much on the point, it is not entirely clear which reasons substantiate this finding. However, since reference was contextually made to the specific trajectory of the wall and to the infringements of the rights of the population, it is likely that the central argument is proportionality. In this respect, it is submitted that the proportionality of the route is the last of a number of factors to be evaluated in the context of a judgement of necessity such as the one provided by Article 53 IV GC. First, one should understand whether the wall could qualify as a military operation. The text of the provision clearly links the situation of necessity to the carrying out of military operations. Applicability is therefore conditional on the possibility of defining as such the concrete activity that

120

DINSTEIN, cit. supra note 63, pp. 16-17.


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is to be carried out. Secondly, it is to be ascertained whether the measure effectively pursues the objective sought. Only if the condition of effectiveness is met, can the measure be put to the last test. Proportionality with considerations of humanity, the value that must be reconciled with military reasons, can then be assessed. The judgement of proportionality is therefore conditional upon the fulfilment of two prerequisites: that the measure qualifies as a military operation and that it effectively pursues the objective sought. The relationship between necessity and proportionality is one of conditionality, where the first is a pre-condition of the latter. The minimum content of necessity is the existence of a causal relationship between the measure adopted and the objective legally pursued through its adoption.121 In order to be necessary, a measure has at least to be effective since a non-effective act is not necessary by definition. Only in that case the balancing will have to be done and the reasons of humanity and those of necessity will be put to the proportionality test in order to assess their legality. If a situation of equilibrium is given, the measure adopted will be in compliance with international humanitarian law. A third general pre-condition must also be mentioned. Since necessity is a relational concept, one has to understand for what aim a possible measure can legally be considered necessary.122 The objective pursued through the adoption of a military measure must be a legal one. The derogating activity is to be compatible with the whole framework of the law of occupation, underogable norms included. The applicability of military necessity cannot transcend the norm in which the derogation clause is framed. Coming to the present case, as to the first point, one has to understand whether the construction of the wall falls within the scope of the phrase “military operations”. Admitting that the construction of the wall cannot be considered a military operation in the sense of Article 53 IV GC would rule out the applicability of the provision. Although the Court, as mentioned, made no reference to it, the question is open to doubt.123 The second point involves understanding whether the wall can reasonably achieve its stated security objective. The degree of efficiency required is open to discussion: Whereas some scholars do not regard the concept of necessity as implying a condicio sine qua non test,124 it is to be noted that the wording of Articles 53 IV GC and 43 HR is very strict. In this respect it is submitted that the effectiveness 121 Effectiveness is defined “relevance” by some scholars: the minimum requirement is that the measure be relevant. See MCDOUGAL and FELICIANO, cit. supra note 111, pp. 524-525; cf. BOTHE, PARTSCH and SOLF, cit. supra note 68, p. 194, No. 7, arguing that the term “relevant” should be substituted by “indispensible” when “rules of limitation which expressly provide for derogations from protective provisions for reason of “urgent” or “imperative” military necessity” are at issue. 122 BOTHE, PARTSCH and SOLF, ibidem, p. 194. 123 See supra subsection 4.1. 124 MCDOUGAL and FELICIANO, cit. supra note 111, p. 524-528; DINSTEIN, cit. supra note 63, pp. 16-17.

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of the wall in achieving security cannot be taken for granted. At least two different perspectives could have been taken into account. In the abstract, the Court could have evaluated whether the wall is the most efficient measure to tackle the infiltration of terrorists into Israel and the attacks on the occupying forces. It might have been argued, for instance, that the strengthening of security checks could have more efficiently prevented terrorist activities than the building of a complex structure that will tie the majority of the armed forces down to patrol it. But the efficiency of the wall could have been examined also with respect to its actual features. As has been highlighted by independent studies, the view may be taken that the particular trajectory chosen for the wall aggravates security concerns. Members of the Council for Peace and Security – an Israeli private association composed of former officers of the IDF and the security services, retired diplomats, and academics – affirmed that the route should be distanced from Palestinians homes and located near the “border” with Judea and Samaria.125 Running deep inside the occupied territories, the route chosen would render necessary the building of gateways and passages thus diminishing security and increasing friction with the local population. Being close to Palestinian villages instead, attacks on the forces patrolling the wall would be more likely to occur. Moreover, the short distance would render it difficult for the Israeli forces to distinguish between terrorists and inhabitants not involved in terrorist activities. In general terms, planning the route in order to gain topographical control of distant hilltops is to be considered useless and counterproductive. The view may be taken that the route of the wall examined by the Court is not apt to attain its goal: far from pursuing the interests of Israel it will imperil the soldiers and the State’s security in general. A reasoning of this kind would render irrelevant any consideration concerning the proportionality of the route and the existence of less injurious measures. It is not clear whether the Court went through these arguments in reaching the conclusion that the destruction carried out to build the wall was not to be considered absolutely necessary for military operations. Setting aside their validity, it is to be noted, however, that in this perspective a judicial body is called virtually to substitute itself for the administrative authorities in order to evaluate how they exercised their discretion. A judgement of this kind is often considered to be beyond the scope of judicial review, since it can be assumed that only administrative authorities are in the condition to exercise their technical discretion in a proper way.126 It is perhaps from this point of view that one could understand why the Court refrained from any consideration concerning the effectiveness of the wall.

125 On the Council for Peace and Security, see www.peace-security.org.il/engbg.html (accessed on 4 September 2004). The text of one of the affidavits presented to the Israel High Court in Beit Sourik Village Council v. The Government of Israel (cit. supra note 14) is available on line in Hebrew.


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Finally, as concerns the legality of the objective pursued by the wall, it is to be pointed out that, in another context, the Court quite explicitly conceded that the “sinuous route” of the wall had been designed to incorporate the majority of the settlements.127 If one considers that the wall was contextually qualified as a potentially permanent measure,128 the view may be taken that the objective sought is illegal, contravening Article 49, para. 6, IV GC. As has been demonstrated above, the concept of military necessity and the derogating clauses connected to security reasons cannot be interpreted as a reference to the security of the settlers.129 Military necessity is an integral part of the norms of international humanitarian law and cannot derogate to non-derogable prohibitions, nor can it justify the perpetuation of a breach. It is thus quite peculiar that the Court seemed to assess the proportionality of the route of the wall, while implying in its previous reasoning that the objective sought is illegal. In view of the legal framework previously described, a measure pursuing an illegal aim does not have to be assessed in terms of proportionality. It is simply an illegal measure.130

5. THE LEGAL CONSEQUENCES OF THE CONSTRUCTION OF THE WALL AND INTERNATIONAL HUMANITARIAN LAW Dealing with the consequences of the illegality of the wall and of its associated régime, the Court distinguished between the positions of Israel, third States, and the United Nations.131 Israel is said to be under an obligation to cease its illicit conduct and to make reparation for all damage therefrom deriving. As a consequence of the erga omnes character of Israel’s breaches, all States are under the obligations of non-recognition, non-aid, and non-assistance. State parties to the Fourth Geneva Convention have the additional obligation to “ensure compliance by Israel with

126 With specific reference to the jurisdiction of the Israeli High Court in the occupied territory, see BENVENISTI, “Judicial Review of Administrative Action in the Territories Occupied in 1967”, in ZAMIR and ZYSBLAT, Public Law in Israel, cit. supra note 73, pp. 371 ff.; BENNAFTALY and MICHAELI, “Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel’s Policy of Targeted Killings”, Journal of International Criminal Law, 2003, p. 368 ff., pp. 373-380. 127 Opinion, para. 119. 128 Ibidem, para. 121. 129 See supra subsection 4.2.1. 130 As pointed out by Judge Owada, the view may be taken that reluctance to state the illegality of the objective pursued depends upon the lack of factual sources of Israeli origin. Israel decided to challenge the request for the Advisory Opinion mainly on grounds of jurisdiction and propriety and did not provide the Court with specific information explaining “why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate”. See Separate Opinion of Judge Owada, paras. 21-24. Cf. Israel Written Statement. 131 Opinion, para. 143 ff.

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international humanitarian law” according to Article 1 IV GC. With regard to the United Nations (the General Assembly and the Security Council in particular) the Court stated that they “should consider what further action is required to bring to an end the illegal situation”.132 Assessing those conclusions in light of the role of international humanitarian law, three points are worth mentioning. First, in the reasoning preceding the dispositif, the Court explicitly stated that the rules of international humanitarian law constituting “intransgressible principles of customary law” have erga omnes nature.133 Second, Article 1 IV GC is considered to entail the obligation for every State party to ensure that other State parties comply with the Fourth Geneva Convention. Third, in the whole text of the Opinion no reference is made to the grave breaches system of the Fourth Geneva Convention and, consistently, no obligation is said to rest on contracting parties as concerns individual criminal responsibility.

5.1. The Qualification of Certain Principles of International Humanitarian Law as Erga Omnes Obligations Considering that no such reference was present in the famous dictum of the Barcelona Traction case, the qualification by the ICJ of certain principles of international humanitarian law as erga omnes obligations is certainly one of the most relevant developments arising from the present Opinion.134 As it is well known, in a paragraph of the Nuclear Weapons Opinion, the Court further held: “[That] a great many rules of international humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and elementary considerations of humanity […]” that they “are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intrasgressible principles of customary law”.135 Nonetheless it stopped short of affirming clearly either their jus cogens status or their erga omnes character.136 After quoting at length the above mentioned paragraph, the Court, in the present Opinion, simply affirmed that: “[I]n the Court’s view, these rules incorporate ob132

Ibidem, dispositif, para. E. Ibidem, para. 157. 134 On the erga omnes character of international humanitarian law, the jurisprudence of the ICTY has been more “vigorous”, see CONDORELLI, “Responsabilité étatique et responsabilité individuelle pour violations graves du droit international humanitaire”, in CHAND VOHRAH, POCAR, FEATHERSTONE, FOURMY, GRAHAM, HOCKING and ROBSON, cit. supra note 106, p. 211 ff. 135 Cit. supra note 35, para. 79 (emphasis added). 136 On the possible meaning of “intrasgressible principles”, CONDORELLI, “Le droit international humanitaire, ou de l’exploration par la Cour d’une terra a peu près incognita pour elle”, in BOISSON DE CHAZOURNES and SANDS (eds.), International Law, the International Court of Justice and Nuclear Weapons, Cambridge, 1998, p. 228 ff., pp. 234-235. 133


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ligations which are essentially of an erga omnes character”.137 Since no new legal argument was put forward to justify such a qualification, one is inclined to think that the Court’s statement is a reassessment of its previous position. In this perspective, the Court seemed to clarify that its previous determination that certain rules of international humanitarian law are “fundamental to the respect of the human person and elementary reasons of humanity” was meant to place those rules amongst those generating obligations of general interest for the international community. As to the legal significance of the erga omnes qualification, it is to be underlined that the Court explicitly related the character of the violated norms to the obligations arising for third States. The reasoning is essentially in line with Article 41 of the ILC Draft on State Responsibility. Exceptional are the decision to employ the concept of erga omnes obligations rather than that of peremptory norms and the seeming lack of any statement concerning the duty of co-operation. The omission of any reference to jus cogens is understandable. Putting aside any speculation on the hidden significance of the terminological choices of the Court, the already evident reluctance to employ such a concept is confirmed.138 The fact remains that the present Opinion does not have the last word on the possible jus cogens nature of some rules of international humanitarian law.139 As to the duty of co-operation, one should consider that, as emerges from the ILC Commentary, it is partly concerned with actions in the framework of competent international organisations, in primis the United Nations.140 In this perspective, the obligation for all States to co-operate may be partly subsumed by point E of the dispositif, by which the Court found that the United Nations “should consider what further action is required to bring to an end the illegal situation”.141 It is however worth noting that non-institutionalised forms of cooperation are not mentioned and that the Court’s choice could perhaps be read as a rejection of unilateralism.142 On the other hand, a distinction seems to be introduced amongst the consequences of erga omnes obligations according to the nature of the substantive norm that has been contravened. In its reasoning the Court stated that a breach of self-determination entails the obligation “for all States […] to see to it that any impediment […]” to that right “is brought to an end”.143 The finding was not incor-

137

Opinion, para. 157. CONDORELLI, cit. supra note 134, p. 217. 139 On the issue, see NIETO-NAVIA, “International Peremptory Norms (Jus Cogens) and International Humanitarian Law”, in CHAND VOHRAH, POCAR, FEATHERSTONE, FOURMY, GRAHAM, HOCKING and ROBSON, cit. supra note 106, pp. 627-640. 140 Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, pp. 286-287. 141 Separate Opinion of Judge Kooijmans, para. 42. 142 Cf., with reference to the ILC Draft Articles, GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, EJIL, 2002, p. 1181 ff., pp. 1186-1187. 143 Opinion, para. 159, emphasis added. 138

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porated in the dispositif, but no such statement was made as concerns erga omnes obligations arising from principles of international humanitarian law. As has been seen, not even non-institutionalised cooperation was referred to in that case. While no explanation was given on the material meaning of the duty to see that a breach is brought to an end, it is, however, to be noted that the Court seemed to treat the concept of erga omnes obligations as not having uniform consequences.144 One final point regards the determination of the principles of international humanitarian law incorporating erga omnes obligations. Although the vagueness of the Nuclear Weapons statement was plainly reproduced, one may consider that the norms of which the Court affirmed the violation could be relevant in this respect. It is in fact to be noted that the Court established a clear connection between the erga omnes nature of the substantive norms and the consequences resting on third States. That would imply that the norms concerning the treatment of property and the prohibition of transferring parts of the population of the Occupying Power should be considered as norms incorporating erga omnes obligations.

5.2. The Obligation to “Ensure Respect” Arising from Article 1 of the Fourth Geneva Convention The content of Article 1 IV GC has been the subject of doctrinal debate and is not very clear. It may be interpreted either as a redundant statement of the consequences of entering a conventional obligation or as a transversal norm qualifying the legal interest of the States parties in having the other norms of the Convention respected.145 According to the second approach, all the obligations arising from the Fourth Geneva Convention could be qualified as erga omnes contractantes.146 All contracting States would have a general legal interest in having them complied with, setting aside all considerations regarding their participation in the armed conflict which gave rise to the violations. Although the travaux préparatoires demonstrate that no such interpretation was envisaged at the time,147 the second option has

144

While increasing the fragmentation of international law, such an approach could be compatible with the “theory of the three circles”. In classifying the cognate concepts of jus cogens, international crimes and obligations erga omnes, the latter would identify the wider category of norms. It seems reasonable that some differentiation can be drawn as to the legal content of the widest circle. For a conceptualization: GAJA, “Obligations Erga Omnes, International Crimes and Jus Cogens”, in WEILER, CASSESE and SPINEDI (eds.), International Crimes of States: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Berlin, 1989, p. 151 ff. See also ABI SAAB, “The Uses of Article 19”, EJIL, 1999, p. 339 ff.; BYERS, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal of International Law, 1997, p. 211 ff. 145 CASSESE, International Law, 2nd ed., Oxford, 2005, pp. 17-21, note 6. 146 Ibidem, p. 18. 147 KALSHOVEN, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, YIHL, 1999, p. 1 ff., pp. 6-28.


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prevailed amongst legal scholars and seems to be confirmed by State practice.148 However, its precise legal consequences are not pellucid. On the one hand it may be held that third States merely have a legal entitlement to act in order to ensure respect of the Convention.149 On the other, the view may be taken that third States are under a legal obligation to do so.150 The Court first dealt with Article 1 of the Geneva Conventions in the Nicaragua case. On that occasion, it stated that the ensure-respect clause had achieved customary nature and the content of the duty was said to cover the obligation of the United States “not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four Geneva Conventions of 1949”.151 Yet a duty not to encourage is merely an obligation to abstain from a certain conduct and does not involve any right or obligation to act.152 As Judge Kooijmans pointed out, the scope attributed to the provision in the present Opinion seems to be much wider.153 According to the Court, all State parties to the Fourth Geneva Convention are under an obligation “to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.154 Not only Article 1 was interpreted as a provision qualifying the legal interest of all the contracting States in having the Convention respected, but the view was also taken that a breach brings about an obligation to act resting on all State parties. That is a considerable departure from the Nicaragua case dictum.155 Moreover, no guidance

148 See BOISSON DE CHAZOURNES and CONDORELLI, “Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests”, Revue internationale de la Croix Rouge, 2000, pp. 67-87; ID., “Quelques remarques sur l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toute circumstance’”, in SWINARSKI (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva, 1984, p. 17 ff.; KESSLER, “The Duty to ‘Ensure Respect’ Under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts”, GYIL, 2001, p. 498 ff.; BENVENUTI, “Ensuring Observance of International Humanitarian Law”, Yearbook of the International Institute of Humanitarian Law, 1989-1990, p. 27 ff. 149 Cf. Prosecutor v. Zoran Kupreskic and Others, Case No. IT-95-16-T, ICTY Trial Chamber, Judgement of 14 January 2000, p. 203, para. 519 available on line at: http://www.un.org/icty/ kupreskic/trialc2/judgement/kup-tj000114e.pdf (last accessed on 16 November 2004). The ICTY, referring to international humanitarian norms, stated that “they lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a “legal interest” in their observance and consequently a legal entitlement to demand respect for such obligations” (emphasis added). 150 KOLB, cit. supra note 62, p. 241-243. 151 See Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement of 27 June 1986, ICJ Reports, 1986, p. 114, para. 220. 152 Separate Opinion of Judge Kooijmans, para. 49. 153 Ibidem. 154 Opinion, dispositif, D. 155 On the point, see SCOBBIE, cit. supra note 1, p. 1118.

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was given as to what are the concrete actions that a contracting State could adopt in line with the obligation to ensure respect.156 In light of the uncertainties regarding the issue, and especially the legal entitlement/obligation divide, one may think that the Court should have devoted a detailed legal analysis to the scope of Article 1 IV GC. Instead the point was simply affirmed without providing legal arguments.

5.3. The Lack of Any Reference in the Dispositif to the Duty to Prosecute or Extradite the Authors of Grave Breaches of the Fourth Geneva Convention Some participants in the proceedings asked the Court to establish that States parties to the Geneva Convention, Israel included, are under an obligation to search, prosecute or extradite the authors of grave breaches according to Article 146, para. 2, IV GC.157 The Court explicitly recalled those arguments in the reasoning,158 but ignored the question in the dispositif and never characterised the violations of international humanitarian law committed by Israel as grave breaches.159 The legal reasons of such an approach are strictly connected to the Court’s decision to apply the one-year rule under Article 6, para. 3, IV GC. Indeed, as a matter of treaty law, Articles 146 and 147 IV GC (the provisions establishing the grave-breaches system) are not applicable more than “one year after the general close of hostilities”.160 Three explanatory points can be made in this respect. First, the decision to neglect the issue has been conscious,161 and perhaps the Court wanted the commentators to know that. That seems the most credible interpretation of why the Court mentioned that some participants had referred to the grave-breaches argument and then ignored the point with no further explanation. Second, one may argue that the Court implicitly evaluated the seriousness of the violations of international humanitarian law when establishing the consequences of the breach for third States. Assuming that the Court had the Draft Articles on State Responsibility “in mind”, it is to be underlined that only serious breaches of peremptory norms establish legal

156

See Separate Opinion of Judge Kooijmans, para. 50, who doubts “what kind of positive action, resulting from this obligation, may be expected for individual states”. On the possible dimensions of the ensure-respect obligation, see BOISSON DE CHAZOURNES and CONDORELLI, cit. supra note 148, pp. 67-87. 157 League of Arab States Written Statement, p. 113; Malaysia Written Statement, p. 56. 158 Opinion, para. 146. 159 Cf. Separate Opinion of Judge Elaraby, para. 3.3. 160 IMSEIS, cit. supra note 39, p. 106. 161 SCOBBIE, cit. supra note 1, p. 1119.


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consequences for third States.162 One may thus think that, the Court having stated that third States are under an obligation not to recognise and not to render aid or assistance, it implicitly evaluated the intensity and the gravity of the breaches committed by Israel. Obviously, the concept of “serious breaches” in the context of the general rules of State responsibility is not coincident with “grave breaches” under the Geneva Convention.163 Yet, the fact remains that the Court assessed the seriousness of some violations of international humanitarian law and never took up the question of the existence of grave breaches. Thirdly, examining the facts of the case and the findings of the Court on substantive issues of international humanitarian law, it is very likely that some of the violations committed by Israel may qualify as grave breaches. Leaving aside the transfer of population to the occupied territory, for which a grave-breach status should be found under customary law,164 at least two other possible grave breaches can be identified. Considering the magnitude of the activities that are connected to the erection of the wall, as emerged from the material before the Court, one could think that they qualify as “extensive destruction and appropriation of property” according to Article 147 IV GC. One may also think that the pattern of human rights’ violations, although having been examined by the Court mainly with reference to human rights instruments, when dealt with according to the Fourth Geneva Convention, could have been qualified as inhumane treatment of protected persons.165 In light of the assumptions formulated above, the view may be taken that the Court simply did not want to deal with individual criminal responsibility. One can only formulate some possible hypothesis concerning the reasons underlying this approach, and the most credible one refers to considerations of propriety.166 The Court dismissed as a preliminary issue any indications that the Opinion should have been discretionally declined on the grounds of being improper and inconsistent with the Court’s judicial function.167 It seems however that the political repercussions of some possible findings were on the “mind” of the Court also when dealing with substantive issues such as the determination of the legal consequences. After all, in the part of the Opinion devoted to judicial propriety, the Court stated:

162

Art. 40, para. 1, Draft Articles on State Responsibility for Internationally Wrongful Acts, Report of the International Law Commission on the Work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), Ch.IV.E.1. 163 Commentaries to the Draft Articles, Report of the International Law Commission on the Work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), Ch.IV.E.1, p. 285. 164 See supra subsection 3.3. 165 On inhumane treatment, see WOLFRUM, “Enforcement of International Humanitarian Law”, in FLECK (ed.), cit. supra note 31, p. 532, para. 1209. 166 On the issue, Israel Written Statement, p. 89 ff. 167 Opinion, paras. 43-65.

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“The Court is indeed aware that the question of the wall is part of a greater whole, and it would take this circumstance carefully into account in any opinion it might give. […] [T]he question […] is confined to the legal consequences of the construction of the wall, and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it”.168

6. CONCLUDING REMARKS It may be evident from the earlier comments that the premises and the results of the reasoning of the Court are comprehensible. As for the results one is tempted to note that other norms could have been relevant. Even more significantly, it may be argued that one cannot be sure of the legal significance of reproducing the text of a number of applicable provisions and then finding the violation of a limited group of them, without any further explanation. Is one to assume that the relevant provisions of which a violation has not been explicitly declared have been complied with? Or should one conclude that the Court merely decided to give some examples of “various” breaches committed by Israel? The vagueness of some focal points of the Opinion may be ascribed to different factors. As to the substantive violations of international humanitarian law, an underlying guiding principle of the Opinion seems to be parsimony. After having had to deal with arguments concerning jurisdiction and propriety in some lengthy paragraphs, the Court might have assumed that sketching some substantive breaches was sufficient to determine the legal consequences of illegality. In some measure, legal consequences can be clear even if all the norms that were violated are not precisely spelt out. Alternatively, although not always legally tenable, the indeterminacy of the consequences can be partly read in light of the political implications of certain findings. One may assume that the Court was aware of the possible effects on the negotiating process of the grave-breaches system. As to the duties deriving from the violation of erga omnes obligations, it is worth noting that it is not up to the Court to determine ex ante all the possible courses of action that the political organs of the United Nations and member States should take. As has been recently pointed out, methods of compliance with the Court’s rulings are not necessarily to be established at the judicial level.169 Overall, the most striking feature of the way international humanitarian law was dealt with is that the Court was at times totally reticent on the legal reasoning 168

Ibidem, para. 54. SCOBBIE, cit. supra note 1, pp. 1117-1118, who notes that “even in contentious cases, the Court is loathe to dictate courses of conduct to States when the methods of compliance with its rulings are essentially at the parties’ discretion”. 169


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supporting its conclusions. The findings on the scope of the duty to ensure-respect, and the substantive issues concerning property in the occupied territory, were simply asserted. In a similar vein, the treatment of military necessity seems at the same time succinct and contradictory. In this respect one may argue that when legal solutions are based solely on the authority of the Court, that same authority risks being eroded. Given the lack of legal reasoning on some fundamental points, it is unlikely that the present Opinion will stand as a landmark for the subject. It is however to be noted that in some paragraphs the Court reaffirmed the essence of international humanitarian law and its result-oriented nature. That is particularly manifest for the interpretation of the wall as an indirect breach of the prohibition to transfer the Occupying Power’s population to the occupied territory.

NOTES AND COMMENTS

THE FERRINI JUDGMENT OF THE ITALIAN SUPREME COURT: OPENING UP DOMESTIC COURTS TO CLAIMS OF REPARATION FOR VICTIMS OF SERIOUS VIOLATIONS OF FUNDAMENTAL HUMAN RIGHTS MASSIMO IOVANE*

1. BACKGROUND. THE JUDGMENTS OF THE TRIBUNALE DI AREZZO AND OF THE CORTE DI APPELLO DI FIRENZE On 11 March 2004, the United Sections of the Italian Corte di Cassazione1 delivered a very important judgment concerning the relationship between two very different international law principles: the ancient rule granting sovereign immunity in civil matters before domestic courts, and the more recent set of rules on the protection of fundamental human rights. Recent years have witnessed a continuous clash between these norms. This is due to the tendency of private subjects to use domestic courts extensively in order to seek redress for the violation of international norms protecting their specific interests. In turn, this general attitude is also a consequence of a more general confrontation which is going on nowadays between the more traditional international law protecting the States as entities exercising sovereign powers and contemporary international law mostly protecting the interests of human beings, and indeed of humanity as a whole. Before analysing the judgment against this general background, it is necessary to recall the basic facts which led to the 2004 judgment. On 23 September 1998 Mr Ferrini sued the Federal Republic of Germany before the Tribunale di Arezzo. He sought damages both for economic and immaterial *

Professor of International Law, University of Napoli “Federico II”. Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044, Ferrini v. Repubblica Federale di Germania. The Italian text of the judgment is published in RDI, 2004, p. 539 ff. The judgment has already received extensive commentary by the Italian doctrine: RONZITTI, “Un cambio di orientamento della Cassazione che favorisce i risarcimenti delle vittime”, Guida al diritto, 10 April 2004, p. 38 ff.; SICO, “Sulla immunità dalla giurisdizione italiana della Repubblica Federale di Germania in rapporti alle conseguenze patrimoniali di atti compiuti dalle forze armate tedesche in Italia nell’anno 1944”, Diritto e giurisprudenza, 2004, p. 505 ff.; DE SENA, “Immunità degli Stati dalla giurisdizione e violazioni dei diritti dell’uomo: la sentenza della Cassazione italiana nel caso Ferrini”, Giur. It., 2004, p. 264 ff.; BARATTA, “L’esercizio della giurisdizione civile sullo Stato straniero autore di un crimine di guerra”, Giustizia civile, 2004, p. 1200 ff.; CIAMPI, “Crimini internazionali e giurisdizione”, Cassazione penale, 2004, pp. 2656-2670; GIANELLI, “Crimini internazionali ed immunità degli Stati dalla giurisdizione nella sentenza Ferrini”, RDI, 2004, p. 643 ff.; DE SENA and DE VITTOR, “State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case”, EJIL, 2005, p. 89 ff.; GATTINI, “War Crimes and State Immunity in the Ferrini Decision”, JICJ, 2005, p. 224 ff.; BIANCHI, AJIL, 2005, p. 242 ff. 1


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loss sustained between 1944 and 1945 when he was captured by German troops on Italian territory and forced to work in weapon factories located in the Kahla concentration camp. The Tribunale, sitting as a judge of first instance, rejected the plaintiff’s claim, holding that Germany was entitled to foreign State immunity under general international law. Ferrini then appealed the decision to the Court of Appeal of Florence, in an attempt to have the first judgment reversed. The Court of Appeal affirmed that the specific activities which were the subject of the suit concerned governmental acts performed by a foreign State in the exercise of its sovereignty. While not denying that these acts amounted to a grave violation of fundamental human rights, the Court nonetheless dismissed the appeal on grounds of State immunity. To hold the contrary, the Court said, would constitute an infringement of a well-established rule of customary international law. Moreover, the Court of Appeal found that the Italian jurisdiction could not be affirmed on the basis of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.2 According to that Court, the application of the Convention is excluded whenever the case concerns the exercise of public law powers by State authorities. Nor, in the Court’s opinion, could the Italian jurisdiction in any way be inferred from Article 8 of the Universal Declaration on Human Rights, which states that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. In effect, the Court went on, the Declaration is a UN General Assembly resolution lacking any obligatory character for United Nations members.3 At this point Ferrini challenged the ruling on jurisdiction before the Corte di Cassazione.

2. THE MAIN INTERNATIONAL LAW ISSUES RAISED BY THE SUPREME COURT’S DECISION The Court completely reversed the judgments of the lower courts and affirmed that Italy had jurisdiction to decide on the merits of the claim. The main argument developed by the Cassazione is that the case concerned Germany’s breach of international obligations concerning the protection of human rights. These obligations are part of international jus cogens and must have priority over the rule granting immunity from jurisdiction. In order to reach this conclusion, the Court referred extensively to international law concepts. For this reason, this decision is to be considered one of the most important precedents in contemporary practice with regard 2

See Articles 2 to 6 bis of the 1968 Brussels Convention. Tribunale di Arezzo, Judgment No. 1403/98 of 3 November 2000. This judgment has not yet been published. The line of reasoning followed by the Tribunale is addressed by the Supreme Court in the first paragraphs of its judgment, paras. 1-1.3. 3

THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT

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to the exact definition of the legal regime of peremptory international law norms. As regards this legal regime, the decision touches on a number of controversial issues. The first issue concerns the way domestic or international courts reconstruct peremptory norms of customary international law. The second issue is about the effects of such a norm. How far may a well established norm of international law be set aside in order to protect the values enshrined in an international law of jus cogens? In other words, should the denial of immunity to Germany in the present case be considered an internationally wrongful act on the part of Italy? Thirdly, and quite independently of any question of foreign sovereign immunity, to what extent should States grant jurisdictional remedies to victims of gross violations of human rights protected by peremptory norms of international law? In order to answer these questions, it is important to examine in some detail the different grounds upon which the Supreme Court’s decision is based.

3. FOREIGN SOVEREIGN IMMUNITY AND THE 1968 BRUSSELS CONVENTION ON THE JURISDICTION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS Before the Court of Appeal, the claimant had already invoked the application of the Brussels Convention in support of the Italian jurisdiction. He contended that, by rejecting this argument, the Court of Appeal had failed to recognise that, according to the general principles enshrined in the Brussels Convention, the jurisdiction of a Contracting State exists whenever both the plaintiff and the defendant are domiciled in one of the Contracting States. More specifically, Article 5, para. 3 of the same Convention admits that a person domiciled in a Contracting State may, in another Contracting State, be sued in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred. In the claimant’s opinion this holds true even though the event had occurred in a contracting State different from the one where the defendant is domiciled. There is another argument drawn from the Brussels Convention which, according to Ferrini, the Court of Appeal had erroneously dismissed. Before declaring that Italy lacked jurisdiction, the Florence Court should have requested a ruling on the interpretation of the Convention to the European Court of Justice, as provided for by the Protocol of 3 June 1971. Thirdly, the claimant lamented that the Court of Appeal did not consider the argument that the criteria of the Brussels Convention establishing Italian jurisdiction were to prevail as lex specialis over the principle of sovereign immunity. In order to dismiss the defence based on the Brussels Convention, the Court adopted an all-encompassing line of reasoning. It affirmed that the European Court had many times clarified that the 1968 Convention is wholly inapplicable in rela-

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tion to activities carried out by a State in the exercise of its sovereign powers. Being inapplicable, it also follows that the 1968 Convention could not prevail over the customary rule granting jurisdictional immunity to foreign States, as assumed by the claimant.4 However, it may be reasonable to question whether the Court needed to counter this particular argument. In effect, Ferrini understands the Convention as establishing a sort of “open space” where anybody may sue and be sued in any Contracting State provided that he or she is domiciled in another contracting State. On the contrary, however, the Convention simply establishes as a general criterion that persons domiciled in a Contracting State shall be sued in the courts of that State, irrespective of their nationality. And the German State is certainly not domiciled in Italy. Having decided that the Brussels Convention was totally inapplicable to the case in question, the Court did not take up a position on the argument drawn from Article 5, para. 3, of the Convention. The Italian jurisdiction could not have been determined on the basis of the place where the harmful event had occurred. In fact, the prejudice for which the claimant was seeking redress had been caused in Germany where Ferrini was forced to work in a concentration camp. Finally, the Cassazione recalled that, according to Article 234 of the Treaty Establishing the European Community, a court may request a preliminary ruling to the Court of Justice on the interpretation of the Treaty, but is not obliged to do so unless it is a court against whose decisions there is no judicial remedy under national law. Therefore, it found that the Court of Appeal was correct when it considered it unnecessary to file such a request to the Luxembourg Court.5

4. IMMUNITY FROM JURISDICTION AND INTERNATIONAL NORMS OF JUS COGENS PROTECTING FUNDAMENTAL HUMAN RIGHTS 4.1. The Possibility of Denying Jurisdictional Immunity in Relation to Violations of Jus Cogens Committed by Foreign States while Carrying Out Military Activities As a second line of defence, the claimant tried to challenge the current existence of an international customary rule on the jurisdictional immunity of foreign States. The Cassazione was able to dismiss this contention without excessive difficulty. On this point it affirmed: 4

Paras. 2-3. On this point, one may wonder why the Cassazione did not refer to the relevant provisions of the 1971 Protocol to the Brussels Convention. It is this Protocol and not Article 234 of the EC Treaty which regulates the competence of the Court to deal with questions of interpretation of the Brussels Convention. 5


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“There could be no doubt about the persisting existence of a rule of customary international law obliging all States to refrain from exercising their jurisdiction over foreign States. This rule is applicable in Italy by virtue of Art. 10, para. 1, of the Constitution. However, the immunity enjoyed by foreign States is not absolute any more. Its recognition depends on the nature and the object of the particular dispute in question”.6 The petitioner had also asked the Supreme Court to quash the appeal judgment pertaining to the part where it had recognised that immunity should be granted even for sovereign acts amounting to a violation of international jus cogens, and in particular of those peremptory norms protecting human dignity and the most fundamental human rights. This second argument turned out to be decisive for the final adjudication of the case. The development of the argument based on jus cogens was the result of a detailed interpretation and reconstruction of international norms. This is a rarity in domestic judgments applying international law. Therefore, it is worthwhile to describe the different steps of the Court’s reasoning. First of all, the Court had to overcome a formidable obstacle to affirming Italian jurisdiction on the dispute. The facts for which Germany was held accountable occurred while carrying out military operations. These are quintessential sovereign activities for which States have always enjoyed immunity from jurisdiction when sued before foreign courts. In this respect, the Court made reference to two recent decisions where immunity was granted, although an alleged violation of human rights by the foreign States in question was involved. The first case was decided by the Cassazione itself. In a 2000 judgment,7 the Italian Supreme Court did not hesitate in upholding a plea for immunity put forward by the United States in relation to the tragic accident of 1998, where twenty people were killed when a US Marine aircraft hit and severed the ropes of a cable car during a low-level training mission. The claimants had argued that these flights were contrary to the right to life, health and personal safety, considered as absolute, inalienable and indefeasible human rights. For this reason, they thought the Italian court should affirm its jurisdiction and order that the training flights ceased. Moreover, they contended that the right to an effective remedy for acts that violate fundamental human rights was itself a human right, as stated by Article 8 of the 1948 Universal Declaration. Even if the case involved the violation of human rights, the Corte di Cassazione found that “the customary law on jurisdictional immunity suffers no limitation in connection with military training 6

Para. 5. Corte di Cassazione (Sezioni Unite), 3 August 2000, No. 530, Presidenza del Consiglio dei Ministri and Others v. Italian Federation of Transport Workers and Others; The United States of America v. Italian Federation of Transport Workers and Others, IYIL, 2000, p. 289 ff. 7

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necessary for the waging of war operations, dangerous as it may be for the safety of individuals”. The second case had been decided in 1995 by the Irish Supreme Court. This case originated from a border incident between the Republic of Ireland and Northern Ireland at a United Kingdom permanent vehicle checkpoint. The applicant, McElhinney, had lodged an action against an individual soldier and the British Government, claiming damages on the ground that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger. He had also argued that, even if the doctrine of State immunity applied, it should yield in this case since there had been an infringement of the constitutionally protected right to bodily integrity. The Court did not uphold the human right exception to sovereign immunity. It affirmed that the soldier was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as jure imperii. The Court also dismissed the argument that it was a near-universally recognised principle of international that claims for personal injuries inflicted in the forum State by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. After the Supreme Court decision, McElhinney brought the case before the European Court of Human Rights. He complained that the Irish courts, by applying the doctrine of sovereign immunity, had denied him the right to a judicial determination of his compensation claim in violation of Article 6, para. 1 of the European Convention on Human Rights. The European Court held that recognition of foreign sovereign immunity is a legitimate limitation to the right of access to justice. In the same case, the Court had the opportunity to affirm that the acts of a soldier on foreign territory relate to the core area of State sovereignty. They are included in those activities for which immunity must be granted because they “involve sensitive issues affecting diplomatic relations between States and national security”.8 Thus, up to 2001, sovereign immunity seems to take priority over the protection of human rights in the judicial practice of domestic and international courts, whenever the dispute involves the performance of military activities by foreign States and their organs. On this point, we can witness the first important innovation by the Corte di Cassazione in the Ferrini case: “[B]eing military operations in time of war, it is not disputed that the acts complained of in the present case were performed by Germany in its capacity as a sovereign State. However, this is not the real problem arising from this hearing. What the Court has to ascertain is whether sovereign immunity should continue to be granted even with respect to acts which, unlike the ones cited above, are of extreme gravity and offend universal values which transcend the interests of individ-

8

McElhinney v. Ireland, Application No. 31253/96, Judgment of 21 November 2001.


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ual national communities. These acts are considered as international crimes by current customary international law”.9 The Court does not deny that international crimes fall within the category of acta jure imperii. As we understand it, the real problem for the Court was to decide whether the ratio of the rule on sovereign immunity still persists when the State in question has violated universal human values. There is an echo in this assumption of the scholarly opinion that this ratio does not rely solely on the maxim par in parem non habet judicium any more. It is not just a question of abstract respect for other States’ sovereignty. Modern law on jurisdictional immunities aims at the protection of some specific governmental activities essential for the survival of a State (armed defence, maintenance of public order, direction of national economy) or for the regular course of its relations with other States (diplomatic, consular and cultural relations). However, it finds that the ratio of the rule on sovereign immunity does not persist any more when the State in question has violated universal human values. Even public law activities of a foreign State which do not meet these conditions are not automatically afforded protection under international law. Having challenged the common belief that war operations are immune per se under current international law, the Court had to face another problem connected with the exercise of Italian jurisdiction in the present case. Immunity is to be seen only as a procedural bar preventing potential claims from being brought to court. Even if this obstacle is removed, a sort of act-of-State argument might preclude subsequent assessment on the merits of the applicant’s substantive right to damages. In fact, the decision on the merits would require the court to declare invalid or wrongful the official act of a foreign sovereign or of the forum State. As far as acts of war are concerned, judicial determination of their wrongfulness under international law had already been excluded by the Corte di Cassazione in a recent 2002 order. In this case, relatives of Yugoslav victims of the air strikes carried out by NATO against Yugoslavia in 1999 had filed an application against the Italian State. They sought redress for alleged violation of the First Additional Protocol of 1977 to the Geneva Convention of 1949. The Court decided that the Italian courts lacked jurisdiction because the choice of the means of conducting war “constitute an expression of a political function”. Political acts, said then the Court, are not justiciable issues. Individuals have no vested right to claim that this action be carried out within given legal parameters.10

9

Para. 7. Corte di Cassazione (Sezioni Unite), 5 June 2002, No. 8157 (order), Presidenza del Consiglio dei Ministri v. Markovic and others, IYIL, 2002, p. 292 ff., with a note by BRUNO. The order has been commented upon by RONZITTI, “Azioni belliche e risarcimento del danno”, RDI, 2002, p. 682 ff.; ID., “Compensation for Violations of the Law of War and Individual Claims”, IYIL, 2002, p. 39 ff.; FRULLI, “When Are States Liable to Individuals for Serious Violations of Humanitarian Law? The Markovic Case”, JICJ, 2003, p. 406 ff.; BRUNO, “‘Danni collaterali’ 10

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This finding was completely overturned in the present judgment, in an attempt by the Court to pave the way to its final outcome on the principle of the “universality of civil jurisdiction”: “To say that political acts are exempt from judicial review does not mean that courts are prevented from deciding whether a criminal offence has occurred in connection with these acts; nor does it prevent courts from establishing civil or criminal liabilities arising from such an offence. Now, the liberty and dignity of every human being are fundamental values protected by general norms of international law. The gravest violations of these norms constitute ‘international crimes’. By virtue of Art. 10, para. 1 of the Italian Constitution, these general norms are automatically incorporated into the Italian legal order. Thus, they provide legal parameters to evaluate whether a wrongful act has been committed during the performance of a political decision”.11 This passage is very important because it recognises that an act of war allegedly in conflict with fundamental human rights could be challenged before domestic courts. Incidentally, one must say that the Court mixes up the two notions of “international crimes of individuals” and “international crimes of States”. This confusion runs throughout the whole judgment. As we shall see further on in this paper, this is not necessarily a major defect. It could be a positive, albeit unconscious, indication by the Court about the particular kind of legal regime which is taking shape in international practice in order to protect the most basic human rights. In this regime, the responsibility of States and that of individuals both concur in the international protection of fundamental values in international law.

4.2. “Deportation” and “Forced Labour” as Internationally Wrongful Acts of States and as Crimes of Individuals Prohibited by Peremptory Norms of Customary International Law The next step taken by the Court was to demonstrate that the wrongful acts allegedly committed by Germany amounted to a violation of international norms of jus cogens. In fact, the Court does not limit itself to interpreting the international rule on sovereign immunity with its possible exceptions. It embarks on a thorough examination of jus cogens, considered as a special category of international customary rules. What the Court proposes is a complete description of international nella ‘guerra giusta ai confini dell’impero’. Alcune riflessioni sul caso Markovic”, in Scritti in ricordo di Giovanni Motzo, Napoli, 2004, p. 75 ff. 11 Para. 7.1.


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jus cogens, moving from its specific content to the formal position that peremptory norms assume in the hierarchy of international law sources, and then the special consequences resulting from the breach of these norms. On this problem, the method followed by the Court is again worth of note. Understandably, the Court ignores the lengthy discussion on the distinction between international delicts and international crimes of States, which has been going on for years within and outside the International Law Commission. Consequently, it seems unaware of the difference between the two notions of crimes of individuals and crimes of States. From its point of view, both prohibit deportation from occupied territories for slave labour. This is the dominant approach in international practice dealing with gross violations of human rights. The tendency is to concentrate on the substance of the internationally protected value and on all the possible remedies made available by international law to the person who has been the direct victim of the crime. In this perspective, it is not so much important to establish who committed the crime, as to ascertain which fundamental human right has been violated, and then activate the appropriate remedies. Thus, the concept of jus cogens advocated by the Italian judges is not totally based on the normative hierarchy theory.12 This is a rather formalistic doctrine, stating that conflicts between rules should be solved according to the position they have in the hierarchy of sources. Conversely, the Court seems to understand jus cogens as the material values of the international community as a whole, as a sort of ordre public to be protected by the special regimes created by both customary and conventional international law.13 These regimes might also include interventions by domestic courts. The Court begins its probe into the regime of international jus cogens by addressing the legal nature of the crimes at issue. It affirms: “[T]here could be no doubt that deportation and forced labour are crimes of war prohibited by a norm of general international law binding all members of the international community”.14 The Court reaches this conclusion after quoting different precedents in international practice. First of all, it refers to Article 6(b) of the Charter of the Nuremberg International Military Tribunal, which roundly considers “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” as a war crime. In the Indictment, the Nuremberg Tribunal had already condemned mass deportation of able-bodied citizens from occupied countries to Germany and to other occupied countries for the purpose of slave labour upon defence works, in factories, 12

This point has been rightly underscored by BIANCHI, cit. supra note 1, p. 247. This concept of jus cogens has been developed in my monograph La tutela dei valori fondamentali nel diritto internazionale, Napoli, 2000. See the review by SANTULLI, RGDIP, 2001, p. 267, where this author highlights the distinction drawn in the book between the hierarchy theory and ordre public. 14 Para. 7.4. 13

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and in other tasks connected with the German war effort. Such deportations were considered contrary to international conventions, in particular to Article 46 of the 1907 Hague Regulations on the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed. The Judgment of 30 September 1946 upheld this condemnation, affirming that Article 52 of the Regulations annexed to the Hague Convention of 18 October 1907 lays down that services might be imposed on the inhabitants of an occupied territory only for the needs of the occupying army. As some belligerent States were not parties to the 1907 Convention, the defendants had argued that it was inapplicable to the facts in question. However, as the Cassazione recalls in the present judgment, this objection was rejected by the Tribunal, which recognised that the Convention’s rules were acknowledged and accepted by all civilised nations and were thus part of customary international law. The Court also refers to other international acts and conventional norms which corroborate the customary nature of the prohibition of deportation and forced labour. These acts and norms include General Assembly Resolution 95(I) of 11 December 1946, which confirmed “the principles of international law recognized by the Nuremburg Tribunal and in the judgment of the Tribunal”, the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal adopted by the International Law Commission of the United Nations in 1950, the Statutes of International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Rome Statute of the International Criminal Court. So far, the Court has only managed to establish that “deportation” and “forced labour” are crimes of individuals under customary international law. This would not be enough to consider the German State as a whole as accountable for them and deny it immunity from jurisdiction. But the Court did attribute these crimes to the German State by arguing that: “[T]he acts for which redress was sought by the claimant in this proceedings were not isolated events. They were part of a precise strategy carried out by the German State with firm determination at that time”.15 The Court draws this conclusion taking into account to two main elements. The first one is the extreme gravity of these crimes. The second is the Germany’s enactment of the “Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’” (2 August 2000, which came into force on 12 August 2000). The purpose of the Foundation is to make financial compensation available to former slave and forced labourers. According to the Court the Law is clear evidence that Germany has accepted responsibility for the injustice committed and the human suffering it caused to former forced labourers. At the end of its analysis, the Court sums up its conclusions by affirming:

15

Ibid.


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“It is common knowledge that international crimes threaten humankind as a whole and undermine the very foundations of international coexistence. Given their intensity and systematic character, international crimes consist in particularly serious breaches of every person’s fundamental rights. The protection of these rights is entrusted to peremptory norms which are at the top of the international legal order”.16 The evidence provided in support of this final conclusion confirms the general inspiration underlying the present judgment. As already mentioned above, the Court tends to envisage a unitary international regime centred on the victims of the violation of a fundamental human right and on the remedies available to them, irrespective of whether the violation has been committed by a State, by an organ of that State or by a private person. In fact, on serious violations of peremptory norms giving rise to a more drastic regime of international responsibility, the Court quotes material dealing both with State and individual responsibility. It refers, on the one hand, to Article 40 of the 2001 Draft Articles of the International Law Commission, on the consequences of serious breaches of peremptory norms committed by States; and on the other hand, it corroborates its finding by referring to several judgments by the International Criminal Tribunal for Yugoslavia which, on the contrary, deal with the responsibility of individuals.

4.3. The Denial of Immunity from Jurisdiction as a Way to Enact the Special Regime of International Norms of Jus Cogens Having established that gross violations of human rights are prohibited by customary norms possessing a higher hierarchical rank, the Court tries to clarify what the international regime afforded for their special protection might be. As a first result, the Court finds that peremptory or jus cogens norms: “[…] [P]revail over every other norm, whether customary or conventional. Thus, they also prevail over the rule on sovereign immunity […]. The obligation to respect inalienable rights of every human being has attained the rank of a fundamental principle of the international legal order. The emergence of this principle has had repercussions on those other principles which have traditionally shaped international law. This is particularly true with regard to the principle of sovereign equality which lies at the root of immunity from jurisdiction”.17

16 17

Para. 9. Para. 9.2.

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And again: “International legal norms cannot be interpreted separately. They are interdependent and interrelated when their application comes into question. The European Court of Human rights has affirmed this concept in a number of judgments concerning the relationship of the European Convention with other international treaties. Yet, the same holds true even in the relationships between international customary rules. These rules can be correctly understood only if they are taken as an integral part of the same legal order”.18 According to the Court, the prevalence of fundamental human rights over immunity from jurisdiction is now a well established principle of current international law. In support of this conclusion, once again, the Court does not distinguish between violations of human rights committed by States or by individuals. In fact, reference is made first of all to the recent judgment of the Hellenic Supreme Court which affirmed Greek jurisdiction over a petition against Germany to pay compensation for atrocities committed during World War II.19 However, in the last part of the judgment, the Court also tries to justify lifting State immunity on the basis of the same rationale which has led to the denial of jurisdictional immunity to State agents accused of committing gross violations of human rights. The analogy between State immunity and functional immunity was not meant by the Court as a formal argument to its decision. It was only to stress that, when fundamental human rights are at stake, the protection given by international law is no longer for the State as a sovereign power, but safeguards the dignity of every individual.

5. THE DENIAL OF SOVEREIGN IMMUNITY AND THE REGIME OF PROTECTION OF FUNDAMENTAL HUMAN RIGHTS Is the prevalence given by a domestic court to the victim’s request over a State’s sovereign immunity well grounded in international customary law? Or does it entail the commission of an internationally wrongful act on the part of the forum State? The Court admits that in a number of judgments by national supreme courts and by the European Court of Human Rights, sovereign immunity has been declared 18

Ibid. Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000, 4 May 2000, discussed by GAVOUNELI and BANTEKAS in AJIL, 2001, p. 198 ff. On the judgment see also the critical remarks by GATTINI, “To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals’ Claims for War Damages?”, JICJ, 2003, p. 358 ff. 19


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perfectly compatible with the protection of human rights. It also seems perfectly aware of the doctrinal debate stemming from this practice and that the existence of the so-called fundamental human rights exception is far from certain. Nonetheless, it tries to find its own justification for supporting the existence of Italian jurisdiction over Germany in the case in question. As a first premise, the Court explicitly rejects the doctrine of the “implicit waiver” to sovereign immunity by States committing gross violations of human rights. This is a sort of technical, albeit fictitious, argument which both scholars and courts had often used to justify the dubious denial of jurisdictional immunity to States from the point of view of current international law. The acts of a State involving a breach of jus cogens, so runs the argument, imply a waiver on the part of the perpetrator to all rights and privileges afforded by international law. The Court contests this explanation by affirming that: “[…][A] waiver cannot be deduced in abstracto, but must be ascertained through convincing evidence showing the will of the subject to give up a certain right. Moreover, it is highly unlikely that whoever is guilty of such grave violations is willing to renounce to the benefit resulting from jurisdictional immunity. In fact, this benefit makes it very difficult to establish legal responsibilities”.20 The Court repeats several times that the solution of the problem cannot be found in a logical deduction, but must be drawn directly from the practice. For this reason, having rejected the doctrine of implicit waiver, it moves on to examine the possible application to the present case of the so-called tort exception, which has been emerging in recent case-law and legislative precedents. At the end of this examination, the Cassazione arrives at the conclusion that contemporary international law allows a foreign State to be sued before foreign courts, provided that the injury derives from wrongful acts committed within the territory of the forum State. In other words, the right of the victim to recover damages from the State that committed a gross violation of human rights is rendered effective thanks to the tort exception. At first sight, this finding by the Court seemed to be based on a theoretical incoherence. On the one hand the judges have insisted throughout the whole judgment that the denial of sovereign immunity is a direct consequence of the special protection afforded to fundamental human rights; but in the end, they have grounded Italian jurisdiction on an exception to sovereign immunity originally conceived, as we shall see, for minor offences like road accidents. But let us take a closer look at the different arguments leading the Court to this decision.

20

Para. 8.2.

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As a first step, it admits that jurisdictional immunity has recently been upheld in some decisions by domestic and international courts. However, in the Court’s opinion this has happened only because those decisions dealt with damage caused by acts committed outside the forum State. On this, the Court finds supports in the opinion expressed by Lord Hutton in the Pinochet case. In this famous judgment, Lord Hutton recognised that Chile was responsible under international law for acts of torture carried out by Senator Pinochet. Nonetheless, he also admitted that Chile could still claim State immunity if sued for damages in a court in the United Kingdom, because the acts of torture were committed outside British territory. In judicial practice, the customary nature of the tort exception has also been recognised by the Hellenic Supreme Court in the already mentioned recent judgment concerning crimes committed by Nazi Germany in Greece.21 Secondly, the Court points out that the tort exception has been endorsed in statutory provisions in force in different countries, including the United States of America, Canada, Australia and South Africa. These provisions are unanimous in setting aside sovereign immunity in proceedings concerning personal injuries and damage caused by an act or omission in the forum State. This position is reflected also in Article 12 of the United Nations Convention on Jurisdictional Immunities of States and their Property.22 Thirdly, the Court strongly disapproved of the European Court’s decision in the McElhinney case, stating that the tort exception concerned only “personal injury arising out of ordinary road traffic incidents, rather than matters relating to the core area of State sovereignty”. On the contrary, it shared the dissenting opinion of judges Caflisch, Cabral Barreti and Vajic, who deemed that the tort exception also covered intentional physical harm resulting from homicide, including political assassination. Lastly, the Court found further support to its reasoning in Sec. 221 of the Anti-Terrorism and Effective Death Penalty Act, which narrows the immunity of foreign governments from suit in American courts. In fact, this provision states that foreign governments, designated as State sponsors of terrorism, which engage in torture, murder, aircraft sabotage, hostage taking, or providing material support for any of the various acts of terrorism prohibited by 18 USC 2339, become liable to suit for damages for the personal injuries or death these acts of terrorism cause American victims. According to the Court: “[T]his provision is but another confirmation that, in the face of particularly serious tortious activities, the protection of fundamental rights of every human being takes priority over the protection of the State’s interest that its jurisdictional immunity before foreign courts be recognised”.23

21

Supra note 19. General Assembly Resolution 59/38 of 16 December 2004. 23 Para. 10.2. 22


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Is the Court’s finding acceptable from the point of view of present customary international law? On this point, a heated discussion is going on among scholars about the possible existence of a human rights exception to the immunity enjoyed by foreign States for acts performed in their capacity as sovereign authorities. It is not our intention to dwell at length on this well known conflict between different doctrinal opinions.24 Suffice it to recall that some authors insist that suing a State that violated human rights before a foreign court has already become possible under current international law. Others, on the contrary, are of the opinion that this possibility has not yet been generally accepted. While highly desirable, the human rights exception is, thus, not already well established in customary international law. They recall that, although sometimes denied by lower courts, immunity has almost always been restored when the denial has been challenged before Supreme courts. Establishing exceptions to sovereign immunity has never been an easy task, ever since the doctrine of absolute jurisdictional immunity was abandoned at the beginning of the 20th century. There has always been a grey zone between activities which are surely exempted, and activities which may certainly be challenged before a foreign court.25 Moreover, there is a tendency among some States to extend the recognition of jurisdictional immunity even over undisputed commercial or non-sovereign activities of a foreign State or public instrumentality. This occurs for political and economic convenience, and mostly when courts are not left free to decide questions of jurisdictional immunity, but are obliged to follow the opinion of the executive in these matters. For all these reasons, judicial practice throughout the world has never been one hundred percent consistent as to the exact scope of restricted sovereign immunity under customary international law. On the other hand, it is true that the law of sovereign immunity is being continuously developed by domestic courts. Urged by private subjects wanting to exer24

Among authors particularly dealing with this topic see recently: GAVOUNELI, “War Reparation Claims and State Immunity”, Revue héllenique de droit international, 1997, p. 595 ff.; RESS, “The Changing Relationship Between State Immunity and Human Rights”, in DE SALVIA and VILLIGER (eds.), The Birth of European Human Rights Law – L’éclosion du droit européeen des droits de l’homme, Liber Amicorum Carl Aage Nørgaard, Baden-Baden, 1998, p. 175 ff.; KARAGIANNAKIS, “State Immunity and Fundamental Human Rights”, Leiden JIL, 1998, p. 11 ff.; FLAUSS, “Droits des immunités et protection internationale des droits de l’homme”, Schw. ZIER, 2000, p. 299 ff.; DE VITTOR, “Immunità degli Stati dalla giurisdizione e tutela dei diritti umani fondamentali”, RDI, 2002, p. 573 ff.; CAPLAN, “State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory”, AJIL, 2003, p. 741 ff.; BIANCHI, “Serious Violations of Human Rights and Foreign States’ Accountability Before Municipal Courts”, in VOHRAH et al. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/London/New York, 2003, p. 149 ff.; BIANCHI, “L’immunité des Etats et les violations graves des droits de l’homme: la fonction de l’interprète dans la détermination du droit international”, RGDIP, 2004, p. 63 ff. 25 Cf. CRAWFORD, “International Law and Foreign Sovereigns: Distinguishing Immune Transactions”, BYIL, 1983, p. 75 ff.

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cise their right to a judicial determination of their claims, courts are under continuous pressure to actively interpret this traditional rule and adapt it to the changing functions of the State at both domestic and international levels. It is impossible to predetermine how long it will take to bring about a complete change in the customary rule on jurisdictional immunity. A transitional period may be necessary, where innovative solutions coexist with more conservative interpretations not only in judicial decisions, but also in statutory provisions and international treaties. In this period the exact boundaries of a new exception to the jurisdictional immunity of foreign States may not have been precisely defined. However, in establishing the current existence and content of a customary rule one cannot ignore widespread objections arising from different sectors of the international community.26 These objections are not meaningless and should be taken into consideration when interpreting the rule during a transitional period. To be more exact, we believe that if challenge against the old rule becomes sufficiently widespread, albeit not unanimously, it is possible to affirm that, for the time being, the application of an innovative solution does not amount to the commission of an internationally wrongful act27 especially if the departure from current law is justified by the vindication of a universally recognised principle, such as the protection against gross violations of human rights.28 As a first, tentative conclusion, it may be said that this is exactly the case of the human right-tort exception envisaged by the Court in the case in hand. It might be useful to recall that the whole shift towards the human right-tort exception dates back as far as the early 1980s. During that period, jurisdictional immunity was denied in a number of judgments delivered by American district and appeals courts. These decisions concerned proceedings instituted by individuals seeking compensation for injuries they had suffered due to acts contrary to international law committed by foreign States. Injuries had been caused to individuals by alleged internationally wrongful acts of a different nature, not always amounting to the violation of jus cogens protecting “the liberty and human dignity of every human being”. In fact, these acts ranged from the breach of treaties on the freedom of navigation in the high seas, or American maritime neutrality,29 to the breach of customary law on the prohibition of torture,30 from the violation of the “precepts 26

CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 38. The issue is dealt with by BIANCHI, “Denying State Immunity to Violators of Human Rights”, Austrian Journal of Public International Law, 1994, p. 195 ff. 28 On this point see FRANCIONI, “Balancing the Prohibition of Force with the Need to Protect Human Rights: A Methodological Approach”, in CANNIZZARO and PALCHETTI (eds.), Customary International Law on the Use of Force: A Methodological Approach, The Hague/Boston, p. 269 ff., available at www.addix.it/internazionale/relazioni/Francioni.pdf. 29 Amerada Hess Shipping Corporation v. Argentin Republic, US Court of Appeals, 2nd Circuit, Judgment of 11 September 1987, 830 F 2d 421 (1987), ILR, 1989, pp. 8-17. 30 Siderman de Blake and Others v. Republic of Argentina and Others, US Court of Appeals, 9th Circuit, Judgment of 22 May 1992, 965 F 2d 699 (1992), ILR, Vol. 103, 1996, pp. 454-479. 27


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of humanity” which prohibit individual assassination both in national and international law,31 to the crimes against humanity committed by Nazi Germany during the World War II.32 Some of these judgments were later reversed by the Supreme Court33 or by the Courts of Appeals,34 although the original decision to sue the foreign State did not prove to have been completely fruitless. In fact, some of the claims dismissed for lack of jurisdiction ended with an extra-judicial agreement whereby the foreign State accepted to pay compensation to the individual.35 As a part of the general trend against recognition of jurisdictional immunity to States accused of gross violations of human rights we may now quote the judgment of the Greek Supreme Court in the Prefecture of Voiotia case36 and the Ferrini decision itself. Not to mention the dissenting opinions of the minority judges in the Al-Adsani and McElhinney judgments of the European Court of Human Rights. Moreover, if the violation of human rights took place in the forum State, we may also add to this general trend all the statutory provisions of common law countries which deny immunity in respect of acts of foreign States causing “death or personal injury”. Finally, there is an argument which, in our opinion, may turn out to be decisive in demonstrating that the denial of sovereign immunity is not per se illegitimate when the State is accused of gross violations of human rights. In effect, the ultimate purpose of the rule on jurisdictional immunity is to avoid interference in some governmental activities that international law considers worth protecting. As the Cassazione has also recognised in the present case, no court would subscribe to the view that the violation of human rights should be considered as a governmental activity protected by international law. Under this status of the current practice, a denial of jurisdictional immunity would not be unlawful, on the sole condition that the violation of fundamental human rights by the foreign State is notorious and has been well established. Recognising that the denial of sovereign immunity in a given proceedings does not amount to an internationally wrongful act is important also in another respect.

31 Letelier v. Chile, District Court, District of Columbia, Judgment of 11 March 1980, 488 F. Supp. 665 (D.D.C. 1980), ILR, Vol. 63, pp. 378-390; Liu v. Republic of China, Court of Appeals, 9th Circuit, Judgment of 29 December 1989, 892 F. Supp. 1419, ILR, Vol. 101, 1995, pp. 519535. 32 Von Dardel v. Union of Soviet Socialist Republics, US District Court, District of Columbia, Judgment of 15 October 1985, 623 F. Supp. 246 (1985), ILR, Vol. 77, 1988, pp. 258-275; Hugo Princz v. Federal Republic of Germany, US District Court, District of Columbia, Judgment of 23 December 1992, 813 F. Supp. 22, 26 (D.D.C. 1992), ILR, Vol. 103, 1996, pp. 598-603. 33 Argentine Republic v. Amerada Hess Shipping, US Supreme Court, Judgment of 23 January 1989, 102 L Ed 2d 818 (1989), ILR, Vol. 81, 1990, pp. 658-669. 34 Federal Republic of Germany v. Hugo Princz, US Court of Appeals, District of Columbia Circuit, Judgment of 1 July 1994, 26 F 3d 1166 (1994), ILR, Vol. 103, 1996, pp. 604-621. 35 See infra section 6. 36 See supra note 19.

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In effect, many authors point out that judges should try to reconcile the conflict between sovereign immunity and human rights each time a similar conflict arises before them. They suggest that the court should make an attempt to find a balance between two principles both protected by international law currently in force. We think it illogical to base such an attempt on the premise that the denial of sovereign immunity entails the international responsibility of the forum State.37

6. SOVEREIGN IMMUNITY AND THE INDIVIDUAL RIGHT TO REDRESS FOR BREACHES OF HUMAN RIGHTS 6.1. To What Extent May a Well Established Rule of International Law Be Set Aside in Order to Protect the Values Enshrined in an International Norm of Jus Cogens? The Intertwining of the Human Rights and Tort Exceptions in the Court’s Reasoning There is sufficient material to support the assumption that a customary rule is taking shape limiting foreign States’ jurisdictional immunity in civil suits involving the violation of fundamental human rights. Although the different aspects of this rule have not yet been established, the denial of immunity does not amount, in principle, to an internationally wrongful act towards the foreign State. However, this provisional conclusion does not exhaust all the positive contribution that the Ferrini judgment has given to the correct understanding of the international regime on the protection of fundamental human rights. In effect, the Court held serious breaches of jus cogens norms protecting fundamental human rights to be international crimes. Unfortunately, in the development of this argument, the Court fails to distinguish once again “internationally wrongful acts of States” and “crime of individuals”. In spite of this confusion, there is an important suggestion underlying the Court’s reasoning on this issue that is worth pointing out: the intervention by domestic courts providing compensation to victims should be considered an integral part of the special regime envisaged by international law for the protection of fundamental human rights. The Court approaches this reasoning by mentioning some elements of the particular legal regime of international crimes committed by individuals. It refers to the imprescriptibility of war crimes and crimes against humanity, to the principle of universal criminal jurisdiction, and to the principle of civil universal jurisdiction. Moving from individuals’ crimes, the Court now shifts to some of the consequences applicable to State responsibility. In fact, it refers to Article 41 of ILC Draft Articles on the International Responsibility of States. This article establishes that States are under an obligation not to recognize as lawful a situation created by

37

See infra section 6.


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a serious breach of a peremptory norm of general international law. It also forbids States to render aid or assistance in maintaining such a situation. The Cassazione rightly points out that Article 41 of the Draft Article codifies the general principle whereby the most serious violation of international peremptory norms should entail a qualitatively different and more drastic reaction. In the Court’s representation, the denial of sovereign immunity is at the same time a means to fulfil the obligations of non recognition and not rendering aid or assistance, and a way to permit the application of the civil universal jurisdiction principle. As regards the obligation of non-recognition and non rendering aid or assistance, the Court says: “To recognise immunity from jurisdiction to States who committed such heinous acts is totally in conflict with all the above mentioned provisions. In fact, this recognition does not favour, but hinders, the protection of values that those same provisions consider essential for the entire international community. In the event of a conflict between a norm protecting a fundamental and any other rule of international law, the former prevails, being hierarchically superior. This has been pointed out very clearly in the dissenting opinions attached to the decision of the European Court of Human Rights in the Al-Adsani affair. A State is not allowed to take advantage of sovereign immunity in such cases”.38 On the other hand, having the universal civil jurisdiction in mind, the Court fully endorses the finding by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia of 10 December 1998 in the Furundzija case. It affirms: “In the same perspective we may quote also the Furundzija judgment, where the Tribunal recognised that the victim of an international crime may bring a civil suit for damage before a foreign court”.39 Accepting the principle of universal civil jurisdiction, the Italian Supreme Court has outlined a general framework in which the obligations of States to protect human rights, the remedies made available to the individuals injured by a violation of human rights, and the role of domestic judges in examining these remedies are all part of a single international regime. In turn, this general framework is in line with two recurring elements in recent practice. On the one hand, the international regime protecting interests of human beings often includes an obligation to afford compensation for the injury inflicted to the victim. On the other, persons who have been injured by an alleged violation of international law tend, almost naturally, to address domestic courts, considered as the authorities normally entrusted to decide on compensation claims by private persons. 38 39

Para. 9.1. Ibid.

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This brings us up to the most important controversial aspects of the Ferrini decision. Firstly, to what extent does the regime envisaged by the Court effectively correspond to customary international law in force? Secondly, in what sense is the denial of jurisdictional immunity to be seen as instrumental in the full implementation of the right of the victim of a serious breach of fundamental human rights to receive compensation from the wrongdoer?

6.2. The Right of the Victims of Breaches of Fundamental Human Rights to Receive Compensation and the Three Possible Meanings of the Universal Civil Jurisdiction Principle The right of the victims to receive compensation for the injury resulting from gross violations of human rights is an integral part of the customary rules prohibiting the commission of such violations. It is true, on the other hand, that in recent practice and doctrinal discussions, the principle of the universal civil jurisdiction is conceived as referring to all possible mechanisms, both domestic and international, available to victims seeking redress for the harm they have suffered.40 Before moving on to illustrate the present trend of international law on these points, a preliminary issue must be clarified from the very outset. Addressing the problem of compensation from the perspective of the remedies available to the injured person is not tantamount to recognising the international personality of the individual. Nor is it an admission of individuals as directly entitled by international law to the right to lodge a claim for damages. This is a merely theoretical question. On the contrary, the real problem is to establish how international law adapts the State’s obligation to pay compensation, and its concrete implementation, to the particular value which has been violated, that is the dignity and liberty of human beings. Now, the evolution of international law has recognised for some time that the interests of individuals are better protected if they are given the possibility of suing a judicial or administrative mechanism directly.41 For a better clarification of the whole issue, we must draw attention to another preliminary consideration. The international regime concerning compensation for 40 For the most recent works on that problem see STEPHENS and RATNER, International Human Rights Litigation in U.S. Courts, Irvington-on-Hudson, New York, 1996; STEINHARDT and D’AMATO, The Alien Tort Claims Act: An Analytical Anthology, Ardsley, New York, 1999; VAN SHAACK, “In Defence of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention”, Harvard ILJ, 2001, p. 141 ff.; STEPHENS, “Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations”, Yale JIL, 2002, pp. 1-57. 41 The importance of domestic courts in applying and interpreting international law, especially those international rules protecting interests of individuals, has been systematically developed and encouraged in Italian doctrine by CONFORTI, cit. supra note 26.


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damage suffered by individuals has often involved both a domestic and an international level. This means that domestic and international means of redress could well be operating alternatively or contemporarily in order to implement the right of the victims. All that premised, we must clarify that the right of the victim to obtain compensation may be described from different perspectives, depending on whether a human rights violation has been committed by a State or by an individual. The meaning of the universal civil jurisdiction principle will vary accordingly, and so will the role of the different mechanisms set up in order to assess an individual claim. Let us begin by considering the possibility that a State makes use of the mere faculty, recognised by the customary rule on universal criminal jurisdiction, to punish the author of an international crime under international law. The punishment is very likely to include compensation for the victims of the crime. This hypothesis would correspond to the first meaning of the universal civil jurisdiction principle. In fact, some authors simply refer to this principle as the possibility for victims to seek reparations in the course of the same trial instituted on the basis of universal criminal jurisdiction. They highlight that reparations for the victims of criminal offences are provided for in every national criminal law system. Moreover, some domestic systems permit the recovery of damages already as part of the criminal prosecution of the wrongdoer (so called action civile).42 In this sense, it is also possible to quote paragraph 404 of the Restatement (Third) of the Foreign Relations Law of the United States, which affirms that “jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy”. The right of the victims to receive compensation for the injury suffered persists also when criminal jurisdiction over individual perpetrators is exercised by international tribunals. The principle that victims of international crimes committed by individuals are entitled to receive compensation is endorsed also in Article 75 of the Statute of the International Criminal Court. To this end, the Court may, in the first place, “make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation”. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79. The Trust Fund could be considered as an international alternative to the payment of compensation through a domestic court. It is true that the Statutes if the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda do not expressly provide for any right of the victims to compensation for the injuries they have suffered. However, the question

42 RANDALL, Federal Courts and the International Human Rights Paradigm, Durham/ London, 1990, pp. 163-193.

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is being increasingly debated among the judges of both tribunals. The proposal has been advanced that the two statutes should be amended in order to admit victims’ claims for compensation. In a letter dated 12 October 2000 addressed to UN Secretary-General, the President of the ICTY suggested that the Security Council should consider possible mechanisms for the payment of compensation, such as the creation of an international compensation commission.43 We may consider the right of the victim to obtain redress from the court dealing with the international criminal responsibility of individuals as a general principle of criminal law, to use an expression drawn from the Statute of the International Criminal Court. In fact, criminal justice “is not only about punishing perpetrators, but also about restoring dignity to victims”.44 The above-quoted examples also confirm the general assumption that both domestic and international mechanisms may be used to implement the right of the victims to obtain redress for the injury suffered. Secondly, the victim of an international crime committed by an individual may rely on universal civil jurisdiction to address a claim for compensation to the courts of a State, although the crime has been committed on the territory of another State. This possibility must be expressly established in the legal order of the forum State. It seems a broad application of the second concept of the universal civil jurisdiction. As an example, we may quote the American “Torture Victim Protection Act”, whose section 2(a)(1) states that an individual who, under actual or apparent authority, or colour of law, of any foreign nation subjects an individual to torture shall, in a civil action, be liable for damages to that individual. In this case, the exercise of civil jurisdiction could nonetheless be subject to certain conditions, such as the exhaustion of adequate and available remedies in the place where the conduct giving raise to the claim occurred. Perhaps, we may also classify under this heading the order establishing reparations to victims issued by the International Criminal Court. Pursuant to Article 109 of the ICC Statute, this order may be addressed to “State parties” without distinction. Presumably, the States concerned would be all those where sufficient property and assets of the sentenced person are. This is the sole condition to secure the execution of the order. Moreover, the order should be given effect by the addressees in accordance with the procedure of their national law. This could amount to seeking redress to the courts of a State other than the national State of the convicted perpetrator or of the State where the crime was committed. Here again, domestic and international mechanisms concur in the implementation of the right of the victims to receive adequate redress. 43

UNDOC S/2000/1063. This was declared by Judge Akua Kuenyehia, First Vice-President of the International Criminal Court in the address pronounced at the first meeting of the Board of Directors of the Trust Fund for Victims. The text of the address is available on the official site of the International Criminal Court. 44


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As a third possibility, universal civil jurisdiction designates the right of the victim of a gross violation of human rights to obtain compensation for the injury they have suffered. To this end, States should not merely be permitted to exercise civil jurisdiction when their tribunals are sued by those victims. They would even be obliged to provide an effective remedy through the competent national tribunals. This third possibility concerns those cases where the violation of an international norm on the protection of fundamental human rights has been committed by a State. In effect, scholars are unanimous in affirming that the prohibition of gross violations of human rights is part of current international customary law. It is commonly held that this norm has been developing since the end of World War II, although not all its aspects have been clearly settled by the relevant practice. Doctrinal opinions are also unanimous in pointing out that, in this context, States are basically required to refrain from committing gross violations of human rights. In the same vein, they must adopt preventive and repressive measures to avoid these violations being committed by individuals on the territories under their control. The prohibition of gross violations of human rights is often presented as the only existing customary norm on the protection of human rights. More recently, the conviction is taking shape that, in the field of human rights, some acts are prohibited by international customary law, or general principles of law recognised by civilised nations, even though they would not amount to “a widespread or systematic attack directed against any civilian population”. This is particularly true for torture, racial discrimination, slavery, extra-judicial assassination, or, as the Court put it in the present judgment, the all-encompassing prohibition against undermining a person’s human dignity. In the opinion expressed by a number of judgments, and again this includes the present decision of the Italian Supreme Court, the prohibition of these acts is established in peremptory norms of international law. In our opinion, this second and wider version of the customary rule on the protection of human rights comes closer to the current status of international practice. We may define this rule as prohibiting violations of fundamental human rights rather than only gross violations of human rights. The obligation to afford compensation to victims of such violations is, in turn, part of the protection of fundamental human rights provided for by both customary and conventional international law. One usually speaks, in this regard, of an obligation incumbent upon States to provide effective remedies to victims of the gravest violations of human rights. In effect, when the ultimate “beneficiaries” of a legal regime are individuals, international law has always included compensation to be calculated, in principle, according to the injury suffered by the actual victims.45 This has been true since the 45

For a general discussion on this topic see RANDELZHOFER and TOMUSCHAT (eds.), State Responsibility and the Individual, The Hague/Boston/London, 1999; PISILLO MAZZESCHI, “Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights”,

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emergence of principles on the treatment of aliens, although in this case the personal interests of the offended aliens tend to merge with the general interest of the State that its subjects receive the prescribed treatment on foreign territory. It might be debatable whether the obligation to provide an effective remedy to victims of human rights abuses is the content of a “primary” or a “secondary” rule. Yet, this is a wholly theoretical question which is destined to have little bearing on the concrete definition of what international law requires exactly from States in the event that interests of individuals have been injured.

6.3. The Existence of an International Obligation to Provide Effective Remedies to the Victims of Serious Breaches by States of Fundamental Human Rights In recent practice, the obligation to provide effective remedies to victims has been confirmed, first of all, by the UN Secretary-General’s Report of 23 August 2004 on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.46 Particularly interesting is Chapter XVI, para. 54, of the Report, where the Secretary-General refers to States’ obligation “to act not only against perpetrators, but also on behalf of victims – including through the provision of reparations”. A conclusive statement of the existence of a customary obligation to pay compensation to the victims of serious violation of human rights has been recently made in the Report of the of the International Commission of Inquiry on Darfur to the United Nations Secretary-General.47 The Commission, chaired by Professor A. Cassese, affirmed without any doubt that: “[…][B]ased on the aforementioned body of law on human rights, the proposition is warranted that at present, whenever a gross breach of human rights is committed which also amounts to an international crime, customary international law not only provides for the criminal liability of individuals who have committed that breach, but also imposes an obligation on States of which the perpetrators are nationals, or for which they acted as de jure or de facto organs, to make reparation (including compensation) for the damage made”.48 JICJ, 2003, p. 341 ff.; ID., Esaurimento dei ricorsi interni e diritti umani, Torino, 2004, p. 26 ff.; SHIN HAE BONG, “Compensation for Victims of Wartime Atrocities – Recent Developments in Japan’s Case Law”, JICJ, 2005, p. 187 ff. On the difficulties to implement the right of the victims of international crimes to receive reparation see RIGAUX, “La condition des victimes de crimes de droit international”, in VOHRAH et al. (eds.), cit. supra note 24, p. 771 ff. 46 UN Doc. S/2004/616. 47 The Report was issued in Geneva on 25 January 2005 pursuant to Security Council Resolution 1564 of 18 September 2004. 48 Para. 598, pp. 151-152.


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The obligation in question is clearly set out also in the Revised Draft of the UN Commission on Human Rights on Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violation of International Human Rights Law and Serious Violations of International Humanitarian Law.49 Paragraph II.3(d) of the Draft recognises that the “obligation to respect, ensure respect for and enforce international human rights law and international law, includes, inter alia, the duty to afford effective, prompt and appropriate remedies to victims, including providing and facilitating reparation to victims […]”. This concept seems to be shared also by the Italian Supreme Court in the Ferrini judgment. According to the Cassazione, in fact, “there could be no doubt that the principle of universal jurisdiction applies also to civil proceedings arising from the commission of an international crime”.50 Although, once again the Court is ambiguous on whether it is referring only to international crimes of individuals or also to violations of fundamental human rights committed by States. The obligation to pay compensation to victims of serious breaches of human rights is so well established that States having committed these breaches have often offered redress spontaneously. They have done so, although the abuses dated back to a period where the existence of the obligation in question was even more uncertain. Suffice it to mention Germany’s attitude as regards most of the crimes perpetrated during World War II. In some instances it has indemnified foreign victims whose national States had expressly waived any claim on behalf of their citizens.51 Payment of compensation to victims of particularly grave human rights abuses, both at the domestic and international level, may be prompted thanks also to pressure put upon the responsible State by all States. In fact, these abuses fall within the category of “gross or systematic breaches by a State of an obligation arising under a peremptory norm of general international law”, as stated by Article 40 of the ILC Draft Articles on the International Responsibility of States. According to subsequent Article 48 para. 2(b) of the said Draft Articles, any State may claim the obligation of reparation from the responsible State “in the interest […] of the beneficiaries of the obligation breached”.52

49

The Revised Draft on the Basic Principles is dated 5 August 2004. The text is available at www.ohchr.org/english/events/meetings/docs/versionrev.doc. The Draft was prepared in consultation with the independent experts Theo Van Boven and Cherif Bassiouni pursuant to Resolution 2004/34 of the Commission on Human Rights, adopted on 19 April 2004. The latest text of the Basic Principles officially adopted by the Commission on Human Rights is contained in Human Rights Resolution 2005/35 of 19 April 2005. 50 Para. 9. 51 For the sake of brevity, we refer here to information reported by GATTINI, cit. supra note 1, p. 226 ff. 52 See recently on this point GAJA, “Is a State Specially Affected When Its Nationals’ Human Rights Are Infringed?”, in VOHRAH et al. (eds.), cit. supra note 24, p. 373 ff.

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6.4. The Different Ways of Implementing the Obligation of States to Provide Effective Remedies to Victims of Human Rights Abuses We have now to examine how the domestic and the international spheres are connected when the obligation to make compensation to victims arises within the context of a violation of human rights committed by States. For some time, the regime of international obligations concerning the protection of interests of individuals has begun to show a common feature. This is the recognition that the interests of individuals are better protected if they can obtain appropriate redress by suing a domestic court directly. Here again, we may say that this tendency dates back to the local remedies rule in the field of the treatment of aliens and diplomatic protection. As is well known, scholars are still discussing the “substantial” or “procedural” nature of this rule. Be it as it may, we think that both in the realm of injury to aliens and the protection of human rights, the real point is quite different. What really matters is that States have to provide effective judicial or administrative remedies necessary to enable victims to obtain prompt and adequate redress. Moreover, when the victims of humans rights violations are citizens of the State responsible, recourse to domestic remedies might even prove to be the only opportunity they have to receive compensation for the injury received. The obligation to provide effective remedies starting from the domestic level was originally established in Article 8 of the Universal Declaration of Human Rights. Since then, it is has been included in many treaties on the protection of human rights and the prohibition of human rights abuses like torture. Pursuant to Article 14 of the United Nations Convention Against Torture of 10 December 1984 “[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation […]”. Preference for the establishment of domestic remedies available to the victims of gross violations of human rights is affirmed in the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly in 1985.53 Point A.5 of the Declaration states that “[j]udicial and administrative mechanisms should be established […] to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible […]”. A similar provision is contained in paragraph I.2(b) of the already mentioned Basic Principles adopted by the Commission on Human Rights. A domestic remedy may also be created outside the official institutions of the responsible State. Just think of the creation of special indemnification programmes or foundations which may receive individual claims and afford compensation for the victims of human rights abuses.54 53

Res. 40/34. This could be the case of the German “Law on the Creation of a Foundation ‘Remembrance, Responsibility and Future’” of 2 August 2000, which came into force on 12 August 2000. 54


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As we have said above, when the injury has been caused to individuals the obligation to pay compensation may alternatively be implemented at the international level. The activity of international courts, mixed tribunals, claims, conciliation or compensation commissions may substitute or supplement lacking or insufficient remedies at the domestic level.55 Obviously, compensation afforded at the international level is likely to take place especially when victims are foreign and could thus benefit from diplomatic pressures by their national State.

7. CONCLUDING REMARKS: POSSIBLE RESOLUTION OF THE CONFLICT BETWEEN HUMAN RIGHTS AND SOVEREIGN IMMUNITY The conflict between human rights and sovereign immunity arises when no remedies are available for the victim, or the compensation afforded is considered to be neither adequate nor effective. In this event, the victims or their heirs tend to sue the allegedly responsible State before the courts of the State where the violation of fundamental human rights has occurred. There is another point to be made. Cases must be evaluated from their inception to their conclusion and beyond, taking into account also the solution they managed to reach outside the judicial proceedings where sovereign immunity had been invoked. This perspective has been already rightly highlighted in a recent article and deserves further development.56 In our opinion, the decision on whether immunity may be granted to a foreign State must be considered part of the whole “procedural” phase necessary to have the obligation to redress the victims applied. As usual, this complex phase involves both the domestic and the international spheres. This phase begins at the domestic level when the victims sue a foreign State before the court of the State where the human rights violation took place. At this stage, two opposite solutions may be possible: the judge may either grant or reject the plea for immunity. In the first case, the right of the victim to receive compensation would be undermined; in the second, the refusal to recognise immunity could be challenged by the defendant State and trigger a difficult diplomatic dispute. The reconciliation between the two conflicting principles, if necessary, takes place at a subsequent stage, i.e. at the international level. As a first alternative, the domestic court may uphold a plea to dismiss the private claim on the ground of the sovereign immunity or political act doctrines. This is likely to happen when a domestic judge ascertains that the obligation to afford

55 Internationally sponsored programmes to provide reparations to victims for harm suffered by victims of human rights abuses is envisaged also by the UN Secretary-General’s Report on “The Rule of Law and Transitional Justice”, cit. supra note 46, Chapter XVI, p. 18. 56 DE VITTOR, cit. supra note 24, espec. p. 608.

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compensation could be discharged in some other manner. For instance, the judge may find out that the States involved in the case which originated the claim for damages have already agreed on a different, non jurisdictional means to redress the victims. Most of the time, this means of redress is provided for at the international level, thanks to treaties in force among the concerned States. For a long time, some Italian scholars have upheld the recourse to this method in order to strike the proper balance between immunity and human rights guaranteed by the Italian Constitution.57 They referred to this criterion as that of “implementation by equivalent of a fundamental human right”, which would otherwise be completely sacrificed. They have proposed this solution especially bearing in mind the relationship between sovereign immunity and the fundamental right to judicial protection, recognised to every person by Article 24 of the Italian Constitution. However, the same line of reasoning could also be extended to the relations between immunity and fundamental human rights protected by customary international law. An analogous solution seems to be behind the Corte di Cassazione’s decision on the Cermis case, where negotiations had taken place between Italy and the United States to compensate the victims of the disaster pursuant to the London Convention among NATO States on the status of their forces. In this context, mention can be made also to the Princz case. The judgment of the Court of Appeals granting immunity to Germany was “balanced” by the conclusion of an agreement between Germany and the United States “concerning benefits to certain United States nationals who were victims of National Socialist measures of persecution”.58 It might be complained that courts do not verify often enough, and more accurately, whether individuals do have an alternative method to satisfy their claims before recognising jurisdictional immunity to a foreign State. Secondly, the victims may have no other actual means to obtain redress than addressing their claim to the domestic judge. We think this is exactly the situation where a court’s denial of sovereign immunity would not amount to an internationally wrongful act, provided that the foreign State’s responsibility is beyond doubt. The denial of immunity would, in turn, correspond to the domestic phase which often takes place when the interests of individuals are protected by international law. However, it is unlikely that the victims of a breach of fundamental human rights would obtain compensation exclusively before national judges. As we have already stated, not all the aspects of the human right-tort exception have been fully clari-

57 PISILLO MAZZESCHI, “Immunità giurisdizionale delle organizzazioni internazionali e Costituzione italiana”, RDI, 1976, p. 489 ff.; CONDORELLI, “Le immunità diplomatiche e i principi fondamentali della Costituzione”, Giur. Cost., 1979, I, p. 455 ff.; CONFORTI, cit. supra note 26, pp. 296-297. With specific reference to the Ferrini judgment: BARATTA, cit. supra note 1, p. 1203; DE SENA, “Immunità degli Stati”, cit. supra note 1, p. 264. 58 Bonn, 19 September 1995, ILM, 1996, p. 193 ff.


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fied in international practice. It is up to the States involved in the relevant case to find a solution that, while guaranteeing compensation to the injured parties, would also prevent the proceedings from reaching the merits stage and forced execution. Invariably, this solution take place at the international level, thus confirming the two-phase procedure typical of the international protection of the interests of individuals. In fact, in some of the cases where immunity has been denied, foreign States accused of violating fundamental human rights agreed to pay damages to the injured parties.59 When the victims were also nationals of the accused State, payment was made to the individuals through the intervention of the forum State.60 When the victims were aliens, compensation was afforded to the victims’ national States through diplomatic channels. Similarly, section 221 of the American Anti-Terrorism and Effective Death Penalty Act admits the possibility that a claim “in which damages are sought against a foreign State for personal injury or death caused by an act of torture, extrajudicial assassination, etc.” may alternatively be subject to arbitration “in accordance with accepted international rules of arbitration”. Until the new exception to sovereign immunity reaches a higher level of precision, this is all we can conclude from the present stage of the rule’s evolution. The extra-judicial agreement avoids the trial before a domestic court. This agreement may also be considered as a means of “implementation by equivalent” of the traditional principle of sovereign equality upon which jurisdictional immunity was originally based. As a last remark, we must recall that the claim to obtain compensation has occasionally been taken up by the State where a human rights violation has occurred, even against the national State of the victims. According to some doctrinal opinions this would be consistent with the general trend towards extending diplomatic protection even on behalf of non-citizens, provided that this action is necessary to strengthen the international protection of fundamental human rights.61 However, this trend has not yet become generally accepted. So far, the general interest underlying the protection of human rights does not go beyond the recognition of a locus standi to the State where the human rights violation has occurred in order to find a solution favourable to victims of these crimes.

59

After the judgment of the Court of Appeals affirming the United States jurisdiction in the Siderman case, Argentina accepted to pay damages to the Siderman family: New York Times, 14 September 1996, p. 6. 60 As is well known, the Letelier case ended with an agreement between United States and Chile, whereby Chile accepted to pay damages for the deaths of Letelier and Moffit. The text of the agreement is published in ILM, 1992, p. 3 ff. 61 On these problems see DE VITTOR, cit. supra note 24, pp. 608-617.

BALANCING THE HUMAN RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS AFTER DOHA VALENTINA VADI*

1. INTRODUCTION: THE RIGHT TO HEALTH AND THE INTERNATIONAL PROTECTION OF IPRS The aim of this article is to propose an approach to the problem of balancing1 the right to health and the protection of intellectual property rights originating from pharmaceutical patents. In particular, this contribution will explore the relationship between the international regime of Intellectual Property Rights, as provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights2 (TRIPS Agreement), and the right to health, with special consideration of the question of access to essential drugs. The proliferation of infectious diseases,3 the threat of bacteriological attacks4 and recent health emergencies in South-Eastern Asia have made this complex debate more timely than ever.5 After a brief glance at the principles and rules which regulate this subject at the international level, I shall look at the instruments that de jure condendo could improve the balance between appropriate protection of IPRs and equitable access to essential drugs.

2. THE CONCEPTUAL FRAMEWORK Our first task is to draw a conceptual framework of the rights in question. At the theoretical level, on the one hand, the right to health is fundamentally related * J.D. University of Siena, MJur. University of Oxford, MPol.Sc. University of Siena, PhD candidate European University Institute, legal practitioner. 1 See FIDLER, “Trade and Health: The Global Spread of Diseases and International Trade”, GYIL, 1997, p. 354 ff. 2 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, 33 ILM 1994, p. 1197 ff., in force since 1 January 1995. 3 Around the world 42 million people live with HIV/AIDS. See the UN Secretary General Report “Access to Medication in the Context of Pandemics such as HIV/AIDS”, 16 January 2003, Doc. E/CN.4/2003/48, p. 2 ff. 4 ABBOTT (“Negotiations in the WTO TRIPS Council pursuant to paragraph 6 of the Ministerial Declaration on the TRIPs Agreement and Public Health”, World Bank Seminar, Washington DC, 2003) quotes Lao Tzu: “To be overbearing when one has health and position is to bring calamity upon oneself” (Tao Te Ching, Book I, Chapter IX). 5 For a suggestive inquiry on the historical importance of infectious diseases, see FIDLER, International Law and Infectious Diseases, Oxford, 1999.


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to human dignity, life and development. On the other, Intellectual Property Rights (hereinafter IPRs) have been highly controversial since their inception in the pharmaceutical field. The argument in this section will proceed in three parts. First, we will briefly make explicit the conceptual continuity that unites the access to essential drugs and the right to health, examining the legal content of this right. The second part of this section will put forward a definition of IPRs and some theoretical parameters will be set. In the third and last part of this section, some of the implications of such a conceptualization will be explored briefly. Importantly, access to essential drugs6 and the right of States to protect public health are not two different rights;7 on the contrary, promoting access to medicines constitutes an element of States’ sovereign right to protect public health.8 But, what is the right to health? Do we have a moral right to health? Do we have a legal right to health? According to ethical justifications of human rights, human dignity makes human rights a moral necessity.9 At a legal level, the right of everyone to the enjoyment of the highest attainable standard of physical and mental health is an economic right, which States are obliged to fulfil gradually, in a manner compatible with their economic and structural capabilities. Indeed some authors have asserted that the right to health already belongs to customary international law.10 Actually, the right to health is undoubtedly included in a large number of treaties11 and other instruments of international

6 Essential medicines are those that save life, satisfying the priority health care needs of the population and which should therefore be available at all times, in adequate amounts and at a price the community can afford. WHO, The Use of Essential Drugs, WHO Technical Report Series 895, Geneva, 2000. 7 See OTERO GARCÌA-CASTRILLÓN, “An Approach to the WTO Ministerial Declaration on the TRIPS Agreement and Public Health”, JIEL, 2002, pp. 212-219; ACCONCI, “L’accesso ai farmaci essenziali. Dall’Accordo TRIPS alla Dichiarazione della Quarta Conferenza Ministeriale OMC di Doha”, CI, 2001, pp. 637-664. 8 For the definition of health, see the Preamble to the Constitution of the World Health Organization according to which health is “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity”. 9 See, for instance, General Assembly Resolution 58/173 adopted on 10 March 2004 (Doc. UN A/RES/58/173). 10 See ABBOTT, “WTO TRIPS Agreement and Its Implications for Access to Medicines in Developing Countries”, Study Paper for the British Commission on Intellectual Property Rights, Geneva, 2002, pp. 56-57. 11 Article 12 of the International Covenant on Economic, Social and Cultural Rights (UNGA Resolution 2200 (XXI), 16 December 1966, entered into force on 3 January 1976 (UNTS, Vol. 999, p. 171), obliges States to respect, protect and fulfil the right of everyone to the highest attainable standard of health. The UN Committee on Economic, Social and Cultural Rights has further set out the content of the right to health in its General Comment No. 14 on the “Right to the Highest Attainable Standard of Health” adopted on May 2000 (Doc. E/C.12/2000/4).

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relevance.12 The right to health is also recognized in regional human rights treaties13 and in over 60 national constitutions. In particular, in some jurisdictions, constitutional provisions on the right to health have generated significant jurisprudence. The willingness of courts to adjudicate on matters involving this socioeconomic right is gradually establishing the justiciability of the right14 Indeed, human rights cases, combined with increasing attention from public opinion, can lead to actual changes in government policy.15 This empirical component is fascinating: once more, normative gaps have been filled by court interpretation, while jurisdictional trends have inspired the international law-making process. Turning now to IPRs, this concept indicates the inventor’s rights to the recognition and economic exploitation of a given idea. As Thomas Jefferson wrote in a 1813 letter to Isaac McPherson, an inventor from Baltimore, “If nature has made any thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces it into the possession of everyone […]”.16 If, therefore, “Inventions cannot, in nature, be subject of property, Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility”.17 Under the classic theory, an inventor’s rights to the recognition and economic exploitation of a given idea would have both the private utility of remunerating

12 Article 25 of the 1948 Universal Declaration of Human Rights (Doc. UNGA Res. 217 A (III), adopted on 10 December 1948) (hereinafter UDHR) affirms the human right to a standard of life adequate for the health of the individual. 13 See, for instance, Article 16 of the African Charter of Human and Peoples’ Rights (entered into force on 21 October 1986, ILM, 1982, pp. 58-68). 14 In the Viceconte case (Viceconte, Mariela Cecilia v. Argentine Ministry of Health & Social Welfare, Case No. 31.777/96, 1998, Poder Judicial de la Naciόn) the Argentine court ordered the national government to manufacture and distribute vaccines against a neglected disease, the Haemorrhagic Fever. The Court referred specifically to the right to health contained in Article 25 of the UDHR and Article 12 of the International Covenant on Economic, Social and Cultural Rights. 15 For instance, in its recent decision Treatment Action Campaign v. Minister of Health (available at http://www.cptech.org) the Constitutional Court of South Africa held that the South African Constitution requires the State to fulfil the right of pregnant women and their children to access to health services which combat the mother-to-child transmission of HIV. 16 See JEFFERSON, Letters, Washington, 1972, p. 629 ff., quoted by DAVID, “Le istituzioni della proprietà intellettuale e il pollice del panda – Brevetti, diritti d’autore, e segreti industriali nella teoria economica e nella storia”, in CLERICO and RIZZELLO (eds.), Diritto ed economia della proprietà intellettuale, Padova, 1988, pp. 9-81. 17 See JEFFERSON, ibidem, p. 630 ff.

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the inventor and the public aim of promoting research, therefore enhancing human welfare. Patents are considered particularly essential to certain industries, such as the pharmaceutical sector, because of the high costs incurred by manufacturers in testing, developing and getting approval for new drugs. The monopoly created by the grant of a pharmaceutical patent from relevant authorities allows the inventor to recover costs and helps stimulate further research. Still, from a functional angle, IPRs are meant to serve as the final disclosure of a certain process or product. Indeed, after the expiration of the patent, the knowledge is owned by the public. From an historical perspective, the history of arts and crafts shows that without patent protection, there would be no incentive to public disclosure of a given new technique.18 Adopting a critical approach toward pharmaceutical patents, developing countries put forward a series of arguments. Firstly, they claim that pharmaceutical patents restrain competition, setting high prices and obstructing access to medicines for the poor. Secondly, they argue that, although pharmaceutical products are commercial goods, they should be considered distinct from other consumer products, due to their nature as essential instruments to health. Indeed, the critical approach – which considers patents as obstacles to competition – was widespread in many European countries during the XIX century.19 Indeed, as a result of their particular characteristics, pharmaceutical patents have not always been recognized. In Italy, for example, medicine has become patentable subject matter only since Case No. 20, decided by the Constitutional Court on 20 March 1978.20 In this case, the Court declared Article 14 of the Italian Patent Law (1939), which prohibited pharmaceutical patents, as inconsistent with Articles 9 and 32 of the Italian Constitution, which are designed to affirm the public interest in the promotion of health, by means of scientific research. A third hypothesis considers IPRs human rights instrumental to the development of essential medicine, and therefore to the protection of human health and life. Paradoxically, the finality of IPRs creates limits to the right of the inventor to the exclusive economic exploitation of his invention. Indeed, the monopoly rights granted to an inventor do not have an absolute character, but are limited in time and conditioned on adequate commercialisation of the given product. If the patent

18 In the Middle Ages professions and the relative knowledge were not open to everybody, but strictly transmitted from father to son. For centuries manufacturing techniques were owned by a single family or by the artisans of a single city or region. See, for instance, KYBALOVÀ, HERBENOVÀ and LAMAROVÀ, Enciclopedia illustrata del costume, Milano, 1988, p. 113 ff., and HAUSER, Sozialgeschichte der Kunst und Literatur, Italian edition (Storia sociale dell’arte), I, Torino, 1955, pp. 272-273. 19 See PACON, “What Will TRIPS Do for Developing Countries?”, in BEIER and SCHRICKER (eds.), From GATT to TRIPs – The Agreement on Trade-Related Aspects of Intellectual Property Rights, Münich, 1991, p. 356 ff. 20 Reproduced in Rivista di diritto industriale, 1978, pp. 3-10.


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owner does not fulfil his obligations, the IPRs system provides for ad hoc remedies. Where administered in a proper manner in light of their purposes, IPRs are thus human rights instrumental to the realisation of other fundamental human rights. As both IPRs and other human rights coexist with self-standing legitimacy, it is necessary to explore the extent to which human rights standards can and should influence the interpretation of intellectual property norms. As Cottier points out, “it seems important to consider the relationship of IPRs and human rights not so much as a relationship of subordination, but one of co-ordination”.21 In other words, further debate should move from discussion of the IPR system per se to the ways in which IPRs may be adequately balanced with other human rights. Finally, an interesting point of discussion is whether – and the extent to which – IPRs are “part of the panoply of human rights that individuals enjoy”.22 As the international IPRs system is highly sophisticated, discussion of its foundations seems to be crucial in our search for balance. Indeed, IPRs are protected, at times by constitutional provisions, in many legal systems.23 At the international level – as well as at the regional one24 – references to IPRs in human rights instruments are not extensive, however. Explicit reference to IPRs can be found in the Universal Declaration of Human Rights (UDHR)25 and the International Covenant on Economic, Social and Cultural Rights. In particular, Article 15 of the International Covenant on Economic, Social and Cultural Rights identifies the need to protect both public and private interests to intellectual property.26 States are bound to establish intellectual property rights systems in order to strike a balance between

21 See COTTIER, “The General Relationship of Intellectual Property, Human Rights and Sustainable Development”, paper presented at the international workshop on The Impact of Biotechnologies on Human Rights, European University Institute, Florence, 25 October 2004 (on file with the author). 22 Ibidem, p. 8 ff. 23 Article 1, Section 8, paragraph 8 of the Constitution of the United States of America states that “The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. 24 At a regional level, e.g., Art. 14 of the Protocol of San Salvador recognizes the right of everyone to enjoy the benefits of scientific and technological progress as part of the right to the benefits of culture. 25 Article 27(2) of the UDHR states that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. 26 Article 15(1)(b)(c) of the International Covenant on Economic, Social and Cultural Rights proclaims the right of everyone “to enjoy the benefits of scientific progress and its applications” and “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. Paragraph 2 of the same article further states: “The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture”.

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promoting general public interest in accessing new knowledge and the protection of authors’ and inventors’ interests. Such a balance should have the primary objective of promoting and protecting human rights, as Article 5 of the same Covenant states that nothing in the Covenant can justify any act aimed at the destruction of any of the rights recognized therein or at their limitation to a greater extent than is provided for in the Covenant. Hence, it seems possible to argue that the international IPRs system is grounded in human rights. In my opinion, denying the value of IPRs as human rights would take away from their fundamental goal, which is to promote both technological progress and knowledge diffusion for the benefit of human welfare. This should help us move the debate from the IPRs system per se to the ways IPRs can be adequately balanced with other human rights.

3. THE LEGAL FRAMEWORK: THE INTERNATIONAL LEGAL REGIME OF INTELLECTUAL PROPERTY RIGHTS The TRIPS Agreement was adopted in 1995 at the end of the Uruguay Round. While the 1883 Paris Convention27 had been fairly liberal in protecting IPRs,28 the standards of protection provided by TRIPS are very strict.29 The debate on pharmaceutical patent protection between developed and developing countries has thus been intensified since its entry into force. As per the minimum standard mentioned in the TRIPS Agreement, a patent shall be granted for any inventions – whether products or processes – in any field of technology, provided that they are new, involve an inventive step and are capable of industrial application without any discrimination. Accordingly, patents now have to be granted in all areas, including pharmaceuticals; and the effective period of protection is for twenty years from the date of filing. Another important novelty introduced by the TRIPS Agreement is that States can now bring actions against other States before the Dispute Settlement Body (hereinafter DSB) in order to protect the rights of their citizens against unauthorized use of their IPRs abroad. Moreover, the DSB can produce binding decisions: 27

The Paris Convention is the oldest treaty governing the protection of intellectual property and it is still in force. 28 Under this convention, contracting States were free to determine the standards of protection, the subject matter of protection and the period of protection. Thus, there was maximum divergence in the protection of innovations in the pharmaceutical sector. Several countries neither protected the processes of manufacturing a drug, nor the final drug. Other countries adopted process patents only. Then, the same drugs could be produced by an alternative method or process during the protection period. 29 Although the TRIPS sets only detailed minimum standards, leaving a Member State free to set standards of protection higher than those adopted by the Agreement itself, the standards provided are the same as those applied in the majority of the industrialised countries.


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the defendant State, after losing on appeal, cannot block the implementation of the decision unless the DSB decides, by consensus, to reject the request. As stated explicitly in Article 7, the TRIPS Agreement attempts to strike a balance between the long-term objective of providing incentives for future inventions and the short-term objective of allowing people to use existing inventions and creations.30 Hence, it provides for a number of flexible elements, such as limited exceptions (Article 30) and compulsory licensing (Article 31). Further, under Article 8 of the Agreement, Member States can adopt measures necessary to protect public health, provided that such measures are consistent with other provisions of the Agreement. In particular, relevant exceptions under Article 30 include, inter alia, preparation of medicine for individual prescription, use of the invention for research or teaching, prior use and the Bolar exception.31 Three requirements must be fulfilled in order to invoke this section: the exception must be limited in time and must not unreasonably conflict with the normal exploitation of the patent, nor unreasonably prejudice the legitimate expectations of the patent owner.32 Article 31 of the TRIPS Agreement further allows for use other than that permitted under Article 30, that is to say compulsory licenses. Compulsory licenses are not, in fact, exceptions but authorizations: a third party can be admitted by competent public authorities to make, use or sell a patented invention without the patent owner’s consent for reasons of public policy, such as to protect public health. Such licensing will be permitted only if twelve restrictive preconditions are fulfilled;33 each case has to be examined on its individual merits. Evidence that the authorization will be used to produce the product predominantly for the supply of the country’s domestic market is one of these preconditions.

30 Article 7 of the Agreement states: “The protection of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to economic and social welfare, and to a balance of rights and obligations”. 31 The Bolar exception permits generic manufacturers, without the authorization of the patent holder, to develop the product and to submit it to regulatory authorities for market approval in order to market the product immediately after the expiration of the patent. 32 In the recent case Canada – Patent Protection of Pharmaceutical Products (WT/DS114/R, 2000, available at the WTO web site: http://www.wto.org) the WTO panel held that the Canadian law was not consistent under the TRIPS Agreement, as Canada was not only authorizing registration procedures, but also the right to manufacture and stockpiling before patent expiration. 33 First of all, the proposed user shall make reasonable efforts to obtain authorization from the right holder of the patent on reasonable commercial terms. If such efforts are not successful within a reasonable period of time – this requirement may be waived in the case of national emergency or extreme urgency – the grant of compulsory licenses is then conditioned by a series of procedural conditions. For instance, a condition is the payment to the patent holder of adequate remuneration taking into account the value of the authorization. The scope and the duration of the licence must be then limited to the purpose for which it was authorized and the authorization shall be liable to termination at any time if the circumstances which led to the grant cease to exist, subject to adequate protection of the legitimate interests of the persons authorized to use the patent.

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The problem here is that only a few developing countries have the manufacturing capacity to produce significant quantities of off-patent generic drugs. While the wording of Article 31(f) would permit some exports, these may be only of a limited scale and only to countries that do not have pharmaceutical industries themselves. Even though, de iure, the Agreement includes some flexibility, problems have arisen in practice34 upon the actual implementation of particular clauses, due to de facto fear of retaliation measures. If the procedures of the Dispute Settlement Understanding (DSU)35 subject States to multilateral surveillance, thus making developing countries and least developed countries (hereinafter LDCs) less vulnerable to bilateral confrontation, the new DSU has nevertheless introduced the possibility of cross-retaliation: if a country successfully complains about the practices of another WTO Member in one sector, it might be authorized to retaliate in another. In other words, if a developing country were to protect IPRs inadequately, it might face cross-retaliatory restriction on its exports of goods, with grave consequences for its economy. For instance, countries like the United States have persistently threatened to impose trade sanctions against States granting compulsory licenses. In particular, section 301 of the US Trade Act of 1974 authorizes the United States Trade Representative to take retaliatory measures against foreign trade practices the United States deems unfair. In practice, the United States could unilaterally decide whether its rights were violated. It should be mentioned that the EU challenged this provision at the WTO36 without obtaining any concrete result.

4. INCREASING PUBLIC AWARENESS: THE SOUTH AFRICAN CASE The spread of infectious diseases poses an enormous threat to life, health, dignity and development in many developing countries today. The WHO has called this phenomenon a global crisis that requires global co-operation. Indeed, over the past decades, many important developments in molecular biology and biotechnol-

34 Periods of transitional relief vary according to the beneficiary’s status as either a developing country or a least-developed country. See TRIPS Agreement, Articles 65(1)(2) and 66. Developing countries may postpone the implementation of the Agreement for a period of five years, and even ten years, with respect to fields of technology previously excluded under their domestic patent law. LDCs have 11 years since the date of the entry into force of the WTO Agreement, but in case of hardship, they can obtain further concessions. During the Ministerial Conference held at Doha in 2001, such a transitional period was extended to 2016. However, during the transitional period, both DC and LDC are not allowed to relax their protection of IPRs and pharmaceutical patents must obtain at least five years of exclusive marketing rights, even in those developing countries that did not grant patents in these fields. 35 1994 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, ILM, 1994, p. 1125 ff, in force 1 January 1995. 36 United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, 2000.


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ogy have created or improved techniques to prevent, treat or cure a wide variety of diseases. However, since providing poor consumers in developing countries with essential drugs is less attractive than other commercial opportunities, the pharmaceutical industry has directed a minute fraction of its research expenditure toward products vital to the markets of developing countries.37 In particular, “those diseases that affect almost exclusively poor and powerless people living in rural parts of low-income countries”38 – such as tuberculosis and malaria – still remain relatively under-researched.39 The pharmaceutical products related to neglected diseases are consequently called orphan drugs. According to the WHO “questions remain as to whether the patent system will ensure investment for medicines needed by the poor”.40 Furthermore, despite the creation and improvement of new therapies and medication, infectious diseases remain the largest contributor to mortality in developing countries and LDCs, since high prices limit access to essential drugs. Recently, the South African case, amongst others, has increased the public awareness on the problem of the access to essential drugs. Indeed, in response to the HIV/AIDS epidemic in South Africa, the Government enacted the Medicines and Related Substances Control Amendment Act of 1997, adding Section 15 C to the 1965 Medicine and Related Substances Control Act. The aim of the law was to guarantee access to essential medicines through parallel imports and compulsory licenses. In light of large and continuing economic disparities within South Africa’s population, the purpose of the Act was to enforce the principle of equality,41 by ensuring access to essential drugs for the whole population.42

37

See, for instance, HUNT, “Neglected Diseases, Social Justice and Human Rights: Some Preliminary Observations”, Health and Human Rights Working Paper, Series No. 4, Geneva, 2003, p. 6 ff. 38 WHO, Global Defence Against the Infectious Disease Threat, Geneva, 2002, p. 96 ff. 39 LANJOUW, “Intellectual Property and the Availability of Pharmaceuticals in Poor Countries”, Innovation Policy and the Economy, 2002, pp. 9-25. 40 Drahos, “Human Rights, Globalization and Intellectual Property Rights”, paper presented at the Workshop on International Trade, Finance and Investment and Economic, Social and Cultural Rights, Geneva, 6 May 2000 (on file with the author). 41 Section 9(1) of the South African Constitution provides that “[E]veryone is equal before the law [...]”. The second paragraph further states that “[E]quality includes the full and equal enjoyment of all rights and freedoms to promote the achievement of equality; legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken”. Therefore, the Constitution requires not only formal equity, but also a substantial one. See DAVIS, “Equality and Equal Protection”, in VAN WYK, DUGARD, DE VILLIERS and DAVIS (eds.), Rights and Constitutionalism, Cape Town, 1994, pp. 196-211. 42 Indeed, the Medicines Act originates from the period after South Africa’s first democratic elections in 1994 and directly “derives from the overwhelming concern of the first post-apartheid government to inject social justice into health care provision [...]”, Government of South Africa, Department of Health, Briefing Document: Defending the Medicines Control Amendment Act, Pretoria, 2 March 2001, p. 4 ff., available at http://www.afrol.com.

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In 1998 the South African PMA, a cartel of pharmaceutical businesses, submitted a legal complaint43 to the High Court of Pretoria of South Africa. It challenged the legality of relevant provisions of the Medicines Act in light of the South African Constitution and of the TRIPS Agreement and obtained an interim interdiction, which prevented the Government from implementing the contested sections of the Act pending a final decision. In addition, the US Trade Representative put South Africa on the Super 301 List as a country that might be subject to trade sanctions under section 301 of the US Trade Act of 1974. Because of pressure from NGOs and international public opinion, the PMA soon withdrew from court action; and South Africa was taken off the trade sanctions List. However, the case had already brought the issue of access to essential medicines to public consciousness.

5. POLICY ALTERNATIVES TO PROMOTE ACCESS TO ESSENTIAL DRUGS Many authors have studied and proposed possible instruments to enable developing countries to deal with the spread of global diseases. My point here will be that a single scheme is not enough and that a multi-layered strategy is necessary instead. A preliminary remark is that whilst national governments have primary responsibility for the health of their citizens, all countries should co-operate in a spirit of partnership to ensure primary health care for all. In fact the attainment or maintenance of health by people in any one country directly concerns and benefits every other country.44 At the IPRs level, in Doha, Ministers agreed that “the TRIPS Agreement [...]can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all”.45 Thus, WTO Members have the right to use the flexibility provisions of the TRIPS Agreement to the full for this purpose. Among these flexibility elements, compulsory licensing has a primary role. While it has positive effects on access to drugs in the short term, it could destroy incentives for research in the long one, eventually encouraging a culture of intellectual piracy. Further, the TRIPS Council recently adopted a waiver46 upholding the application of Article 31(f) for LDCs and developing countries with insufficient or no

43

South African Pharmaceutical Manufacturers Association v. the Government of South Africa, Case No. 4183, 1998, High Court of Pretoria, available at http://www.cptech.org. 44 The Declaration of Alma Ata was adopted by the International Conference on Primary Health Care on 12 September 1978. 45 Declaration on the TRIPS Agreement and Public Health, IV Ministerial Conference, Doha, (WT/MIN(01)/DEC/W/2), 20 November 2001, para. 4. 46 Decision on “Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health” of the 30 August 2003 adopted by the TRIPS General Council (WT/L/540).


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manufacturing capacity, thereby allowing for parallel imports of pharmaceutical products. Another flexibility instrument is differential pricing or Ramsey pricing,47 which requires lowering drug prices in nations with low ability to pay and imposing high prices in wealthy nations, while maintaining patent protection. Parallel imports find their theoretical foundations in the exhaustion principle. Exhaustion means that once a product is sold, the patent owner has no more intellectual property rights on it, so that it may be resold; hence the patent owner’s rights are exhausted.48 49 As the drafters of the TRIPS Agreement failed to reach a consensus on exhaustion, Article 6 avoids regulating this issue by not addressing parallel imports.50 This article is intended to preserve the status quo, whereby Members have the possibility of formulating their own national legislation on the matter, without being exposed to the risks of dispute settlement or trade retaliation. Thus, WTO Members have dealt with parallel importation in different ways although the threat of parallel imports initially inhibited patent owners from supplying drugs at low prices in developing countries. Indeed, the main problem of this option is parallel imports, i.e., the diversion of low price medicines through international trade channels to nations in which the patent holder attempts to maintain high prices.51 Another shortcoming is that differential pricing leaves little incentive to develop products oriented primarily to the developing world market. For these orphan drugs, international subsidies seem to be necessary. Actually, there is a risk of placing too much emphasis on IPRs solutions. Indeed, an achievement of economic growth and social welfare is a more general

47

Frank P. Ramsey (1903-1930) was the first to elaborate the theory. The application of this theory to the drugs markets have been proposed by several economists during the 1990s. See, for instance, DANZON, Pharmaceutical Price Regulation: National Policies versus Global Interests, Washington, 1997. 48 The so-called national exhaustion treats intellectual property rights as exhausted only within the boundaries of a given State: buyers must comply with these rights in every other country. For this reason, national exhaustion forbids parallel imports. On the contrary, international exhaustion treats intellectual property rights as exhausted throughout the world, after the first sale. 49 Within the EU, there exists a system of regional exhaustion, as the European Court of Justice found that national exhaustion was contrary to the principle of freedom of movement of goods, one of the distinguishing pillars of the Common Market (see, for instance, Case C9/93, IHT v. Ideal Standard, ECR, 1994, p. I-2789 ff.). Therefore, parallel imports are allowed throughout the territory of EU Members, but Member States may block parallel imports from outside. See BRONCKERS, “WTO Implementation in the European Community – Antidumping, Safeguards and Intellectual Property”, JWT, 1995, pp. 88-95. 50 Burton termed this provision an agreement to disagree. See BURTON, “Differentiated Pricing of Patented Products”, paper No. WG4:2, in WHO Commission on Macroeconomics and Health, Working Paper Series, Geneva, 2001. 51 This phenomenon is also known as the grey market because, while it does not count as counterfeiting, it does circumvent the consent of the patent holder.

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approach to the problem of access to essential medicines. Importantly, the need to integrate the development dimension into policy-making has received increased recognition at the international level in the Preamble of the WTO Agreement,52 which expressly mentions the objective of sustainable development and even in the Doha Ministerial Declaration.53 Similarly, the IMF and the World Bank, after undergoing severe criticism for forcing cuts in health care spending as a condition for granting loans to developing countries, have carved out social services from mandated budget cuts. In addition, further possible steps at the macro-economic and political level may include the transfer of technology, tax subsidies, public funding, medicine donation, public-private partnerships, education and the development of a stable medical infrastructure in poor countries.

6. THE ROLE OF NON-STATE ACTORS: THE PRIVATE SECTOR In recent years, the private sector has increasingly played an important role in the economic and social sphere. Indeed, transnational corporations54 have the capacity to foster economic development and transfers of technology, as well as to cause harm to human rights and to the lives of individuals. Although international human rights law traditionally imposes obligations on States, it has recently considered the role played by non-State actors.55 In particular, the private sector plays a crucial role in the promotion and protection of the right to health.56 At the normative level, it is worth mentioning, inter alia, the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy,57 the OECD Guidelines for Multinational Enterprises58 and the United Nations

52

Marrakesh Agreement Establishing the World Trade Organization, ILM, 1994, p. 1200 ff., in force 1 January 1995. 53 Doha Ministerial Declaration adopted on 14 November 2001 (WT/MIN(01)/DEC/1). 54 The term transnational corporation refers to an economic entity operating in more than one country or a cluster of economic entities operating in two or more countries – whatever their legal form. 55 See ALKOBY, “Non-State Actors and the Legitimacy of International Environmental Law”, Non-State Actors in International Law, 2003, pp. 23-98; HONGJU KOH, “Complementarity Between International Organisations on Human Rights/The Rise of Transnational Networks as the ‘Third Globalisation’”, HRLJ, 2001, pp. 307-310, and CULLEN and MORROW, “International Civil Society in International Law: The Growth of NGO Participation”, Non-State Actors and International Law, 2001, pp. 7-39. 56 See HUNT, cit. supra note 37, p 11 ff. 57 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted by the Governing Body of the International Labour Office, Geneva, 1977. 58 Guidelines for Multinational Enterprises of the Organization for Economic Co-operation and Development.


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Global Compact.59 Finally, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights60 were recently adopted by the UN Sub-Commission on the Promotion and Protection of Human Rights. This instrument expressly recognizes that: “Even though States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights, transnational corporations and other business enterprises, as organs of society, are also responsible for promoting and securing the human rights set forth in the Universal Declaration of Human Rights”.61 Furthermore, the Norms state that “transnational corporations and other business enterprises [...] are also obligated to respect generally recognised responsibilities and norms contained in United Nations treaties and other international instruments”.62 The Norms further state that: “Transnational corporations [...] shall respect economic, social and cultural rights as well as civil and political rights and contribute to their realization, in particular the rights to development, adequate food and drinking water, the highest attainable standard of physical and mental health, adequate housing, privacy, education, [...] and shall refrain from actions which obstruct or impede the realization of those rights”.63 Although the above-mentioned instruments and norms are not of a binding nature, they still have persuasive value in the sense that they act as mechanisms of blame and shame.64 For instance, in 2002, a group of Peruvian families wrote to UN Secretary General Kofi Annan requesting that he exclude Bayer from the UN Global Compact, a UN partnership with corporations pledging to abide by human rights and environmental principles, based on Bayer’s actions and omissions with regard to children’s deaths and poisonings in Peru.65

59

United Nations Global Compact, available at http://www.unglobalcompact.org. Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted on 13 August 2003 by the UN SubCommission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub/2003/ 12/Rev.2, 2003. 61 Ibidem, preamble, paragraph 3. 62 Ibidem, preamble, paragraph 4. 63 Ibidem, preamble, paragraph 3. 64 Cf. SULLIVAN, “NGO Expectation of Companies and Human Rights”, Non-State Actors and International Law, 2003, pp. 303-322. 65 See ROSENTHAL and GOMERO, “Families Appeal to Secretary General Kofi Annan to Exclude Bayer from the UN Global Compact”, paper available at http://www.corpwatch.org (last visited November 2004). 60

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There are examples of domestic legislation which have been used to address the policies of transnational corporations. Evidence suggests that the United States judicial system is already being used to pursue corporate accountability in the global marketplace. Indeed, the 1789 Alien Tort Claims Act (ATCA) provides foreigners who suffer human rights injuries outside the United States with a federal forum through which pursuing their claims.66 In a further example, the Competition Commission of South Africa recently found respondents, in the case Hazel Tau v. GlaxoSmithKline and Boehringer Ingelheim, in breach of the South African 1998 Competition Act67 for excessive pricing of antiretrovirals and for abuse of dominant position in their respective markets.68

7. THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH The Doha Ministerial Declaration and the Doha Declaration on the TRIPS Agreement and Public Health, both adopted on 14 November 2001, marked a turning point in the question of public health, by integrating the TRIPS Agreement into the international strategy addressing public health emergencies. Indeed these declarations represent a “significant milestone”.69 Not only was a new round of negotiations launched – named the “Development Round” – but the parties involved undertook a new approach to the problem of balancing the right to health and the protection of IPRs. The tragic events of 11 September surely had a decisive impact on the outcome of Doha.70 As the concrete bio-terror threat caused public health emergencies in many industrialized countries, several of them granted compulsory licences on Ciprobay, an antibiotic composed of ciprofloxacin, supposedly the most effective drug against anthrax. The affair illustrated once more that health is a common concern of humankind and caused most industrialized countries to rethink their pharmaceutical politics. It became clear that under well-defined circumstances,

66 See ACQUAVIVA, “Verso una responsabilità delle multinazionali per gravi violazioni dei diritti umani?”, CI, 2002, pp. 593-611; CHEPESIUK, “Human Rights: Can Multinationals Be Held Accountable?”, The Daily Star, 20 November 2004; and SEBOK, “Is The Alien Tort Claims Act a Powerful Human Rights Tool?”, 12 July 2004, available at http://www.cnn.com. 67 South Africa Competition Act, Act No. 89 of 1998, available at http:// www.comptrib.co.za. 68 Competition Commission Media Release No. 29/2003, 16 October 2003, available at http: //www.compcom.co.za. On the same day of this finding, the Competition Commission concluded a settlement with GlaxoSmithKline, and voluntary licences to generic manufacturers were issued, thus reducing the price of an essential part of the HIV/AIDS treatment (Competition Commission Media Release No. 33 of 2003, 16 October 2003, available at http://www.compcom.co.za). 69 Cf. SUN, “Reshaping the TRIPS Agreement Concerning Public Health: Two Critical Issues”, JWT, 2003, pp. 163-197. 70 See ABBOTT, cit. supra note 4.


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such as health emergencies, governments must have the ultimate power to set up compulsory licensing systems and admit parallel imports. Recognizing the gravity of the public health problems afflicting many developing and least-developed countries, the Ministers involved agreed that “[t]he TRIPS Agreement does not and should not prevent Members from taking measures to protect public health”, but it “can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all”.71 Therefore, WTO Members have “the right to use to the full, the provisions in the TRIPS Agreement which provide flexibility for this purpose”.72 This flexibility ensures, in part, “the freedom to determine the grounds upon which such [compulsory] licences are granted”73 and a margin of appreciation in “what constitutes a national emergency or other circumstances of extreme urgency”.74 Moreover, the Ministers affirmed that each Member is free to establish its own regime for the exhaustion of intellectual property rights subject to MFN and national treatment provisions, as already provided by Article 6 of the TRIPS Agreement in an implicit manner. Finally, paragraph 6 of the Declaration entrusted the TRIPS Council with the task of seeking a solution to the problem of application of compulsory licensing by Members with insufficient manufacturing capacities by December 2002. According to the Decision on Implementation-Related Issues and Concerns, Members will not initiate complaints under the TRIPS Agreement.75 The text of the Doha Declaration clearly reaffirms the flexibility already contained in the TRIPS Agreement; however, there is no common agreement with regard to its legal status.76 Some authors are convinced that, its relevant practical implications notwithstanding, it would be “merely a political document with ambiguous and possibly insignificant legal implications”,77 a moral commitment by trade ministers, analogous to G-7 Declarations. On the other hand, many consider the Declaration to be a binding decision by Members under Article IX:1 of the WTO Agreement,78 or a subsequent agreement between parties on the interpretation of the treaty and the application of its provi71

Declaration on the TRIPS Agreement and Public Health, para. 4. Ibidem. 73 Ibidem, para. 5. 74 Ibidem. 75 Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/ MIN(01)/17, para. 11.1. 76 See CHARNOVITZ, “The Legal Status of the Doha Declaration”, JIEL, 2002, pp. 207-211. 77 See SCHOTT, “Comment on the Doha Ministerial”, JIEL, 2002, pp. 191-219. 78 Article IX(2) of the Marrakesh Agreement Establishing the World Trade Organization dealing with decision-making states: “The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of […] the Multilateral Trade Agreements [in Annex 1] […]”. 72

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sions within the meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties.79 According to this view, the Ministerial Conference exercised its constitutional authority to determine the application of WTO law. The Doha Ministerial Declaration could be said to represent an official interpretation of some of the relevant provisions of the TRIPS Agreement, under Article XI:2 of the WTO Agreement.80 In conclusion, although the legal status of the Doha Declaration remains unclear, it is undeniable that the Declaration has had a substantial impact, as it created an “atmosphere”81 of co-operation.

8. AFTER DOHA: THE PEREZ MOTTA TEXT The implementation of paragraph 6 of the Doha Declaration has been very controversial, given its sensitive nature. In the end, the Decision adopted by the TRIPS General Council on 30 August 2003, named Perez Motta after the former chairman of the Council, upheld the application of Article 31(f) for LDCs and developing countries with insufficient or no manufacturing capacity, permitting them parallel imports of pharmaceutical products. If the pharmaceutical product is patented in the importing country, two compulsory licenses must be issued, one to the exporting country, the other to the importing country. Remuneration of the compulsory license is to be paid only by the exporting country. Where the product in question is not patented in the importing country, only a compulsory licence for export is required, a so-called “cross country compulsory license”. The Decision includes substantial safeguards against trade diversion and, also, rules to ensure transparency. Members recognize that the system established by the Decision should be used in good faith, for the protection of public health and not for the pursuit of industrial or commercial policy objectives. Indeed, the Decision was adopted by the General Council in the light of a significant statement read out by the Chairman.82 Importing countries must take reasonable and proportionate measures to prevent re-exportation, according to their means and administrative capacities. At

79

Cf. ABBOTT, “The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO”, JIEL, 2002, p. 491 ff.; SHANKER, “The Vienna Convention on the Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the TRIPS Agreement”, JWT, 2002, pp. 721-772. 80 See MATSUSHITA, SCHOENBAUM and MAVROIDIS, The World Trade Organization, Oxford, 2003, p. 422 ff. 81 See HORLICK, “Over the Bump in Doha”, JIEL, 2002, pp. 195-202. 82 Statement of the Chairman, reproduced in the minutes of the General Council as WT/GC/ M/82. This statement confirms that the primary objective of the Perez Motta text is to protect public health and should be used in good faith. Although this statement does not change in any respect the text of the decision, it is of key political importance as it confirms the intent of the parties to adhere to the system and so restores the mutual confidence of Members that the system will be implemented in good faith.


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the same time, exporting countries must compel the beneficiary company to export its entire production to the country in need and to clearly identify the relevant drugs through labelling or marking and through special colouring of the products themselves.83 Finally, the system requires prior notification of the TRIPS Council.84 Legally, the Decision takes the form of a provisional waiver – transitory permission allowing WTO Members not to comply with normal commitments85 – that will last until amendment of Article 31 of the TRIPS Agreement. While all WTO Members have the right to export generic drugs, some developed Members86 will not use the system as importers. Similarly, high income developing countries87 and new EU Member States88 stated that they would not use the system as importers except in exceptional circumstances. In essence, as an author wrote, “the waiver provides to the poorest countries the right to issue meaningful compulsory licenses [...]. In an important sense this is about policy equity”.89 Provided that compulsory licensing is “preferable both morally and pragmatically to the alternatives, notably the offered price cuts and drug donation schemes”,90 it could well play an integral role in a wider strategy.91 83 For instance, Novartis has used different trademark names, one Riamet for an anti-malarian drug provided to developing countries, the other Coartem for the same drug sold to the developed countries. 84 Notification does not mean authorisation; the purpose of the notification is merely to ensure transparency and information. The notification must specify the name and expected quantities of the product(s) needed. As well, it should confirm that the importing Member has insufficient or no manufacturing capacity in the relevant pharmaceutical sector and that it has granted or intends to grant a compulsory licence. 85 Under the WTO Agreement Article IX:3 “[i]n exceptional circumstances, the Ministerial Conference may decide to waive an obligation imposed on a Member by [...] any of the Multilateral Trade Agreements […]”. 86 The Members who have agreed to opt out of using the system are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom, and United States of America. 87 Taiwan, Hong Kong, Israel, Mexico, Korea, Kuwait, Macao, Qatar, Singapore, Turkey and the United Arab Emirates informed the Secretariat that they would use the system as importers in situations of national emergency. 88 Until their accession to the EU Turkey, Slovenia, Estonia, Lithuania, Latvia, Hungary, Slovakia, Czech Republic, Poland, Malta and Cyprus agree that they would only use the system as importers in situations of national emergency. Once the last have joined the EU, they will not use the system at all. 89 See MASKUS, “TRIPS, Drug Patents and Access to Medicines – Balancing Incentives for R & D with Public Health Concerns”, published on the Development Gateway’s Knowledge Economy site on 5 September 2003, and available at http://www.developmentgateway.org/knowledge. 90 See SCHÜKLENK and ASCHCROFT, “Affordable Access to Essential Medication in Developing Countries: Conflicts between Ethical and Economic Imperatives”, Journal of Medicine and Philosophy, 2002, p. 179 ff. 91 As Addor wrote “Der Prekären medizinischen Versorgung in vielen Entwicklungsländern liegt eine Vielzahl sozialer, politischer und wirtschaftlicher Faktoren zugrunde. Diese haben zum

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9. IMPLEMENTATION OF THE WAIVER The first legislation to be introduced in the developed world in response to the WTO decision of 30 August 2003 to allow Members to export generic copies of patented drugs to DCs and LDCs overwhelmed by infectious diseases, is the Canadian Bill C-9.92 Bill C-9 amended the Patent Act,93 adding a new part to it under the heading “Use of Patents for International Humanitarian Purposes to Address Public Health Problems”. Section 21 of the Patent Act now allows for the issuance of compulsory licences to Canadian firms, authorizing them to manufacture patented pharmaceutical products for export to certain developing countries and LDCs. In particular, section 21.03 establishes four schedules to the bill, identifying the pharmaceutical products and importing countries that are eligible under the new system. Schedule I is the list of 46 patented drugs that could be used to address public health emergencies under the legislation and that appear on the WHO’s Model list of essential medicines. Schedules 2 to 4 list all countries that would be eligible importers under the terms of the bill. Schedule 2 includes all countries that have been identified by the United Nations as least developed; Schedule 3 those WTO Members that have not notified the TRIPS Council that they do not intend to use the system as importers; and Schedule 4 those developing countries that have indicated their intention to participate in the scheme as importing countries, where faced with a national emergency and insufficient capacity to manufacture the pharmaceutical product in question. Under the Bill, a right of first refusal is offered to patent-holding brand name companies; therefore, they have the opportunity to be the supplier of a requested drug. The changes introduced by Bill C-9 put the WTO decision into practice by making it easier for Canadian pharmaceutical companies to export their products and should therefore be applauded as being fully consistent with both Canada’s human rights obligations and its obligations under the Doha Declaration and the TRIPS Agreement. However, it is unclear whether the Bill, in its present form, will help to alleviate health crises in the developing world. There are flaws in the Bill that could undermine its goals.94 Indeed, criticism focuses on three main issues. First, the right of first refusal given to the patent holder could act as a disincentive

grössten Teil nichts mit dem Patentrecht zu tun und fallen auch nicht in den Tätigkeit sbereich der WTO”. See ADDOR, “Mehr Generika für die Dritte Welt – WTO-Vereinbarung als Tropfen auf den heisse Stein”, in Neue Zürcher Zeitung, 11 September 2003, p. 1 ff. 92 Bill C-9 was passed by the Parliament on 14 May 2004. The text of the Bill is available at http://www.parl.gc.ca. 93 Patent Act R. S. 1985 c. P-4, available at http://laws.justice.gc.ca. 94 See, for instance, ACHARYA and DOUGLAS, “Bill C-9: An Act to Amend the Patent Act and the Food and Drugs Act”, 3 March 2004, paper available at http://www.parl.gc.ca, and WATTS, “Bill C-9: The Complaints of the Generic Drugs Manufacturers and the Perspective of Developing Countries”, 2004, paper available at http://www.dww.com.


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to Canadian generic manufacturers to negotiate supply contracts with developing countries as brand name drug companies could take over contracts they themselves have negotiated. Furthermore, such a right of first refusal would be unnecessarily duplicative in light of the right of refusal already possessed by such brand name drug companies by virtue of the patents they hold. Second, the amendments should not be limited to a restricted list of drugs.95 Critics suggest that developing countries should be allowed to decide themselves which drugs are needed to deal with their public health problems. Third, the bill indicates that a manufacturer intending to export a drug under the bill must negotiate a supply contract with the government of the importing country. This provision would not permit contracts to be negotiated with NGOs or private-sectors entities, which are important providers of health care in many developing countries. In light of the above, although Bill C-9 has to be welcomed as an important step to implement the WTO decision of 30 August 2003, “many deeper problems exist for such [developing and less developed] countries, and it seems that no unilaterally structured effort will solve these problems”.96

10. PUBLIC INTERNATIONAL LAW IN THE WTO DISPUTE SETTLEMENT SYSTEM On a theoretical level, WTO Members and legal scholars have been divided over whether public international law should be introduced into the WTO System – and, if so, to what extent. Indeed, international economic law has, until recently, not been perceived as part of the mainstream of international law. As a result, there has been little serious thinking about the implications of one for the other. Nowadays, although a watertight compartments view of the WTO remains influential in trade policy circles and legal academia,97 some authors98 associate the long-term legitimacy of the multilateral trading system with democracy and the advancement of human rights. In particular, what impact do human rights have on the international intellectual property system? More specifically, what role do human rights play inside the TRIPS system in the establishment of an appropriate balance between intellectual property rights and the right to health? Can we construe the interpretation of Articles 30 and 31 of the TRIPS Agreement on the basis of the human rights obligations of WTO Member States under several international instruments, besides

95

See, for instance, United Nations Press Release “UN Rights Expert Welcomes Canadian Initiative on Access to Low Cost Drugs in Developing Countries”, 7 November 2003. 96 Cf. WATTS, cit. supra note 94. 97 See, for instance, KRAJESKI, “Democratic Legitimacy and Constitutional Perspectives of WTO Law”, JWT, 2001, pp. 167-186. 98 BLOCHE, “Health and the WTO”, JIEL, 2002, pp. 821-822, and COTTIER, “Trade and Human Rights: A Relationship To Discover”, JIEL, 2002, pp. 11-132.

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the text of the Agreement itself? In other words, are TRIPS obligations conditioned with respect to human rights? To what extent could international socio-economic rights reshape the international economic order?99 After a brief look at the jurisdictional level, analysing the legal and institutional framework in which TRIPS functions will help answer the questions above. At the practical level, the Appellate Body (AB)100 of the WTO Dispute Settlement System has considered the relevance of other international instruments to the WTO system in recent decisions; and has proven to be particularly sensitive on human rights issues. Thus, Michael Lennard has compared the AB’s task of treaty interpretation to that of early navigators scanning the stars to guide their uncertain journeys.101 In the Gasoline case,102 the AB stated that the WTO Agreement could not be read “in clinical isolation from public international law”.103 In another leading decision, the Shrimp-Turtles case,104 the AB has shown itself to be sensitive to the range of normative sources in international law relevant to the elaboration of meanings of trade rules. In particular, after stating that the term “natural resources” in Article XX(g) is evolutionary, it mentioned a number of international conventions and declarations concerning both living and non-living resources. For instance, the AB cited the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1992 Convention on Biological Diversity, the Agenda 21, and the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals. Last but not least, the AB considered the fact that all the seven species of sea turtles are listed in Appendix 1 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)105 as a species threatened with extinction. Finally, in the Asbestos case,106 the AB clarified that “WTO Members have a right to determine the level of protection of health that they consider appropriate in a given situation”.107 99

See SAJO, “Socio-Economic Rights and the International Economic Order”, International Law and Politics, 2004, pp. 221-240. 100 See ABBOTT, “WTO Dispute Settlement and the Agreement on Trade Related Aspects of Intellectual Property Rights”, in PETERSMANN (ed.), International Trade Law and the GATT/ WTO Dispute Settlement System, The Hague, 1997, pp. 415-437. 101 See LENNARD, “Navigating by the Stars: Interpreting the WTO Agreements”, JIEL, 2002, pp. 17-89. 102 United States – Standards for Reformulated and Conventional Gasoline (US-Gasoline), WT/DS2/AB/R, 1996. 103 Ibidem, p. 17. 104 United States – Import Prohibition of Certain Shrimp and Shrimp Products (ShrimpTurtles), WT/DS58/AB/R, 1998, paras. 130 and 132. 105 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), available at http://www.cites.org. 106 European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos), WT/DS135/AB/R, 2001. 107 Ibidem, para. 168.


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As a general rule, the doctrine of stare decisis does not operate in world trade law, so that WTO dispute settlement reports formally bind only the parties to a particular dispute and cannot be considered precedents.108 However, the consistency and coherence of the Appellate Body reports are remarkable. The AB reports are, de facto, an important part of a WTO acquis.109 They have been influential in the decisions of subsequent panels, contributing to the “goal of providing security and predictability to the multilateral trading system”.110 Furthermore, the AB reports have an intrinsic value, as they are more juridical in tenor than previous GATT panel reports.111 Therefore, the WTO system tends to treat health protection as a “de facto interpretative principle”.112

11. THE WTO TREATY AND HUMAN RIGHTS De iure condito, the TRIPS Agreement, like any other treaty, is not a self-contained regime – a hermetically sealed system disconnected from public international law and human rights law.113 On the contrary, it must be interpreted in good faith and be consistent with public international law.114 Therefore it should also be in line with human rights treaties and customary international law.115 Article 3(2) of the DSU indeed requires that customary rules of interpretation be considered in interpreting WTO Agreements. A restatement of these rules can be found in Article 31 of the Vienna Convention on the Law of Treaties. This article first requires that one look at the ordinary meaning of the terms of the treaty, in light

108

The AB report in Japan-Taxes on Alcoholic Beverages, WT/DS8/AB/R, 1996, p. 14, states: “Adopted panel reports are an important part of the GATT acquis. [...] They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute”. 109 Prof. Bhala argues that “in a de facto sense, the doctrine of stare decisis resonates strongly throughout WTO Appellate Body reports”; see BHALA, “The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication”, The George Washington International Law Review, 2001, pp. 873-978. 110 See MCNELIS, “What Obligations Are Created by WTO Dispute Settlement Reports?”, JWT, 2003, pp. 647-672; PALMETER and MAVROIDIS, Dispute Settlement in the WTO: Practice and Procedure, The Hague, 1999, p. 45 ff. 111 See JACKSON, The Jurisprudence of the GATT and the WTO, Cambridge, 2000, p.181 ff. 112 See BLOCHE, “WTO Deference to National Health Policy: Toward an Interpretative Principle”, JIEL, 2002, p. 825 ff. 113 See PAUWELYN, “The Role of Public International Law in the WTO: How Far Can We Go?”, AJIL, 2001, p. 535 ff. 114 See CLEVELAND, “Human Rights Sanctions and International Trade: A Theory of Compatibility”, JIEL, 2002, pp. 133-189. 115 See ADDO, “Human Perspectives of International Economic Law”, in QURESHI (ed.), Perspectives in International Economic Law, The Hague, 2002, p. 145 ff.

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of its object and purpose,116 and then to consider any subsequent practice adopted by relevant parties. Finally, under Article 31(3)(c) of the Vienna Convention, relevant rules of international law applicable to relations among the parties must be taken into account when interpreting treaty obligations. As most WTO Members have ratified or signed the two Human Rights Covenants and other human rights conventions, this provision is designed to promote coherence in international law and avoid conflicts with other treaties. In case of conflict between treaty provisions, it seems that the necessity principle could be invoked as well. Furthermore, under Article 53 of the Vienna Convention, TRIPS cannot conflict with peremptory norms of general international law, that is to say jus cogens norms.117 Several commentators118 include among these Article 103 of the UN Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter will prevail”. In recent times, many authors have begun calling the WTO the “World Trade Constitution”.119 This theory reflects a number of considerations. Firstly, it would indirectly give individuals entitlements to substantive rights in domestic law. Indeed, the TRIPS Agreement requires Members to grant intellectual property rights both to aliens and citizens. Secondly, the WTO system already has constitutional functions to a certain extent, as it promotes economic freedom and nondiscrimination. Thirdly, the compulsory dispute settlement mechanism effectively promotes the rule of law. In sum, as the significance of economic rights extends far beyond economics, the WTO would not be merely a commercial agreement, but a “human rights agreement”120 as well. As a consequence, de iure condendo, commentators have advocated the introduction of a human rights clause into the WTO. Though many countries fear that a clause expressly recognizing the right to health would be used as a form of disguised protectionism,121 a clear incorporation of such a clause into the WTO system would

116

Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969. Article 53 of the Vienna Convention further provides a definition of jus cogens as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. 118 See CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 186: “[L]a regola della prevalenza degli obblighi derivanti dallo statuto delle Nazioni Unite sugli altri obblighi internazionali finisce con l’apparire [...] come una norma consuetudinaria cogente cui l’art. 103 ha dato la spinta iniziale […]”. 119 See PETERSMANN, “The WTO Constitution and Human Rights”, JIEL, 2000, pp. 19-25. 120 See CHARNOVITZ, Trade Law and Global Governance, London, 2002, p. 396 ff. 121 Would a “human rights approach” be a real barrier to trade? Can we presume that a closed economy surely respects human rights? Indeed, the protectionism of the 1930s contributed to unemployment, poverty and, indirectly, to the II World War. See BOTCHWAY, “Historical 117


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nonetheless significantly improve the way the organization functions. Furthermore, the very nature of the exceptions under Article 30 of the TRIPS Agreement or Article XX(b) of GATT122 “put […] the State wishing to protect public health on the defensive, since it must justify deviations from its general obligations”.123 The need to protect health via exceptions more than likely suggests that free trade and public health are not valued equally. Since it is crucial to ensure that national policies on the matter are not subordinated to the priorities of the trading system, I argue that the term “human rights” should appear explicitly in these provisions,124 in order to create an appropriate balance between trade and human rights. Petersmann similarly calls for a “Global Compact”125 between the UN and the WTO in order to integrate universally recognized human rights into WTO law and to establish a human rights approach to the TRIPS Agreement. In particular, a human rights approach would place the promotion and protection of human rights among the objectives of trade.126 Indeed a rights-based approach to trade is a very suitable conceptual framework in this area, for several reasons. First of all, as a question of law, all WTO Members have undertaken obligations under international human rights law. Accordingly, they should promote and protect human rights in negotiating and implementing trade law. With regard to those areas of human rights law recognised as customary international law, trade rules should be consistent with them. Second, WTO bodies have increasingly recognised the relevance of international law to the interpretation and application of WTO law itself. In particular, it seems that recent WTO deliberations are devising a new doctrine of basic human rights to be introduced progressively into the original system. The Doha Declaration and the recent waiver have represented fundamental steps towards a different approach to human rights considerations in the international IPRs system. In more general terms, jurisdictional trends such as those explained above and the recent waiver banning the trade of conflict diamonds127

Perspectives of International Economic Law”, in QURESHI (ed.), cit. supra note 115, pp. 309325. 122 Article XX(b) states that nothing in the GATT “shall be construed to prevent the adoption or enforcement by any contracting party of measures necessary to protect human, animal or plant life or health”. WTO Members are allowed to derogate from the treaty rules, as long as the measures adopted to protect life or health are not an unjustified discrimination on international trade or a disguised restriction on international trade. 123 Cf. CORREA, “Implementing National Public Health Policies in the Framework of the WTO Agreements”, JWT, 2000, p. 108 ff. 124 See LIM, “Trade and Human Rights – What Is at Issue?”, JWT, 2001, pp. 275-300. 125 See PETERSMANN, “Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration”, EJIL, 2001, pp. 621-650. 126 See PETERSMANN, cit. supra note 119. 127 Waiver Concerning the Kimberley Process Certification Scheme for Rough Diamonds, WTO General Council, 23 February 2003, available at the WTO web site http://www.wto.org.

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further suggest that the international trading system as a whole is already moving in the required direction.

12. DEVELOPMENT AND THE RIGHT TO HEALTH The achievement of economic growth and social welfare is a more general approach to the problem of access to essential medicines in developing countries. Chiefly, there seems to be a close interrelationship between poverty and the realisation of the right of everyone to the enjoyment of human rights and in particular the highest attainable standard of physical and mental health. Indeed, illness can be both a cause and a consequence of poverty.128 On the contrary, health is fundamental to poverty reduction, human development and economic growth. Furthermore, as the Declaration of Alma Ata remarkably stated more than twenty years ago: “Economic and social development [...] is of basic importance to the fullest attainment of health for all and to the reduction of the gap between the health status of the developing and developed countries. The promotion and protection of the health of the people is essential to sustained economic and social development and contributes to a better quality of life and to world peace”.129 Indeed, basic levels of social welfare, political stability and legal certainty are preconditions to creating necessary health infrastructures in developing countries and LDCs. It seems necessary to promote education, to channel financial resources where they are most needed, and to create incentives in technology transfer, and capacity building programmes. Thus far, I have concentrated on poverty as a factor generally cited as being an obstacle to the access to essential drugs and, more generally, to the fulfilment of the right to health, arguing that the development dimension is a conceptual pillar in the health politics discourse. Having set these theoretical parameters, I will explore the existing legal framework. To begin with, development is not a right under the Universal Declaration. It was not until 1986 that such a right was properly articulated by the United Nations.130 Indeed, Article 1 of the Declaration on

128

See, for instance, General Assembly Resolution 58/173 adopted on 10 March 2004 (UN Doc. A/RES/58/173), p. 2 ff. Indeed, malnutrition reduces the organism’s biological defences, and, where coupled by inadequate hygienic conditions, can lead to the proliferation of infectious diseases. 129 See the Declaration of Alma Ata, cit. supra note 44. 130 See MANSELL and SCOTT, “Why Bother About a Right to Development?”, Journal of Law and Society, 1994, p. 171 ff., p. 174.


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the Right to Development131 put forward the right to development as an inalienable human right. Although the Declaration has no binding force, its legal value can be strengthened by State practice, which has significant weight in the development of customary international law.132 The problem with the right to development is that it is difficult to define and, hence, to enforce. Besides, in the UN Millennium Declaration,133 the Heads of State and Government explicitly recognized not only their “separate responsibilities to [their] individual societies” but also “[their] collective responsibility to uphold the principles of human dignity, equality and equity at the global level”.134 Furthermore, the Millennium Development Goals (MDGs), a set of specific targets and commitments adopted in the same Declaration, include development, poverty eradication and respect for all internationally recognized human rights. In particular, the Member States: “[C]oncerned about the obstacles developing countries face in mobilizing the resources needed to finance their sustained development [...] call on industrialised countries [...] to implement the enhanced programme of debt relief for the heavily indebted poor countries without further delay and to agree to cancel all official bilateral debts of those countries in return for their making demonstrable commitments to poverty reduction [...]”.135 In an important step, the need to integrate the development dimension into policy-making on intellectual property protection has received increased recognition at the international level. Economic development and social welfare in developing countries should be major considerations when formulating international policy with respect to IPRs. Also in the framework of the WTO, paragraph 19 of the WTO Doha Ministerial Declaration,136 in setting a mandate for the TRIPS Council in the context of the Doha Development Agenda, refers explicitly to the need to take the development dimension fully into account. On examining the framework of the TRIPS Agreement, it is apparent that the protection of IPRs is not an end in itself, but a part of institutional strategy for achieving broader goals. The ultimate objective of the WTO is to raise standards of living through the reduction of trade barriers.137 131 Declaration on the Right to Development, General Assembly Resolution 41/128 of 4 December 1986. 132 Only the Unites States opposed this Declaration. 133 General Assembly Resolution A/RES/55/2, United Nations Millennium Declaration, 18 September 2000. 134 Ibidem, para. 2. 135 Ibidem, paras. 14 and 15. 136 Doha Ministerial Declaration, cit. supra note 53. 137 In a critical sense, see TRACHTMANN, “Legal Aspects of a Poverty Agenda at the WTO: Trade Law and ‘Global Apartheid’”, JIEL, 2003, pp. 3-21: “To what extent can the trade law

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It is not just the WTO that needs to look into how its rules may be making essential drugs expensive, however. Indeed, debt burdens can have a direct bearing on access to essential drugs because States with such burdens cannot allocate sufficient resources in the health care system. Organizations like the International Monetary Fund (IMF),138 the World Bank and the WHO may also be making access to basic health care more difficult for millions of people all around the world.139 In fact, as a condition for receiving loans, the IMF and the World Bank require countries to adopt austerity programs known as structural adjustment programmes (SAPs), generally intended to increase the integration of the borrowing country into the global community and make it more attractive to foreign private investment.140 Among other measures, SAPs are aimed at cutting government expenditures and privatizing State-owned companies. Therefore, there are two negative consequences in the national healthcare sectors. First, governments with overwhelming foreign debt payment obligations must cut back on what they might otherwise allocate to the healthcare sector. Second, given that SAPs include the privatization of government-owned enterprises and the introduction of fee-for-service schemes, access to health services may be reduced. After undergoing severe criticism for this attitude, the IMF and World Bank now insist that their current SAPs carve out social services from mandated budget cuts, in order to protect the more vulnerable sectors of developing countries.141

13. CONCLUSIONS The importance and value of IPRs have not been disputed in this article, as they are indispensable to the promotion of research. Indeed, the introduction of higher levels of IPR protection to developing countries and LDCs is a precondition for long term economic growth. An adequate protection of IPRs will stimulate foreign investment and result in more transfers of technology and more local innovation than before. Furthermore, one of the major advantages of the universal system is that it would facilitate access to new medical products which the developed world will not shy away from introducing in poor countries. system be harnessed to dismantle the barriers that form ‘global apartheid’? and to redress inequality and poverty? While liberalization fits into the core tasks of the WTO, redistribution does not” (p. 21). 138 See, for instance, SCHLITZER, Il Fondo Monetario Internazionale, Bologna, 2000. 139 See, for instance, SEXTON, “Trading Health Care Away? GATS, Public Services and Privatisation”, 2001, paper available at http://southcentre.org; COLGAN, “Hazardous to Health: The World Bank and IMF in Africa”, April 2002, paper available at http://www.africaaction.org. 140 See, for instance, LOBE, “World Bank, IMF Held Responsible for Health Crisis in Africa”, 30 April 2002, paper available at http://www.twnside.org. 141 See, e.g., BONAGLIA and GOLDSTEIN, “Globalizzazione e sviluppo – Due concetti inconciliabili?”, Bologna, 2003 pp. 100-111.


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However, strong protection of IPRs, provided by the TRIPS Agreement, can only generate optimal economic and social results if coupled with the necessary elements of flexibility with which to mitigate possible short-term negative effects. As TRIPS standards impose heavy social costs on most developing countries in the short and medium terms, flexibility is a key concept to strike a balance between interests in knowledge creation and in its diffusion. In order to find an appropriate balance between the protection of IPRs and the right to health, it is argued here that a single scheme is not enough; a multilevel approach is required to counter the spread of global diseases, possibly by means of a number of innovative policy instruments already proposed. Whilst it appears that the real value of compulsory licensing lies in its ability to temporarily cope with health emergencies, differential pricing seems to be a more viable means to promote access to essential drugs, but it leaves little incentive to develop products oriented primarily to the developing world market. For these products international subsidies are necessary. Still, direct aid provides funds for research and development, shifting the cost of aid from pharmaceutical companies to States. An example of direct aid is provided by the Global Fund.142 Therefore, given the need for a comprehensive strategy to deal with the spread of global diseases, more innovative policy instruments are required. Possible steps143 include transfer of technology, differential pricing, tax subsidies, public funding, essential medicine donation, public-private partnerships, public awareness via education and the development of a stable medical infrastructure in poor countries. Furthermore, products may be purchased by groups that are experienced in pricing issues, as is now done for vaccines. The risk of putting too much emphasis on IPR solutions to the problem of access to essential medicines in developing countries certainly exists. Indeed, lower IPRs protection does not necessarily entail better promotion of health and human rights in general. One should always bear in mind that without patent protection and exclusive rights innovative drugs will not be produced. The achievement of economic growth and social welfare is a more general approach. Importantly, the need to integrate the development dimension into policymaking on intellectual property protection has received increased recognition at the international level. Indeed, development is supposed to be the guiding idea of the current Millennium Round of WTO negotiations, evoking “the possibility of the reorientation of the WTO project [...]”.144 Furthermore, even on examining

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The Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund) was created to attract, manage and invest resources to fight these three diseases through a public-private partnership. 143 See SCHERER and WATAL, “Post-TRIPS Options for Access to Patented Medicines in Developing Nations”, JIEL, 2002, pp. 913-939. 144 See HOWSE, “Mainstreaming the ‘Right to Development’ into International Trade Law and Policy at the WTO”, paper presented at the 56th session of the UN Sub-Commission on the

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the framework of the TRIPS Agreement, it is apparent that the protection of IPRs is not an end in itself, but a part of the institutional strategy for achieving broader goals. The Preamble to the WTO Agreement formulates the ultimate objective of the WTO, expressly recognizing that economic relations between Members should be conducted with a view to raising standards of living and effective demand and to expanding the production and trade of goods, in accordance with the objective of sustainable development. Furthermore, Members recognize that positive efforts should be made to ensure that developing countries secure a share of growth in international trade, commensurate with their economic needs. Therefore, if the goal of the WTO is to improve world-wide standards of living, the protection of IPRs is one possible means to this end. Finally, in the “July Package”,145 the General Council, inter alia, states that: “Development concerns form an integral part of the Doha Ministerial Declaration.[...] [T]he needs and interests of developing and least developed countries [are] at the heart of the Doha Work Programme”. In conclusion, while attempting to balance social welfare interests in knowledge creation and knowledge diffusion, the decisions of the TRIPS Council and other WTO organs, including the DSB, should be guided by one fundamental goal; technological innovation should be of benefit to all mankind. Similarly other international organizations could adopt complementary strategies to channel financial resources to create incentives for transfers of technology, technical assistance and capacity building programmes in the health sector. The World Bank, whose mission is providing funds and policy advice to governments, could act as an “honest broker”146 in relations between investors of industrialized countries and hosts in developing countries. In addition, the WHO, World Bank and IMF should incorporate health and poverty-reduction programmes into a viable macro-economic framework at country level.147 As the Declaration of Alma Ata explicitly recognised more than twenty years ago, “the existing gross inequality in the health status of the people [...] between developed and developing countries as well as within countries is politically, socially and economically unacceptable and is therefore, of common concern to all countries”.148 Indeed, one of the most important features of the Declaration is the

Promotion and Protection of Human Rights (cf. Doc. E/CN.4/Sub.2/2004/17), available at http: //www.southcentre.org/info/southbulletin85-02.htm. 145 The text of the General Council’s decision on the Doha Agenda work programme, the so-called “July Package”, agreed on 1 August 2004, is available at the WTO’s website http: //www.wto.org. 146 See BRAGA and FINK, “Reforming Intellectual Property Rights Regimes: Challenges for Developing Countries”, JIEL, 1998, p. 20 ff. 147 See, inter alia, Report of the WHO Commission on Macro-Economics and Health, Report by the Director General to the Fifty-fifth World Health Assembly, 23 April 2002, Doc. A55/5, provisional agenda item 13.1, recommendation 22. 148 Alma Ata Declaration, cit. supra note 44, para. 3.


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recognition that “the attainment of health by people in any one country directly concerns and benefits every other country”.149 All States should recognize the essential role of international co-operation.150

149

Ibidem, para. 9. As John Donne, an Elizabethan poet of XVII century, wrote “No man is an Iland, intire of it selfe; every man is a peece of the Continent [...], if a clod be washed away by the Sea, Europe is the lesse [...], any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee”. 150

THE REQUIREMENT OF CONTINUOUS CORPORATE NATIONALITY AND CUSTOMARY INTERNATIONAL RULES ON FOREIGN INVESTMENTS: THE LOEWEN CASE PIA ACCONCI*

1. INTRODUCTION In its Award of 26 June 2003, the ICSID arbitral Tribunal dismissed the claim of the Loewen Group, Inc., (TLGI) against the United States, inter alia, for its lack of continuous nationality. The ICSID case arose from litigation before the US’s Mississippi State Court between TLGI, doing business in Mississippi, and a local competitor. This Court rendered a judgment against TLGI and condemned it to pay a considerable sum of money, US$ 500 million. As Mississippi law requires an appeal bond of 125 per cent of the judgment to stay execution, TLGI did not appeal against this verdict. TLGI could not comply with that condition and agreed to settle the case for US$ 175 million. The settlement took place one day before the forced execution of the Mississippi Court’s judgment began. TLGI then filed a request for arbitration with the ICSID Secretary against the US under Chapter Eleven of the NAFTA Agreement for breach of the Agreement, in particular its Article 1105, due to the Mississippi Court’s harsh verdict and the requirement of excessive bond for appealing prescribed by Mississippi law. The ICSID Award includes the Tribunal’s findings with regards to most of the merits of the case, as the US’s additional objection concerning the NAFTA requirement of diversity of nationality was filed after the ICSID Tribunal had already dealt with them. Briefly, the Tribunal denied that there had been “a violation of customary international law and a violation of NAFTA for which Respondent [was] responsible”.1 However, it admitted the US had not treated TLGI in accordance with the “minimum standards of fair international law and fair and equitable treatment”.2 The *

Associate Professor of European Union Law, University of Teramo; Member of the Committee on International Law concerning Foreign Direct Investment of the International Law Association. The present article is based on a paper circulated at the Fourth Public Conference of the British Institute of International and Comparative Law’s Investment Treaty Forum on “Nationality and Investment Treaty Claims”, held in London on 6 May 2005. The author may be contacted at [email protected]. 1 Para. 217 of the 2003 ICSID Award. This Award, as well as the other ICSID decisions mentioned in this paper, are available at the ICSID website, http://www.worldbank.org/icsid. 2 In particular, para. 137, ibidem.


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Tribunal considered decisive in this sense “the question whether […] the trial and the verdict alone or in combination with the subsequent proceedings amounted to an international wrong”,3 as TLGI claimed, for the lack of available and appropriate remedy under US’s municipal law. TLGI maintained that it had voluntarily settled the case “under extreme duress”.4 The Tribunal dismissed this claim, arguing that TLGI had not explained why it had settled and had “failed to pursue its domestic remedies”.5 According to the Tribunal, the Mississippi Court’s verdict and the bond requirement had not made the settlement agreement “the only course which TLGI could [have] reasonably be[en] expected to take”.6 Therefore, the Tribunal ruled that TLGI’s claim should be dismissed on the merits, even though dismissal was eventually grounded on “a question of jurisdiction”.7 The Tribunal upheld the US’s additional objection to its jurisdiction because of the change in the claimant’s corporate structure and nationality following the reorganization plan approved by the Canadian and US bankruptcy courts, while the ICSID proceedings were pending. At the time the claim arose, TLGI was the Canadian parent company of a group of companies which were doing business in Canada and the US. TLGI had been established by a Canadian citizen, Raymond Loewen. The latter was also its main shareholder and chief executive officer. According to the reorganization plan, TLGI ceased to exist as an independent company and transferred its assets and obligations to its former American subsidiary, the Loewen Group International, Inc., (LGII). Meanwhile LGII changed its name to Alderwoods Group, Inc., and established two new companies: Nafcanco – a wholly-owned Canadian subsidiary – and Delco, a Delaware limited liability company. In the light of the reorganization plan, TLGI retained “bare legal title” to its NAFTA Articles 1116 and 1117 claims against the United States, while it transferred to Nafcanco all rights and responsibilities concerning these claims. The US presented its Memorial on Matters of Jurisdiction and Competence arising from the Restructuring of the Loewen Group, Inc., on 1 March 2002, to justify its new jurisdictional objection, stressing that, after the reorganization plan and the subsequent change in the corporate structure, Canada was no longer the claimant’s home State. As Alderwoods was its new parent company, TLGI’s group of companies had 3

Para. 142, ibidem. Para. 7, ibidem. 5 Para. 217, ibidem. 6 Para. 215, ibidem. 7 Para. 1, ibidem. For a criticism of the Tribunal’s findings see generally WERNER, “Does the Loewen Award Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?”, The Journal of World Investment & Trade, 2005, p. 79 ff.; MENDELSON, “Does the Loewen Award Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?”, ibidem, p. 83 ff. In favour of the ICSID Award cf. LEGUM, “Does the Loewen Award Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?”, ibidem, p. 89 ff.; CARVER, “Does the Loewen Award Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?”, ibidem, p. 95 ff. 4

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become based in the US. The US maintained that, as a matter of fact, there were no longer any NAFTA claims. Specifically, TLGI had ceased to be a “disputing party” in conformity with NAFTA Chapter Eleven as, with the reorganization of its corporate structure, TLGI had voluntarily changed its relevant nationality to this end. In particular, TLGI’s NAFTA claims had to be dismissed because of the principle that no private citizen and company “can maintain an international claim against its own State” and more specifically because of the principle that the requirement of continuous nationality has to be fulfilled through the date of the award. In the US’s opinion, TLGI, with its complex reorganization plan, had tried, on one hand, to relaunch its business activities in the US, where it had been earning most of its revenues, and, on the other, to maintain, at least indirectly, its NAFTA claims thanks to the Nafcanco’s Canadian nationality. However, according to the US, the assignment of TLGI’s NAFTA claims to Nafcanco was not relevant since this latter lacked independence in respect of Alderwoods which had undoubtedly become the beneficial owner of such claims. In order to demonstrate that a claimant like TLGI could no longer bring a claim before ICSID arbitration under NAFTA Chapter Eleven, in its 2002 Memorial, the US referred not only to the text of the NAFTA Agreement, but also to principles of customary international law, to the jurisprudence of Canadian as well as American courts and of international arbitral tribunals. Precisely, to prove that customary international law prescribed the requirement of continuous nationality through the settlement of the dispute, in this Memorial, the US mentioned some examples of international practice which had developed in the field of diplomatic protection especially during the period of time between the end of the XIX century and the beginning of the following century. The US also referred to such practice, and to other developments which had subsequently taken place in the field of diplomatic protection, such as the 1970 International Court of Justice’s judgment on the Barcelona Traction case, to show that the nationality of an international claim depended on that of the “real claimant and equitable owner”. Hence, there were no longer NAFTA claims since, after the reorganization plan, Alderwoods, a US company, rather than Nafcanco, a Canadian company, had become the real equitable owner. Note that, in their Article 1128 Submissions, also Canada and Mexico found grounded the USA’s objection to the ICSID jurisdiction over TLGI’s claim in the light of customary international law and the NAFTA Agreement.8 The claimants, TLGI and Raymond Loewen, argued that the US’s objection was not grounded since TLGI was a proper NAFTA “disputing party” when it had submitted the claim. At that time, TLGI had a nationality other than the American one and had maintained this nationality continuously since the time the claim had

8 See, in particular, the second Article 1128 Submission of Canada of 27 June 2002 and the third Article 1128 Submission of Mexico of 2 July 2002.

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arisen. TLGI stressed that, also in conformity with previous ICSID case-law, “both the pre-submission and post-submission assignment of claims do not affect jurisdiction” as “the former cannot create jurisdiction where none exists, and the latter cannot destroy jurisdiction once a claim is vested”.9

2. THE ICSID TRIBUNAL’S FINDINGS CONCERNING THE REQUIREMENT OF CONTINUOUS NATIONALITY IN THE LOEWEN CASE In its 2003 Award, the ICSID Tribunal upheld the US’s objection to its jurisdiction due to the lack of the claimant’s continuous nationality as it assumed that “in international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which date is known as the dies a quo, through the date of the resolution of the claim, which date is known as the dies ad quem”.10 The Tribunal also agreed that the requirement of continuous nationality was a principle of international law which could be waived only expressly.11 Since the NAFTA Agreement does not include Contracting States’ clear intention in this connection and refers to the date of the submission of the claim only as regards the requirement of nationality in general, the Tribunal decided to apply customary international law to solve the problem, in conformity with Article 1131 of the Agreement itself.12 Then, the Tribunal concluded that, according to “applicable rules of international law”, corporate nationality had to be indeed continuous through the resolution of the dispute.13 The Tribunal denied that claimants had proved a contrary development of international law in this connection.14 The Tribunal totally disregarded the fact that contemporary investment treaties, either bilateral or multilateral, and the recent works of the International Law Commission15 do not include the requirement of continuous nationality through the resolution of the claim. 9 Para. 16 of TLGI’s Response to “the Article 1128 Submissions of Canada and Mexico on Matters of Jurisdiction and Competence” of 19 July 2002. In this regard, TLGI particularly referred to the ICSID Awards on the Mihaly case of 15 March 2002, para. 24, and on the CSOB case of 24 May 1999, paras. 29 and 31. 10 Para. 225 of the 2003 ICSID Award. See also the 2002 US “Memorial on Matters of Jurisdiction and Competence arising from the Restructuring of the Loewen Group, Inc.”, espec. pp. 2 and 13. 11 Para. 229 of the 2003 ICSID Award. 12 Para. 226, ibidem. 13 In particular, paras. 228, 229 and 230, ibidem. 14 Para. 235, ibidem. 15 See, in particular, the 2000 “Special Addendum concerning Continuous Nationality and the Transferability of Claims” prepared by the rapporteur on diplomatic protection of the International Law Commission, Professor John Dugard (A/CN.4/506/Add.1), as well as Articles 5 and 10 of the Draft Articles on Diplomatic Protection approved within the International Law Commission on 24 May 2004 (A/CN.4/L.647).


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As a general rule, the Tribunal chose to confine itself strictly to the text of the NAFTA Agreement as the only source of its jurisdiction.16 Therefore, it paid no attention to the fact that under the ICSID Convention the requirement of continuous nationality was not even prescribed for corporate investors.17 The Tribunal did not apply this Convention at all, since neither Canada nor Mexico were ICSID Member States and consequently the proceedings were held under the ICSID Additional Facility Rules.18 On the other hand, the ICSID Tribunal endorsed the relevance attributed by the US to past international practice in the field of diplomatic protection. The Tribunal established that even the NAFTA Agreement corroborated such relevance,19 although this Agreement, like many other recent ones, did not refer to diplomatic protection for the settlement of disputes between a Contracting State and an investor of another Contracting State. On the contrary, the Tribunal recognized that NAFTA Chapter Eleven “represents a progressive development in international law whereby the individual investor may make a claim on its own behalf and submit the claim to international arbitration”.20

3. ASCERTAINING CUSTOMARY RULES IN THE FIELD OF FOREIGN INVESTMENTS: A HIGHLY CONTROVERSIAL ISSUE The ICSID Tribunal’s approval of the US’s reference to customary international law is problematic, since the exact content of customary rules on the treatment of foreign investors is uncertain and subject to different views. Undeniably, between the end of the XIX century and the beginning of the following century, the consolidation of principles and rules of customary international law guaranteeing full security to foreign investors was an essential feature of international obligations concerning the treatment of aliens. However, as is well-known, things changed with the expansion of Communist regimes, as well as with the rise of State-planned economies in Central Europe and of the newly independent countries from the decolonization process. A heated debate between industrialized countries and developing countries enlivened the UN General Assembly meetings especially in the 1960s and 1970s. Traditional rules were challenged. As a consequence, their content became uncertain and legal security for foreign investments under customary law was undermined.

16

Para. 234 of the 2003 ICSID Award. According to the ICSID Convention, only the date on which the parties to a dispute consented to submit the dispute to ICSID conciliation or arbitration is relevant to determine the nationality of a company for ICSID jurisdictional purposes. However, in the Tradex case the ICSID Tribunal took a different decision. 18 In particular, para. 235 of the 2003 ICSID Award. 19 Paras. 229 and 230, ibidem. 20 Para. 223, ibidem. 17

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This debate between north and south raised the problem of identifying the sources of so-called international law regarding foreign investments. In particular, this debate made it difficult, if not impossible, to apply “classical” international law as it was conceived by industrialized countries. Even today, when foreign direct investment is welcome in the developing world, a clear consensus on the exact content of customary principles and rules concerning foreign investments has not been consolidated yet. That is why treaty regulation is nowadays paramount in order to dispel doubts related to the level of treatment and protection that foreign investment is entitled to, especially in the relations among industrialized countries, developing countries and economies in transition. In this connection the ICSID Award of 9 January 2003 in the ADF case is of the greatest significance, since it shows that even industrialized countries, such as the US and Canada, may not share a common view as to the existence of customary rules concerning the treatment of foreign investments.21 The uncertain content of customary principles and rules on foreign investments also concerns the issue of determining nationality, and its continuance, as a prerequisite either for a State to exercise diplomatic protection or for the jurisdiction of international arbitral tribunals which can be activated by a State or by a private investor, whether a person or a company.22 That is mainly true at present since the widespread dynamism produced by the globalization process makes persons and companies operate all over the world with the consequent establishment of links with different countries.23 Thus, the ICSID Tribunal in the Loewen case could not have upheld the US view that continuous nationality of the claim was to be considered an undisputed requirement prescribed by customary international law.24 As already pointed out, the Tribunal came to such a decision since the NAFTA Agreement does not expressly waive the alleged customary rule, that is continuous nationality throughout the resolution of the claim. 21

Paras. 178-183, in particular para. 179, ibidem. Cf. ACCONCI, “Determining the Internationally Relevant Link between a State and a Corporate Investor”, The Journal of World Investment & Trade, 2004, p. 139 ff. 23 See ORREGO VICUÑA, “Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement”, ICSID Review, 2000, p. 340 ff., espec. p. 353. However, the ICSID Decision on Jurisdiction of 29 April 2004 in the Tokios Tokèles case refers to a completely different view. According to this Decision, incorporation is still the standard rule in customary international law to determine corporate nationality (espec. paras. 69-70). 24 Cf. GAILLARD, “CIRDI. Observations”, JDI, 2003, p. 230 ff., espec. pp. 232-233; PAULSSON, “Continuous Nationality in Loewen”, Arbitration International, 2004, No. 2, p. 213 ff.; MENDELSON, cit. supra note 7, pp. 85-86; IDEM, “Runaway Train: The ‘Continuous Nationality’ Rule from the Panavezys-Saldutiskis Railway case to Loewen”, in WEILER (ed.), Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, London, 2005, p. 97 ff. 22


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That is a crucial point as regards the Tribunal’s reasoning. The Tribunal recognized that today the requirement of continuous nationality tends to be applied differently as most of the disputes between foreign investor and host State are settled without recourse to diplomatic protection. Besides, the Tribunal admitted that even the NAFTA Agreement is in line with this trend as regards settling investment disputes between a Party and an investor of another Party. Nevertheless, the Tribunal applied the alleged customary rule, which at any rate chiefly regarded investors as physical rather than corporate persons. The Tribunal deemed the silence of the NAFTA Agreement as clear ground for applying such a rule. In the Tribunal’s opinion, this silence could not allow a less strict application of the traditional requirements of diplomatic protection.25

4. IS THE ALLEGED CUSTOMARY INTERNATIONAL RULE ON THE REQUIREMENT OF CONTINUOUS NATIONALITY APPLIED BY THE ICSID TRIBUNAL IN THE LOEWEN CASE IN LINE WITH RECENT INTERNATIONAL PRACTICE CONCERNING SETTLEMENT OF INVESTMENT DISPUTES? Our critical remark on the Tribunal’s reasoning is supported by some scholars whose opinions differ from the US’s about the solution to the problem of continuous nationality emerging from past international practice in the field of diplomatic protection.26 It is also supported by the different trend in the solution to this problem which is shown by the great number of recent investment treaties, as well as by some other examples of recent international practice developed on the same issue with special regard to corporate investors. The Iran-US Claims Tribunal case-law is one of these examples. Article VII, para. 2, of the 1981 Iran-US Claims Settlement Declaration states that “‘claims of nationals’ of Iran or the United States, as the case may be, means claims owned continuously, from the date on which the claim arose to the date on which this Agreement enters into force by nationals of that State”. The Tribunal’s Chambers and the Full Tribunal have had to interpret this provision due to the silence of the Declaration in this connection.

25

Paras. 229 and 230 of the 2003 ICSID Award. Cf., in general, GECK, “Diplomatic Protection”, in BERNHARDT (ed.), Encyclopedia of Public International Law, Amsterdam/New York/Oxford, 1987, Vol. 10, p. 99 ff., pp. 109110; WYLER, La règle dite de la continuité de la nationalité dans le contentieux international, Paris, 1990; ORREGO VICUÑA, cit. supra note 23, pp. 349-353; DUCHESNE, “The Continuous Nationality of Claims Principle: Its Historical Development and Current Relevance to Investor-State Investment Disputes”, The George Washington International Law Review, 2004, p. 783 ff. 26

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Iranian arbitrators strenuously asserted that, according to customary international law, the nationality of any claim had to be continuous all through the corresponding arbitration proceedings, that is until the date of the pertinent final award.27 The Chambers did not accept such a view in many cases, especially in those where they applied the guidelines defined by the first Chamber in the Flexi-Van, Inc., and General Motors Corp. cases to determine the nationality of public companies. The Chambers decided that for jurisdictional purposes the nationality of the claim had to be continuous from the date on which the claim had arisen to the date of entry into force of the 1981 Algiers Agreements. The Chambers also followed the same attitude in most of the cases concerning so-called indirect claims. They ascertained their jurisdiction even in cases where a wholly-owned US subsidiary had transferred its claim to another wholly-owned US subsidiary linked to the same US parent company. The Chambers did not consider this transfer as an interruption of the continuous US nationality of the claim.28 In the Endo Laboratories, Inc., case, the US nationality of the claim was considered continuous, although, after the deadline to submit claims had expired, there was a merger between the damaged subsidiary and its parent company. Consistently, the third Chamber in the Award on the SEDCO, Inc. v. NIOC case denied its jurisdiction for the lack of continuous nationality of the claim, since, during the relevant period of time for jurisdictional purposes, the Iranian government had taken shares of the Iranian SEDCO subsidiary, Sediran. The Chamber clarified that “the transfer of shares and not the taking is of prime jurisdictional significance for it is the loss of shareholder status that breaks the Claimant’s ownership of the indirect claim”. For similar reasons the Tribunal’s jurisdiction was dismissed in other cases concerning indirect claims, such as the Hawaiian Agronimics Co. (International) (Re) case and the International Systems & Controls Corp. v. IDRO case. The Award on the latter case comes with an interesting dissenting opinion by the US arbitrator, Brower. In his opinion, the Tribunal’s jurisdiction should have been based on the “actual beneficial ownership”, rather than on the “legal title”, and then upheld in the light of “ultimate, i.e. beneficial, American ownership” of the claim. In fact, according to Arbitrator Brower, the US subsidiary maintained “beneficial ownership”, although a Canadian trustee had been nominated. 27 For the same view see generally BROWNLIE, Principles of Public International Law, 5th ed., Oxford, 1998, pp. 483-484. However, the same author later admitted that “much depends on the terms of the agreement creating the machinery for the settlement of claims” (Principles of Public International Law, 6th ed., Oxford, 2003, p. 461). 28 See the Gould Marketing, Inc.; Oil Field of Texas, Inc.; Mobil Oil Iran, Inc.; and Arthur J. Fritz & Co. cases.


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As regards the effects of share transfers on the requirement of nationality of the claim, some ICSID cases, such as the Amco Asia, Klöckner and SOABI, are also noteworthy.29 In particular, in the Klöckner case the ICSID Tribunal upheld its jurisdiction even if, following a relevant change in control which had taken place after the date of the disputing parties’ consent to ICSID arbitration, the local subsidiary, SOCAME, had become mainly controlled by nationals of the host State, Camerun. As SOCAME had previously been controlled by nationals of Germany and the Netherlands, the Tribunal decided that the claim fell within its jurisdiction up to the time SOCAME had been under foreign control. Speaking of the Loewen case, the ICSID Award on the Amco Asia (Resubmitted) case was probably even more important, since it concerned the legal effect of the claimant company’s dissolution as the holder of rights and duties in an agreement to arbitrate. The ICSID Tribunal denied that this dissolution had altered the claimant’s status. On the contrary, the Tribunal agreed that “Amco Asia continued in existence under the laws of the State of Delaware for purposes of this arbitration”,30 although a new company, Amco Asia Corporation, had been established. Therefore, by analogy with the ICSID Award on the Amco Asia (Resubmitted) case, the ICSID Tribunal of the Loewen case could have decided that TLGI “continued in existence”, as a Canadian company, for ICSID purposes, even if, as a general rule, the principle of stare decisis is inapplicable within the ICSID legal system. As for the pre-submission assignment of claims from a parent company to a subsidiary, the practice of the Iraq-Kuwait United Nations Compensation Commission (UNCC) is also important. Some UNCC panels have, in fact, accepted such claims, even when the parent company had changed its name31 or had merged with another company.32 Note that the 1991 Decision No. 7 of the UNCC Governing Council, which inter alia lays down the criteria “for processing claims of corporations”, does not provide anything as regards the continuity of the claimant’s identity and nationality. As a consequence, UNCC panels have been able to accept claims of parent companies for damages suffered by one of their subsidiaries, even if the parent company and the subsidiary in question had different nationalities.33 29 For a slight criticism of the ICSID case-law on the so-called “critical dates” for ICSID jurisdiction cf. SCHREUER, The ICSID Convention. A Commentary, Cambridge, 2001, pp. 324332. 30 Part D of the Decision on jurisdiction (Resubmitted Case) of 10 May 1988. 31 See the Report of 29 September 2000 on the tenth instalment of E3 claims as to the claim of ABB Schaltanlagen GmbH (S/AC.26/2000/18). 32 See the Report of 22 June 2001 on the thirteenth instalment of E3 claims as to the claim of NCC International AB (S/AC.26/2000/12). 33 See some reports on E3 claims, such as the Report of 30 September 1999 on the fourth instalment of such claims as to the claim of Snamprogetti S.p.A. (S/AC.26/1999/14); the Report

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5.

CONCLUSION

Briefly, the ICSID Tribunal’s reasoning on the diversity of nationality in the Loewen case does not seem to be well-founded on international law, as it has mainly developed so far. Contrary to the Tribunal’s statements in the concluding paragraphs of its Award of 26 June 2003, reference to customary international law and the Tribunal’s will to enhance the “viability” of the NAFTA Agreement would not have hindered the Tribunal itself from finding the establishment of Alderwoods irrelevant for ICSID purposes. Like the UNCITRAL arbitral Tribunal in the UPS case34 and the ICSID arbitral Tribunal in the ADF case,35 the Tribunal adopted a restrictive approach on the issue of the contribution to the development of customary international law that the great number of investment treaties now in force can per se give.36 Indeed, by doing so the Tribunal endorsed the dominant view of scholars.37 However, the Awards issued by other arbitral tribunals, such as those on the Pope & Talbot Inc.,38 on the Mondev39 and on the CME40 cases, referred to a completely different approach to the relevance of modern investment treaties to evaluate customary international law. Some scholars also support this approach.41 Thus, we think the ICSID Tribunal could have taken into account that most of these treaties and other examples of international practice show a change in the traditional view on the requirement of continuous nationality.

of 29 September 2000 on the tenth instalment of such claims as to the claim of ABB Lumus Crest, Inc. (S/AC.26/2000/18); the Report of 15 March 2001 on the eighteenth instalment of such claims as to the claims of Intergraph Corporation and Parsons, de Leuw, Inc. (S/AC.26/2001/3); and the Report of 22 June 2001 on the seventh instalment of E2 claims as to the claim of Telstra Corp., Ltd. (S/AC.26/2001/11). Cf. CROOK, “The United Nations Compensation Commission – A New Structure to Enforce State Responsibility”, AJIL, 1993, p. 144 ff. 34 See para. 97 of the Award on Jurisdiction of 22 November 2002. 35 See paras. 183-184 of the Award of 9 January 2003. 36 See espec. para. 229 of the 2003 ICSID Award. 37 Generally, cf. GUZMAN, “Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties”, Virginia Journal of International Law, 1998, p. 639 ff., espec. pp. 686-687. 38 In particular, see paras. 59 and 62 of the UNCITRAL Award in respect of Damages of 31 May 2002. 39 See para. 117 of the ICSID Award of 11 October 2002. 40 See, particularly, paras. 497-498 of the UNCITRAL Final Award of 13 March 2003. 41 Cf. LOWENFELD, “Investment Agreements and International Law”, Columbia JTL, 2003, p. 123 ff., pp. 129-130; HINDELANG, “Bilateral Investment Treaties, Custom and a Healthy Investment Climate”, The Journal of World Investment & Trade, 2004, p. 789 ff.; SCHWEBEL, “The Influence of Bilateral Investment Treaties on Customary International Law”, ASIL Proceedings, 2004, p. 27 ff.; SALACUSE and SULLIVAN, “Do BITs Really Work?”, Harvard ILJ, 2005, p. 67 ff., espec. pp. 112-115.


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Furthermore, given the uncertain content of customary international law on investments, a different application of the NAFTA Agreement would have been possible. This application could have been based not only on the fact that the host State was a very powerful country which had promoted the widespread acceptance of a pro-investor attitude at an international law level, but also on equity terms, since the US courts of the State of Mississippi had allowed a political application of the law. The ICSID Tribunal could have highlighted the peculiar pro-investor spirit to which investment treaties, including the NAFTA Agreement, tend to refer as regards the settlement of disputes between a foreign investor and a host State. On account of the great negative relevance attributed to TLGI’s Canadian nationality by the Mississippi jury, the Tribunal could have used equity as a general principle of international law, when it considered the rule of the NAFTA Agreement which just refers to the date of the submission of the claim as regards the requirement of nationality in general. Reference to equity would have permitted the Tribunal to adapt the broad content of this rule to the specific circumstances of the Loewen case (so called, equity infra legem).42 On equity terms, the Tribunal could have at least accepted some proof of its jurisdiction provided by TLGI. As pointed out in Raymond Loewen’s Petition to Vacate ICSID Awards filed at the US District Court for the District of Columbia on 13 December 2004, the Tribunal paid no attention either to the claimant’s explanation that TLGI’s NAFTA claims had been transferred not only to Nafcanco (at 75%), but also to a Canadian trust on behalf of “TLGI’s unsecured creditors” (at 25%),43 or to TLGI’s request to benefit from the most-favoured-nation treatment, provided by Article 1103 of the NAFTA Agreement, in relation to the requirement of continuous nationality.44 Besides, reference to customary international law in the Loewen case does not seem to be very coherent as a whole. In its 2002 Memorial, the US had also recalled customary international law to prove that the nationality of an international claim depended on that of the “real claimant and equitable owner”. Specifically, the US had referred to the 1970 International Court of Justice’s judgment on the Barcelona Traction case to demonstrate that in some circumstances applying the lifting-of-the-corporate-veil doctrine was in line with customary international law in order to identify a company’s national State. 42 Cf. SCHACHTER, “General Course in Public International Law”, RCADI, 1982-V, Vol. 178, p. 9 ff., pp. 82-85; BATTAGLINI, “L’equità infra legem nei giudizi internazionali”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Napoli, 2004, Vol. I, p. 265 ff., espec. pp. 277, 287-293. 43 See note No. 2 of the Notice of Petition to Vacate submitted by Raymond Loewen. 44 Ibidem.

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Actually, the Court did not lift the corporate veil, which was at the base of the formal perspective of the company law used by the Court itself to justify its decision. To decide whether the formal link between Canada and Barcelona Traction was based on a “close and permanent connection”, the Court evaluated the link between the company and the general economic environment of the country where the company operated, rather than the link between the company and elements indicating an economic and financial connection. Evaluating these elements would have implied lifting the corporate veil.45 Therefore, we believe customary international law as ascertained by the Court in 1970 was not very similar to alleged customary rules on which the US based some assertions in its 2002 Memorial. Note that the Tribunal did not consider it necessary to deal with the issue of determining the real equitable owner of the claim, as requested by the US, although in practice it applied the lifting-of-the-corporate-veil doctrine by deciding that, due to the change of the parent company’s nationality, there was no longer any NAFTA “disputing party”.46 That is even more remarkable in the light of the fact that the Tribunal also dismissed Raymond Loewen’s claim based on Article 1116 of the NAFTA Agreement, that is, Raymond Loewen’s claim as “an investor of a Party on its own behalf”.47 By denying that Raymond Loewen’s claim under the NAFTA Agreement had survived the reorganization plan and stating that “he certainly was not a party in interest at the time of the reorganization of TLGI”,48 the Tribunal somehow attributed relevance to the change in control over TLGI which had possibly taken place with its reorganization plan, despite the lack of reference to the control test in Article 1116 of the NAFTA Agreement.

45

See ACCONCI, cit. supra note 22, p. 146. Paras. 237-238 of the 2003 ICSID Award. In this respect, see also para. 65 of the ICSID Decision on Jurisdiction in the Tokios Tokèles case, cit. supra note 23. 47 Para. 239 of the 2003 ICSID Award. See also paras. 19-22 of the Decision on Respondent’s Request for a Supplementary Decision issued by the same ICSID Tribunal on 13 September 2004. Cf. WEILER, “Dodging Bullets-A First Look at the Final Award in The Loewen Group and Raymond Loewen v. U.S.A.”, The Journal of World Investment, 2003, p. 659 ff. 48 Para. 239 of the 2003 ICSID Award. 46

STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA MARIANGELA GRAMOLA*

1. INTRODUCTION: THE NATURE OF THE CASPIAN SEA AS A LAKE AND ITS ENSUING LEGAL STATUS The Caspian Sea, in the southwestern part of Asia, is by far the largest landlocked body of water in the world (about 371,000 Km²). On 4 October 2003, the Russian Federation, Kazakhstan and Azerbaijan concluded an agreement regarding the division of the Caspian “seabed” between the contracting States.1 This is the latest of many bilateral and/or trilateral agreements that have been concluded by the coastal States of the Caspian Sea since the demise of the USSR in 1991. The Caspian Sea had, in fact, been bounded by only two States for a long time: the Soviet Union and Iran. As a result of the break-up of the USSR, the Caspian Sea now has five coastal States: the Russian Federation (NorthWest), Azerbaijan (West), Iran (South), Turkmenistan (East), and Kazakhstan (NorthEast). The many agreements are thus the result of an increased number of coastal States surrounding a land-locked water basin whose international legal status has been and is very disputed under several international legal principles. The Caspian Sea is actually a very particular remainder of an ancient wide oceanic basin – the Sarmatian Sea.2 Notwithstanding its numerous physical similarities with seas, in particular its size and salt water content, however, the Caspian is legally an international lake.3 Indeed it has no direct connections with the ocean:

*

Researcher, University of Padova. See infra section 4. 2 The Sarmatian Sea extended from present-day Hungary to the southwestern Russian part of Asia. Through successive folding the ancient sea area was progressively reduced and resulted in the creation of three distinct basins: the Black Sea in connection with the Mediterranean Sea and two land-locked basins – the Caspian Sea and the Aral Sea. This is the reason why the Caspian is still currently referred to as a “sea”; and why it has many of the characteristics of a maritime basin. See National Geographic Italia, additional map, May 1999, Vol. 3, No. 5; MOSETTI, Le acque, Il nostro Universo (series), Torino, 1977, p. 238 ff.; “Mar Caspio”, Enciclopedia Italiana Treccani, 1931, Vol. 9, p. 313 ff. Even if the majority of geographers define it as a lake, disagreements remain. See “Caspian Sea”, The New Encyclopaedia Britannica, 1979, Vol. 3, p. 980 ff.; see also “Caspian Sea”, Great Soviet Encyclopedia. A Translation of the Third Edition, 1976, Vol. 11, p. 169 ff. 3 In the same sense, see: TAVERNIER, “Le statut juridique de la mer Caspienne: mer ou lac? (La pratique des Etats vue à travers les documents publiés par les Nations Unies)”, Actualité et droit international, 20 October 1999, available at http://www.ridi.org/adi/199910a1.htm; DABIRI, “A New Approach to the Legal Regime of the Caspian Sea as a Basis for Peace and Development”, The Iranian Journal of International Affairs, 1994, Vol. 6, p. 28 ff.; LUCCHINI and 1


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that is to say a connection so direct as to involve a mutual exchange of water keeping the different basins part of the same water system. This latter is required for any application of the international law of the sea.4 The predominant attention of law to human activities implies that – while in the case of regulation of the seas freedom of international traffic and common exploitation of high sea resources are the main concern – with regard to lakes the exigencies of territorial security and self-preservation prevail. Accordingly, the accessory nature of lakes extends not only to coastal waters but also to the entire basin.5 Hence, if there are, as in the case of the Caspian Sea, several littoral States, the fundamental problem is to reconcile the concurrent interests of these States. There are no general conventions touching specifically on the situation of lakes surrounded by numerous States, i.e. international lakes or frontier lakes, however.6 The only exception is represented by the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, done at Helsinki, on 17 March 1992. This convention centers on the problem of pollution, however. To this purpose, it makes reference to the same general principles recognized in the framework Convention on the Law of the Non-navigational Uses of International Watercourses (New York, 1997). These principles are no more than general directives for the conclusion of future agreements, however: reasonable and equitable use, the duty not to cause significant harm to other riparian States, the duty of mutual information provision and co-operation, either through the adoption, “as far as possible”, of internal acts or through the conclusion of agreements.7 As far as boundary delimitation is concerned, actual State practice clearly turns on the recognition of the right of each littoral State to have full sovereignty over

VŒLCKEL, Droit de la mer, Vol. I, “La mer et son droit. Les espaces maritimes”, Paris, 1990, p. 41; BUTLER, The Law of Soviet Territorial Waters. A Case Study of Maritime Legislation and Practice, New York/Washington/London, 1967, p. 76; PONDAVEN, Les lacs-frontière, Paris, 1972, pp. 1213; DE HARTINGH, Les conceptions soviétiques du droit de la mer, Paris, 1960, p. 29. 4 See GIDEL, Le droit international public de la mer, Paris, 1981, Vol. I, pp. 41-42. Thus, a river link – as in the case of the Caspian Sea, which has recently been re-connected to the Baltic Sea, the White Sea and the Black Sea through a close net of canals – is not sufficient. In this sense, see Article 122 of the UN Convention on the Law of the Sea, UNTS, Vol. 1833, p.3 ff., p. 442. See also ALLONSIUS, Le régime juridique de la mer Caspienne. Problèmes actuels de droit international public, Panthéon-Assas University (Paris II), Paris, 1997, p. 56. 5 See DIENA, Diritto internazionale, Milano, 1930, Vol. I, pp. 228-234. 6 See PONDAVEN, cit. supra note 3, p. 6 ff. 7 See the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, ILM, 1992, p. 1312 ff., in particular the Preamble and Articles 1, 2, and 3. Among the coastal States of the Caspian Sea the Convention has been ratified by Azerbaijan, Kazakhstan and the Russian Federation. See also the 1997 New York Convention on the Law of the Non-navigational Uses of International Watercourses, ILM, 1997, p. 700 ff. For a general study on the 1997 New York Convention, see passim TANZI and ARCARI, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing, The Hague, 2001.

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a part of the international lake. Indeed, almost all international lakes have been conventionally divided among their respective littoral States.8 Nevertheless, there is no uniform State practice9 either as regards methods of boundary delimitation or forms of utilization of the lake.10 The extreme specificity of each single basin, in fact, results in considerable differences between the legal regimes of particular lakes, as these latter are essentially based upon particular agreements among littoral States.11 In final consideration, the only existing rule of customary international law on the exploitation of international lakes regards the duty of coastal States to co-operate. This duty is fulfilled by negotiating the regulation of activities involving the interests of several States in good faith; in any event, it does not compel littoral States to reach an agreement before starting any activity in the part of the basin falling under their jurisdiction.12 In the absence of specific treaties or of regional custom, the only applicable general rules, aside from the duty to negotiate, are general

8 Setting aside peculiarities due to local conditions, one can isolate four main methods adopted for boundary delimitation of international lakes: the bank limit, characterized by exclusive exercise of sovereignty over the basin by one coastal State only; the median line, each point of which is equidistant from a point or points located on opposite banks of the lake; astronomical and geometric lines, or straight lines connecting points following either a meridian or a parallel, respectively, or determined through the use of coordinates; finally, there are cases in which the border line crossing the lake is a simple straight line connecting land borders. See SCHRÖTER, “La délimitation des lacs internationaux: essai d’une typologie”, AFDI, 1994, p. 910 ff. 9 In the past, some authors engaged in the drafting of codes of public international law and included some norms on international lakes. These norms, like many others included in similar texts, were no more than abstracts of the most widespread and general legal doctrines, however. See DE BUSTAMANTE Y SIRVEN, Droit international public, Paris, 1936, Vol. III, p. 104. 10 The unity of lakes calls for mutual restraint of sovereignty, so as to allow for the exercise of activities on the lake. With regard to navigation, the majority of agreements grant freedom of navigation over the whole lake to the citizens of coastal States. See ANDRASSY, “Les relations internationales de voisinage”, RCADI, 1951, II, p. 77 ff., pp. 116-117. As far as fishing is concerned, State practice is divided between a general regime of freedom and a regime limiting fishing rights to the respective national sector. The latter solution is, however, more widespread than the former, both in the absence of agreement and in treaty practice. See PONDAVEN, cit. supra note 3, p. 293 ff., pp. 296, 297, 298, and 306 ff.; ROUSSEAU, Droit international public, Paris, 1980, Vol. IV, “Les relations internationales”, p. 592 ff. 11 See PONDAVEN, cit. supra note 3, who has analyzed the legal status of more than 60 international lakes. Since then, agreements have continued to increase, as is evidenced in the wide-ranging and deep study by SOHNLE, Le droit international des ressources en eau douce – solidarité contre souveraineté, doctorate thesis, Université Strasbourg III, 2000. The exploitation regime of international lakes has also been complicated by activities introduced as a consequence of industrialization, including the production of electric energy, irrigation and, in the case of the Caspian Sea, above all drilling for liquid minerals. Plurality of use creates competition, requiring compromise solutions capable of satisfying the particular economic and political situation of all the States concerned. See PONDAVEN, cit. supra note 3, pp. 203-204. 12 See Affaire du lac Lanoux (Spain v. France), Judgment of 16 November 1957, UN Reports of International Arbitral Awards, Vol. 12, p. 281 ff.

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principles regulating the coexistence of different spheres of sovereignty.13 Among these principles the more relevant are the duty to use the basin without causing significant harm to other coastal States14 and the duty of mutual information provision regarding the possible transboundary (negative) effects of State activities.15 On the other hand, effective co-operation among States beyond mere negotiation is only possible in a peaceful political situation. Indeed, only in such a situation does an international regime lose the character of a threat to coastal States sovereignty. Hence, it has been argued that it would be easier for a State to agree to the internationalization of a basin for transport purposes than to the sharing of its natural resources.16 This is clearly demonstrated by the dispute between the coastal States of the Caspian Sea during the last decade. Its subject has formally been boundary delimitation of the basin, but in reality discussion has concerned the possibility of exploiting the rich oil mines of its sub-soil.17

2. BACKGROUND TO THE DISPUTE 2.1. The Treaties of Friendship, Neutrality and Commerce between the USSR and Persia (1921-1931) The legal status of the Caspian Sea has been governed for nearly a century by the Treaty of Peace between Russia and Persia – concluded at Turkmanchai on 22 February 1828 –, putting a definitive end to the two wars of conquest engaged in by Russia in the first half of the XIX century.18 This treaty upheld the exclusive sover-

13 See RUIZ FABRI, “Règles coutumières générales et droit international fluvial”, AFDI, 1990, p. 818 ff., p. 821. 14 This principle is the expression of a fundamental canon of justice, which limits the exercise of one’s own right in consideration of the contemporaneous existence of corresponding rights for others. The canon is diffused and constantly observed in domestic legal systems; and also needs to be respected in the process of the creation of international legal rules, both if it is considered a fundamental principle of international law and if it is classified as a formal customary international rule. See GIULIANO, SCOVAZZI and TREVES, Diritto internazionale, Milano, 1991, Vol. I, “Parte Generale”, pp. 214-216. 15 As far as the obligations of mutual information provision and consultation are concerned, there are several UN General Assembly resolutions upholding that this obligation is part of international environmental law in statu nascendi. See GA Resolution 2995 (XXVII) of 15 December 1972, Resolution 2996 (XXVII) of 15 December 1972, and Resolution 3129 (XXVIII) of 13 December 1973, in DJONOVICH (ed.), United Nations Resolutions, Dobbs Ferry/New York, 1978, Series I (General Assembly), Vol. XIV, 1972-1974, pp. 278-279, pp. 418-419. See also GAJA, “Incidente a Chernobyl ed obbligo di informazione”, RDI, 1986, p. 828 ff. 16 See ALLONSIUS, cit. supra note 4, p. 60. 17 See infra section 3.6. 18 See the 1828 Treaty of Peace between Russia and Persia, in PARRY (ed.), The Consolidated Treaty Series, Dobbs Ferry/New York, 1969, Vol. 78, 1827-1828, p. 105 ff.


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eignty acquired over the basin by the Empire of the Tsar and established that only Russian warships could navigate the waters of the Caspian Sea.19 Still, Article 8 of the Treaty granted an equal right to both littoral States to navigate “freely” – apart from the category of warships – in the whole of the Caspian basin.20 The status quo established by the Turkmanchai Treaty came to an end with the arrival of the Soviet regime. As a matter of fact, the dissolution of the imperial system allowed postwar Persia to regain part of its sovereign rights. An important testimony of the new direction given to the relationship between Persia and Soviet Russia was the Treaty of Friendship concluded by the two States in Moscow on 26 February 1921.21 The 1921 Treaty sets out both contracting Parties’ right to freely navigate the Caspian Sea, no longer making a distinction between merchant vessels and warships (Article 11).22 It should be noted that although the 1921 Moscow Treaty revoked all Russian concessions in the Caspian Sea,23 it completely ignored the issue of the territorial delimitation of the Caspian basin between the two littoral States. Article 3, which addresses questions of the definitive solution of border disputes and the use of “frontier waters”, among others, makes no reference to the Caspian Sea.24 The very fact that the provisions concerning the basin are placed so low in the textual structure of the Treaty suggests that the Caspian Sea was not regarded as a frontier body of water. In the 1930s, however, growth in the scope of navigation and fishing activities in the salt water basin drew the littoral States to enter into new agreements, so as to create a juridical framework to regulate such activities.25 Thus, on 27 October 1931 the Soviet Union and Iran entered into a Treaty of Establishment, Commerce and Navigation, declaring that navigation and fishing in the waters of the Caspian Sea were reserved to Soviet and Persian ships.26 The reference to the Caspian Sea as a “Persian and Soviet” sea, contained in an exchange of notes that accompanied the execution of the Treaty, is extremely interesting. Some authors have perceived in this statement – as well as similar as-

19 In view of such predominance, the Caspian Sea embodied the typical instance of a lake basin delimited by the method of the bank as boundary limit. See supra note 8. 20 See Article VIII of the 1828 Treaty, cit. supra note 18. 21 See the 1921 Treaty of Friendship, League of Nations Treaty Series, Vol. 9, p. 383 ff. 22 Ibidem, Article 11. See also Article 14 of the same Treaty, dealing with fishing in Caspian Sea waters. 23 See Articles 12 and 13 of the 1921 Treaty, cit. supra note 21; Article 13 requires that the Persian Government not assign to a third Power, or to the nationals of the latter, any properties or concessions returned to Persia under the Treaty. 24 See Article 3 of the 1921 Treaty, cit. supra note 21. 25 See VINOGRADOV and WOUTERS, “The Caspian Sea: Current Legal Problems”, ZAÖRV, 1995, Vol. I, p. 604 ff., p. 608. 26 See the 1931 Treaty of Establishment, Commerce and Navigation, British and Foreign State Papers, Vol. 134, p. 1026 ff.

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sertions contained in the treaties subsequently concluded between the two States27 – the intention of the latter to subject the Caspian Sea to condominium status.28 In fact, the littoral States never mentioned such a status either in their bilateral documents or in the unilateral commitments undertaken by them. On the contrary, in 1935 the Soviet Minister for Internal Affairs proceeded to draw a delimitation line across the Caspian Sea between Astara and Gasan-Kholi, to correspond with terrestrial borders.29 What actually underlay such assertions was only the two coastal States’ political will to deny access to the Caspian Sea to any other State. This interpretation is also confirmed by a previous treaty, concluded on 1 October 1927, for the exploitation of the fisheries on the southern coast of the Caspian Sea.30 Protocol No. 4 of the Treaty expressly refers to the “Persian portion of the Caspian Sea”,31 albeit without specifying the range of the latter; also, the recognition of the right of Persia to appoint a Persian citizen to the presidency of the Soviet-Iranian company in charge of exploitation of the fish resources in the southern part of the Caspian Sea reveals that the Soviet Union was aware that the area pertained to Iranian territory. Consequently, maintenance of public order in the concession area, as a typical attribute of sovereignty, was entrusted to the Persian Government.32 Thus, although the treaties entered into by the two littoral States did not expressly provide for delimitation of the Caspian Sea, certain provisions thereof demonstrate the evolution characteristic of the legal status of boundary lakes originally delimited according to the limit-to-the-bank method;33 namely, the progressive abandonment of the bank as a boundary limit in favor of the subdivision of the basin between the littoral States.

27

A similar expression can also be found in the exchange of notes attached to the Treaty of Establishment, Commerce and Navigation entered into by Iran and USSR on 27 August 1935, in which the Caspian Sea is defined a “Soviet and Iranian” sea. See League of Nations Treaty Series, Vol. 176, p. 299 ff., 328. For a more detailed analysis of the Treaty, see infra section 2.3. 28 See DABIRI, cit. supra note 3, p. 32. 29 See Order No. 3 of 1935, by the NKVD (the Soviet Minister for Internal Affairs), in GIZZATOVA, International Legal Aspects of the Problem of the Caspian Sea, thesis, National University of Kazakhstan “After Al-Farabi”, Almaty, 1997, Annex No. 4. Iran did not recognize the unilateral delimitation officially, however, because of the excessive disproportion that would have ensued in the subdivision of the basin: the Soviet Union would actually have acquired nearly the whole of the Caspian Sea. See VINOGRADOV and WOUTERS, cit. supra note 25, p. 609; MERZLIAKOV, “Legal Status of the Caspian Sea”, International Affairs, 1999, p. 33 ff., p. 34. 30 See “Accord entre la Perse et l’Union des Républiques Soviétistes Socialistes relatif à l’exploitation des pêcheries sur la côte méridionale de la mer Caspienne. Signé à Moscou, le I octobre 1927”, League of Nations Treaty Series, Vol. 112, p. 297 ff. 31 See “Protocole No. 4” of the 1927 Treaty, ibidem, p. 312. See also MERZLIAKOV, cit. supra note 29, pp. 33-34. 32 See Article XIX of the 1927 Treaty, cit. supra note 30. 33 See supra note 8.


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2.2. The Treaties of Establishment, Commerce and Navigation between the USSR and Iran (1935-1940) The 1931 Treaty was later replaced by another Treaty of Establishment, Commerce and Navigation between Iran (formerly Persia)34 and the Union of Soviet Socialist Republics, concluded in Tehran on 27 August 1935. Article XIV of the Treaty expressly confirms that the right of navigation on the Caspian Sea is reserved only to ships plying under Iranian or Soviet flags.35 In addition, both Parties were under the obligation of employing only nationals in their ship crews.36 The most important innovation introduced by the Treaty, however, consisted of the creation of a zone of 10 nautical miles from the coast where fishing was reserved for ships flying the flag of the respective littoral State. Thus, a belt of “territorial waters” seems to have been determined, in accordance with the practice often adopted by States in delimiting international lakes.37 The reference to “seeming” is obligatory in order to avoid any arbitrary interpretation of the Treaty, given a particular fact – namely, that the delimitation of the 10 nautical miles area touched only on fishing rights. In fact, Article XV, paragraph 4, of the Treaty makes no mention of “territorial waters”, as is instead the case in the subsequent paragraph 5, which expressly refers to “seas other than the Caspian Sea”.38 As to the portions of the Caspian Sea not covered by any express reservation or concession, the regime adopted seems to be that of joint exploitation (by the littoral States). Thus, we are dealing not with a condominium legal status, in the sense of joint sovereignty over the lake basin, but rather with a juridical regime of the condominium type; that is, the possibility to jointly use its spaces and resources. The 1935 Treaty, rarely applied, was replaced by the Treaty of Commerce and Navigation of 25 March 1940, which redefined and supplemented several provisions of the former. As regards the legal regime of the Caspian Sea, Article 12 of the 1940 Treaty reproduces Article XV of the preceding 1935 convention literally, save for an 34

Persia was denominated Iran from 22 March 1935 on. See the 1935 Treaty, cit. supra note 27. 36 This obligation is much more stringent than the previous one, requiring Persia alone to dismiss any foreign individuals taking advantage of their jobs in the Persian navy for purposes hostile to Federative Russia. See Article 7 of the 1921 Treaty, cit. supra note 21. 37 See PONDAVEN, cit. supra note 3, pp. 55, 84, 155-156. 38 “[…] 5. Pour les mers autres que la mer Caspienne, les navires naviguant sous le pavillon de l’une des Parties contractantes jouiront, dans les eaux territoriales et dans les ports de l’autre, quant aux conditions de navigation, des mêmes droits et avantages que ceux accordés aux navires naviguant sous le pavillon de la nation la plus favorisée à cet égard”. See Article XV of the 1935 Treaty, cit. supra note 35. 35

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incidental clause regarding exemption from port dues for “towing vessels having other craft in tow”.39 On the other hand, although the “closed” character of the Caspian Sea is confirmed – navigation on its waters being authorized for Soviet and Iranian ships only – the excesses of such “closure” are abandoned. The new normative system no longer imposes on the contracting Parties the obligation to exclude all foreigners from their ship crews and port personnel, but only to “ensure that nationals of a third country” employed in such activities, do not “take advantage of their employment or presence in those vessels or harbors for purposes outside the limits of the professional duties with which they are charged”.40 This limited opening was probably due to the progressive consolidation of the political situation in the two littoral States – especially in the Soviet Union – and the growing détente in the relationship between the two countries. The Soviet-Iranian Treaties, however, unlike those between Russia/USSR and Persia, contain no provisions on navigation by Soviet and Iranian warships in the Caspian Sea, nor on the possibility of overflight. A Soviet-Iranian agreement dated 1964 on air navigation draws an imaginary line from Astara to Gasan-Kholi, as a reference to circumscribe respective areas for transmission of flight information. This line corresponds to the one unilaterally drawn by the Soviet Minister for Internal Affairs, in 1935, to delimit the portion of the Caspian Sea belonging to the USSR.41 The 1964 agreement does not, however, in the least question the validity of the 1940 Treaty or of its provisions concerning the legal status of the Caspian Sea, none of which address the issue of territorial delimitation of the basin between the littoral States.42 For over fifty years the Treaty signed in Tehran in 1940 governed the relationship between the Soviet Union and Iran. Its provisions on commerce and navigation maintained their original value irrespective of political changes that occurred in the two countries and influenced the course of the relationship between the two States.43

39 See the 1940 Treaty of Commerce and Navigation, British and Foreign State Papers, Vol. 144, p. 419 ff. 40 See Article 13 of the 1940 Treaty, ibidem, and the Exchange of Notes attached to it. 41 See supra note 29. 42 Some authors have inferred from the delimitation of airspace set forth by the 1964 Treaty the existence of a corresponding delimitation of the basin underneath. See DJALILI, “Mer Caspienne: perspectives iraniennes”, in La Caspienne. Une nouvelle frontière, Cahiers d’études sur la Méditerranée orientale et le monde turco-iranien (CEMOTI), 1997, No. 23, p. 127 ff., p. 133. It should be noted, however, that according to general international law territorial sovereignty extends to airspace from land, not vice versa; an extension process different from the norm should, therefore, have been expressly provided for by the Treaty rather than inferred through expansive interpretation of provisions aimed at regulating air traffic control. 43 In this connection the 1979 Iranian Islamic Revolution is worth remembering.


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The fact that the bilateral regulation system did not take into account a number of questions difficult to solve through political mediation, including the juridical delimitation of the Caspian Sea,44 among others, very likely contributed to the longevity of the Treaty.

2.3. The Internal Practice of the Soviet Union and of Iran as Confirmation of a De Facto Delimitation of the Caspian Sea between the Two Littoral States The realization of a de facto delimitation of the Caspian basin between the Soviet Union and Iran is witnessed by a series of internal measures adopted by the two countries and seldom contested by the other coastal State. The USSR and Iran filled gaps in treaty provisions through a series of unilateral actions and national normative acts. Mention has already been made above of the decree with which the Soviet Minister for Internal Affairs drew a borderline across the Caspian Sea in 1935, corresponding to the conjunction of terrestrial borders.45 Although Iran had at first contested the delimitation as being excessively disproportionate to the benefit of the USSR,46 it subsequently carried on its activities in the basin in compliance with it. This is also proved by the Iranian internal provisions regulating such activities. Thus, after granting to the Soviet Union the exercise of fishing rights in the southern portion of the Caspian Sea with the 1927 Treaty,47 Iran did not renew the concession when it expired in 1953. The Soviet Union, in turn, acknowledged that Iran had “exercised its lawful right to terminate the franchise and consequently recaptured the right to independently exploit its own fisheries” in a diplomatic note dated 2 February 1953.48 Therefore, Iran unilaterally secured the right to exploit resources in a portion of the Caspian Sea that was considered subject to its exclusive sovereignty also by the other littoral State. As regards the exploitation of the mineral resources of the Caspian Sea, then, both the Soviet Union and Iran, though at different times, began drilling operations in the areas they considered of their respective pertinence, without any prior

44

See VINOGRADOV and WOUTERS, cit. supra note 25, p. 608. The two Authors underline the exclusion, for historical and political reasons, of subjects such as: marine scientific research, exploration of oil and gas deposits, and drilling in areas adjacent to coasts. 45 See supra note 29. From that moment on, Soviet guards guaranteed the protection of the frontier along the Astara-Gasan-Kholi line: Iranian boats could not cross this line to go north without the permission of Soviet authorities. Even air space above the Astara-Gasan-Kholi line was placed under control, with a similar requirement (of permission) before Iranian aircraft could enter “Soviet airspace”. See GIZZATOVA, cit. supra note 29, p. 14. 46 See supra note 29. 47 See supra note 30. 48 See GIZZATOVA, cit. supra note 29, pp. 11, 19-21.

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consultation with the other littoral State.49 This practice unequivocally shows that neither the USSR nor Iran considered mineral resources a common property of littoral States, contrary to what was stated after the dissolution of the Soviet Union by the Russian Federation and by the Islamic Republic of Iran.50 This position was confirmed by a decree issued by the USSR in 1968 regarding measures for the prevention of pollution of the Caspian Sea and regulating Soviet oil-drilling activities.51 The decree, which intended to impose obligations only on Soviet Ministers, business undertakings and boats, did not presuppose the least consultation with Iran on the application of the measures contemplated in the decree. In addition, an instrument by Iran dated 18 June 1955, on the exploration and exploitation of the natural resources of the continental shelf established, in Article 2, that: “[T]he submarine areas, just as the natural resources in the seabed and subsoil of the same, up to the limit of the continental shelf adjacent to the Iranian coast, belonged and will continue to belong to Iran and will remain under its sovereignty […]. Note: With regard to the Caspian Sea, the international law principles regarding closed seas will remain applicable”.52 The practice of unilateral interventions was also followed in order to fill another major gap in the Soviet-Iranian Treaties, namely, regulation of the protection of the natural environment.53 As already mentioned, the USSR Council of Ministers adopted Resolution No. 753 concerning measures to prevent pollution in the Caspian Sea on 23 September 1968.54 Subsequently, the Government of the Soviet Socialist Republic of Kazakhstan, with Resolution No. 252 of 30 April 1974, proclaimed the northern part of the Caspian Sea a “protected area”, delimiting it by means of the combination of the methods of geometrical lines and straight lines joining the extremities of terrestrial borders.55 49 See MOMTAZ, “Le statut juridique de la mer Caspienne”, Espaces et ressources maritimes, 1991, p. 149 ff., p. 154; MERZLIAKOV, cit. supra note 29, p. 34. 50 See UN Docs. A/49/475 of 5 October 1994, and A/51/59 of 27 January 1996. 51 See “Decree on Measures Relating to the Prevention of Pollution of the Caspian Sea (1968)”, The USSR, Eastern Europe and the Development of the Law of the Sea, London/Rome/ New York,1983, J.1. 52 See GIZZATOVA, cit. supra note 29, p. 13; MEHDIYOUN, “International Law and the Dispute over Ownership of Oil and Gas Resources in the Caspian Sea”, AJIL, 2000, p. 179 ff., p. 181. 53 It should be remembered, however, that these conventions were approved at a time when issues such as the exploitation of subsoil resources and protection of the ecosystem did not play a central role in the development of international law provisions. It is only thanks to scientific and technological progress that States have become aware of the need for intensive co-operation in working out frameworks of regulation as well as in implementing those activities. 54 See supra note 51. 55 See GIZZATOVA, cit. supra note 29, p. 19. As to the various methods of delimitation of international lakes, see supra note 8.


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All these measures and resolutions were adopted without consulting Iran, even though they no doubt had repercussions on the legal regime of the basin and on its natural conditions.56 For example, the risk of floods, provoked by the excessive elevation of the water level of the Caspian Sea, was partly caused by exclusively Soviet enterprises, such as the construction of the Kara-Bogaz-Gol dam.57 This reveals the existence of a consensus, tacit though it was, between the littoral States as to the existence of separate areas of jurisdiction over the waters of the Caspian Sea.

3. THE REGIME OF STATE SUCCESSION IN THE LEGAL POSITIONS CONCERNING THE CASPIAN SEA 3.1. The Break-Up of the Soviet Union and Its Consequences on the Legal Situation of the Caspian Sea With the Agreement signed at Minsk on 8 December 1991, the Soviet Socialist Republics of Belarus, Ukraine, and the Russian Federation – founder States of the USSR – declared the end of the Soviet Union as a geopolitical reality and as a subject of international law. In that same Agreement, the three States decided to create the Commonwealth of Independent States (CIS) in order to help the solution of problems connected with State succession.58 Immediately afterwards, eight other Soviet Republics joined the Commonwealth, signing the Alma-Ata (now Almaty) Declaration, on 21 December 1991.59 Georgia followed suit only in 1994, while the Baltic States decided not to do so.60 Hence, there are now at least eleven new independent States within the territory of the former Soviet Union.61 These States, on the one hand, undertook to comply 56

Regarding the development of the notion of “unity of the hydrographic basin” and its consequences as foreseen by modern international law on the powers of the State with regard to utilization of the portions of the basin subject to its sovereignty, see CAFLISCH, “Règles générales du droit des cours d’eau internationaux”, RCADI, 1989, VII, p. 9 ff. 57 See supra note 2. 58 See Agreement establishing the creation of the Commonwealth of Independent States (Minsk, 8 December 1991), ILM, 1992, p. 142 ff. See also passim COZZARINI, La Comunità degli Stati Indipendenti, Torino, 1996. 59 The Republics involved in the Declaration were Armenia, Azerbaijan, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan. See ILM, 1992, p. 147 ff. 60 See COZZARINI, cit. supra note 58, p. 77 ff. 61 See infra section 3.2. Discussion is still open on the question of the legal status of the Baltic States. In fact, these States claim their occupation by the USSR had been illegal, referring to the use of force for their annexation (to the Soviet Union). See KOSKENNIEMI and LEHTO, “La succession d’Etats dans l’ex-URSS, en ce qui concerne particulièrement les relations avec la Finlande”, AFDI, 1992, p. 179 ff., p. 190. Contra CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 24.

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with the universally recognized principles and rules of the international legal order;62 and, on the other, committed themselves to grant individually implementation of the international agreements ratified by the Soviet Union.63 The latter undoubtedly also include the Treaty of Friendship, signed on 26 February 1921,64 as well as the Treaty of Commerce and Navigation, signed on 25 March 1940,65 which represent the only conventional legal ground for the utilization regime of Caspian Sea waters. This regime, based on the uncertain acquiescence of the littoral countries,66 may have been sufficient for Iran – rich in resources in other, much more important and easily reachable water spaces (e.g. the Persian Gulf), hence – scarcely interested in the economic exploitation of the Caspian Sea. Even after declarations on equal rights for the two coastal States, included in the 1921 Treaty,67 the Soviet Union actually dominated the greater part of the basin; and, thanks to the absolute superiority of its fleet, secured exploitation of the most relevant quantity of Caspian Sea resources.68 The creation of new States bordering the Caspian Sea multiplied existent competing interests, the settlement of which has become more and more difficult following the continuous discovery of important oil deposits in the subsoil of the basin. This situation has made urgent the drafting of a new and complete legal statute for the Caspian Sea. All the littoral countries have agreed on this necessity. Still, their opinions on the characteristics of the new regime differ or, it would be better to say, differed a lot.69

3.2. The Russian Federation as Continuing State of the Soviet Union All the positions of the present coastal States on the legal status of the Caspian Sea have sprung from the disputed question of whether the conventional regime established by the Soviet Union and Iran, and completed by them with practice, was still in force.70

62

See the Preamble of the Agreement establishing the creation of the Commonwealth of Independent States, cit. supra note 58, and the Preamble of the Alma-Ata Declaration, cit. supra note 59. 63 See Article 12 of the Agreement establishing the creation of the Commonwealth of Independent States, cit. supra note 58, and the Alma-Ata Declaration, cit. supra note 59. 64 See supra note 21. 65 See supra note 39. 66 See supra section 2.3. 67 See supra section 2.1. 68 See UIBOPUU, “The Caspian Sea: A Tangle of Legal Problems”, The World Today, 1995, p. 119 ff. 69 See infra section 4. 70 Ibidem.


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The right answer to this question from a legal point of view depends on the exact classification of the new geopolitical reality created by the break-up of the Soviet Union. Indeed, by changing the legal classification of the latter, it is possible to change the fate, as per general international law, of the conventional rights and duties undertaken by the predecessor State in relationship with other countries.71 In the case of the demise of the Soviet Union, it is necessary, in particular, to determine whether it was a dismemberment or, instead, a separation from the State currently named the Russian Federation of parts of its territories, in which new States have been created.72 The distinction is not unimportant: indeed, in the second case only the Russian Federation, as the continuing State of the Soviet Union, would be compelled, ipso jure, to respect the international obligations undertaken by the latter. The other former Soviet Republics, on the contrary, would be free to choose whether to succeed in the conventional rights and duties of the predecessor State, or not.73 Part of doctrine qualifies the demise of the Soviet Union as a dismemberment, basing this opinion on some official documents, which would testify to the total disappearance of the USSR as a subject of international law. Thus, the Preamble of the 1991 Agreement establishing the creation of the CIS,74 states that: “[…]

71

There is also an important Convention on the subject: the 1978 Vienna Convention on Succession of States in Respect of Treaties, which entered in force only on 6 November 1996. As of the end of 2004, the 1978 Vienna Convention had not been ratified by any of the former Soviet Republics surrounding the Caspian Sea. At all events, even if these States were to change their position and adhere to the Convention, it would still be necessary to take into consideration what is stated by Article 7 of the treaty. According to the latter, without a declaration otherwise by successor States, the Convention applies only to State successions that took place after the treaty entered in force; that is to say after 6 November 1996. Hence, the demise of the Soviet Union in 1991 and its consequent problems of succession in international treaties would not fall under the regulation of the 1978 Vienna Convention. See the 1978 Vienna Convention on Succession of States in Respect of Treaties, ILM, 1978, p. 1488 ff. For an analysis of the problems connected with the entry into force of the Convention, see BURCI, “L’entrata in vigore della Convenzione di Vienna sulla successione di Stati in materia di trattati e la prassi nell’ambito delle Nazioni Unite”, RDI, 1997, p. 175 ff. 72 The difference between the two situations is essentially that, while detachment does not entail the extinction of the State suffering it, the dismembered State becomes extinct and is replaced by two or more new States in the same territory. See CONFORTI, cit. supra note 61, p. 122. 73 As the Secretary General of the United Nations remarked in a note sent in March 1992 to the secretariats of the organs and organizations of the United Nations system, there are no clear customary rules prescribing to new States specific solutions regarding treaties in force for their predecessors. The note concerned the legal significance of the 1978 Vienna Convention on Succession of States in Respect of Treaties (cit. supra note 71). See BURCI, cit. supra note 71, p. 175; see also MÜLLERSON, “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia”, ICLQ, 1993, p. 473 ff., pp. 473-474. For an in-depth analysis of practice concerning State succession in conventional relationships before events in Central and Eastern Europe see RONZITTI, La successione internazionale tra Stati, Pisa, 1970, pp. 158-202. 74 See supra note 58.

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the Union of the Soviet Socialist Republics as a subject of international law and a geopolitical reality no longer exists. […]”. Furthermore, Article 12 of the same Agreement specifies that: “The High Contracting Parties grant the observance of the international commitments deriving to them from the treaties and agreements of the former USSR”. As some authors have underlined,75 the Russian Federation does not receive any particular consideration in these rules. Therefore, it seems to be in the same position as other former Soviet Republics, i.e. a successor State of the USSR. This reasoning would also be upheld by the Protocol of the Treaty START 1 on the reduction of nuclear weapons, signed at Lisbon on 23 May 1992. The Protocol indeed recognizes all the four successor States of the USSR holding nuclear weapons, i.e. the Russian Federation, Byelorussia, Kazakhstan and Ukraine, as parties to the Treaty.76 Finally, when the Parliament of the Soviet Union ratified the 1991 Minsk Agreement, it expressly abrogated the Treaty of 1922, which gave rise to the Union of the Soviet Socialist Republics.77 In reality, the legal value of these agreements, as well as of others later signed by the former Soviet Republics, has to be greatly reduced. Qualitative analysis of the intense negotiating process that went along with the demise of the Soviet Union shows that the intensity of the talks did not correspond to an equally effective realization of legal statements in the majority of cases. It is sufficient to observe the repeated understandings on the question of the legal statute of the Caspian Sea,78 and realize that new States have often negotiated and signed agreements without any real intention of respecting them, but rather with the diplomatic purpose of avoiding disputes and of keeping dialogue with other contracting States open.79 75

See ALLONSIUS, cit. supra note 4, p. 25. The Protocol was promoted by the USA in order to put an end to a dispute between the Russian Federation and Ukraine that threatened to compromise achievement of the objectives of the Treaty START 1. The Russian Federation had initially claimed that the Treaty, signed by the USA and the USSR on 31 July 1991, should remain a bilateral agreement; and that the Russian Federation, as the only successor State having the status of nuclear Power, should be the only legitimate State to negotiate further agreements on the matter. Ukraine challenged the Russian demand and claimed, as successor State, equal treatment in this regard. See COZZARINI, cit. supra note 58, pp. 29-32. 77 See ALLONSIUS, cit. supra note 4, p. 25. 78 The behavior of Azerbaijan, Kazakhstan and Turkmenistan is an eye-opener. These States, after having officially condemned unilateral initiatives undertaken before conclusion of an agreement on the new legal status of the Caspian Sea, have delimited with internal acts their respective sectors of the basin and concluded contracts with oil companies for the exploitation of mineral resources present in the sectors. Furthermore, the affirmations of the principle of freedom of navigation in the Caspian Sea included in the joint declarations presented by the coastal States to the United Nations followed by the creation of particular forms of control and by the conclusion of bilateral agreements aimed just at regulating navigation may be considered. See GIROUX, “Le Kazakhstan entre Russie et Caspienne”, in La Caspienne. Une nouvelle frontière, cit. supra note 42, p. 167 ff., p. 169. See also UN Document A/51/529 of 21 October 1996, and infra section 4. 79 See COZZARINI, cit. supra note 58, p. 39. The Russian Federation, after having solemnly stated its will to respect the independence and territorial integrity of the other former Soviet 76


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Hence, in order to understand the real nature of what has happened since the Agreement of 1991, it is not possible to take into consideration only the documents signed by the former Soviet Republics. As these documents rarely correspond to facts, any legal assessment of what has happened must focus on concrete data. Rein Müllerson has isolated some objective and subjective elements, which demonstrate that the former Soviet Union has suffered the separation of parts of its territory from its core, Russia, which therefore assumes the quality of the Soviet Union’s continuing State.80 Among objective factors, it is important to consider that the Russian Federation spreads over more than seventy-six percent of formerly Soviet territory and that more than half the population of the former USSR lives in its territory.81 Furthermore, the Russian Federation is still a federal Republic in which, when the change occurred, power stayed in the hands of the same men who, in 1991, decided to dismantle Soviet power organs, abandoning communist ideology. All this took place peacefully, through the use of legal tools. The Union Treaty of 30 December 1922, which gave rise to the USSR, indeed provided for the right of withdrawal to the federated Republics.82 As a matter of fact, situations in which the continuity or succession of a State is disputed always take place in a very sensitive political context. It is therefore important to consider the attitude of both the interested State83 and the behavior of third States.84 In a letter sent to the United Nations Secretary General on 24 December 1991, the President of the Russian Federation, Boris Yeltsin, declared that membership of the Soviet Union in the United Nations system, including the Security Council, and all other organs and organizations of the United Nations system, “is being continued” by the Russian Federation.85 Republics, has also advanced claims on the oil fields exploited by the latter. Moreover, after having publicly declared respect for the principles expressed in the United Nations Charter, the coastal States of the Caspian Sea have not hesitated to threaten, in a more or less veiled manner, use of force aimed at re-establishing the legal order violated by unilateral actions undertaken in the basin. See UN Docs. A/49/475 of 5 October 1994, A/52/1011 of 10 August 1998, and A/52/ 259 of 25 July 1997. 80 See MÜLLERSON, cit. supra note 73, pp. 476-478. 81 See KOSKENNIEMI and LEHTO, cit. supra note 61, p. 189. 82 Change in the constitutional structure of a State, no matter how fundamental, does not have any importance for international law if it takes place using constitutional means. The revision clause of a constitution is thus as much part of the constitution itself as all its other norms. According to international law, problems of State continuity may arise only if constitutional change has taken place by means of a revolutionary change of government. See MAREK, Identity and Continuity of States in Public International Law, Genève, 1954, p. 25. 83 See MÜLLERSON, cit. supra note 73, pp. 476-478, and also CHARPENTIER, “Les déclarations des Douze sur la reconnaissance des nouveaux Etats”, RGDIP, 1992, p. 343 ff., p. 351. 84 See CRAWFORD, The Creation of States in International Law, Oxford, 1979, p. 406. 85 See ILM, 1992, p. 138.

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No State or organization raised objections to this “continuation” by Russia. Thus, the Russian Federation, as continuing State of the Soviet Union, has not needed to apply to be admitted to international organizations.86 On the contrary, the other former Soviet Republics, having the character of successor, or new, States have been compelled to follow ordinary application procedures.87 As far as the attitude of the International Community is concerned, the majority of States appear to consider the Russian Federation as the natural continuing State of the Soviet Union. Indeed, in contrast to practice toward the other former Soviet Republics, many countries have not found it necessary to recognize the Russian Federation. Hence, they have implicitly “recognized” the formal sameness of the USSR and Russia.88 As Charpentier has pointed out, the rationale for the distinction between successor and continuing State is therefore clear: continuing States, remaining legally bound by the obligations undertaken by the predecessor State, are not subject to the pressures that “recognition” may exercise upon “new States”, to make them accept the succession in those obligations.89

86 For a critique of this way of proceeding, with particular regard to the attribution of the permanent seat in the Security Council, see VILLANI, “L’attribuzione alla Russia del seggio sovietico nell’ONU”, RDI, 1992, p. 120 ff. 87 The question of membership in the United Nations has, in any case, been resolved in the same manner as in the context of the separation of Pakistan from India in 1947. The situation had no effect on the international status of India, which thus kept its status as Member of the United Nations. On the contrary, the territory breaking away, i.e. Pakistan, had become a new State, free from the conventional rights and obligations of a continuing State; hence, it was not automatically a member of the United Nations. See MÜLLERSON, cit. supra note 73, pp. 447-448; O’CONNELL, State Succession in Municipal Law and International Law, Cambridge, 1967, Vol. I “Internal Relations”, pp. 7-8. Also, as far as the CSCE (now OSCE) is concerned, Russia simply notified the Secretariat of its intention to continue the status of the Soviet Union. See ALLONSIUS, cit. supra note 4, p. 26. 88 See KOSKENNIEMI and LEHTO, cit. supra note 61, p. 188-189. One particularly meaningful declaration is that adopted by the European Community in the field of political co-operation, in which the Member States “notent que les droits et les obligations internationales de ce qui était l’U.R.S.S., y compris ceux et celles découlant de la Charte des Nations Unies, continueront d’être exercés par la Russie. Ils prennent note avec satisfaction de l’acceptation par le Gouvernement Russe de ces engagements et de ces responsabilités et ils continueront de traiter avec la Russie sur cette base, en tenant compte de la modification de son statut constitutionnel”. The declaration ends by establishing, as a condition for the “recognition” of the other former Soviet Republics, that the latter undertake to respect the international obligations assumed for them in the treaties and agreements concluded by the Soviet Union. The text of the declaration was adopted on 23 December 1991 and published at The Hague and in Brussels. See VILLANI, cit. supra note 86, p. 121. 89 See CHARPENTIER, cit. supra note 83, p. 351.


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3.3. The Succession of the New Littoral States in the Soviet-Iranian Treaties Concerning the Caspian Sea The former Soviet Republics (other than the Russian Federation), as new States, are thus free of international conventional obligations. Nevertheless, in the Declaration signed at Alma-Ata on 21 December 1991, the former Soviet Republics guaranteed “the discharge of the international obligations deriving from treaties and agreements concluded by the former Union of Soviet Socialist Republics” in accordance with their respective constitutional procedures.90 In this manner, the new States may seem to have accepted a general principle of continuity in the international obligations of the predecessor State: a principle that, due to its general character, would also cover the Treaties with provisions on the Caspian Sea.91 According to the principle of customary international law stating the inapplicability of international agreements to third States, the Alma-Ata Declaration cannot have effect on the other contracting Parties of the treaties concluded by the USSR, however. Hence, the Declaration only compels the former Soviet Republics to take the steps necessary to renew these agreements. On this point, the history of the Treaties with provisions on the Caspian Sea is bizarre. On the one hand, Iran, as original contracting Party to these Treaties, has confirmed the persisting validity of the regime established by them. On the other, two of the three new independent States bordering the Caspian basin, Kazakhstan and Azerbaijan, have claimed their extinction.92 The Russian Federation, still contracting Party to these Treaties because of its quality as continuing State of the Soviet Union,93 immediately challenged the illegal behavior of the two Republics, claiming it violated their obligations, as undertaken in the Alma-Ata Declaration. In reality, as underlined above,94 negotiating activity following the creation of the Commonwealth of Independent States does not seem to have generated legal agreements stricto sensu,95 rather than mere political acts96 the implementation of

90

See Article 12 of the Alma-Ata Declaration, cit. supra note 59. See supra sections 2.1. and 2.2. 92 See infra section 4. 93 See supra section 3.2. 94 See supra notes 78 and 79. 95 Furthermore, the memorandum signed by the Heads of State of the CIS countries on 6 July 1992, greatly limiting the importance of the Alma-Ata Declaration, is worth noticing. It pinpoints that participation in international treaties in respect of principles and norms of international law was to be decided individually by each of the former Soviet Republics, considering the specificity of each concrete case, as well as the character and content of each treaty. See MÜLLERSON, cit. supra note 73, p. 479. 96 See COZZARINI, cit. supra note 58, p. 36 ff. 91

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which depends on the good will of participating States.97 According to some doctrine,98 however – and disregarding commitments specifically undertaken by the former Soviet Republics – the character itself of the conventional provisions on the Caspian Sea would determine the automatic succession of the new littoral States. These provisions would, in fact, have a territorial nature; i.e. they would be norms establishing particularly strong limits to the State right of territorial sovereignty, “imprinting” a stable legal condition on the territory to which they refer. According to a customary rule,99 this condition should be respected not only by the State establishing it, but by everyone acquiring sovereignty over the territory in question.100 Typical examples of territorial treaties would, according to the authors supporting the existence of this category, include treaties that regulate navigation and the industrial or agricultural use of international rivers and lakes. The norms of the Soviet-Iranian Treaties providing for equal rights of fishing and navigation for the coastal States in the whole Caspian basin101 could thus be included among the clauses of a territorial nature established by the Soviet Union. Hence, they would also be applicable to the new States established after the dissolution of USSR, irrespective of their specific expression of will. Such a conclusion can be criticized for two reasons, however. On the one hand, international practice does not give real evidence of the existence of a category of territorial treaties indifferent to any hypothesis of State succession;102 on the other, even conceding the existence of such a category, the legal provisions on the Caspian Sea could hardly be included in it.

97 The problem of distinction between legal and political agreements has been widely discussed by scholars. See SCHACTER, “The Twilight Existence of Nonbinding International Agreements”, AJIL, 1977, p. 296 ff.; VIRALLY, “La distinction entre textes internationaux de portée juridique et textes internationaux dépourvus de portée juridique”, Annuaire de l’Institut de Droit International, 1983, Vol. I, p. 166 ff.; WENGLER, “Les Conventions ‘non juridiques’ comme nouvelle voie à coté des Conventions en droit”, in Nouveaux itinéraires en droit. Hommage à François Rigaux, Bruxelles, 1993, p. 637 ff.; GIULIANO, SCOVAZZI and TREVES, cit. supra note 14, pp. 318-320. See also COZZARINI, cit. supra note 58, pp. 36-37, 40-41; BURCI, cit. supra note 71, p. 176. 98 See ALLONSIUS, cit. supra note 4, p. 30 ff. 99 The rule on transmissibility of territorial treaties, also named real or localizable treaties, is also adopted by Article 12 of the 1978 Vienna Convention on Succession of States in Respect of Treaties (cit. supra note 71). See YASSEEN, “La Convention de Vienne sur la succession d’Etats en matière de traités”, AFDI, 1978, p. 59 ff., pp. 82-83. 100 See RONZITTI, cit. supra note 73, p. 141 ff. Even if the opinion affirming the existence of a rule of general international law prescribing succession in localized conventional provisions is predominant, it is not unanimously accepted by doctrine. See contra, inter alia, GIULIANO, SCOVAZZI and TREVES, cit. supra note 14, p. 410 ff. 101 See supra sections 2.1. and 2.2. 102 See MCNAIR, The Law of Treaties, Oxford, 1961, p. 600 ff.


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Another objection to the rigid classification of treaties as personal or territorial derives from the fact that international agreements often have elements of both categories in practice. Now, if the two elements are connected quid pro quo, it is not possible to argue for particular treatment only for the localized part of the treaty concerned; that would imply unilaterally favoring or neglecting one part or the other of the particular agreement.103 Conversely, classification of these mixed treaties based on their predominant element is not satisfying. It is in fact possible to assume the existence of international agreements in which none of the two aspects, personal or territorial, prevails. As a matter of fact, there is no reason to submit certain clauses to different treatment just because they are included in a treaty providing for the localized regulation of other elements.104 In the case of the Caspian Sea, in particular, the provisions referring to it are included in treaties normally considered personal.105 The 1921 Treaty between Persia and the RSFSR is indeed a treaty of friendship; while the 1940 Treaty between the USSR and Iran is essentially a treaty with a commercial nature. The norms concerning the Caspian Sea included in these international agreements do not, in any case, present so distinct a character as to be submitted to separate interpretation and application.106 The conventional rules on the Caspian basin confine themselves to establishing a generic regime of freedom of navigation and fishing directed, in the first Treaty, to undoing oppression exercised on Persia by the Empire of the Tsar,107 and in the second, to favoring trade between the two contracting Parties.108 These rules lack the typical characteristic of localized clauses; i.e. submission of one or more parts of a State’s territory to a new and stable legal condition that

103

Nevertheless, O’Connell thinks that – even though the interpretative canons of international treaties presuppose the integrity of the latter – when a relevant part of an agreement is “self-contained”, it does not necessarily need to be read in the context of the whole. In the view of the Author, one part of a treaty may be interpreted separately when: a) it concerns distinct subjects; b) it does not depend on other parts of the same treaty; c) it is not indissolubly located in the operational scheme of the treaty. When the separate interpretability of integral parts of the treaty has been established, it is not difficult to state their independent application. See O’CONNELL, cit. supra note 87, Vol. II “International Relations”, p. 301. 104 See HERBST, “Successione fra Stati e trattati non localizzati”, Diritto internazionale, 1964, p. 99 ff., p. 101. 105 The distinction between personal and real or regulating treaties was elaborated on by De Vattel. The former create mutual rights and duties among governments, so that they are strictly connected with the subject of international law that has concluded them, and may consequently survive only in the legal administrative system of that State. See DE VATTEL, Le Droit des Gens, Lyon, 1802, p. 197. See also O’CONNELL, cit. supra note 103, p. 231 ff.; MCNAIR, cit. supra note 102, p. 655 ff.; CONFORTI, cit. supra note 61, pp. 115-116; and the statements made by the Swiss Government in the Case of the Free Zones of Upper Savoy and the District of Gex (Swiss v. France), Judgment of 7 June 1932, PCIJ Series, Series C, No. 17-1, Vol. 3, p. 1333 ff., p. 1654. 106 See supra note 103. 107 See Article 1 and Article 2 of the 1921 Treaty, cit. supra note 21. 108 See the 1940 Treaty, cit. supra note 39.

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implies deep limits to the exercise of territorial sovereignty in the interest of one or more other States.109 In order to create such a submission, it is necessary for the State to have full sovereignty over the parts of territory it decides to put under restriction. As already underlined, the Treaties of 1921 and 1940 do not absolutely reach the issue of sovereignty over Caspian Sea waters, since the latter are – according to the treaties and as expressly recognized by the Russian Federation – territory out of the jurisdiction of coastal States.110 The personal character of the provisions on the Caspian Sea is definitely highlighted by the combined regulation of the Protocol attached to the 1940 Treaty and of Article 13 of the same Treaty, aimed at impeding access to the Caspian basin not only for ships flying the flag of non-coastal States, but also for the citizens and the trade and transport organizations of third States.111 In the norms regarding the Caspian Sea, the logic of reservation prevails over that of free utilization of the basin by littoral States: a freedom that has instead normally a central position in localized treaties concerning (other) international lakes. The exclusion was strongly desired by the Soviet Union, however, to the political end of maintaining the position of supremacy it had acquired in the region and in the exploitation of its resources.112 The remarks made until now are valid also for the provision of the 1940 Treaty that fixes a limit of ten nautical miles from the coast within which fishing is reserved to the respective littoral State.113 Russian supremacy draws back when faced with the accessory relationship between coastal waters and the territory of the respective coastal State. This accessory relationship is recognized in general international law, since its observance is a necessary premise for the realization of coastal populations’ right to self-conservation. The 1940 Treaty therefore confines itself to quantifying a right already awarded to the contracting Parties by customary international law. At all events, the Soviet Union was thereby able to restrict the right either as far as its extension was concerned and with regard to the limitation of exclusive utilization to fishing only, so that Iran could not hamper Soviet expansion in the basin.

109 Writers from Europe have sometimes defined localized treaties as servitudes, giving rise to a querelle on the opportunity of the introduction into international law of a concept drawn from States’ domestic law. The essential elements of an international servitude were summarized by the USA, on occasion of the arbitration on the Fisheries of the North Atlantic (1910) in the following manner: the real right must belong to a nation; it must be a permanent right; it must be a right allowing that the territory of a State serve the utilization and ends of another State; it must be restrictive or permissive. See Award of the Tribunal of Arbitration in the Question Relating to the North Atlantic Coast Fisheries (United States v. Great Britain), Judgment of 7 September 1910, UN Reports of International Arbitral Awards, Vol. 11, p. 167 ff., p. 182 and p. 187. 110 See ALEXANDROV, Russian-Kazakh Contradictions on the Caspian Sea Legal Status, 1998, available at http://www.cerc.unimelb.edu.au/bulletin/1998.htm. 111 See supra note 40. 112 See supra note 29. 113 See Article 12 of the 1940 Treaty, cit. supra note 39.


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Hence, the highly political nature of the provisions on the Caspian Sea included in the Soviet-Iranian Treaties of 1921 and 1940 does not allow one to claim, absolutely, their automatic succession upon the new independent States, now bordering the basin.

3.4. The Applicability of the Rebus Sic Stantibus Principle to the Soviet-Iranian Treaties Concerning the Caspian Sea Even if it would be possible to demonstrate either the legal nature of the AlmaAta Declaration or the localized nature of the norms concerning the Caspian Sea combined with the existence of a customary rule stating their transmissibility to the successor States because of this nature,114 the persistent validity of the SovietIranian Treaties would still need to be evaluated in light of the rebus sic stantibus principle. Among the rules of international law on the termination of treaties, the rebus sic stantibus principle holds particular importance.115 The fundamental principle of good faith requires that an international treaty, like a contract in domestic law, be extinguished when a change of the circumstances upon which it is based is so radical that continued application of the treaty would amount to a substantial injustice.116 The rebus sic stantibus principle, due to the reasons of its existence, is applicable to all kinds of agreements, including localized treaties. With regard to this latter category, scholars have raised questions as to their survival in ordinary circumstances of change of sovereignty, rather than assume their continued survival, regardless of any fundamental change of circumstances.117 The principle, even if interpreted in a restrictive way,118 has a rather wide scope

114

See supra section 3.3. A change of circumstances is essential or fundamental, i.e. it is capable of implying the lapse of an international treaty when the rationale, “le but objectif de la convention en soit si foncièrement atteint qu’on ne peut, en bonne foi, demander au débiteur l’accomplissement des obligations stipulées et que le maintien du sens même de la convention exige que son application cesse”. See KAUFMANN, “Règles générales du droit de la paix”, RCADI, 1935, IV, p. 313 ff., p. 516. 116 As Poch de Cavedies stated, “dans l’ordre international conventionnel, le principe du devoir d’accomplissement de ce qui a été accordé doit être considéré en relation avec le principe de la bonne foi, et, à travers ce dernier, avec le principe rebus sic stantibus”. See POCH DE CAVEDIES, “De la clause ‘rebus sic stantibus’ à la clause de révision dans les conventions internationales”, RCADI, 1966, II, p. 109 ff., pp. 161-167, in particular p. 165. See also GIULIANO, SCOVAZZI and TREVES, cit. supra note 14, p. 386; CONFORTI, cit. supra note 61, pp. 136-137. 117 See O’CONNELL, cit. supra note 103, p. 21. 118 The wording of the norm included in the 1969 Vienna Convention on the Law of Treaties, which recognizes the validity of the rebus sic stantibus principle, clearly aims at stressing the 115

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of application, given that various rules of the law of treaties are specifications of it. Among these latter, there is the rule stating that, in all cases of State succession, agreements incompatible with the new regime lose their validity.119 State succession itself often represents a fundamental change of the circumstances that induced the original contracting parties to enter into the treaty. This is particularly true for bilateral international agreements, or those with a limited number of parties; i.e. for those that could be defined, through a prudent analogy with the domestic law of contracts, treaties concluded intuitu personae. The Soviet-Iranian Treaties, including the scanty legal rules on the Caspian Sea, must, without a doubt, be classified in the aforementioned category. The regime established by them had been conceived to rule the respective sovereignty of only two States that could count on important accesses to the open sea.120 Furthermore, the Caspian Sea was the object of major attention on the part of the Soviet Union, not only for economic reasons, but above all for political considerations. In fact, the USSR surrounded eighty percent of the lake and, thanks to the absolute superiority of its fleet, could benefit from the major part of basin resources.121 At the same time, the Caspian Sea represented a dangerous point of penetration for people hostile to the communist system, who had fled to the near Middle-East.122 This situation explains the generic statements of freedom of navigation and fishing for the two coastal States in the entire basin, accompanied by the engagement of the contracting Parties to prevent access to the Caspian Sea to any subject having a nationality different from that of the two coastal countries.123 Setting aside the personal or territorial classification to be assigned to the rules on the Caspian Sea included in the 1921 and 1940 Treaties and notwithstanding any declaration of principle expressed by the successor States, it seems evident that, with regard to these provisions, the break-up of the Soviet Union has produced the radical change of circumstances permitting a claim to their extinction. First of all, the demise of the communist system has meant the disappearance of the political rationale underlying the rules limiting basin utilization to the citizens of the coastal States only. Hence, there is no legal basis for the objections, consisting of claims of violation of the exchange of notes attached to the 1940

exceptional character of this cause of extinction. See Article 62 (Fundamental change of circumstances) of the 1969 Vienna Convention on the Law of Treaties, UNTS, Vol. 1155, p. 331 ff. See also the comment of the International Law Commission to the draft article concerning the fundamental change of circumstances as a cause of treaty extinction, YILC, 1966, Vol. II, p. 42 ff. 119 See CONFORTI, cit. supra note 61, pp. 137-138. 120 It is also important to consider that in Iran access to the basin is made difficult by an important mountain chain that separates Tehran and the rest of the country from the Caspian Province. See DJALILI, cit. supra note 42, pp. 127-128. 121 See supra note 29. 122 See supra notes 36 and 40. 123 See supra sections 2.1. and 2.2.


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Treaty of Commerce and Navigation, raised by the Russian Federation and Iran to the activities of foreign oil companies in the Caspian Sea.124 Furthermore, with the appearance of three new States around the Caspian Sea, but above all because of the recent discovery of important oil fields in its subsoil (with subsequent activity), the generic regime of freedom of navigation and fishing provided for by the 1921 and 1940 Treaties has proven completely inadequate. This situation explains the unacceptability of the previous regime for the new Republics bordering the Caspian Sea: Azerbaijan, Turkmenistan, and Kazakhstan. Moreover, unlike the Russian Federation and Iran, these are land-locked States, with weak economies, for which the guarantee of being able to exploit at least a part of basin resources represents a necessary condition for survival.125 In particular, the conspicuous amount of recently discovered, off-shore mineral resources represents an important factor of economic self-determination. It is important to consider that the 1978 Vienna Convention on Succession of States in Respect of Treaties solemnly declares that none of its provisions on succession can affect the principles of international law affirming the permanent sovereignty of each nation and State over its riches and natural resources.126 These principles are based upon the people’s right of political and economic self-determination. Hence, even if one would deny the existence of a fundamental change of the circumstances upon which the 1921 and 1940 Treaties had been based – though clearly present in the opinion of this writer –,127 their validity would in any case 124

See supra note 40. A very large part of the almost ten million people living along the banks of the Caspian Sea survive by fishing. See GIROUX, “L’axe Caspienne-Mer Noire”, Le Courrier des Pays de l’Est, October 1997, p. 3 ff., p. 6. 126 See Article 13 (The present Convention and permanent sovereignty over natural wealth and resources) of the 1978 Vienna Convention on Succession of States in Respect of Treaties, cit. supra note 71. With regard to the ends of the undergoing analysis, Article 14 (Questions relating to the validity of a treaty) of the same Convention, which states that: “Nothing in the present Convention shall be considered as prejudging in any respect any question relating to the validity of a treaty” is also interesting. Hence, the causes of extinction of treaties, including the rebus sic stantibus principle, prevail over any supposed principle of succession in conventional obligations assumed by predecessor States, also according to the Convention. 127 In this sense, see ALLONSIUS (cit. supra note 4, p. 37), who denies the applicability of the rebus sic stantibus clause in a hasty way, using generic and presumptive arguments. In particular, the claimed denial of a fundamental change of circumstances based on Soviet and Iranian knowledge of the presence of mineral resources in the Caspian Sea is soon proved wrong by two considerations. First of all, the reserves known at the time of the conclusion of the 1921 and 1940 Treaties were not comparable to the great fields discovered only in the last decade. Furthermore, the scarce interest of the two States in Caspian oil resources was easy to explain, since both could count on much more rich and accessible fields (such as Siberia for the USSR and the Persian Gulf for Iran). However, for the new coastal States, though provided in their territory with other mineral reserves, the sizeable oil fields of the Caspian Sea represent the richest of exploitable oil resources. Due to the precarious economic situation of these States, basin resources now acquire an essential character, unlike in the past. 125

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be compromised by the hierarchy of sources of international law. The principle of self-determination has acquired, in the international legal order, the character of a jus cogens rule. Thus, as upheld by the 1969 Vienna Convention on the Law of Treaties,128 it can not be derogated by conventional rules; in case this nonetheless happens, the consequence is the nullity and extinction of said rules.

3.5. The International Borders of the New States: The Consequences of the Caspian Sea’s Administrative Delimitation as Created by the Soviet Union Given the lack of conventional rules on the general legal status of the Caspian Sea and its exploitation regime, it is worth examining, first of all, whether some legal criteria allowing the demarcation of coastal States’ respective areas of sovereignty over the Caspian Sea existed at the time of the demise of the USSR, as the writer believes they did. When a State suffers either dismemberment or the detachment of some parts of its territory, resulting in the creation of new States, the problem of delimiting the boundaries of the new international subjects, as well as (in the second case) of the predecessor State, is raised.129 The norm guiding boundary delimitation among new States, or with the predecessor State, is the so-called uti possidetis principle, which provides for succession in line with the administrative boundaries fixed by the predecessor State. The principle is obviously applicable when dismemberment or detachment affects a single, or a group of, administrative entities within the previously existing State.130

128 See Article 53 (Treaties conflicting with a peremptory norm of general international law (“jus cogens”)) of the 1969 Vienna Convention on the Law of Treaties (cit. supra note 118). With regard to the subject analyzed, the provision just quoted must be read together with Article 64 (Emergence of a new peremptory norm of general international law (“jus cogens”)) of the Convention, which states that: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. Adhering to Conforti’s opinion, the jus cogens principle of people’s self-determination arose after the conclusion of the two Soviet-Iranian Treaties. See CONFORTI, cit. supra note 61, pp. 23-24. 129 As Müllerson has pointed out, this is not stricto sensu a problem concerning State succession, for the rights and duties connected with respect of the new international frontiers arise only after the succession event. Nevertheless, a strong interrelation exists between State succession and the question of boundary delimitation among subjects of international law arisen from dismemberment or detachment. See MÜLLERSON, cit. supra note 73, p. 485. 130 See SOREL and MEHDI, “L’uti possidetis entre la consécration juridique et la pratique: essai de réactualisation”, AFDI, 1994, p. 11 ff., p. 14; CONFORTI, cit. supra note 61, pp. 116-117. The importance of the uti possidetis principle was also recognized on the occasion of the demise of the Soviet Union, when the continuing State, i.e. the Russian Federation and the successor States committed themselves to respecting existing frontiers inside the Commonwealth of Independent States, i.e. the administrative frontiers of the USSR. See Article 5 of the 1991 Minsk Agreement, cit. supra note 58, and the Preamble of the Alma-Ata Declaration, cit. supra note 59.


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However, – overcoming the terrestrial limit – the uti possidetis principle also applies to maritime delimitation. Its application in this context has also been upheld by the International Court of Justice, in the arbitration award of 31 July 1989 on the delimitation of the maritime frontier between Guinea Bissau and Senegal.131 By analogy, it can be assumed that the uti possidetis principle also applies when the administrative delimitation concerns a lake basin. The land, maritime or lake nature of the considered space does not, in fact, influence the rationale of the rule. The latter aims, in all contexts, at preventing centrifugal movements that may provoke regression at the social, political and economic level, and therefore harm international peace and security, as well as the existence of the States just created.132 The same rationale justifies and calls for respect by the States bordering the Caspian Sea of the administrative delimitation drawn in 1970 by the Soviet Ministry for Industry and Energy within the part of the basin de facto assigned to the USSR, even if only with regard to the performance of oil activities. 133 Moreover, the lack of a real right of ownership may be addressed by the effective and complete management of the distinct areas in question by each former Soviet Republic after the demise of the Union. The 1970 delimitation also has the merit of being based on the most widely used method for drawing borders within international lakes, i.e. the median line criterion,134 allowing for proportional and hence equitable sharing.135 Nevertheless, in practice, the median line method suffered some modifications at certain points in order to satisfy the exigencies of the Soviet economy, based on strict distribution of competence. Nowadays, these exigencies are contrary to the needs of the newly independent States bordering the Caspian Sea in trying to achieve economic self-determination, necessary to support their political independence. This inevitably gives rise to disagreements with regard to areas falling outside the strict application of the median line criterion. Beyond the 1970 delimitation, the frontier with Iran is ruled by the general principle of respect of territorial integrity stated in Article 2, paragraph 4, of the

131

The award is available in RGDIP, 1990, p. 204 ff. See SOREL and MEHDI, cit. supra note 130, p. 31. 133 See supra section 2.3. 134 See supra note 8. 135 There is no doubt that mathematical equality conceals some elements of equity, but in any case the two notions cannot be identified. In a case in which equivalence is under discussion, equity plays a role, above all, as an impartial and reasoned balance of interests, which, in order to remain fair, may need the application of diverse treatment in the presence of different conditions. As the Permanent Court of International Justice has pointed out: “L’égalité en droit exclut toute discrimination; l’égalité en fait peut, en revanche, rendre nécessaires des traitements différents en vue d’arriver à un résultat qui établisse l’équilibre entre des situations différentes”. See Ecoles minoritaires en Albanie, Advisory Opinion of 6 April 1935, PCIJ, Series A/B, No. 64, p. 4 ff., p. 19. 132

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UN Charter. This principle imposes respect for the delimitation de facto established between the USSR and Iran by means of the line connecting the extremities of territorial borders.136 This line represents the actual frontier between Azerbaijan and Turkmenistan, on the one side, and Iran on the other. The latter challenges this delimitation, however, claiming it is inequitable, and asks for a new delimitation of the whole basin in equal parts.137 At all events, such disputes do not affect the valid application of the aforementioned principles of territorial integrity and of the inviolability of frontiers, both necessary premises to the prohibition of the use of force in international relationships. As such, they must not be confused with the principles of immutability and intangibility of frontiers. While the former have an absolute value, the latter have relative significance, since they are applicable only until States decide otherwise in particular situations.138 The uti possidetis principle thus stands for the determination that, at the moment of access to independence, frontiers are those inherited from the predecessor State. This certainly implies the inviolability of such frontiers but not their immutability. Eventually, the uti possidetis principle, together with the principle of respect for territorial integrity, could give the Caspian coastal States negotiable legal ground, ensuring some certainty, even if challenged, in subjective legal situations, and should help prevent unilateral claims, thereby contributing to grant security in the tormented region of the Caucasus.

3.6. The Exploitation of Common Deposits of Liquid Mineral Resources Lying Beneath the Caspian Sea As mentioned above,139 disputes surrounding the boundary delimitation of the Caspian Sea are characterized mainly by the unilateral claims of coastal States concerning their right to exploit the rich oil deposits located in the subsoil of the basin. Even acknowledging that a delimitation of the basin exists as a consequence of the simultaneous application of the uti possidetis principle and the norm stating respect for territorial integrity,140 the problem of establishing respective coastal States’ rights of exploitation remains. 136

See supra note 29. See United States Energy Information Administration, “Caspian Sea Region: Legal Issues”, July 2002, available at http://web.archive.org/web/20030417153357/http:// www.eia.doe.gov/emeu/cabs/casplaw.html. 138 See BARDONNET, “Les frontières terrestres et la relativité de leur tracé – problèmes juridiques choisis”, RCADI, 1976, V, p. 9 ff., p. 68. 139 See supra section 1, in the end. 140 See supra section 3.5. 141 See supra note 2. 137


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International law does not regulate the exploitation of mineral resources lying in the soil and the subsoil of frontier lakes, either at the conventional level or at the customary one, however. This lacuna is probably explained by the fact that such deposits are present in significant quantities only in the Caspian Sea, the classification of which as an international lake has been challenged for a long time.141 In this regard, it is worth underlining that major problems in inter-State relationships arise as a consequence of the presence of deposits of liquid minerals, such as oil and gas. When such deposits cross a frontier line – i.e. they are shared by more than one State142 – their fluidity and mobility often allow for complete exploitation from both sides of the boundary, using directional drilling.143 This constitutes a violation of the principle of State territorial integrity, a necessary corollary of the right of sovereignty, however, such as it is for exploration and exploitation activities carried out illegally in the territory of another State. In any case, drilling for oil and natural gas at a specific point of the deposit inevitably modifies the condition of the whole deposit.144 As a consequence, legitimate drilling activity for minerals by a State within its own territory may result in other States with sovereign rights over the common deposit being unable to do the same in areas within their jurisdiction.145 In the absence of conventional regulation, as is the case of the Caspian Sea, the problem is establishing the rights and duties of States with sovereignty over the common deposit of liquid minerals. The different solutions adopted in practice reveal the absence of rules of general international law capable of resolving this problem. State practice on the 142 This is the case for the oil fields beneath the Apsheron chain, which extends horizontally across the subsoil of the Caspian Sea from the Azeri bank to the Turkmen one. 143 See ONG, “Joint Development of Common Offshore Oil and Gas Deposits: ‘Mere’ State Practice or Customary International Law?”, AJIL, 1999, p. 771 ff. 144 According to Lagoni, in both of the hypotheses mentioned, the consequence would be the drilling State’s responsibility for any material damage caused to the territory of the State deprived of its own resources. This responsibility has actually been claimed constantly by the coastal States of the Caspian Sea in the official documents presented to the United Nations on the question of the legal status of the basin (see UN Documents A/51/59 of 27 January 1996, A/51/138 of 17 May 1996, A/52/324 of 8 September 1997, and A/52/93 of 17 March 1997). The Author argues for the existence of a rule of general international law establishing such responsibility – developed mainly with regard to extraterritorial environmental effects, such as air and water pollution – which may be applied, by analogy, to the extraterritorial effects of mineral drilling activities. As a matter of fact, the existence of this rule is challenged. See BOYLE, “State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?”, ICLQ, 1990, p. 1 ff. 145 In order to prevent such problems, some States have agreed to fix a “security zone”, parallel to the line of delimitation, within which it is forbidden to carry out exploration and exploitation activities. See LAGONI, “Oil and Gas Deposits across National Frontiers”, AJIL, 1979, p. 215 ff., pp. 216-219. The importance of establishing a périmètre de protection for continental shelf exploitation activities was also underlined in a memorandum on the law of the sea, presented by the UN Secretariat to the General Assembly on 14 July 1950. See YILC, 1950, Vol. II, p. 67 ff., p. 112.

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exploitation of common deposits of liquid minerals is, in reality, essentially based on bilateral agreements. First of all, there are agreements regulating only the division of revenues derived from the exploitation of common deposits among contracting States. These agreements do not regulate absolutely the respective rights and duties of States with sovereignty over the common deposit. Kazakhstan had, in fact, proposed this kind of management for the deposits of the Caspian Sea.146 On the opposite side, there are treaties according to which Parties exercise a joint power over their common mineral resources.147 In these treaties, the contracting Parties maintain equal rights over the natural resources of the area in question and are obliged to cooperate fully in establishing methods of exploitation and in adopting measures apt to develop common deposits. In the majority of conventions entered into, however, States do not recognize the existence of joint property rights over common deposits of liquid mineral resources and take care to confirm the existence of distinct areas of sovereignty, with (consequent) differential determination of the amount of resources due to each interested State. Still, there is no uniformity in the determination of States’ rights and duties aimed at protecting their respective sovereign rights over mineral resources.148 As already mentioned, and as is the case for water (one of the most fluid and mobile natural resources),149 the physical conditions of any common deposit require co-operation in order to avoid exploitation damaging to other interested States. Thus, States must co-operate if they want to protect their own territorial integrity or sovereign rights over minerals, and, at the same time, respect the inviolability of the territory or of the sovereign rights of other countries. The obligation to co-operate certainly implies a duty of interested States to negotiate in good faith before starting any exploration and/or exploitation of newly discovered common deposits, in order to try and reach a conventional determination on respective rights and duties.150

146

See UN Doc. A/52/424 of 25 September 1997. This kind of agreement has been concluded above all among Middle East States. See LAGONI, cit. supra note 145, p. 227. 148 A more widespread pattern of co-operation is represented by agreements aimed at realizing the joint operation of contracting States’ concessionaries. In these conventions, contracting Parties maintain their jurisdiction over the part of the deposit located in their respective territory intact, granting exploration and exploitation concessions according to their respective domestic law. Territorial delimitation of sovereignty also remains the decisive factor in attributing reserves of common deposits. See LAGONI, cit. supra note 145, p. 226. See also WOODLIFFE, “International Unitization of an Offshore Gas Field”, ICLQ, 1977, p. 338 ff., and ONORATO, “Apportionment of an International Common Petroleum Deposit”, ICLQ, 1968, p. 85 ff. 149 See supra notes 10 and 11. 150 The good faith principle, in turn, implies a duty of mutual information provision among interested States. Indeed, it is a necessary premise for any serious negotiation among States 147


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At all events, as the International Court of Justice has pointed out,151 and again as in the case of water resources, the duty to negotiate in good faith neither compels States to reach an agreement, nor requires them to obtain the consent of the other States concerned before starting exploration and exploitation activities in their own part of a common deposit.152 Major problems arise when an oil field is located in an area claimed by two or more States, as has been the case with some oil fields in the Apsheron chain and for others located in the northern part of the Caspian basin.153 Disagreement has regarded, in particular, deposits straddling the administrative line of delimitation drawn by the USSR in the Caspian Sea among the former Soviet Republics, which now marks, in accordance with the uti possidetis principle, the international, albeit contested, boundary between the new coastal States.154 Mouton has argued that, in such cases, the general principle to be applied should be that of the essential unity of the deposit, the latter being the basis for any delimitation.155 In other words, the boundary line should not cross the mineral deposit. In order to support this theory, the Author refers to the 1950 Memorandum of the United Nations Secretariat on the regime of the high sea.156 However, as Lagoni has pointed out, there is only a generic reference to the unity principle in the Memorandum at issue, without any indication of concrete modalities of application. Hence, it does not aim so much to deny deposit delimitation in distinct areas of sovereignty, following the general criteria, as to serve as a guide for the resolution of problems raised by such delimitation for the exploitation of common deposits. This is confirmed by further reference, to the significance that the unity principle acquires in the international law on watercourses. In the latter, indeed, the principle of deposit unity is linked to the concept of drainage basin, in the sense of sharing a common deposit of liquid minerals. This is true, first of all, for cases in which a State discovers that a deposit straddles the frontier, or the dividing line, extending to the territory or continental shelf of a neighboring State; second, for cases in which drilling operations in a common deposit may cause material damage to the territory of a neighboring State. This is a consequence of respect for the principle of State territorial integrity. See LAGONI, cit. supra note 145, p. 237. 151 See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports, 1969, p. 4 ff., p. 48. 152 See the arbitral award in the Lake Lanoux case, cit. supra note 12, p. 314. This means that States have no right of veto as regards operations undertaken by other States with sovereignty over the common liquid mineral deposit. 153 See “Caspian Sea’s Unofficial Status Is Unlikely to Make Waves for Investors”, Russian Petroleum Investor, December 1997/January 1998, p. 44. 154 See supra section 3.5. 155 See MOUTON, “The Continental Shelf”, RCADI, 1954, I, p. 347 ff., p. 421. 156 See UN Doc. A/CN.4/32, “Mémorandum présenté par le Secrétariat”, cit. supra note 145, p. 112.

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hydro-geological unity.157 The right of any riparian State to a reasonable and equitable sharing of the advantageous uses of water within its territory proceeds from this principle.158 In the international law on watercourses the unity principle is therefore connected with the use of resources and not with territorial delimitation.159 Furthermore, the International Court of Justice in the 1969 judgment concerning the North Sea Continental Shelf cases160 noticed that, in the light of State practice: “[…] [U]nity of deposit constitutes anything more than a factual element which it is reasonable to take into consideration in the course of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it”.161 The lack of obligation regarding unity of liquid mineral common deposits is confirmed by Article 83 of the 1982 United Nations Convention on the Law of the Sea.162 The article simply requires co-operation for the delimitation of a continental shelf shared by numerous States and, absent definitive delimitation, for the provisory regulation of activities having as their object the continental shelf and its resources. All in all, States are compelled only to respect the general international law duty to negotiate in good faith before starting any activity on a common deposit, also with regard to liquid mineral deposits lying in disputed areas. Prevalent doctrine, however, argues that customary law requires, as a complement to the duty to co-operate, a further obligation to abstain from performing any action on the disputed deposit before the conclusion of an agreement between interested States.163 According to international law, damaging unilateral exploitation, if not conventionally allowed, may be sanctioned as a violation of the territorial sovereignty and integrity of other interested States. Nevertheless, with regard to deposits lying in disputed areas, it is not possible to determine a range of lawful

157

See supra note 56. See supra section 1, in particular note 7. 159 See LAGONI, cit. supra note 145, pp. 239-240. 160 See North Sea Continental Shelf cases, cit. supra note 151, p. 53. 161 See LAGONI, cit. supra note 145, p. 241. 162 See Article 83 of the 1982 UN Convention, cit. supra note 4. 163 See LAGONI, “Interim Measures Pending Maritime Delimitation Agreements”, AJIL, 1984, p. 345 ff., p. 362 ff.; ONG, cit. supra note 143, p. 801. This opinion is based on the 1976 Judgment of the International Court of Justice concerning delimitation of the Aegean Sea continental shelf between Turkey and Greece. In this decision the Court stated that activities are lawful only if they are either temporary or if they regard the exploitation of a common deposit without causing irreparable damage to the rights of other interested States. See Aegean Sea Continental Shelf Case (Greece/Turkey), Judgment of 19 December 1978, ICJ Reports, 1976, p. 3 ff. 158


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activities, which are in any case difficult to establish in the instance of deposits straddling the border between two States, considering that the lack of delimitation makes it impossible to quantify in the abstract the rights to the deposit to be awarded to each interested State.164 The question becomes particularly complex when it is necessary to determine the consequences of the refusal of one or more interested States to reach an agreement. If the refusal constitutes simple inactivity, it may represent acquiescence to the possible unilateral activities of the other States with regard to the deposit. According to the Grisbadarna principle,165 acquiescence may, over time, come to imply the consolidation of exclusive sovereign rights over the mineral deposit for the active State. Definitive breach of negotiations, or even their non-commencement due to irremediable differences in State positions – as seems, or seemed to be, the case with the Caspian Sea – constitutes a different situation. In this instance, possible unilateral activity undertaken on the mineral deposit runs the risk of being deemed, at the end of the dispute, to have been performed in violation of the sovereign rights of other interested States. This would make the active State responsible for having committed an international tort while the dispute was pending, in addition to being responsible for any damage caused to other interested States. According to relevant doctrine, the existence of a real right of veto for interested States with regard to exploration and exploitation activities on mineral deposits lying in disputed areas proceeds from this situation.166 The sole alternative to (a possible) stalemate would be to submit the dispute to an external judge; the submission would be the logical consequence of the general international law obligation to negotiate in good faith the agreement concerning the exploitation of shared natural resources that are the object of competing claims.

4. CONCLUDING REMARK: AGREEMENT AND CONTENTION IN THE POSITIONS OF THE PRESENT LITTORAL STATES ON THE LEGAL STATUTE OF THE CASPIAN SEA The positions of the coastal States on the legal status of the Caspian Sea have seen a certain evolution in the last decade. This evolution should increase the points of accord, making agreement on a new legal statute for the basin more likely. Immediately after the demise of the Soviet Union, there were two sharply contrasting positions: that of Russia and Iran, on the one hand, and that of Azerbaijan, 164

See supra in this section. The principle is that “[…] dans le droit des gens, c’est un principe bien établi, qu’il faut s’abstenir autant que possible de modifier l’état des choses existant de fait et depuis longtemps; […]”. See Affaire des Grisbadarna (Norway/Sweden), Judgment of 23 October 1909, UN Reports of International Arbitral Awards, Vol. 11, p. 147 ff., p. 161. 166 See LAGONI, cit. supra note 163, p. 364; ONG, cit. supra note 143, p. 801. 165

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Kazakhstan and Turkmenistan, on the other. According to the former, the Caspian was a lake still subject to the regime established by the 1921 and 1940 SovietIranian Treaties.167 These agreements would have provided for a regime of joint use of the basin and its resources, hence impeding – in the view of Russia and Iran – any unilateral delimitation and action. In addition, Russia and Iran hoped for the creation of a regional organization charged with management of the common resources of the basin.168 Conversely, for Azerbaijan, and in a smaller measure also for Kazakhstan and Turkmenistan, the 1921 and 1940 Treaties were extinguished. The Caspian basin, being a sea, should, therefore, have been regulated by the 1982 United Nations Convention on the Law of the Sea, above all with regard to the division of sea soils among coastal States.169 In 1996, Russia’s position changed slightly and was now supported by Iran and Turkmenistan: the depth of the Caspian basin should remain subject to the common use of the littoral States, with the sole exception of a zone of 45 nautical miles from the coast, reserved for the exclusive exploitation of the respective coastal country.170 In addition, in the same period, Turkmenistan signed a memorandum with Russia and Iran providing for the creation of a joint company devoted to the exploration and exploitation of mineral resources within their respective national sectors.171 All five coastal States agreed on the need to sign a treaty establishing the new legal statute of the Caspian Sea, however. This convention, which should have been concluded by consensus, was envisaged as one containing the guiding principles for subsequent conclusion of particular agreements aimed at regulating the various forms of utilization of the basin and its resources.172 Awaiting the conclusion of the new agreement, Azerbaijan, Kazakhstan and Turkmenistan recognized the legal value of practice subsequent to the conclusion of the Soviet-Iranian Treaties. This practice includes both the delimitation drawn between the USSR and Iran in correspondence with the Astara-Gasan Kholi line173 and the 1970 administrative delimitation, which divided the Soviet sector of the basin between the surrounding Soviet Republics.174 In response to unilateral initiatives undertaken by the three States in their national sector, as identified by practice, Russia further modified its point of view and

167

See supra sections 2.1. and 2.2. See “The Combustible Caspian”, The Economist, 11 January 1997, p. 27 ff. See also UN Doc. A/51/59 of 27 January 1996. 169 See supra notes 4 and 162. 170 See “The Combustible Caspian”, cit. supra note 168. 171 See ALEXANDROV, cit. supra note 110. 172 See UN Docs. A/52/93 and A/51/138, cit. supra note 144. 173 See supra note 29. 174 See supra section 3.5. 168


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agreed to division of the basin soil. Nevertheless, it persisted in its pretention that both the surface and the deep waters should remain the object of common use by the coastal States. In this spirit, the Russian Federation concluded an agreement with Kazakhstan for the delimitation of the northern part of the Caspian Sea in 1998.175 Iran, finding itself isolated, modified its own position but supported only the division of the basin into equal parts; according to the Islamic Republic, this would correspond to an equitable solution.176 The coastal States, having abandoned their initial, extreme positions or having re-interpreted them in a suitable way, now seem to agree on the fact that delimitation of the sovereign areas of the Caspian Sea must be carried out using the median line method.177 Nevertheless, while Iran wants to apply it to the whole basin, the former Soviet Republics – keeping the borders drawn by practice with the Islamic Republic, i.e. with the method of a straight line connecting the tips of terrestrial borders178 – consider the median line method applicable only within the limits of the former Soviet area of the basin. A wider meeting of minds between the Republics surrounding the Caspian Sea has been reached, instead, with regard to the subjects that should be the object of particular agreements. Negotiations are, by now, at a satisfactory stage on measures for the protection of the ecosystem of the Caspian Sea, of which all the coastal States perceive the urgency.179 In the various declarations presented to the United Nations on the subject of the legal status of the Caspian Sea, the littoral States often make reference to the environmental question and to the consequent responsibility of the littoral countries for damages caused by their own activities to the other coastal States.180 Co-operation on the protection of fish resources, above all sturgeons, is particularly developed.181 175

See WOLFENSBERGER, “La Russie et le Kazakhstan se partagent le pétrole du nord de la mer Caspienne”, Le Temps, 7 July 1998 available at http://www.letemps.ch. 176 See United States Energy Information Administration, “Caspian Sea Region: Legal Issues”, cit. supra note 137. 177 See supra note 8. 178 See supra section 2.3. 179 See RAVIOT, “Environnement contre géopolitique: les enjeux écologiques dans la région Caspienne”, in La Caspienne. Une nouvelle frontière, cit. supra note 42, p. 65 ff. 180 See supra note 144. 181 Since the demise of the Soviet Union a wild poaching of sturgeons has seriously endangered their breeding, protected by the Soviet-Iranian agreements until that time. Furthermore, after having caused a dangerous fall in the price of caviar on the world market, poaching now impairs production and deprives the littoral States of the Caspian Sea of an important source of revenue. In May 1996, Iran, Russia, Turkmenistan and Azerbaijan fixed provisory quotas on fishing; and, in January 1997, established a ten-year program for the preservation of the Caspian sturgeon. In early 1998, Russia and Kazakhstan agreed on the regulation of fishing through a system of quotas and exploitation licenses. See YAKEMTCHOUK, Les hydrocarbures de la Caspienne,

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Furthermore, with regard to fishing, the coastal States have substantially agreed on a regime of freedom with the sole exception of the establishment of coastal zones reserved for fishing by citizens of the respective State. This regime corresponds, in principle, to the one envisaged in the 1940 Treaty, apart from the fact that States now aim at enlarging the coastal zones beyond the 10 nautical miles provided for in the agreement.182 As far as navigation is concerned, positions have converged toward the maintenance of a closure regime. The target is, in fact, affirmation of freedom of navigation, but only for the ships of the littoral States. In addition, Azerbaijan, Kazakhstan and Turkmenistan aim at limiting the application of the freedom principle to commercial vessels only.183 While awaiting conclusion of a general convention on the legal status of the Caspian Sea, the littoral States have proceeded to regulate such a status through the conclusion of memoranda and bilateral agreements.184 In particular, the agreement concluded between the Russian Federation and Azerbaijan on 23 September 2002 is worth mentioning.185 This agreement sanctions the Russian position, providing for the delimitation of soil and the subsoil only, while keeping waters in common. Also, a new comprehensive agreement between Russia, Kazakhstan and Azerbaijan from 4 October 2003186 has divided the Caspian seabed according to the

Bruxelles, 1999, p. 118. On 21 June 2001, Russia, Azerbaijan, Kazakhstan and Turkmenistan agreed to halt sturgeon fishing in the Caspian Sea for the rest of the year. At the same time, they undertook a comprehensive survey of sturgeon stocks, setting catch and export quotas, and assessing the scope of illegal trade and of enforcement needs with the assistance of international agencies such as the CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) Secretariat, Interpol, and World Custom Organization. The Parties, finally, compelled themselves to develop a regional fisheries management system, significantly enhancing efforts to combat poaching, regulate domestic trade and implement a caviar labelling system, by June 2002. See “Compromise Agreement on Caspian Sea caviar lauded”, 2001, available at http://www.traffic.org/news/sturg2.html. 182 See supra section 2.2. 183 See supra note 78 and the UN Docs. cit. supra note 144. 184 See UN Docs. A/52/588 of 12 November 1997, A/52/93 of 17 March 1997, A/52/1011 of 10 August 1998, A/53/60 of 26 January 1998, A/51/138 of 17 May 1996, and A/51/529 of 21 October 1996. 185 See FEIFER, “Caspian: Russia, Azerbaijan Sign Agreement on Sea Boundaries”, Radio Free Europe September 2002, available at http://www.rferl.org/nca/features/2002/09/ 24092002152937.asp. An analogous agreement was previously signed between Azerbaijan and Kazakhstan at a CIS summit in Moscow on 30 November 2001. See LELYVELD, “Iran: Azerbaijan-Kazakhstan Caspian Accord Irks Tehran”, Radio Free Europe, December 2001, available at http://www.rferl.org/nca/features/2001/12/05122001082337.asp. 186 According to Iranian Foreign Ministry spokesman Hamid-Reza Asefi, this trilateral agreement is not in conformity with the principle of consensus and lacks legal standing, making the issue of territorial delimitation of the Caspian Sea more complicated. See “Iran denounces trilateral agreement on Caspian Sea”, Payvand’s Iran News, 15 October 2003, available at http: //www.payvand.com/news/03/oct/1088.html. See also “Iran: Trilateral agreement on division of


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formula of the “modified median line”.187 Even if this method helps to move coastal States’ positions closer, however, it simultaneously creates misunderstandings as regards the awarding of exploitation of oil fields and results in a multiplication of regimes that discourages foreign investors.188 A recent incident between Iran and Azerbaijan concerning the right of exploitation of an oil field located near the Iranian coast gives evidence of possible problems.189 Among the coastal States, only Turkmenistan has declared its will to submit the matter of the Sea to an external institution, i.e. the International Court of Justice, however.190 This is probably the only possible answer to overcoming the dangerous situation of stalemate that now characterizes negotiations on the determination of a general and complete legal statute for the Caspian Sea, agreed on by all the coastal States. Such a stalemate actually maintains an uncertainty that may favor the development of conflicts in the territories surrounding the basin, with the aim of taking part in the forestalling of Caspian resources. At a meeting held in Moscow on 6 April 2004, diplomats from the five States explored the feasibility of holding a new summit meeting in late 2004 on territorial

Caspian Sea is illegitimate”, Pravda, 16 October 2003, available at http://newsfromrussia.com/ world/2003/10/16/50535_.html. 187 Turkmenistan, on the contrary, only agrees on the principle of dividing the water basin, but not on using the proposed modified median line formula. Turkmenistan considers that this method would not take into consideration geographical peculiarities connected with the features of the shore, in particular Azerbaijan’s Apsheron peninsula jutting out into the Caspian Sea. Turkmen officials would like to draw the border line in the middle of the Caspian, dividing the seabed along a meridian line based on the shores of the States lying opposite. This method would give Turkmenistan a slightly larger share of a mid-sea area with some of the best oil prospects. According to Turkmen officials, another option would be to establish a 12-mile zone along the coast under the sovereignty of each littoral State, plus a further 35-mile “zone of economic interest”, with the remaining part of the sea open for shipping by all Caspian States. Iran, on turn, still disagrees with both the principle and the method of dividing the sea and allocating its natural wealth. Iran’s persistent insistence on equal division of the Caspian Sea resources is now potentially the biggest obstacle to a formal agreement on the legal status of the Caspian Sea. See United States Energy Information Administration, “Caspian Sea Region: Legal Issues”, cit. supra note 137. 188 See MOMTAZ, “Quel régime pour la mer Caspienne?”, Espaces et ressources maritimes, 1997, p. 83 ff., p. 91; YAKEMTCHOUK, cit. supra note 181, p. 123. See also supra section 3.6. 189 In July 2001, Iranian gunboats confronted a British Petroleum (BP) Azeri research vessel exploring the Araz-Alov-Sharg structure. Iran ordered the ship out of waters the Islamic Republic claims as its own. Azerbaijan, in turn, has challenged Iran’s decision to award Royal Dutch/Shell and Lasmo a license to conduct seismic surveys in a region Azerbaijan considers part of its territory. Azerbaijan is also involved in a dispute with Turkmenistan about the exploitation of the oil fields of Tchirak, Kyapaz, and Azeri. See United States Energy Information Administration, “Caspian Sea Region: Regional Conflicts”, July 2002, available at http://www.eia.doe.gov/emeu/ cabs/caspconf.html, and also “Caspian Sea Region: Legal Issues”, cit. supra note 137. 190 See Interfax News Agency, Moscow, 27 April 1997.

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division of the basin, however. There is a growing sense of optimism, whose main source is an environmental pact signed by all the littoral States on 4 November 2003 – the first agreement approved by every Caspian State since they began talks on the legal status of the basin in 1996.191

191 The environmental agreement aims at resolving problems such as industrial pollution, oil refinery and tanker leaks, and the energy industry’s potential impact on marine life, including on the endangered caviar producing sturgeon. In the view of some officials, the pact shows that the Caspian States are now really ready to co-operate in an effort to reach consensus on territorial issues. Nevertheless, as one observer has correctly pointed out “potential stumbling blocks remain concerning implementation of the environmental pact. The agreement depends primarily on a national action plan to be developed by each Caspian State. As long as disagreements exist about the division of territorial waters, little action can be expected on these plans. As a way around this obstacle, the United Nations Environment Program and the United Nations Development Program […] have suggested separate protocols that define each country’s responsibilities. Even so, ratification of the convention by all five States and agreement on the protocols could take years to fulfill”. See ONICA, “Optimism increases for Caspian Sea Agreement”, Business & Economics, eurasianet.org ed., 4 April 2004, available at http://www.eurasianet.org/departments/ business/articles/eav041904.shtml.

IMMUNITY OF HEADS OF STATE: SOME CRITICAL REMARKS ON THE DECISION OF THE SPECIAL COURT FOR SIERRA LEONE IN THE CHARLES TAYLOR CASE CHIARA RAGNI*

1. PROCEDURAL AND FACTUAL HISTORY OF THE CHARLES TAYLOR CASE On 31 May 2004, the Special Court for Sierra Leone (the “Special Court”), one of the so-called internationalized tribunals,1 rendered a decision on the validity of the indictment issued by its Prosecutor against the former Liberian President, Charles Ghankay Taylor,2 accused of having committed crimes against humanity, war crimes and other serious violations of international humanitarian law within the territory of Sierra Leone.3 The legality of the indictment and of the arrest war-

*

PhD in International Law and Research Assistant at the University of Milano. Internationalized or mixed criminal tribunals represent a new means to seek justice for massive violations of human rights and humanitarian law. They aim to prevent and to overcome the drawbacks of prosecutions before domestic and international tribunals and to strike a balance between the need for impartial proceedings, best granted at an international level, and proximity to the society concerned. The Special Court for Sierra Leone, the mixed Panels for Serious Crimes of East Timor and Kosovo and the Cambodian Extraordinary Chambers are all examples of internationalized tribunals. See, on this subject, BEIGBEDER, Judging Criminal Leaders, The Hague, 2002, pp. 194-205; DICKINSON, “The Promise of Hybrid Courts”, AJIL, 2003, p. 295 ff.; KATZENSTEIN, “Hybrid Tribunals: Searching for Justice in East Timor”, Harvard Human Rights Journal, 2003, p. 245 ff.; ROMANO, NOLLKAEMPER and KLEFFNER (eds.), Internationalized Criminal Courts, Oxford, 2004; ROMANO and BOUTRUCHE, “Tribunaux pénaux internationalisés: état des lieux d’une justice ‘hybride’”, RGDIP, 2003, p. 109 ff. On the Special Court there is a very extensive literature: see, e.g., CERONE, “The Special Court for Sierra Leone: Establishing a New Approach to International Criminal Justice”, Journal of International and Comparative Law, 2001, p. 379 ff.; CRYER, “A ‘Special Court’ for Sierra Leone?”, ICLQ, 2001, p. 435 ff.; DENIS, “Le Tribunal spécial pour la Sierra Leone. Quelques observations”, RBDI, 2001, p. 236 ff.; DE SANCTIS, “Il processo di istituzione di una Special Court per i crimini della guerra civile in Sierra Leone”, CI, 2001, p. 475 ff.; FRULLI, “The Special Court for Sierra Leone: Some Preliminary Comments”, EJIL, 2000, p. 857 ff.; LINTON, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, Criminal Law Forum, 2001, p. 185 ff.; MCDONALD, “Sierra Leone’s Shoestring Special Court”, International Review of the Red Cross, 2002, p. 121 ff.; SCHARF, “The Special Court for Sierra Leone”, ASIL Insight (October 2000); SCHOCKEN, “The Special Court for Sierra Leone: Overview and Recommendations”, Berkeley Journal of International Law, 2002, p. 436 ff. 2 Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber, Decision on immunity from jurisdiction, 31 May 2004, available at www.sc-sl.org/SCSL-0301-I-059.pdf. 3 Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-I, indictment of 3 March 2003, available at www.sc-sl.org/SCSC-03-01-I-001.html. See AKANDE, “The Jurisdiction of 1


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rant that followed was contested by Charles Taylor’s lawyer on the grounds that the Special Court, being part of the judicial system of Sierra Leone, would not be able to indict the serving Head of State of Liberia without violating the immunity that, because of his status, he enjoyed before domestic jurisdictions according to customary international law. The indictment, issued by the Prosecutor of the Special Court, David Crane, on 7 March 2003, was kept sealed until 4 June 2003, when the Prosecutor saw in the travel of Charles Taylor to Ghana, where he attended peace talks with rebels groups, an opportunity to circulate an arrest warrant and to apprehend the Liberian President. The Ghanaian authorities chose not to execute the order of the Special Court and in August 2003 Charles Taylor, after having stepped down from the Presidency of the Republic of Liberia, travelled to Nigeria, where he had been granted asylum. In the meantime, on 23 July 2003 his Sierra Leonean lawyer, Mr Terry, filed a motion with the Special Court asking that the indictment of Charles Taylor be declared null and void on the grounds of sovereign immunity and extra-territoriality. The arguments put forward by the defence were mostly based on the assumption that the Special Court, in contrast to the International Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR), lacks powers provided for in Chapter VII of the UN Charter and could not indict the former Liberian President since its judicial orders have the same quality, in terms of binding force, as those of a national court. Secondly, the applicant maintained that by serving the indictment and the arrest warrant against Charles Taylor in Ghana, the Special Court violated the principle of sovereign state equality. Similar arguments were put forward before the International Court of Justice (ICJ) by the Republic of Liberia, which on 4 August 2003 filed an application against Sierra Leone claiming that this State had violated customary international law in respect of Liberia, by issuing the arrest warrant against its President.4

the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits”, JICJ, 2003, p. 618 ff., p. 631; DEEN-RACSMÁNY, “Prosecutor v. Taylor: The Status of the Special Court for Sierra Leone and Its Implications for Immunity”, Leiden JIL, 2005, p. 299 ff.; FRULLI, “The Question of Charles Taylor’s Immunity. Still in Search of a Balanced Application of Personal Immunities?”, JICJ, 2004, p. 1118 ff.; JALLOH, “Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone”, ASIL Insight (October 2004); PADELLETTI, “Repressione dei crimini internazionali di individui e tribunali internazionali: il caso della Corte speciale per la Sierra Leone”, RDI, 2005, p. 76 ff.; ROMANO and NOLLKAEMPER, “The Arrest Warrant Against the Liberian President, Charles Taylor”, ASIL Insight (June 2003). 4 Similar arguments were put forward before the International Court of Justice (ICJ) by the Republic of Liberia, which on 4 August 2003 filed an application against Sierra Leone claiming that this State had violated customary international law in respect of Liberia, by issuing the arrest warrant against its President. In its application, the Republic of Liberia alleged that “[t]he international arrest warrant […] against President Charles Ghankay Taylor, violate[d] a fundamental

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The Prosecutor of the Special Court, on the other hand, insisted on the validity of the arrest warrant by asserting that, according to the principles expressed by the International Court of Justice (ICJ) in the Arrest Warrant of 11 April 2000 case (the “Arrest Warrant” case),5 the Special Court acted in accordance with its status as an international tribunal which gives it the power to indict incumbent Heads of State. On 19 September 2003, the applicant’s motion was referred to the Appeals Chamber under Rule 72(E) of the Rules of Procedure and Evidence of the Special Court on the basis that it raised a fundamental issue of jurisdiction.6 The Appeals

principle of international law providing for immunity from criminal proceedings [in] foreign criminal jurisdictions of an incumbent Head of State as recognised by the jurisprudence of the International Court of Justice”. It added that “[a]n arrest warrant of a Head of State issued by a foreign jurisdiction is also inconsistent with the internationally recognised principle that foreign judicial powers or authority may not be exercised on the territory of another State” and that “[t]he Special Court cannot impose legal obligations on States that are not a party to the Agreement between Sierra Leone and the United Nations of 16 January 2002. The Special Court for Sierra Leone is not an organ of the United Nations and is not established as an international criminal court”. Liberia accordingly asked the Court: “(a) to declare that the issue of the indictment and the arrest warrant of 7 March 2003 and its international circulation, failed to respect the immunity from a criminal jurisdiction and the inviolability of a Head of State which an incumbent President of the Republic of Liberia enjoys under international law; (b) to order the immediate cancellation and/or withdrawal of the indictment and the arrest warrant; and the communication thereof to all authorities to whom the indictment and the warrant was circulated”. In accordance with Article 38 of the Statute of the ICJ, a copy of the application had been transmitted to the Government of Sierra Leone. However, no action would be taken in the proceedings (in particular on the request for provisional measures) unless and until Sierra Leone consented to the Court’s jurisdiction in the case. International Court of Justice, Press Release 2003/26, 5 August 2004. 5 With regard to the treatment of immunities in international law, the ICJ in its judgment of 14 February 2002 made a distinction between international and domestic courts and tribunals, stating that, after having examined: “the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter […] [it found] that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts”. The ICJ’s reasoning is based on the grounds that the immunity enjoyed by Heads of State under international law can only be considered a jurisdictional bar to prosecution by a national court, which is the furthest reach of respect for the principle of sovereign equality of States. For that reason, the Court concluded that “the immunities enjoyed under international law […] do not represent a bar to criminal prosecution in certain circumstances”. Among those circumstances, the ICJ specified the possibility that: “[a]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction”, Arrest Warrant of 11 April 2000 (Congo v. Belgium), Judgement of 14 February 2002, reproduced in ILM, 2002, p. 536 ff. 6 The Prosecutor, on the other hand, claimed that the Taylor’s application did not raise an issue of jurisdiction but rather one of immunity; as such it should be decided by the Special Court only after the initial appearance of the accused according to Rule 73(A). The Special Court in its final decision stated that the specificity of the case justified to treat the question of immunity as a preliminary motion in terms of Rule 72(A). It is not necessary here to dwell upon this procedural issue; for more details about it see FRULLI, cit. supra note 3, p. 1120.

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Chamber, taking into account the conclusions reached by the ICJ in the Arrest Warrant case (to which the parties made explicit reference), considered that it was essential, before and to the end of deciding on the legality of the arrest warrant, to determine the legal nature of the Special Court; if indeed it could be qualified as an “international tribunal” it would be entitled to derogate the principle of immunity of Heads of State. In order to decide the issues raised by the application, essentially related to the extent of the immunity enjoyed by Charles Taylor, the Special Court, acting pursuant to Rule 74 of its Rules of Procedure and Evidence,7 appointed Professor Philippe Sands, Alison McDonald8 and Diane Orentlicher as amici curiae and granted leave to the African Bar Association to appear as such in writing.9

2. THE LEGAL NATURE OF THE SPECIAL COURT The Special Court, according also to the submissions of the parties, assumed that the question of legality of the indictment against Charles Taylor was strictly linked to its qualification as an international tribunal.10 Even though questionable, this assumption gave it the opportunity to deal with the issue of its legal nature.11

7 Rule 74, as amended on 7 March 2003, provides that: “[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any State, organization or person to make submissions on any issue specified by the Chamber”. Very similar provisions are included also in the Rules of Procedure and Evidence of the ICTR (Rule 74), and in the ICTY’s (Rule 74), while the participation of NGOs in proceedings before the ICC is still cloaked in some uncertainty and will have to be clarified in the future. In contrast, as regards internationalized tribunals, only the Special Court provides for this opportunity. On this issue, see TREVES, FRIGESSI DI RATTALMA, TANZI, FODELLA, PITEA and RAGNI (eds.), “Civil Society, International Courts and Compliance Bodies”, The Hague, 2004, and in particular Part II entitled “NGOs and International Criminal Courts and Tribunals”. 8 The very interesting brief, written by SANDS and MCDONALD, entitled “Submissions of the Amicus Curiae on Head of State Immunity” of 23 October 2003, is available at www.icc-cpi.int/ library/organs/otp/Sands.pdf. 9 Prosecutor v. Charles Taylor, Case No. SCSL-2003-01-AR72(E), Decision on application by the African Bar Association for leave to file amicus curiae brief, 20 November 2003. 10 Prosecutor v. Charles Taylor, cit. supra note 2, para. 49. 11 The Special Court had indeed previously always been qualified as neither a domestic nor an international tribunal, but rather as an internationalized or mixed one. This definition, as given by scholars, even if appropriate when making comparisons with other tribunals of similar character (cf. supra note 1) does not help to clarify the legal nature of these bodies. It has been adopted essentially on the basis of a descriptive approach and it is used to indicate those tribunals that have been created with the involvement of the United Nations as well as of the State directly affected by the crimes, which have their seat in the territory where the crimes under their jurisdiction were committed and include a mix of judges designated by the United Nations and judges chosen at a domestic level, who apply international as well as domestic law. Notwithstanding the similarities, internationalized tribunals differ one from another in relation to the degree of


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In its decision of 31 May 2004, the Special Court, according to its previous jurisprudence12 and by also taking into account opinions expressed by amici curiae,13 reached the conclusion according to which: “[T]he Special Court is an international criminal court. The constitutive instruments of the Court contain indicia too numerous to enumerate to justify that conclusion. To enumerate those indicia will involve virtually quoting the entire provisions of those instruments. It suffices that having adverted to those provisions, the conclusion we have arrived at is inescapable”.14

“internationalization” of each of them. That depends on the distribution of international and domestic judges within their adjudicating body, on the connection to the national legal order of the State concerned by their institution and on the different involvement of the international community in the establishing and functioning of them (for a comparative view cf., e.g., PADELLETTI, cit. supra note 3, p. 92 ff.). All these elements of distinction contribute to make each of these bodies similar to an international or to a domestic tribunal. That leads to different conclusions: i) on the one hand, it is possible to hold that in addition to international and national tribunals there exists a tertium genus of jurisdictional bodies, namely the internationalized tribunals; ii) on the other hand, the internationalized bodies can be considered, according to the specific features of each of them, as “nationalized” international courts or as “internationalized” domestic bodies. The latter alternative has relevance in practice in the light of the fact that the Special Court has discussed whether it is a domestic or an international court in order to decide the case here examined and others (cf. infra note 12). 12 The problem of the legal nature of the Special Court has been discussed in two other cases submitted to its decision. In the first one the Special Court had to decide on its constitutionality in response to three joined motions respectively filed on behalf of Morris Kallon (Case No. SCSL-2004-15-AR72 E), Sam Hinga Norman (Case No. SCSL-2004-14-AR72 E) and Brima Bazzy Kamara (Case No. SCSL-2004-16-AR72 E). The applicants argued that the Special Court was to be considered as an illegal and ultra vires institution on the grounds that its establishment implied an amendment of the court structure in Sierra Leone, and broadly of the constitutional legal framework of Sierra Leone, without the holding of a referendum and therefore in violation of the Sierra Leonean Constitution. The application indeed was based on the assumption that the Special Court is part of the Leonean judicial system and that it is therefore a domestic court. In Prosecutor v. Morris Kallon and Brima Bazzy Kamara, the Special Court had to decide on a defence preliminary motion asserting its lack of jurisdiction in respect of crimes committed prior to July 1999 when an amnesty was granted by virtue of Article IX of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (the “Lomé Agreement”), signed in Lomé on 7 July 1999. The defence stressed that, even though a domestic amnesty could not prevent the prosecution of serious crimes before an international or a foreign tribunal, the Special Court should not be considered as such since it is a “hybrid” court. In both the mentioned cases the Special Court reached the conclusion that it has to be considered as an international tribunal (cf. Prosecutor v. Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, Appeals Chamber, Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 55 and Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 88). 13 Cf. SANDS and MCDONALD’s brief, cit. supra note 8, part II. 14 Prosecutor v. Charles Taylor, cit. supra note 2, para. 42.

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The Special Court did not explicitly mention all the provisions that it made reference to, but it is possible to conclude that they are those concerning:

i)

The Legal Basis of the Court

As provided in the preamble of its Statute, the Special Court was the result of negotiations between UN and local government representatives. It was established by an agreement signed on 16 January 2002 by the Government of Sierra Leone and the Secretary-General of the United Nations, pursuant to Resolution 1315 (2000) of the UN Security Council,15 with the aim to prosecute those who bear the greatest responsibility for serious violations of international humanitarian and Sierra Leonean law committed within the territory of Sierra Leone. The constituting instrument of the Court is therefore an international agreement between a State and an international organisation,16 covered as such by the rules set forth in the 1986 Vienna Convention on the Law of Treaties governing agreements between States and international organisations.

ii) The Applicable Law The Court applies both international and Sierra Leonean law, since it has jurisdiction in respect of international as well as domestic crimes. As regards the rules governing the conduct of legal proceedings, Article 14 of the Statute of the Special Court provides that the Rules of Procedure and Evidence of ICTR shall be applicable, mutatis mutandis, to proceedings before the Special Court, and that the judges shall have the power to amend or adopt additional rules, where a specific situation is not provided for. In so doing, they may be guided, as appropriate, by the Criminal Procedure Act 1965 of Sierra Leone. In any event, the Court is bound to norms related to fair trial as set out by international instruments for the protection of human rights. One such rule concerns the right for the accused before a criminal jurisdiction to be judged by a fair and an independent tribunal; that is, as stated 15

UN Security Council Resolution, adopted on 14 August 2000, UN Doc. S/RES/1315 (2000), ILM, 2000, p. 248 ff. 16 The UN Secretary-General expresses the view that the Court is a “treaty-based sui generis court”, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S/2000/915, para. 9. The Special Court itself underlined that this assertion “is justified on a perusal of the Vienna Convention on the Law of the Treaties between States and International Organisations […]”, Prosecutor v. Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, cit. supra note 12, paras. 42-43, Article 2(1)(a) of which provides that “treaty” means “an international agreement governed by international law and concluded in written form: (i) between one or more States and one or more international organizations […]”; the Vienna Convention is reproduced in ILM, 1986, p. 543 ff.


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above, also an important criterion to assess as international the legal nature of any jurisdictional body.17

iii) The Jurisdiction As mentioned above, the Special Court, such as other internationalized tribunals, has jurisdiction in respect of international crimes as well as crimes committed in violation of national law. Articles 2 to 6 of its Statute contain rules on jurisdiction, that are broadly similar to those of Statutes of ICTY, ICTR and ICC, even with reference to the treatment of immunities enjoyed by State agents. Article 6(2) in this regard provides that: “The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment”.18

iv) The Connection with the Domestic Judicial System Section 11(2) of the Ratification Act of the agreement establishing the Special Court expressly states that it shall not form part of the Judiciary of Sierra Leone, while Article 8 of the Statute provides that “[t]he Special Court and the national courts of Sierra Leone shall have concurrent jurisdiction […]. The Special Court shall have primacy over the national courts of Sierra Leone”.

v) The Legal Status of the Special Court and the Independence of Its Members Finally, the Special Court made reference to norms that, by defining its characteristics and powers, allow to associate it with classical international organisations and stressed its independent and autonomous character in respect both of the United Nations and of the Government of Sierra Leone.19 The independent character, that is one of the most important criteria a tribunal must meet in order to be qualified as international,20 also implies that persons

17

See, e.g., Article 14 of the International Covenant for Civil and Political Rights (UN Doc. A/6316 (1966); Article 10 of the Universal Declaration of Human Rights (UN Doc. A/811). 18 Very similar provision is included in the Statute of the ICTY, of the ICTR and of the ICC (respectively Art. 7(2), Art. 6(2) and Art. 27). See infra section 3. 19 Cf. Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 41(b). See Section II of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, at http://www.sc-sl.org/scsl-agreement.html. 20 Actually there is no generally accepted criteria for identifying or qualifying an “international tribunal”. Scholars have commonly used a descriptive approach in order to select some

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vested with adjudicatory functions have to enjoy an independent status. The fact that internationalized tribunals have their seat in the same State where the crimes under their jurisdiction have been committed and that their staff is partly designated by local government could induce observers to question whether their members are really shielded against directions from national governments. However, the founding documents of the Court provide some fundamental guarantees to ensure the judicial independence of its members. For example international judges form the most part of the membership of the Court and decisions are taken by majority. In addition, both the Statute and the Rules of Procedure and Evidence insist that the judges must have independent status.21 All the above elements, taken into consideration by the Special Court, seem to justify the conclusion that it has to be considered as an international tribunal.22

3. IMMUNITIES ENJOYED BY HEADS OF STATE: DIFFERENT REGIMES OF NATIONAL AND INTERNATIONAL COURTS Once it determined its legal nature, the Special Court concluded that, according to the principle expressed by the ICJ in the Arrest Warrant of 11 April 2000 case,23 it acted in accordance with its status as an international tribunal which gives it the power to indict an incumbent Head of State. The Special Court based its decision essentially on the difference in the treatment of immunities in national and international tribunals that seems clearly to common features that particular international tribunals share. Although they do not completely agree on the choice of criteria tribunals have to meet to be qualified as “international”, there are some parameters on which scholars seem to have reached a broad consensus. Accordingly, a tribunal may be considered as an international one when it has a permanent character, its constituting instrument and the laws that it applies and that regulate its functioning can be qualified as international, and when the persons vested with adjudicatory functions enjoy an independent status, especially with regard to their national government. See, e.g., TOMUSCHAT, “International Courts and Tribunals with Regionally Restricted and/or Specialized Jurisdiction”, in Judicial Settlement of International Disputes: International Court of Justice, other Courts and Tribunals, Arbitration and Conciliation: An International Symposium, Berlin-Heidelberg, 1974, pp. 285-416; ROMANO, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle”, New York Journal of International Law and Politics, 1999, p. 709 ff.; TREVES, Diritto internazionale: Problemi fondamentali, Milano, 2005, pp. 601-606; MOHEBI, The International Law Character of the IranUnited States Claims Tribunal, The Hague, 1999, pp. 29-52; ASCENSIO, “La notion de juridiction internationale en question”, in Société Française pour le Droit International, La juridictionnalisation du droit international: Colloque de Lille, Paris, 2003, pp. 163-202. 21 Article 13(1) of the Statute of the Special Court (at http://www.sc-sl.org/scsl-statute.html) and Rule 15 of the Rules of Evidence and Procedure, as amended on 29 May 2004 (at http: //www.sc-sl.org/scsl-procedure.html). 22 For a different perspective on the legal nature of the Special Court, see the accurate analysis by PADELLETTI, cit. supra note 3, p. 97 ff. 23 Arrest Warrant of 11 April 2000 case, cit. supra note 5.


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emerge from the conclusions reached by the ICJ in the Arrest Warrant case. The legal reasoning is questionable as far as the legality of the arrest warrant was made strictly to depend on the definition of the Special Court as an international tribunal. Actually, in order to determine whether or not a definition of the legal nature of the Special Court was needed it will be useful to analyse briefly the status of international law on the question of immunity of Head of States. Under international law, it is possible to make a distinction between two kinds of immunities: those that cover acts performed by State agents in an official capacity (ratione materiae or functional immunities) and those that prevent some categories of individuals, and among them Heads of State, from civil and criminal jurisdiction while discharging their office (ratione personae or personal immunities).24 The latter, in other words, are a procedural bar to prosecution of State agents; they are accorded in order to permit them to carry out their functions abroad without hindrance, they cover acts performed both in an official and in a private capacity and they are enjoyed only as long as the person is in office. The reason for this kind of immunities is therefore to facilitate cooperation between States; as a consequence they should be recognized even in the case of international crimes.25 This rule is mitigated by exceptions included in international instruments, such as for example the Statutes of the ICTY, ICTR, ICC and of the Special Court that, as mentioned above,26 provide that serving Heads of State, even while in office, can be prosecuted by those tribunals, where they have jurisdiction. Functional or ratione materiae immunities, on the other hand, are accorded on the ground that the State, and not the individual, is to be held responsible for acts committed by its officials, in the exercise and within the limits of their official functions. This kind of immunities is attached to the official acts and not to the person. It implies that the State, which is therefore directly imputable for violations of national or international law, committed by its agents while performing official functions, has the right, based on the principle of the sovereign equality of States, not to be submitted to the exercise of foreign jurisdiction.27 Functional immunities are

24 The issue of rules governing immunities in the context of criminal proceedings has been broadly explored by scholars. See, e.g., AKANDE, cit. supra note 3, and WATTS, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers”, RCADI, 1994-III, Vol. 247, p. 35 ff. 25 See CASSESE, International Criminal Law, Oxford, 2003, p. 272. 26 See supra subsection 2(iii). 27 In Attorney General of Israel v. Eichmann, the Israeli Supreme Court stated that: “The theory of ‘Act of State’ means that the act performed by a person as an organ of the State – whether he was Head of the State or a responsible official acting on the Government’s orders – must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefore, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty”. Israeli Supreme Court, 29 May 1962, ILR, Vol. 36, p. 5 ff., p. 277.

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a substantive defence and, as a consequence, they can be invoked even when the person ceased its official functions. It has been argued that these immunities should not apply to crimes committed in violation of international law, humanitarian and human rights law. The idea, on which a broad consensus seems in the process of emerging,28 is that individuals who commit international crimes are internationally accountable for them. Nevertheless, the ICJ in the Arrest Warrant case challenged this assumption with regard to domestic prosecution, assuming that national tribunals are not allowed to prosecute serving Heads of State even when they are accused of international crimes.29 The Special Court justified the apparent difference in treatment of immunities before international and domestic courts, as resulting from the reading of the ICJ decision, by stating that the norms on immunity have been elaborated in order to safeguard the ability of States to discharge, through their agents, their official functions abroad without interference and to preserve the equal exercise of their sovereign powers; this implies that those who act as organs of one State have the right not to be prosecuted under foreign criminal jurisdiction.30 In the opinion of the Special Court, the situation of domestic and international tribunals should be therefore distinguished in this regard. The latter are not organs of one State but derive their jurisdiction and their mandate to prosecute international crimes, even in respect of Head of States, from the international community as a whole.31 It followed that, according to its status as an international tribunal, the Special Court finds no obstacle to its jurisdiction in the immunity enjoyed by Charles Taylor as the serving Head of State of Liberia. The Appeals Chamber did not dwell upon the fact that since the accused had ceased to be the President of Liberia he could not have claimed any more immunity from jurisdiction, even before a domestic court, for acts performed in a private capacity32 and for 28 In this regard it has for example been stated that: “It is generally agreed that an exception to functional immunity exists in cases where the individual is responsible for crimes under international customary law […]”. WATTS, cit. supra note 24, p. 109. See also ZAPPALÀ, “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation”, EJIL, 2001, p. 595 ff.; the author enumerates and analyses various elements for contending that the mentioned exception to functional immunity is now to be considered as a rule of customary international law; in this respect cf. also CASSESE, cit. supra note 25, pp. 267-271, and ID., “When May Senior State Officials Be Tried for International Crimes?”, EJIL, 2002, p. 853 ff. 29 See supra note 5. 30 The principle of sovereign equality implies indeed that one sovereign State does not adjudicate the conduct of another and, as a consequence, of those who act on behalf of it. Cf. WIRTH, “Immunity for Core Crimes? The ICJ’s Judgement in the Congo v. Belgium Case”, EJIL, 2002, pp. 877-893, p. 882 ff. 31 Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 51. 32 The Special Court may have assumed that crimes committed by the accused can not be considered as official acts since, as maintained by the Prosecutor and as specified in the indictment: “from an early stage and acting in a private rather than an official capacity [Charles Taylor]


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those carried out prior or after his period in office,33 that are not covered by functional immunity. It just limited itself to stress that, even if the applicant had succeeded in his application, the Prosecutor would have been entitled to issue a “fresh warrant”, since Charles Taylor had already stepped down as President of Liberia.

4. THE POWER OF THE SPECIAL COURT TO INDICT HEADS OF STATE OF A THIRD COUNTRY In order to decide on the validity of the indictment and the subsequent arrest warrant against Charles Taylor, two more issues have to be taken into consideration: the power of the Special Court to indict the serving Head of State of Liberia according respectively to (i) its legal basis and (ii) its jurisdiction.

i)

The Legal Basis of the Special Court

As stated above, defence counsel for Charles Taylor claimed that the immunity enjoyed by the accused was not nullified by any exception under international law, since the Court, in contrast with the ICTY and the ICTR, lacks powers provided for in Chapter VII of the UN Charter. However, this argument is inconsistent on several grounds. First, that the Special Court was not established by a Security Council Resolution under Chapter VII of the Charter does not in any way imply that it cannot exercise its jurisdiction in respect of Heads of State. In the Arrest Warrant judgement the ICJ, which, like the Special Court, was created by treaty and not by resolution, is mentioned as one of the international tribunals whose jurisdiction finds no obstacles in the immunity that customary international law generally grants to incumbent Heads of State.34

resourced and directed rebel forces, encouraging them in campaigns of terror, torture and mass murder, in order to enrich himself from a share in the diamond mines that were captured by rebel forces”. Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 5. Accordingly it may have concluded the immunities enjoyed by Charles Taylor were no more a bar to the exercise of its jurisdiction over crimes committed by him. Certainly the same result may have reached according to the opinion, challenged by the ICJ in the Arrest Warrant case, that functional immunities can not cover international crimes, whatever the legal nature of the court, that has jurisdiction over such crimes. 33 The reference is to those acts perpetrated by Charles Taylor between 30 November 1996 (the Special Court’s jurisdiction only covers acts performed after this date) and 24 July 1997, day on which Charles Taylor was declared President of Liberia. 34 The inclusion of the ICC among these international tribunals is reflected also in the approach taken by the Institut de Droit International, in its Resolution of 26 August 2001 on “Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law”, in which it was stressed that even if Heads of State enjoy immunity from jurisdiction before the

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Certainly the fact that the Special Court was not set up through Chapter VII resolution raises the problem of the legal obligation of States not party to the agreement to cooperate with it by giving effect to the arrest warrant, although it cannot affect the legal status of the Special Court and its power to indict validly Charles Taylor. That leads to the consequence that, on the one hand, Ghana was not legally bound to comply with the request from the Court to surrender Charles Taylor (nor has Nigeria similar obligation) since it is not party to the agreement establishing the Special Court; on the other hand, the issuance of the arrest warrant did not violate the sovereignty of Ghana because: “A warrant of arrest transmitted by one country to another is not self-executing. It still requires the cooperation and authority of the receiving state for it to be executed. Other than a situation in which the receiving state has an obligation under Chapter VII of the United Nations or a treaty obligation to execute the warrant, the receiving authority has no obligation to do so. […] [Ghana] assert[ed] its sovereignty by refusing to execute it”.35

ii) The Jurisdiction of the Special Court The further issue, therefore, is to decide whether the Special Court can exercise its jurisdiction in respect of the crimes committed by Charles Taylor within the territory of Sierra Leone. The crucial question here is not to determine the competence ratione materiae of the Special Court, since its Statute includes provisions in this regard that are broadly similar to those of other international criminals tribunals,36 granting jurisdiction over war crimes and crimes against humanity. The point of uncertainty is the jurisdiction ratione personae of the Court, since Charles Taylor was a national of the Republic of Liberia, which is not party to the Statute of the Special Court,37 whose Article 1(1) provides that: courts of a foreign State for any crime that they have committed, regardless of its gravity (Article 2 of the Resolution), this rule cannot detract from: (i) obligations under the UN Charter; (ii) obligations under the Statutes of international criminal tribunals; and (iii) obligations, for those States that have become parties thereto, under the Rome Statute for the International Criminal Court (Article 11). Cf. FOX, “The Resolution of the Institute of International Law on the Immunities of Heads of State and Government”, ICLQ, 2002, p. 119 ff. 35 Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 57. 36 Exceptions are, e.g., represented by the exclusion of the crimes of genocide from the jurisdiction of the Court (since the crimes committed in Sierra Leone cannot be qualified as genocide, as defined under customary international law) and by the inclusion of crimes under Sierra Leonean law. 37 It has already been stressed (see supra subsection 2(iii)) that, according to Article 6(2) of the Statute of the Special Court, the official position of Charles Taylor does not relieve him of criminal responsibility nor mitigate punishment.


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“The Special Court shall […] have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone”. As the interpretation given by UN Secretary-General suggests: “[…] [T]hose ‘most responsible’ obviously include the political or military leadership […] ‘Most responsible’, therefore, denotes both a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime. It must be seen, however, not as a test criterion or a distinct jurisdictional threshold, but as a guidance to the Prosecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases (emphasis added)”.38 Accordingly, there can be little doubt that a Head of State is within the jurisdiction ratione personae of the Special Court. The crucial matter is anyway whether its competence extends also to a serving Head of State of a country other than Sierra Leone.39 As regards this issue, it is helpful to take into account the provision, included in the Rome Statute, that regulates the competence of the ICC since, as stated above, its legal basis, resulting from an international treaty, is similar to that of the Special Court. The jurisdiction of the ICC, like that of the Special Court, covers crimes which, by resulting in serious and gross violations of human rights, constitute offences not only against a single State, but against the entire international community; in respect of such crimes, States have universal jurisdiction when the accused is present in their territory. As argued in a scholarly comment: “Thus, the same principle permitting individual states to prosecute individuals for international crimes, on the basis of universal jurisdiction and without the consent of the state of nationality, suggests that those states should be able to act collectively to achieve the same end”.40 The above considerations can also be extended to the case under examination. The fact that the agreement for the establishment of the Special Court was made

38

UN Doc. S/2000/915, cit. supra note 16, para. 30. See SANDS and MCDONALD’s brief, cit. supra note 8, para. 84. 40 See AKANDE, cit. supra note 3, p. 626. 39

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pursuant to UN Security Council Resolution 1315 (2000),41 and that it was negotiated between the United Nations and the Government of Sierra Leone, can be seen, according to what is suggested by the Special Court in the decision under examination, as the will of the international community to cooperate in establishing the Court.42 Given such a conclusion, it is therefore possible to argue that the fact that Charles Taylor was not a citizen of Sierra Leone does not affect, in principle, the power of the Special Court to prosecute him.43

41

Under the Resolution (cit. supra note 15), the Secretary-General is recommended to: “negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with [the] resolution”. The Security Council did not act pursuant to Chapter VII, however, it made reference to the fact that the situation in Sierra Leone constituted a threat to international peace and security, which is a precondition for exercising Chapter VII powers. 42 The Special Court, in Prosecutor v. Charles Ghankay Taylor (see supra note 2, para. 38) observed that: “[w]here the Security Council decides to establish a court as a measure to maintain or restore international peace and security it may or may not, at the same time, contemporaneously, call upon the members of the United Nations to lend their cooperation to such court as a matter of obligation […]. It is to be observed that in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations. The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community. The Special Court established in such circumstances is truly international”. The reasoning of the Special Court raises some perplexities, since it seems, at first glance, i) to make the legal status of a tribunal as an international one follow from the fact that it has been established by the Security Council, and ii) to attempt to base the creation of the Special Court on an action taken on the basis of Chapter VII of the UN Charter. Moreover, the decision on this point seems to suggest that the Statute of the Special Court, annexed to the agreement, binds almost all the States to the respect of its provisions, Nigeria and Ghana included. It may be noted that an agreement concluded by the United Nation is binding on the Organization as such and not on individual Member States (see in this regard FRULLI, cit. supra note 3, p. 1124, and the comment by DEEN-RACSMÁNY, cit. supra note 3, p. 311 ff.). Opposite conclusions could be drawn by admitting that the Special Court was directly created, as well as the ICTY and the ICTR, by a Resolution of the Security Council, whose binding force on individual members of the United Nations expressly derives from provision of Article 25 of the UN Charter. 43 This marks a difference between the Statute of the Special Court of Sierra Leone and the ICC. The Statute of the latter provides, at Article 98(1), that: “[t]he Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”. It follows from this provision that the ICC cannot enforce a request for the transfer to it of a Head of a State not party to the Statute unless this State waives immunity. This limitation does not exist in the Statute of the Special Court for Sierra Leone. In this regard see however arguments developed in the previous note.


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5. CONCLUDING REMARKS The decision of the Special Court in the Charles Taylor case is a further step in the developing jurisprudence on immunity of official agents and in particular of Heads of State. On the one hand, it contributes to the consolidation as customary international law of the rule that functional or ratione materiae immunities can not cover acts performed by State officials when they result in the commission of international crimes. On the other hand, it followed the Arrest Warrant jurisprudence in holding that this principle applies only to international tribunals. The Appeals Chamber, in deference to the ICJ, in order to decide on the applicant’s motion, focused on the question of the legal nature of the Special Court and especially on the elements that help to qualify it as an international tribunal. The legal reasoning of the Appeals Chamber leaves with the feeling that it was mostly aimed at reaching the only result which, according to the Arrest Warrant judgement, would have legitimated the validity of the indictment. The Special Court did not take into any account the fact that the view expressed in the ICJ judgement challenged the opinion, on which a broad consensus seems to be growing, that under international customary law functional immunities are not relevant in the case of the alleged commission of international crimes,44 whatever the legal nature of the tribunal concerned. The fact that the Appeals Chamber took into careful consideration the decision of the ICJ has to be considered as a positive element of the judgement. The approach it followed gives however the impression of dogmatic adherence to the conclusions of the ICJ on an issue, on which international law is still cloaked in some uncertainty. It may be further noted that the opinion expressed in the Arrest Warrant case, which in any case is not binding on the Special Court,45 was articulated as an obiter dictum.46 44 See in this regard the accurate analysis of ZAPPALÀ, cit. supra note 28, pp. 600-607; and CASSESE, “When May Senior State Officials”, cit. supra note 28; see also FRULLI, cit. supra note 3, p. 1127. See also the dissenting opinion of Judge Van den Wyngaert to the Arrest Warrant judgement (cit. supra note 5), paras. 24-39, and especially paragraph 39 where she stated: “[m]y general conclusion on the question of immunity is as follows: the immunity of an incumbent Minister for Foreign Affairs, if any, is not based on customary international law but at most on international comity. It certainly is not “full” or absolute and does not apply to war crimes and crimes against humanity”. 45 “[…] [A]lthough the ICJ is the ‘principal judicial organ’ within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion”, Prosecutor v. Kvocka, Case No. IT-98-30/1, Appeals Chamber, 25 May 2001, para. 16, referring to the decision of the Appeals Chamber of 20 February 2001 in Prosecutor v. Zlatko Alekosovski, Case No. IT-95-14/1-AR77. In this regard see TREVES, “Judicial Lawmaking in an Era of ‘Proliferation’ of International Courts and Tribunals: Development or Fragmentation of International Law?”, in WOLFRUM and RÖBEN (eds.), Developments of International Law in Treaty Making, Heidelberg, 2005, pp. 587-620. 46 See SANDS and MCDONALD’s brief, cit. supra note 8, para. 110. The view expressed by the ICJ in the Arrest Warrant case was however the object of set of separate or dissenting opinions

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NOTES AND COMMENTS

The Appeals Chamber could have gone beyond the dichotomy, suggested in the Arrest Warrant case, between international and national tribunals, that made it reduce its legal reasoning to a very narrow compass. The Special Court, through an autonomous, although not necessary divergent, interpretation of the international law, could have found a diverse way of balancing the traditional principle of the respect of the sovereign equality between States, expressed by the rules on immunity of Heads of State, and the customary law proscribing international crimes.47 The different approach of an international criminal law court might have been justified.48 The Appeals Chamber, by simply relying on the opinion expressed in the Arrest Warrant case, may have missed an opportunity to make a contribution to the development of international law,49 with regard to the controversial issue of immunity for international crimes and, as someone properly suggested,50 to explore the original role that internationalized tribunals (given their being a half-way house between international and domestic prosecution)51 play in the framework of international criminal law.

to the judgement. See for example the dissenting opinion of Judge Van den Wyngaert, cit. supra note 44. 47 CASSESE, cit. supra note 25, p. 271. 48 A diverse consideration of the two conflicting customary rules would be justified on account of the different attitude of the ICJ and of a criminal tribunal, such as the Special Court, in interpreting international law. The first one, that deals with inter-States disputes, may be inclined, due to its status, to solutions that aim to preserve and facilitate relations between States; the second ones may favour a reading of international law that grants as most as possible the protection of a set of shared values, whose safeguard international criminal law is aimed to. See SANDS, “International Law Transformed? From Pinochet to Congo?”, Leiden JIL, 2003, pp. 37-53, p. 51. 49 The possibility that international tribunals may give different interpretations of an issue of international law is not necessarily an “emergency signal” of the risk of fragmentation of international law. A positive response of one court to the opinion expressed by another in reaction to perceived drawbacks of its decisions can on the contrary set up a constructive dialogue between judicial bodies, that can result in the development of international law on a particular issue, see TREVES, cit. supra note 45. On this aspect, for further references, see TREVES, Le controversie internazionali. Nuove tendenze, nuovi tribunali, Milano, 1999, pp. 59-67; and ID., Diritto internazionale, cit. supra note 20, pp. 281-283. 50 JALLOH, cit. supra note 3. 51 See the definition given by LINTON, cit. supra note 1, p. 185.

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2004) TULLIO TREVES* 1. During 2004 two main developments in the life of the Tribunal1 have to be examined. One, not of a judicial nature, is the conclusion of the Agreement between the Tribunal and the Federal Republic of Germany regarding the Headquarters of the Tribunal. The other is the judgment on the Juno Trader case between Saint Vincent and the Grenadines and Guinea Bissau. The “Agreement regarding the Headquarters of the Tribunal” was signed in Berlin on 14 December 2004 and will enter into force on the first day of the month following the date of the receipt of the last notification by which the two parties have informed each other of the completion of their respective formal requirements (Article 35). Parliamentary approval is needed according to German law. Most matters covered by the Agreement are presently regulated by a German decree adopted in 1996. The Agreement has 36 articles and is completed by an 11-paragraphs interpretative exchange of notes of the same date, and by a further exchange of notes, correcting the one just mentioned, also of the same date. The Agreement covers, in particular, the legal personality of the Tribunal, authority over the Headquarters district in Hamburg, its inviolability and protection, as well as the immunities of the Tribunal, its property, assets and funds; privileges and immunities of the members and of the Registrar of the Tribunal (corresponding, under the Convention, to those of heads of missions accredited to Germany), of the officials of the Tribunal, as well as of their families and members of household. The agreement also covers privileges and immunities of experts appointed under Article 289 of UN Law of the Sea Convention (the Convention), of agents, counsel and advocates designated to appear before the Tribunal and of witnesses and experts. The interpretative exchange of notes, whose negotiation took a long time, concerns mostly questions of social security, health insurance and taxation. Among the provisions that were most controversial in the negotiations were those concerning the tax regime of pensions and annuities to be paid to former members and officials of the Tribunal. The solution agreed is that: * Judge at the International Tribunal for the Law of the Sea; Professor of International Law, University of Milano “Statale”. 1 We will use “the Tribunal” as an abbreviation for the International Tribunal for the Law of the Sea; however, in some quotations in the text the abbreviation “ITLOS” is used. For previous reviews, see TREVES, “The International Tribunal for the Law of the Sea (1996-2000)”, IYIL, 2000, pp. 233-240 (TREVES, “ITLOS 1996-2000”); ID., “The International Tribunal for the Law of the Sea (2001)”, IYIL, 2001, pp. 165-174 (TREVES, “ITLOS 2001”); ID., “The International Tribunal for the Law of the Sea (2002)”, IYIL, 2002, pp. 207-218 (TREVES, “ITLOS 2002”); ID., “The International Tribunal for the Law of the Sea (2003)”, IYIL, 2003, pp. 157-169 (TREVES, “ITLOS 2003”).


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“[…] The same treatment shall be granted as is accorded to the United Nations institutions established in the host country. This shall be without prejudice to any agreement for the avoidance of double taxation between the host country and the country of nationality or residence of the persons referred to” (para. 6(a) of the interpretative exchange of notes).

2. The Juno Trader case concerns an application for prompt release, under Article 292 of the Convention of the vessel bearing that name and flying the flag of Saint-Vincent-and-the-Grenadines submitted on behalf of the flag State against Guinea Bissau, in whose port of Bissau the ship was detained. The application was submitted by a German insurer of Hamburg (designated as Agent) on the basis of an authorization by the Commissioner of Maritime Affairs of Saint Vincent, in turn authorized to make an application under Article 292 of the Convention by a letter of the Vincentian Attorney-General. So the “on behalf” requirement of Article 292, para. 2, of the Convention was satisfied by a two-tiered authorization by the flag State authorities. The facts of the case bear some similarities to those of the Tribunal’s first case (the M/V “Saiga” case (prompt release)),2 not only because the flag State was the same and the detaining State, Guinea Bissau, was a neighbour of Guinea, the detaining State in the Saiga case. In neither case the detained ship was a fishing vessel, even though in both a violation of Article 73, para. 2, of the Convention, concerning enforcement of fishing laws and regulations in the exclusive economic zone, was invoked. While the Saiga was a tanker active in offshore bunkering of fishing vessels, the Juno Trader is a “reefer vessel” (a refrigerated cargo vessel) carrying fish transhipped from fishing vessels. The controlling interest was probably South African and the Master and crew Russian. According to the applicant, the Juno Trader had received a transhipment of about 1,183 tonnes of frozen fish and 112 tonnes of fish meal in the exclusive economic zone of Mauritania (a fact evidenced by a Mauritanian certificate and by the markings on the fish packages) and was heading towards a port in Ghana navigating through the exclusive economic zone of Guinea Bissau, when, on 26 September 2004, it was approached by a “zodiac” having on board persons armed and without an uniform who shot rounds injuring one crewman and stopped the Vincentian ship. The Juno Trader was later boarded by officers of the inspection boat of Guinea Bissau who had sent the “zodiac”. They apprehended the Vincentian ship and conducted it to the port of Bissau were it remained in detention. According to Guinea Bissau, the Juno Trader had been seen anchored parallel to a fishing vessel and fled when spotted by the inspection vessel. After about three weeks, an administrative body (the Fisheries

2

ITLOS Reports, 1997, p. 16.

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Technical Committee), with a finding confirmed on 19 October 2004 by a superior interministerial body (IMCC), in both cases without a hearing with the participation of the representatives of the detained ship, imposed a fine of 175,398 euros to the ship, and of 8,770 euros to the Master for infractions to the fishing laws of Guinea Bissau, and confiscated the cargo. The fine imposed to the captain was paid. An extension of the time for paying the fine imposed to the ship was requested but it was not conceded before the elapsing of the 15-days time limit for payment. After the submission to the Tribunal of the application for prompt release on 18 November 2004, on 23 November the Regional Court of Bissau, upon application of the shipowner, and again in ex parte proceedings, suspended the execution of the decision of the IMCC, cancelled the sale of the fish and ordered the return of passports to the crewmembers. In a letter of 3 December, made known during the hearing in Hamburg, FISCAP, the Bissauian Fisheries Inspection and Control Service, stated that the ownership of the Juno Trader had “reverted to the State of Guinea Bissau” (i.e., was confiscated) on 5 November on the basis of a decree-law of 22 August 2004 that provides for this sanction in case of non-payment of fines within the prescribed time limit of 15 days. No bond or other financial security was requested. The offer by the ship-owners of a security of 50,000 euros met no reaction by the detaining State. The Tribunal, in his judgment of 18 December 2004,3 decided unanimously (although two declarations and six separate opinions were appended to the judgment) that it had jurisdiction, that the application was admissible and that the allegation that the respondent had not complied with Article 73, para. 2, of the Convention was well-founded so that the ship had to be promptly released upon the posting of a bond or other security. The Tribunal determined such security in the amount of 300,000 euros plus the amount of the fine already paid by the Master. Three aspects of this judgment are particularly interesting. They concern: the procedure followed; the relevance of the alleged confiscation of the vessel; the determination of the violation of Article 73, para. 2, especially in light of the “human rights” dimension of prompt release proceedings. The discussion of the determination of the “reasonable” bond or other security does not add much to the previous decisions of the Tribunal on this matter, even though, as it will be seen, this may be cause for regret.

3. As regards procedural matters, in prompt release proceedings, after the application is submitted, strict time-limits apply in order to ensure the expeditious disposal of the case. A hearing must be held within 15 days, and a statement of

3

Available on the Tribunal’s website www.itlos.org.

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response by the detaining State may be submitted not later than 96 hours before the commencement of the hearings.4 In the present case the hearing was fixed for 1 and 2 December 2004.5 The detaining State informed the Tribunal on 26 November that it was not able to prepare for the hearing in the allotted time and asked for a postponement of the hearing by one week and a corresponding postponement of the time-limit for the response. The Tribunal met most of these requests, somehow forcing its Rules.6 It started the hearing on 1 December as decided. The sitting lasted, however, only a few minutes to decide that the hearing would be continued on 6 December. In a later communication Guinea Bissau informed the Tribunal that it would not be in a position to submit a written statement of defence (a submission that in any case was not compulsory, in its view, as the relevant Article 111, para. 5, of the Rules of the Tribunal uses the verb “may” in this connection). Even though, in talks between the parties and the President, the possibility of a short written statement before the beginning of the hearing was mentioned, in fact the hearing began with no indication of the position of the Respondent (paras. 4 to 25 of the Judgment; see also the Separate Opinion of Judge Chandrasekhara Rao, paras. 7 to 14). The applicant made his first pleading without any knowledge of such position. It was only when the time came for the respondent to begin its oral pleading that its case was made known to the Applicant and the Tribunal. In his second pleading, the Applicant made the point that, while the Respondent had had all the necessary time to study the Applicant’s case, the Applicant had not had such opportunity. It had only had a night to examine the Respondent’s arguments. It stressed that “[t]he Tribunal might perhaps want to grasp this opportunity to review the rules of procedure so that greater or more straightforward equity may be established between the parties”.7 In his Separate Opinion Judge Chandrasekhara Rao (a former President of the Tribunal) while admitting that “a party cannot be compelled to submit a statement” (para 16), underlined that: “[…] [T]he need for submission of a statement in response is not an empty formality, and such a statement is required to give notice to the applicant of the nature of the case to be presented by the detaining State. It is for this reason that article 111, paragraph 4, states that, if a statement in response is to be filed, it ought to be filed not later than

4 In the 1997 text of the Rules of the Tribunal these time-limits were even shorter. The present time-limits were introduced, in light of the first three prompt release cases, through an amendment to the rules adopted in 2001. The text of the Rules is available at www.itlos.org. 5 Order of 19 November 2004. 6 But following the precedent of the decision taken, in a similar situation, in the M/V “Saiga” (prompt release) case. See the Order of 21 November 1997, ITLOS Reports, 1997, p. 10. 7 Pleading of Professor Karagiannis, counsel for Saint Vincent and the Grenadines, 7 December 2004, Doc. ITLOS/PV.04/04, p. 14.


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96 hours before the hearing. The 96-hour period is considered essential for the applicant to understand the case of the detaining State and to express its considered and final position at the hearing” (para. 16). After observing that “there is […] a legitimate expectation built into article 111, paragraph 4, of the Rules that the detaining State would not miss the opportunity to present its case with supporting documents as provided for in that article” (para. 17), he stated: “In any event, it is inherent in the Rules of the Tribunal and the general principles of procedural law that each party must enjoy equal rights for the submission of its case to the Tribunal.8 Where a party fails to submit a statement in response and where the opposite party does not have sufficient time to respond to the statement made by the former during the oral proceedings, it may be difficult to maintain that the former has not obtained an unfair advantage over the other. The fact that both parties are given equal speaking time does not alter this position. The permissive provision in article 111, paragraph 4, of the Rules must not be used by a party to gain an unfair advantage over the other party” (para. 18). “Aggrieved by the disadvantaged position in which it was placed, the Applicant invited the Tribunal to review its Rules so that greater equity may be established between the parties. There is force in this request and the Tribunal should attend to it as soon as possible with a view to ensuring that neither side obtains any unfair advantage over the other. There are several ways whereby the principle of equal opportunities for the parties may be allowed full play, not all of which may entail amendment of the Rules” (para. 19). Judge Lucky, in his Separate Opinion, covered in part the same ground. He held that there is need to review the Rules of the Tribunal to make the response of the defendant compulsory. As a matter of fact, the Tribunal would have had the possibility to react to the astute tactics of the defendant so that the equality of the parties would have been better ensured. On the basis of Article 73, para. 2, of the Rules (“The Tribunal, after ascertaining the views of the parties, shall determine the order in which the parties will be heard […]”), it could, for instance, have organized the hearing in such a way that the respondent would have been the first to speak. It could also have given

8

See also ROSENNE, The Law and Practice of the International Court, 1920-1996, The Hague-London-Boston, 1997, Vol. III, p. 1092 (footnote in the original, with different numbering).

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more time to the applicant to prepare its reaction to the belated exposition of the Respondent’s position. The provision in Article 112, para. 3, of the Rules, that each party “shall be accorded, unless otherwise decided, one day to present its evidence and arguments”, does not mean that the whole hearing must be concluded in two days, as has been so far the case in the practice of the Tribunal: a day without oral pleadings between the first and the second day of hearing could be introduced to facilitate preparation by the Applicant in case the oral statement of the Respondent is the first exposition of the latter’s position. There is wisdom in the remark of Judge Chandrasekhara Rao quoted above that “there are several ways whereby the principle of equal opportunities for the parties may be allowed full play, not all of which may entail amendment of the Rules”.

4. The main argument put forward by the Respondent was that, as a consequence of non-payment of the fine, by effect of the decree-law of 22 August 2004, the ownership of the Juno Trader had reverted to the State of Guinea-Bissau with effect from 5 November 2004. This entailed that the Tribunal had no jurisdiction because the Applicant had not discharged “its initial burden of establishing that it was the flag State” at the time of the filing of the Application (para. 58), and that the Application was not admissible because Guinea-Bissau was “not the detaining vessel but rather in possession of the vessel as lawful owner” (para. 66). The Tribunal was thus confronted again with the arguments based on confiscation of the ship before the submission of the Application that had been raised by France in the Grand Prince case.9 In that case the Tribunal avoided responding to these arguments by finding that it lacked jurisdiction because the ship had not the nationality of Belize, the State “on behalf” of which the Application had been submitted. In the present case, again, the delicate question of the effect of confiscation was not tackled with directly, although for other reasons. The Tribunal observes that: “In its reply of 8 December 2004 to the question posed by the Tribunal, the Respondent stated that both the fines imposed by the decision of the IMCC and the legal consequences of that decision are subject to challenge in the courts of Guinea-Bissau. The Tribunal notes that the

9 Judgment of 20 April 2001, ITLOS Reports, 2001, p. 16, espec. paras. 57-59, and Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus, para. 17, ibidem, p. 70. See TREVES, ITLOS 2001, cit. supra note 1, pp. 166-169. On the confiscation aspect see OXMAN and BANTZ, “Un droit de confisquer? L’obligation de prompte mainlevée des navires”, in PEDONE (ed.), La mer et son droit, Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec, Paris, 2003, pp. 479-499; and PALCHETTI, “Sul rapporto tra procedura di pronta liberazione delle navi ed equipaggi e i procedimenti davanti ai giudici interni: il caso della nave Grand Prince”, RDI, 2001, pp. 745-749.


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decision of the Regional Court of Bissau, as referred to in paragraph 52, suspended the execution of Minute No. 14 ‘pending a definitive settlement of the present case’. The Tribunal also notes that, by suspending the execution of the fine imposed on the vessel, the decision of the Regional Court of Bissau has therefore rendered inapplicable any sanction for non-payment, including its confiscation” (para. 62). As a consequence of the confiscation not being effective, the arguments denying the jurisdiction of the Tribunal and the admissibility of the Application (which could be based on the alleged violation of fisheries laws) were rejected (paras. 64 and 70). In paragraph 63 the Tribunal adds that: “In any case, whatever may be the effect of a definitive change in the ownership of a vessel upon its nationality, the Tribunal considers that there is no legal basis in the particular circumstances of this case for holding that there has been a definitive change in the nationality of the Juno Trader”. The reasoning of the Tribunal on the points just considered is further developed and clarified in the Joint Separate Opinion of Judges Mensah and Wolfrum. First, they explain why the view of the Regional Court of Guinea-Bissau had to be preferred over that put forward by the respondent arguing for the confiscation of the ship. They argue that: “Given the difference between the statements concerning the law of Guinea-Bissau, as given by Respondent before the Tribunal, and the view of the law as it emerges from the decision of the Regional Court of Bissau, it is necessary for the Tribunal to make a choice as to which of these views it should base itself on in considering the status of the vessel. In making such a choice the Tribunal must operate on the basis that the obligation of States, including the State of Guinea-Bissau, under the Convention and under general international law, includes the obligation not to deny justice or due process of law, especially in respect of legal and judicial procedures that involve interference with the property rights of aliens. This general approach has been confirmed in the jurisprudence of the Tribunal. In the Judgment in the Saiga case (No. 1), the Tribunal stated that: ‘It is the opinion of the Tribunal that given the choice between a classification that implies a violation of international law and one that avoids such implication it must opt for the latter’ (paragraph 72). We believe that this general principle is applicable in the present case. This means that the Tribunal must base itself on the view of the law as given in the Order of the Regional Court of Bissau” (para. 6).

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Among other points made to reject the claim that a change in ownership implies a change in nationality of the ship, they further argue as follows: “9. […] [T]here is no legal basis for asserting that there is an automatic change of the flag of a ship as consequence solely of a change in its ownership. In this context we consider it important to emphasize the special importance of the nationality of a vessel, particularly in regard to the implementation and enforcement of international law rules pertaining to the rights and responsibilities of states in respect of the ship. 10. In view of the important functions of the flag State as referred to in article 94 of the Convention and also the pivotal role of the flag State in the initiation of the procedure for the prompt release of a ship under article 292 of the Convention, a procedure which may be compared to diplomatic protection of persons, it cannot easily be assumed that a change in ownership automatically leads to a change of the flag. The obligations and rights of the flag State in respect of the ship cannot be transferred automatically, particularly since the flag State has obligations and enjoys corresponding rights vis-à-vis other States. For this reason it is both necessary and appropriate that a change in flag should be in accordance with procedures established by the flag State for that purpose and it is also necessary that these procedures are consistent with the fundamental objectives of international law relating to the nationality of ships. In the present case, there is no evidence that the alleged loss of the flag of the Juno Trader had any basis in the law of the flag State or the relevant provisions of the Convention. 11. Equally, it is not tenable to argue that the Juno Trader has lost its flag in consequence of its alleged confiscation. Vessels without flags are the exception and, therefore, loss of flag of a ship cannot be assumed lightly. Further, and more importantly, a vessel that loses its flag also loses the protection of the flag State. In the context of the regime of prompt release of ships under article 292 of the Convention, ships are particularly dependent upon the protection of the flag State. A procedure that purports to result in the loss of flag of ships with little or no legal process would result in the absence of any effective protection for ships detained in foreign ports. This would undermine the delicate balance between the interests of the coastal state and the interests of the flag state that was intended to be established by the provisions of articles 73 and 292 of the Convention”. 5. The Tribunal had then to determine whether the alleged violation of Article 73, para. 2, of the Convention was well-founded, in other words: whether the just


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quoted provision, under which “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security”, had been infringed by Guinea-Bissau. The Tribunal noted “[…] that a bond for the release of the vessel and its crew was not requested by the detaining State and that the detaining State did not react to the posting of the bond referred to in paragraph 51 on behalf of the shipowner and failed to inform the shipowner that the bond, in its opinion, was not reasonable. The Tribunal further notes that the vessel is still detained in the port of Bissau and that the Applicant has not withdrawn its request concerning the release of the crew” (para. 75). Before stating in para. 80 that the Respondent had not complied with Article 73, para. 2, of the Convention, and that the application was well-founded, the Tribunal found it appropriate to introduce (together with two paragraphs on the situation of the crew) the following two paragraphs: “76. In the present case it is not contested that the notification to the flag State, as provided for in article 73, paragraph 4, had not been made. The connection between this paragraph and paragraph 2 of the same article has been noted by the Tribunal in the ‘Camouco’ Case. The Tribunal stated: ‘[T]here is a connection between paragraphs 2 and 4 of article 73, since absence of prompt notification may have a bearing on the ability of the flag State to invoke article 73, paragraph 2, and article 292 in a timely and efficient manner’ (ITLOS Reports 2000, pp. 29-30, para. 59). 77. The Tribunal considers that article 73, paragraph 2, must be read in the context of article 73 as a whole. The obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process of law. The requirement that the bond or other financial security must be reasonable indicates that a concern for fairness is one of the purposes of this provision”. This is the first time that the human rights aspect of prompt release proceedings is mentioned by the Tribunal,10 although it stops short of using this expression, 10

In legal literature, see, however, OXMAN, “Human Rights and the United Nations Convention of the Law of the Sea”, in CHARNEY, ANTON and O’CONNELL (eds.), Politics, Values and Functions: International Law in the 21st Century, Essays in Honor of Professor Louis Henkin, The Hague, 1997, pp. 377-404, p. 398; VUKAS, “Droit de la mer et droits de l’homme”, in VUKAS (ed.), The Law of the Sea: Selected Writings, Leiden-Boston, 2004, pp. 71-79, p. 75-77.

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as it prefers to refer to “elementary considerations of humanity”, “due process of law” and “fairness”. The present writer, in the Separate Opinion he appended to the judgment in his capacity of judge, has tried to illustrate the background of the important, but too succinct, observations of the Tribunal: “2. Article 73, paragraph 2, of the Convention, is to be read, as the Judgment states, in the context of the article as a whole. 3. Seen together in light of paragraph 1, paragraphs 2, 3 and 4 show clear concern for what has been called ‘the human rights consequences of expanding the bases of jurisdiction’ […]. Paragraph 2 stands at the centre of this group of provisions: prompt release is more likely if the flag State is informed promptly under paragraph 4 and the conditions of the crew are more bearable while waiting for release if no imprisonment is involved under paragraph 3. The obligation of prompt release that emerges from examining paragraph 2 in light of paragraphs 3 and 4 is an obligation of result and at the same time, at least in part, of means: prompt release of the vessel and crew is the result that must be obtained, but the means to obtain it are not without importance. Prompt release must be obtained, and the bond or other financial security must be fixed, through a procedure that respects due process. 4. The reminder, set out in the Judgment, of the close connection between paragraph 2 and paragraph 4 of article 73 of the Convention, already mentioned ‘in passing’ by the Tribunal in the Monte Confurco Judgment (ITLOS Reports 2000, p. 29, para. 59), is significant in a case as the present one in which it is not contested that the notification to the flag State provided for in paragraph 4 has not been effected. This is particularly so as this reminder appears in the part of the reasoning supporting the conclusion that the Respondent has not complied with article 73, paragraph 2, of the Convention. 5. In a prompt release case unnecessary use of force and violations of due process and of human rights in general may be relevant in various ways. In particular, lack of due process, when it consists in late communication of charges, in delay and uncertainty as to the procedure followed by the authorities, in lack of action by the authorities, may justify a claim that the obligation of prompt release has been violated even when the time elapsed might not be seen as excessive had it been employed in orderly proceedings with full respect of due process requirements. The same may apply when lack of due process is used to reach quickly the conclusion of domestic proceedings without seriously affording a possibility to consider arguments in favour of the detained vessel and crew. In both cases unnecessary use of force, and violations of human rights and due process of law are elements that


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must also be taken into consideration in fixing a bond or guarantee that can be considered as reasonable. 6. In the present case, the essential fact seems to me to be that between the time of arrest of the ship and the time of the application to the Tribunal (and also up to the hearing before the Tribunal) all domestic procedures held in the case (whatever other possibilities might have been open under the local law) have been inaudita altera parte (namely, without giving the accused party the possibility of being heard). In light of the abovementioned due process component of article 73, paragraph 2, this aspect is relevant not only in reaching the conclusion that indeed this provision has not been complied with, but also as regards the two consequences that follow the determination of such lack of compliance in the framework of proceedings under article 292. These are: the order of release and the fixing of the reasonable bond or other financial security. In the present case, the Tribunal has reached the conclusion – that I do not dispute – that confiscation has been suspended. Considering, nevertheless, the question in more general terms, confiscation obtained in violation of due process would seem to me abusive so that it cannot preclude an order for release. Fines imposed without procedural guarantees might also be seen as abusive and should not be taken as an automatic component of the bond or security”.

6. As regards the determination of the “reasonable bond or other security”, the Tribunal repeats the non-exhaustive list of factors developed in previous judgments.11 As regards one of those factors, the “gravity” of the alleged offences, it states, adding the nuance of proportionality to previous pronouncements: “It is by reference to the penalties imposed or imposable under the law of the detaining State that the Tribunal may evaluate the gravity of the alleged offences, taking into account the circumstances of the case and the need to avoid disproportion between the gravity of the alleged offences and the amount of the bond” (para. 89). An aspect the Tribunal did not consider, possibly because such consideration might have brought it close to examining the merits, is the strength (or the prima facie strength) of the evidence of the alleged offence committed by the detained vessel. This aspect is, nevertheless, briefly but eloquently examined in a Joint Declaration of Judges Kolodkin, Anderson and Cot. They state:

11

Paras. 82-85.

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“In the final analysis, an alleged offence is less likely to be found to be ‘grave’ if it is not supported by evidence. In many countries, including in particular common law jurisdictions,12 when a Magistrate or similar judicial officer is releasing from custody an accused person pending trial on a criminal charge (a situation not dissimilar to the Tribunal’s task under article 292), the amount of the bond or bail is determined after taking into account (among other factors) the nature and strength of the evidence adduced in support of the charges and the likelihood of conviction. In our opinion, the Tribunal is equally entitled, in assessing the reasonableness of the amount of a bond or other financial security, to take into account the nature and strength of the evidence supporting the charges. This assessment is entirely ‘without prejudice to the merits of the case before the appropriate domestic forum’ as indicated in paragraph 3 of article 292” (para. 2). In light of these observations, the three judges state that they “could have supported a lower amount for the bond” determined in the judgment.

7. It seems interesting to give some indications on developments in 2004 following judgments or provisional measures orders handed out by the Tribunal. The most significant developments concern the Land Reclamation by Singapore in and around the Straits of Johor case (Malaysia v. Singapore), submitted to an arbitral tribunal under Annex VII of the Convention. This arbitral tribunal was instituted after the Law of the Sea Tribunal had handed down its provisional measures Order on 8 October 2003.13 The developments in 2004 and early 2005 can be seen as significant and positive results of the “dispute-management” oriented order of the Tribunal.14 Even though, at the time of writing, the final formal steps have not been taken, it would seem that the dispute is being settled on the basis of the implementation of the measures prescribed by the Tribunal, with no need for substantive activity by the Annex VII arbitral Tribunal. Following the prescriptions of the Law of the Sea Tribunal’s provisional measures Order and shortly after the establishment of the Arbitration Tribunal, the parties set up a group of independent experts to conduct a one-year study on the effects of land reclamation and to recommend, where appropriate, measures to deal with adverse effects of land reclamation by Singapore. The “Report of the Group of

12

In this context, it may be recalled that the procedure of prompt release was first put forward by the delegation of the United States, a common law country (footnote in the original with different numbering. Further footnotes omitted). 13 ITLOS Reports, 2003, p. 4. 14 TREVES, “ITLOS 2003”, cit. supra note 1, pp. 164-166.


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Independent Experts (GOE) in the matter of the ITLOS Order of 8 October 2003” was submitted to the parties on 5 November 2004 and presented to them on 22-23 December. According to a Joint Press Release of 14 January 2005,15 the Governments of Malaysia and Singapore met on 22-23 December 2004 and on 7-9 January 2005 to consult on how to implement the recommendations made unanimously by the Group of Experts (GOE). The Joint Press Release continues as follows: 3. Both Governments accepted the recommendations of the GOE and agreed to use these recommendations as the basis of a mutually acceptable and beneficial solution. Very good progress was made during these two meetings, and the two delegations concluded an ad referendum agreement. Malaysia will be submitting the draft Settlement Agreement to its Government for approval and signature. 4. The two Governments agreed that the waters in the Straits of Johor constitute a shared water body. They recognised that they have a common interest in cooperating to ensure the safety of navigation in the Straits of Johor. The two Governments also recognised that they have a common interest in cooperating to protect the environment, including the monitoring of water quality to protect the marine and estuarine environment, and monitoring ecology and morphology in the Straits of Johor and to address any adverse impacts, if necessary. 5. In this regard, the two Governments agreed that monitoring and exchange of information in these two areas will be done through existing mechanisms, namely, the Maritime and Port Authority of Singapore-Johor Port Authority (MPA-JPA) Operational Meeting of which, for the Government of Malaysia, a representative of the Marine Department, Peninsular Malaysia shall be designated to cochair the said Meeting, and the Malaysia-Singapore Joint Committee on the Environment (MSJCE). 6. The meeting ended on 9 January 2005 with the Parties agreeing ad referendum on the text of a draft Settlement Agreement. The two Governments then appeared before the Annex VII Tribunal in The Hague on 10 January 2005 to provide a briefing on the progress of the consultations. The two delegations will submit the draft Settlement Agreement to their respective Governments for approval before signing on a date and venue to be agreed upon.

15 Joint Press Statement of the Governments of Malaysia and Singapore dated 9 January 2005 (http://app.mfa.gov.sg/internet/press/view_press.asp?/posted=1229). See also the less detailed Press Release dated 14 January 2005, of the Permanent Court of Arbitration, available at www.pca-cpa.org.

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7. The Singapore side has proposed for the Settlement Agreement to be submitted to the Annex VII Tribunal for their adoption to constitute the basis for an award. The Malaysian side has agreed in principle to an award by the Annex VII Tribunal subject to the approval by the Government of Malaysia. The Mox Plant case arbitration under Annex VII of the Convention remains suspended waiting for the decision of the European Court of Justice on the proceedings instituted by the European Commission against Ireland.16 The Swordfish case between Chile and the European Community remains inactive as a consequence of the already reported provisional arrangement between the parties. The time-limit for the submission of the first written pleadings is now fixed on 1 January 2006.17 The Juno Trader has been released by Guinea-Bissau in April 2005. Difficulties concerning the form of the bank guarantee, that had been the main cause of the delay, were overcome through negotiations between the Government of Guinea Bissau and the shipowners.

16

TREVES, “ITLOS 2003”, cit. supra note 1, pp. 166-169. Order of 6 December 2003, ITLOS Reports, 2003, p. 69. For the previous postponement of the time-limit for the submission of preliminary objections, see TREVES, “ITLOS 2001”, cit. supra note 1, p. 173. 17

REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2004 BY THE EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO INTERNATIONAL LAW SIMONA GRANATA*

1. Alea iacta est. Protocol No. 14 to the European Convention on Human Rights, amending the monitoring system,1 was adopted by the Committee of Ministers on 13 May 20042 and opened for signature by Council of Europe member States, signatory to the European Convention, on the same day. In addition, the Committee of Ministers adopted a declaration whereby member States recognised the urgency of the reform and committed themselves to ratifying Protocol 14 within two years. So far, 32 countries have signed it and six of those have ratified it.3 It will enter into force once ratified by all the States party to the Convention. As is underlined in the Explanatory Report, “unlike Protocol 11, Protocol 14 makes no radical changes to the control system established by the Convention”. Changes rather relate to its functioning,4 notably its processing of clearly inadmissible and of repetitive applications. They concern three main areas: reinforcement of the Court’s capacity of filtering unmeritorious applications; introduction of a new admissibility criterion (“no significant disadvantage for the applicant”); provision of measures for dealing with repetitive cases. How will applications be processed once Protocol 14 comes into force? First of all, as it has always been, the Court will look, at the outset, for reasons to reject applications. Only those applications which will not be rejected on any grounds will continue on. Protocol 14 is designed to allow the Court to carry out this screening operation quicker (through simplified, summary procedures, and in smaller formation) and on an additional ground.

* Head of the Constitutional Co-operation Division at the Secretariat of the Council of Europe’s European Commission for Democracy through Law (“the Venice Commission”). The views expressed are solely those of the author. 1 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention, CETS No. 194, available at http: //conventions.coe.int. 2 At the 114th Session of the Committee of Ministers, 12-13 May 2004. 3 In January 2005. 4 Further changes touch upon other areas. The term of office of judges has been increased to nine years, but becomes non-renewable. The Council of Europe Commissioner for Human Rights becomes entitled to intervene in all cases before a Chamber or the Grand Chamber (see PACE Recommendation 1640(2004)). The Court may place itself at the disposal of the parties with a view to securing a friendly settlement at any stage of the proceedings, as opposed to following an admissibility decision as is currently the case. The Committee of Ministers will be able


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Clearly unmeritorious applications,5 not requiring any “further examination”, will be declared inadmissible or struck off the list by single judges,6 assisted by non-judicial rapporteurs who will be part of the registry. If a single judge may not reach a decision, he or she will forward the case to either a committee or a chamber for further examination. Repetitive cases (that is to say, manifestly well-founded cases, “meritorious” applications which do not raise any novel questions either under national law or in respect of the interpretation or application of the Convention) will be dealt with by committees of three judges. The latter, in addition to dealing with clearly inadmissible cases which have not been rejected by single judges, will thus be empowered (Article 28 para. 1(b)) to issue final judgments (dealing at the same time with both the admissibility and the merits of the applications, as well as with just satisfaction matters), so long as the underlying question is already the subject of well-established case-law of the Court. This will spare the committee the need to issue an admissibility decision first, followed by a judgment. When a committee intends to apply Article 28, para. 1, it will bring the relevant case (or even group of cases) to the attention of the respondent State, which will have the opportunity of contesting the application of the simplified procedure, without however having a veto power. The Committee will have the possibility of inviting the judge elected in respect of the respondent party to sit in it replacing one of its members, for example if it feels that an in-depth knowledge of the domestic system is necessary. However, as a rule, the judge elected in respect of the respondent country is not an ex-officio member of the committee. Cases which cannot be rejected either by a single judge or by a committee of three judges and are not repetitive cases will be examined by Chambers, which, as a rule, will decide simultaneously the admissibility and the merits of applications (unless they decide otherwise on a case-by-case basis: Article 29 of the Convention).7 to initiate infringement proceedings when a State “refuses to abide by a final judgment”, whereby it will ask the Court to say in a judgment whether that State has failed to fulfil its obligations under para. 1 of Article 46 of the Convention. Finally, it is explicitly foreseen that “the European Union may accede to this Convention”; however, at the time when Protocol 14 was drafted, the European Union lacked competence to accede to the Convention, which made it impossible to include in Protocol 14 the other necessary changes to allow accession. Accordingly, such further modifications will have to be included either in another amending protocol or in an accession treaty, and will require a second ratification procedure. 5 It seems appropriate to stress that the often-used term “unmeritorious application” merely relates to its chances of going through the admissibility procedure, and not to the veracity of the allegations of the applicant! 6 The Court currently sits in committees of three judges, in chambers of seven judges and in a Grand Chamber of seventeen judges. Single-judge formation will be possible in addition to the current ones. 7 Under the current Article 29, para. 3, the Court may in exceptional circumstances decide not to take the decision on admissibility and that on the merits separately.

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A new admissibility criterion inserted in Article 35, para. 3(b), of the Convention will allow the Court to reject applications which would otherwise be admissible (repetitive cases, for instance) when “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention or its Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground that has not been duly considered by a domestic tribunal”. For the first two years after the entry into force of Protocol 14, this criterion will be applied exclusively by the Grand Chamber and the Chambers (not by the Committees and by single judges).8 During this time, it is expected that the Grand Chamber and Chambers will interpret this new requirement, thus ensuring to avoid the rejection of cases which instead would require an examination on the merits.9

2. The measures introduced by Protocol 14 cannot but improve the processing pace of applications in Strasbourg. The skills of the registry (whose influence on the outcome of the proceedings becomes potentially very significant), coupled with the increased availability of judges, will certainly allow for a greater productivity. All possible venues have been exploited: any application blatantly devoid of any substance will be immediately rejected with the smallest work and judicial involvement; applications which have no chances of success will be quickly rejected; repetitive cases will be decided by fewer judges and the decision on admissibility will be joined to that on the merits (which saves work, money and time).10 Friendly settlements are encouraged at the early stage of the procedure (and will likely be used increasingly often, provided that the Court shows less reluctance in indicating precisely what criteria it uses in awarding just satisfaction). This increased efficiency comes at a price, of course. Protocol 14 had altered the content of the right of individual petition. Petitioners will no more receive assistance from the registry in completing their application forms; they will no more 8 In accordance with the transitional rule set out in Article 20, para. 3, the new admissibility criterion will not apply to applications declared admissible before the entry into force of Protocol 14. 9 According to the explanatory memorandum (para. 39 in fine), these “meritorious” cases include those which, notwithstanding their trivial nature, raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. 10 According to the CDDH, the summary procedures preserve the adversarial and judicial nature of the proceedings in Strasbourg: see “Guaranteeing the Long-Term Effectiveness of the Control System of the European Convention on Human Rights”, CDDH(2003)006, p. 20 ff.

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be shown understanding when faced with the rejection of their case; they will no more receive full decisions taken by panels of judges. It is true that a jammed court would in any event have failed to administer justice. And it is also true that these aspects do not touch the essence of the right of individual petition. The same is not true, however, in respect of the new admissibility criterion. This new requirement prevents well-founded cases from going through, on the only ground that prejudice suffered by the applicant is not “significant”. But the principle that well-founded claims should receive the attention of the Court and lead to a binding judgment whereby the responsible State is put under the obligation to redress the violation should not be the object of compromises. Understandably, the introduction of the new admissibility criterion has raised many perplexities and objections.11 The Strasbourg Court resulting from Protocol 14 has been referred to as a “Court of Damages”, as opposed to a “Court of Subjective Right”. In addition to being the object of objections of principle, the new criterion has been accused of being vague and subjective, and also inexpedient (it will affect only 1, 6% of existing cases, and will therefore have little impact on the workload). The significant disadvantage test will probably be applied differently in respect of different States and by different Chambers of the Court. In addition, the necessary elaboration of the guiding principles as to the significant disadvantage test during the first two years will require Chambers and even the Grand Chamber to devote considerable time and energy to this matter. Finally, it may turn out, unintentionally, to put a premium on financial disadvantages suffered, thus de facto discriminating against female applicants before the Court. Time will say if these objections are well-founded. A balanced and careful development by the Court of guidelines for applying this criterion in a fair and consistent manner might reduce the harm produced by the new Article 35, para. 3, of the Convention. But it undoubtedly represents a major step backwards in the history of the European mechanism of human rights protection.

3. To use President Wildhaber’s blunt expression, Protocol 14 “will not itself reduce the volume of cases coming to Strasbourg; it will not turn off the tap; it will not even slow down the flow”.12

11

PACE Opinion 251 of 28 April 2004 on Protocol 14, text adopted by the Assembly on 28 April 2004 (13th Sitting); Report of the PACE Committee on Legal Affairs and Human Rights, Doc. 10147 of 23 April 2004; Amnesty International’s Comments on the Interim Activity Report: Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, available at http://web.amnesty.org/library/Index/ENGIOR610052004?open&of=ENG-2EU. 12 “Consequences for the European Court of Human Rights of Protocol No. 14 and the Resolution on judgments revealing an underlying systemic problem – Practical steps of imple-


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Human Rights protection begins and ends at home: effective national measures should be capable of preventing human rights violations, and, when this is not the case, effective national measures must ensure compliance with Strasbourg judgments and avoid the commission of further violations. Failure or delay in taking such measures will inevitably generate more individual complaints before the Strasbourg Court. Indeed, Protocol 14 is part of a wider package of measures which the Committee of Ministers has adopted with a view to guaranteeing the effectiveness of the supervisory system. These measures target university education and professional training;13 the verification of the compatibility of draft laws, existing laws and administrative practice with the Convention standards;14 improvement of domestic remedies.15 These suggestions seem pretty obvious to anyone who is acquainted with the principles of human rights protection. The main principle is indeed that of subsidiarity. And yet, the second reform of the European Convention has cast a new light on it, and seems to have shaken the States which have finally pledged to take care of these problems at home. Wouldn’t this be ideal? All efforts must now concentrate not upon criticizing Protocol 14, but upon seeing to it that it leads to the best possible results and upon giving any possible good suggestion in order to allow that it be applied in the most coherent and human right compatible manner.

4. The case of Broniowski v. Poland (Application No. 31443/96, Grand Chamber, Judgment of 22 June 2004) is the first “pilot judgment” to be explicitly called so. In this case, for the first time, the Court, in application of the Committee of Ministers’ Resolution DH(2004)3,16 acknowledged and addressed the “systemic nature”17 of the problem which had prompted it to find a violation of Article 1 of

mentation and challenges”, address of WILDHABER at the High-level Seminar on “Reform of the European Human Rights System”, Oslo, 18 October 2004, published with the proceedings of the seminar by the Directorate General of Human Rights of the Council of Europe. 13 Committee of Ministers Recommendation REC(2004)004. 14 Committee of Ministers Recommendation REC(2004)005. 15 Committee of Ministers Recommendation REC(2004)006. 16 The Committee of Ministers had invited the Court (Resolution DH(2004)3) to identify systemic problems in its judgments and had recommended that in such circumstances the Contracting States should set up effective remedies in order to avoid repetitive cases being brought before the Court. See also, in this direction, the Venice Commission’s report on “Implementation of judgments of the European Court of Human Rights”, CDL-AD(2002)34, paras. 54-63. 17 The Council of Europe’s Director General of Human Rights has pointed out the difference between a “systemic” or “structural” problem – that is to say endemic and widespread problems or dysfunctions in the domestic legal system – and “a specific” problem which nonetheless affects a large number of persons. Both kinds of problems should fall within the scope of application of Resolution DH(2004)3. However, specific problems affecting large numbers of

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Protocol No. 1 (concerning Poland’s acts and omissions in relation to the implementation of the applicant’s entitlement to compensatory property, vested in him by domestic legislation at the time of entry into force of the Protocol and subsisting at the time of lodging his application). Indeed, the Court acknowledged that the violation which it found in this case had originated in the malfunctioning of domestic legislation and administrative practice, and affected a lot of people. In fact, the systemic nature of the problem had been recognised by the domestic courts. It followed that the deficiencies in national law and practice identified in the applicant’s case were likely to give rise to numerous well-founded applications. Under Article 41, States are obliged not only to pay sums awarded as just satisfaction but also to select, subject to the Committee of Ministers’ supervision, the general and individual measures to be adopted in order to put an end to the violation and to redress the effects as far as possible. While it is in principle not for the Court to determine what remedial measures may be appropriate under Article 46, in view of the systemic situation which it had identified, general measures at national level were undoubtedly called for and the measures had to be such as to remedy the systemic defect so as to avoid the Convention system being overburdened with large numbers of applications deriving from the same cause. Thus, the measures ought to include a scheme offering redress to those affected, either by removing any hindrance to the implementation of the claimants’ right or by providing equivalent redress. The Court reserved the question of just satisfaction for pecuniary and non-pecuniary damage and only made an award in respect of costs and expenses. The Broniowski case has identified a problem which touches 80,000 other individuals. Pending its examination, the Court has suspended its examination of 167 similar cases. Although “pilot judgments” already existed in the practice of the Court, this is obviously the first time that the Court has accepted to “play the game” and be involved more directly in the matters of execution. A lot of pressure is, consequently, now put on both the respondent State and the Committee of Ministers: the success of this “joint-venture” will probably be the first indicator of whether the reform package has chosen to go in the right direction.

5. In 2004, the Court had the opportunity, through three judgments, of recalling, clarifying and expanding on its interpretation of Article 1 of the Convention, persons can be addressed through specific measures which normally would not need a long time to take – while truly systemic problems may require a more complex and lengthier process (see IMBERT, “Follow-up to the Committee of Ministers Recommendations on the implementation of the Convention at the domestic level and the Declaration on ‘Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels’”, speech delivered at the High-level Seminar on “Reform of the European Human Rights System”, Oslo, 18 October 2004, and published with the proceedings of the seminar by the Directorate General of Human Rights of the Council of Europe).


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which provides that: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. The case of Assanidze v. Georgia (Application No. 71503/01, Grand Chamber, Judgment of 8 April 2004) raised the issue of whether Georgia had jurisdiction within the meaning of Article 1 of the Convention over the Ajarian Autonomous Republic. The facts of the case (insofar as falling within the competence ratione temporis of the Court) were the following. In October 2000, Mr Assanidze, the former mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member of the Ajarian Supreme Court, was sentenced by the Ajarian High Court to twelve years’ imprisonment on a charge of kidnapping. Upon his appeal on points of law, in January 2001 the Supreme Court of Georgia quashed the conviction, acquitted him and ordered his immediate release, in a decision that was final and subject to no appeal. The applicant however was not released, despite various legal and political attempts by the central Georgian authorities. The applicant complained of a violation of his right to liberty and security on account of his continued detention despite acquittal by the Supreme Court of Georgia. The Court addressed in the first place the question of whether the applicant’s complaints relating to the conduct of the local authorities of the Autonomous Republic of Ajaria, a Georgian entity with autonomous status, came within Georgia’s jurisdiction within the meaning of Article 1 ECHR. The Court considered at the outset that the competence of Georgia could be presumed, given that the Autonomous Republic was indisputably an integral part of the territory of Georgia and subject to its “competence and control”. Further elements confirmed this presumption: Georgia had ratified the Convention in respect of the whole of its territory (but, in any case, a territorial reservation would not be valid in respect of an Autonomous Republic, which is not a “dependent territory” within the meaning of Article 56, para. 1, of the Convention), Ajaria did not have any separatist aspirations and no other State exercised effective overall control there. The Court added that, even assuming that Georgia was a federal State (which it was not), the European Convention did not contain a federal clause similar to Article 28 of the American Convention on Human Rights;18 at any rate, a federal

18 Article 28 of this Convention (Federal Clause) reads as follows: “1. Where a State Party is constituted as a federal state, the national government of such State Party shall implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction. 2. With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfilment of this Convention. 3. Whenever two or more States Parties agree to form a federation or other type of association, they shall take care that the resulting federal or other compact contains the provisions necessary for continuing and rendering effective the standards of this Convention in the new state that is organized”.

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clause would not have discharged the federal State from all responsibility in respect of the federated States. In addition, the Court made clear that it could not allow a State to select the parts of its territories to which the Convention was applicable, as it would otherwise have rendered the protection afforded by the Convention meaningless and would also have discriminated vis-à-vis other States which had accepted the application of the Convention over the whole of the territory. The Court admitted that the facts out of which the applicant’s complaints had arisen were directly imputable to the Autonomous Republic, and not to the central State. However, the Court recalled that the central State was internationally responsible, and strictly liable, therefore, irrespective of the national authority, be it central or local, to which the breach of the convention was imputable. Article 1 of the Convention in fact imposed on the States parties the duty to implement the national system so as to secure compliance with the Convention throughout their territory. The matters complained of were therefore within the jurisdiction of Georgia. The Court found that there had been a breach of Article 5, para. 1, of the Convention on account of the lack of any legal basis, be it a statutory provision or a judicial decision, for the applicant’s continued detention after his acquittal by the Supreme Court of Georgia. The Court also found that the failure to comply with a final and enforceable decision to acquit for more than three years had deprived Article 6, para. 1, of all useful effect. After awarding compensation for pecuniary and non-pecuniary damage, the Court also indicated that in order to put an end to the violations, Georgia was required to secure the applicant’s release at the earliest possible date.

6. The case of Ilașcu and Others v. Moldova and Russia (Application No. 48787/99, Grand Chamber, Judgment of 8 July 2004) raised the question of whether “the Moldavian Republic of Transdniestria” (MRT), a part of the Moldovan territory under the de facto authority of the separatist administration in Tiraspol, fell within the jurisdiction of Moldova and of Russia, on account of the territorial sovereignty as regards the former (the “Moldavian Republic of Transdniestria” has not been recognised by the international community) and on account of the continued military presence and effective control, as concerns the latter. The facts of the case were the following. In June 1992, the four applicants were arrested by a number of persons some of whom wore uniforms bearing the insignia of a former USSR army. They were accused of anti-Soviet activities, fighting by illegal means against the State of Transdniestria and other offences, including murder. They were ill-treated while in custody. Three of them were taken to the garrison of the Russian army, where they claim they were guarded and tortured by soldiers of that army. They had no access to the outside world and were held in cells which had no toilets, water or natural light, with only a few minutes of outdoor exercise each day. They were thereafter held at a remand centre, whose cells had no natural light, and isolated from the outside world with only sporadi-


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cally authorised family visits. The applicants were convicted in December 1993 by the Supreme Court of the MRT, which sentenced the first applicant to death and the others to lengthy terms of imprisonment. The Supreme Court of Moldova examined the judgment of its own motion and quashed it, ordering the applicants’ release, but the MRT authorities did not respond to this judgment. Following their conviction, the applicants were held in single cells with no natural light. Although their health deteriorated on account of the detention conditions, they did not receive proper medical treatment. Their detention conditions worsened after their application was lodged with the Court. The first applicant was released in May 2001; the others remained in prison. The applicants had complained of their conviction by a Transdniestrian court which was not competent for the purposes of Article 6 of the Convention, that they had not been given a fair trial, and that they had been deprived of their possessions on account of their conviction. They had further complained of the unlawfulness of their detention and of the conditions of their detention. The Court dealt in the first place with the matter of jurisdiction. The Court recalled that although there was a presumption that “jurisdiction” is exercised throughout a State’s territory, there could be exceptional circumstances in which a State was in fact prevented from doing so. In order to establish whether such a situation existed, the Court needed to look at not only the objective facts, but also the State’s conduct, since the State had positive obligations to take appropriate steps to ensure respect for human rights within the whole of its territory. The Court also recalled that in exceptional circumstances the acts of a State which took place or produced effects outside its territory could also amount to the exercise of “jurisdiction”, and that where a State exercised overall control in an area outside its territory, its responsibility extended to acts of the local administration which survived by virtue of its support. In addition, acquiescence in the acts of a private individual could also engage the State’s responsibility, in particular in the case of recognition by the State of the acts of self-proclaimed authorities not recognised by the international community. The Court observed that the Moldovan Government, which was the only legitimate one under international law, did not exercise authority over the part of its territory under the control of the MRT. That Government had nevertheless a positive obligation to take the measures within its power to secure the applicants’ rights. These obligations, in the present case, related both to the measures needed to re-establish control over Transdniestria and to measures to ensure respect for the applicants’ rights, including attempts to secure their release. The obligation to reestablish control required Moldova to refrain from supporting the MRT regime and to take all the measures at its disposal to re-establish its control. In that respect, the Court noted that the Moldovan authorities had never stopped complaining of the “aggression” and had rejected the MRT declaration of independence, while there was little they could do against a regime sustained by a power such as the Russian Federation. Moldova had continued to take steps both internally and internationally

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after the 1992 ceasefire and after ratifying the Convention in 1997, in particular at the diplomatic level. While cooperation with MRT authorities had been established in a number of areas, these acts represented an affirmation of the desire to re-establish control and could not be regarded as support for the regime. In respect of the applicants’ specific situation, certain measures had been taken prior to ratification of the Convention. However, there was no evidence that, since the release of the first applicant in May 2001, effective measures had been taken to put an end to the continuing infringements of the other applicants’ rights. In particular, they did not seem to have been mentioned in the continuing negotiations. The Court considered therefore that Moldova’s responsibility was capable of being engaged on account of its failure to discharge its positive obligations with regard to the acts complained of which occurred after May 2001. The Court then observed that the Russian Federation had supported the separatist authorities during the conflict and had subsequently signed the ceasefire agreement as a party. Its responsibility was thus engaged in respect of the unlawful acts committed by the separatists, including on account of the continued military, political and economic support after the ceasefire agreement. In addition, it had been established that the applicants had been arrested with the participation of Russian troops and three of them had been detained and ill-treated on their premises. The Court considered therefore that the applicants came within the jurisdiction of the Russian Federation, although the Convention was not at that time applicable: indeed, the events had to be considered to include not only the acts in which the Russian agents had directly participated, but also the transfer of the applicants into the hands of the MRT regime and their subsequent ill-treatment. According to the Court, in fact, the agents of the Russian Federation were fully aware that they were handing the applicants over to an illegal and unconstitutional regime and knew, or should have known, the fate which awaited them. After ratification of the Convention in May 1998, the Russian army remained stationed on Moldovan territory and the Russian Federation also provided significant financial support. It followed that the MRT remained under the effective authority, or at the very least the decisive influence, of the Russian Federation: there was a continuous link of responsibility for the applicants’ fate, since after ratification no attempt had been made to put an end to their situation. The applicants therefore came within the jurisdiction of the Russian Federation and its responsibility was engaged. The Court subsequently declined jurisdiction ratione temporis over the complaints relating to the fairness of the applicants’ trial. It considered instead to have jurisdiction over the complaints relating to the lawfulness and the conditions of the applicants’ detention, and to the imposition of the death penalty over one applicant (which it examined however under Article 3). In respect of the applicant’s detention under the death penalty, the Court considered that the applicant had lived in constant fear of execution, had been unable to exercise any remedy, and had been aware that his sentence had no legal basis


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or legitimacy, which aggravated his anguish. The detention conditions had had a deleterious effect on his health, while he had not received proper medical care or nutrition. Correspondence and visits had only been allowed on an arbitrary basis, which had made the conditions of detention even harsher. Accordingly there had been a breach of Article 3 of the Convention. In this applicant’s case, it amounted to torture. The Russian Federation was responsible for this breach. Moldova instead could not be held responsible, given that the Court had found that at that time it was discharging its positive obligations. The treatment of the third applicant and the conditions in which he had been kept also amounted to torture. As he remained in these conditions, the responsibility of both the Russian Federation and Moldova was engaged as from the respective dates of ratification. The other two applicants had been kept in extremely harsh conditions which amounted to inhuman and degrading treatment and the responsibility of both States was engaged. As regards the lawfulness of the applicants’ detention, the Court held that, in view of the arbitrary nature of the proceedings leading to their conviction, none of the applicants could be considered as having been convicted by a “court” and the prison sentences imposed on them could not be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”. This conduct was imputable to the Russian Federation in respect of all the applicants, whereas the responsibility of Moldova was engaged only in respect of the second, third and fourth applicants. Finally, the Court considered that, on account of the impossibility for the applicants to lodge themselves an application to the Court, and also on account of the threats and of the aggravation of the detention conditions after the submission of the application in Strasbourg, the applicants’ right of petition had been hindered. This engaged the responsibility of both Moldova and the Russian Federation. The Court awarded compensation for both pecuniary and non-pecuniary damage.

7. The case of Issa and Others v. Turkey (Application No. 31821/96, Section II, Judgment of 16 November 2004) raised the issue of whether Turkey could be said to have had effective control over the part or Iraqi territory where the facts out of which the complaints arose occurred. The facts of the case are the following. The applicants, from northern Iraq, alleged that in April 1995, during an operation of the Turkish army in the hills surrounding their village, they were out shepherding, when they came across Turkish soldiers who ill-treated them and took their husbands away. Their search for their relatives was unsuccessful. They therefore requested the release of their relatives to a Turkish military unit in the area, but the latter denied to have detained them. The bodies of the applicants’ relatives were found some days later with bullet wounds and mutilated. No investigation into these deaths was carried out despite the applicants’ repeated petitions with the authorities of the region. Although the Government admitted that they had carried out a military operation in northern

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Iraq in March-April 1995, they disputed that their forces were present in the area indicated by the applicants. The applicants had complained of the alleged unlawful arrest, detention, illtreatment and subsequent killing of their relatives. The Court dealt at the outset with the question of whether Turkey had “jurisdiction” over the applicants’ relatives, a matter which was inextricably linked to the facts underlying the applicant’s allegations and therefore to the merits of the application. The Court needed to establish whether in March and April 1995, besides carrying out military operations in northern Iraq, Turkey had exercised effective overall control over that entire area, and in particular whether they had conducted operations in the area where the killings had taken place. In the light of the documentary evidence submitted by the parties, and bearing in mind that in that area there had been fierce fighting between PKK militants and KDP peshmergas at the time, it could not be concluded with certainty that Turkish troops had gone as far as the valleys and hills surrounding the applicants’ village. In addition, the post-mortem reports and the other evidence before the Court was unable to confirm that the gunfire had been discharged by Turkish troops. Thus, it could not be established to the required standard of proof that the Turkish armed forces had conducted operations in the areas in question. In the light of the above, the “jurisdiction” of Turkey over the applicants’ relatives for the purposes of Article 1 of the Convention could not be established and it was not necessary to examine the applicants’ complaints.

8. The three judgments outlined above have both brought clarity and added new elements in respect of the Court’s interpretation of the notion of “jurisdiction” for the purposes of Article 1 of the Convention. This is the current state of affairs on this matter. The basic premise is that the notion of “jurisdiction” is, as in public international law, primarily territorial, extending to certain exceptional cases, such as acts of public authority performed abroad by diplomatic or consular representatives of the State; the criminal activities of individuals overseas against the interests of the State or its nationals; acts performed on board vessels flying the State flag or on aircraft or spacecraft registered there, and particularly serious international crimes. There is thus a presumption that jurisdiction is exercised by the State throughout its territory. As concerns the internal structure of a State, situations in which certain acts are directly imputable to local authorities (an Autonomous Republic, for example, or a federated State) do not alter the jurisdiction of the central State: the latter remains internationally responsible, hence strictly liable, for any convention breach imputable to its national authorities. There may nonetheless be exceptional circumstances in which a State may be considered not to have “jurisdiction” over part of its own territory. This may occur


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when the State is prevented from doing so, notably as a result of military occupation by the armed forces of another State which effectively controls the territory concerned (see Loizidou v. Turkey, Cyprus v. Turkey), or as a result of acts of war or rebellion, or as a result of the acts of a foreign State supporting the installation of a separatist State within the territory of the State concerned (Ilașcu and Others v. Moldova and Russia). In the Court’s view, however, the circumstance that a State does not have control over part of its territory does not automatically entail that it does not have jurisdiction over it for the purposes of Article 1 of the Convention. Rather, the scope of such jurisdiction is reduced, and is limited to positive obligations aiming at ensuring respect for human rights within its whole territory. These obligations amount to taking the diplomatic, economic, judicial or other measures that it is in the power of the State to take, vis-à-vis foreign States and international organisations, and that are in accordance with international law. The extent of these positive obligations varies depending of course on the specific circumstances of the case, and also on the rights allegedly infringed, absolute rights such as those guaranteed by Articles 2 and 3 of the Convention requiring of course maximum effort. In case of the installation of a separatist regime within the territory of a State, the positive obligations of the latter will normally include measures needed to reestablish control over such territory, as an expression of its jurisdiction. Despite the preponderance of the territorial principle in the application of the Convention, the concept of “jurisdiction” within the meaning of Article 1 is not necessarily restricted to the national territory of the Contracting States. Indeed, the acts of a State which take place or produce effects outside its territory may also exceptionally amount to exercise by it of “jurisdiction”. A State’s responsibility may thus be engaged where, as a consequence of – lawful or unlawful – military action, it exercises in practice effective control of an area situated outside its national territory.19 It is not necessary to ascertain whether a State actually exercises detailed control over the policies and actions of the authorities in the areas situated outside the national territory: overall control of the area may engage the responsibility of the State. This control may be exercised directly, or through armed forces, or through a subordinate local administration. Single military actions, such as air strikes, do not necessarily amount to controlling a territory for the purposes of Article 1.20

19

See Loizidou v. Turkey (merits), Judgment of 18 December 1996, Reports of Judgments and Decisions (hereinafter “Reports”), 1996-IV, pp. 2234-2235, para. 52. 20 See Banković and Others v. Belgium and Sixteen Other Contracting States, Application No. 52207/99, Grand Chamber, Decision of 12 December 2001, Reports of Judgments and Decisions 2001-XII. See GRANATA, “Review of Judgments and Decisions Delivered in 2001 by the European Court of Human Rights on Subjects Relevant to International Law”, IYIL, 2001, p. 215 ff., pp. 217-220.

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When a State controls an extra-territorial area, it is responsible in primis for the acts of its soldiers or officials in that area. In addition, its responsibility extends to acts of the local administration which survives by virtue of its military and other support.21 A State’s responsibility may also be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction. In addition, acquiescence in the acts of a private individual may also engage the State’s responsibility, in particular in the case of recognition by the State of the acts of self-proclaimed authorities not recognised by the international community.

9. In the judgment of K. v. Italy (Application No. 38805/97, Second Section, Judgment of 20 July 2004, Final on 1 December 2004), the Court raised ex officio the question of whether the applicant was within the “jurisdiction” of Italy. The facts of the case were as follows. The applicant, an Italian citizen, is the mother of a child, whose natural father is an Italian citizen. The applicant filed a lawsuit against the father seeking maintenance for their minor daughter. The competent Court ordered the man to pay maintenance. In order to obtain execution of this judgment, the applicant in May 1994 applied to the Polish court, seeking recovery of maintenance through the Italian Ministry of Internal Affairs pursuant to the United Nations Convention on the Recovery Abroad of Maintenance of 20 June 1956. The latest set of enforcement proceedings before the competent Italian courts was initiated in July 2002 and are still pending. The applicant had complained about the length of the proceedings before the Italian courts. The Court preliminarily considered that it was appropriate to deal ex officio with the matter of whether the applicant may be said to be within the “jurisdiction” of Italy. The maintenance order had admittedly been issued by a Polish Court, but the Italian authorities were bound under the UN Convention to assume responsibility for the execution of that order. Indeed, in that respect the Italian authorities had acted in an autonomous manner and had not been supervised by the Polish authorities. The Court considered therefore that Italy’s responsibility under the Convention was engaged. In this judgment, the Court made an extensive application of the potentially farreaching principle set out in the Pellegrini v. Italy judgment22 – to which the Court made reference in its reasoning – in respect of family matters. In the Pellegrini judgment, the Court had pointed to the need for a State to ensure compliance with 21 See Cyprus v. Turkey, Application No. 15318/89, Judgment of 18 December 1996, Reports of Judgments and Decisions 1996-V, para. 77. 22 Application No. 30882/96, Judgment of 20 July 2001, para. 40, Reports of Judgments and Decisions 2001-VIII. See GRANATA, cit. supra note 20, pp. 224-226.


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the substantive guarantees of Article 6 of the Convention when requested to give execution to a judgment delivered by a State which is not a party to the Convention. In the K. case, the Court pointed to the need for the State to assume entire responsibility under Article 6 in the execution proceedings, irrespective of the circumstance that the judgment to be enforced had been delivered by a State signatory to the Convention.

10. In 2004, the Court delivered its first, and so far only, decision concerning a request for an advisory opinion under Article 47, para. 1, of the Convention. The request concerned the co-existence of the CIS Convention and the European Convention (Grand Chamber, Decision of 2 June 2004). This request originated in the concern of the Parliamentary Assembly23 relating to the co-existence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States (CIS), an organization comprising twelve former Soviet Republics. This Convention was opened for signature on 26 May 1995 and was signed by seven of the eleven CIS member States on that day (Armenia, Belarus, Georgia, Kyrgyzstan, Moldova, Russia, Tajikistan). It was subsequently ratified by the Russian Federation, Tajikistan and Belarus, and entered into force on 11 August 1998, the day the third instrument of ratification was deposited by Belarus. The CIS Convention24 foresees the setting up of a control mechanism in the form of a human rights commission, whose members are to be appointed by the State parties, and which is to monitor compliance with the Convention and issue “understandings, conclusions and recommendations”. The Parliamentary Assembly, which considered that the CIS Commission could not offer the same guarantees of impartiality and independence as the European Court of Human Rights on account of it being composed of “representatives” and “deputy representatives” of each State and not issuing binding decisions, was notably concerned that the monitoring mechanisms foreseen by this Convention could be considered as constituting an “another procedure of international investigation or settlement” within the meaning of Article 35, para. 2(b) (formerly Article 27, para. 1(b)) of the Convention and thus preclude the Court from admitting an individual application if raising substantially the same matter as had already been considered by the CIS Commission and not containing any new information. The Assembly had recommended that the Committee of Ministers of the Council of 23

See PACE Resolution 249(2001) of 23 May 2001. For a comparative analysis of this Convention and the European Convention, see the Venice Commission’s “Opinion on the Legal Problems Arising from the Coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights”, available at http://venice.coe.int/docs/ 1998/CDL-INF(1998)008-e.asp. 24

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Europe seek an advisory opinion of the Court on this matter, which the Committee of Ministers did in January 2002. The Court considered that, irrespective of its wording, the request concerned specifically the question whether the CIS Commission could be regarded as “another procedure of international investigation or settlement” within the meaning of Article 35, para. 2(b). While this was “a legal question concerning the interpretation of the Convention” within the meaning of that provision, the Court recalled that under Article 47, para. 2, of the Convention, its competence was excluded if the question raised fell within the scope of the expression “any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention” (the travaux préparatoires, suggested that the term “proceedings” mentioned was not limited to pending cases but included hypothetical cases which might arise in the future). In the Court’s view, “proceedings” in this context referred to those instituted under Articles 33 and 34 of the Convention, namely inter-State and individual applications; the expression “any other question” covered admissibility issues. The Court considered therefore that whether a matter had already been submitted to an equivalent international procedure was in fact an admissibility requirement; indeed, it had been previously examined by the European Commission on Human Rights in the context of the examination of the admissibility of individual applications. In such cases, the Commission had carried out a qualitative analysis of the procedure in question, addressing in particular the nature of the procedure and its effects. The Court considered that the question whether the previous submission of a matter to the CIS Commission would preclude its competence to examine it was one which it might need to examine in the future, in the context of an individual application: the Court was therefore a priori precluded from giving an advisory opinion on this matter. Several CIS member States (one of which, Russia, has ratified the CIS Convention) were Parties to the European Convention and the substantive provisions of the CIS Convention were broadly equivalent to those in the European Convention. It could not therefore be excluded that the Court might have to consider in the context of a future concrete case whether the CIS procedure was “another procedure of international investigation or settlement”. In these circumstances, the Court concluded that the request for an advisory opinion did not come within its advisory competence.

11. In March 2004, the Court communicated in respect of Article 6 of the Convention the case of Emesa Sugar N.V. v. The Netherlands (Application No. 62023/00, Section II). The facts of the case were the following. The applicant company operates a sugar factory established in Aruba, a State which under EC law is included in the category of “overseas countries and territories” (OCT). Until 1997, pursuant to an EC Council Decision, goods imported from OCT to the EC were exempt of custom


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duties. As of 1997, following the amendment of that EC Council Decision, the imports of sugar of OCT origin were limited to a certain amount per year. The applicant company instituted summary proceedings against the EC Council Decision before the competent Dutch Regional Court. The action was dismissed but a number of questions were referred by the court to the ECJ for a preliminary ruling. Following a hearing at the ECJ in March 1999, the Advocate General of the ECJ submitted an opinion and the oral proceedings were brought to an end. On 11 June 1999, the applicant company had applied to submit written observations, which was refused by the ECJ25 on the following grounds: “11. In accordance with Articles 221 EC and 222 EC, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 EC, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which derives its authority from that of

25 Case C-17/98, Emesa Sugar (Free Zone) NV v. Aruba, Order of 4 February 2000, ECR, 2000, p. I-665 ff.

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the Procureur Général’s department […] (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court, […] the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties […]. 19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so”. Before the Strasbourg Court, the applicant company complained of having been deprived of a fair hearing in the proceedings before the ECJ in that he had not been allowed to respond to the observations of the Advocate General. The Strasbourg Court did not declare it inadmissible de plano and communicated to the parties.


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The case of Emesa Sugar has often been cited as one example of the European Court of Justice departing from the case-law of the Strasbourg Court. Indeed, the Strasbourg Court had previously stated, in respect of the role of the AttorneyGeneral or Procureur Général of the Court of Cassation or Supreme Court in criminal proceedings in Belgium,26 in The Netherlands27 and in Portugal,28 that the impossibility of obtaining a copy and reply to the opinions of such bodies before judgment was given, infringed the relevant applicants’ right to adversarial proceedings. In the context of the Emesa Sugar case, however, the ECJ had disagreed, while recalling and explicitly referring to this case-law, on the ground that Advocates General before it are not entrusted with the defense of any particular interest, but exercise quasi-judicial functions. In 2001, the Strasbourg Court had again the opportunity of addressing this matter in the context of administrative proceedings, in relation to the submissions of the Government Commissioner before the French Conseil d’Etat.29 In this judgment, the Court explicitly recalled the ECJ’s order in the Emesa Sugar case. It found that there had been no violation of Article 6 ECHR (adversarial proceedings) on account of the impossibility of replying to the observations submitted to the Conseil d’Etat by the Commissaire Gouvernement.30 The Court underlined that despite the differences between criminal proceedings, to which all its previous findings related, and administrative procedures, and despite the undoubted independence and impartiality of the Government Commissioner, it could not be excluded that the non-disclosure to the parties of his submissions and the impossibility for them to reply to those submissions may result in a breach of the principle of a fair trial. The Court pointed to the need of attaching great importance to the “part actually played in the proceedings by the Government Commissioner, and more particularly to the content and effects of his submissions”. It found that in the proceedings before the Conseil d’Etat, lawyers can request the Government Commissioner to indicate the general tenor of his submissions, and they can reply to them by means of a memorandum for the deliberations, which the applicant’s lawyer had in fact done. In addition, should the Commissioner orally raise a new argument, the presiding judge would adjourn the case to enable parties to present argument on the point. 26 See Borgers v. Belgium, Judgment of 30 October 1991, Series A No. 214-B; Vermuelen v. Belgium, Judgment of 20 February 1996, Reports, 1996-I, p. 224 ff.; Van Orshoven v. Belgium, Judgment of 25 June 1997, Reports, 1997-III, p. 1039 ff. 27 See J.J. v. The Netherlands, Judgment of 27 March 1998, Reports, 1998-II, p. 603 ff.; K.D.B. v. The Netherlands, Judgment of 27 March 1998, Reports, 1998-II, p. 620 ff. 28 See Lobo Machado v. Portugal, Judgment of 20 February 1996, Reports, 1996-I, p. 195 ff. 29 See Kress v. France, Application No. 39594/98, Grand Chamber, Judgment of 7 June 2001, Reports of Judgments and Decisions 2001-VI. 30 There had, instead, been a violation of Article 6 (equality of arms) as regards the presence of the Government Commissioner at the deliberations of the Conseil d’Etat (paras. 72-76 of the judgment).

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Will the Strasbourg Court continue on the path initiated with the Kress judgment and try to minimise its divergences in respect of the case-law of the ECJ, or will it overtly disagree with the Luxembourg Court? At a time when preparation of ratification by the European Communities of the European Convention is underway, it would probably be unwarranted to draw everyone’s attention on the possible divergences between the two Courts. However, it is unlikely that this case falls within the competence ratione materiae of the Court, as the summary injunction proceedings before the Dutch Regional Court concerned a tax dispute, which does not amount to a “civil rights and obligation” within the meaning of Article 6 ECHR.

12. Finally, a quick look at the annual statistics. In 2004, the Court delivered 718 judgments, of which 588 gave rise to a finding of at least one violation of the Convention (36 in respect of Italy). The Court also declared inadmissible a total of 20,348 applications, and admissible 842 applications. 2,394 applications were communicated to the parties. The number of cases terminated increased by around 17.5% compared with 2003. In addition, it is estimated that the annual number of applications lodged with the Court rose to about 45,000 in 2004, an increase of approximately 16%.

THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2004)* FEDERICO LENZERINI** and MASSIMILIANO MONTINI***

1. INTRODUCTION After the failure of the Fifth Ministerial Conference, held in Cancun in September 2003, the WTO Parties on 31 July 2004 approved a package of agreements that was called by the WTO Director-General Supachai Panitchpakdi a “truly historic” achievement. The key features of such a package are: – an agreement to abolish all forms of agricultural export subsidies by a set date and to substantially reduce trade-distorting domestic support in agriculture; – a “significant breakthrough in cotton trade” that enhances opportunity for cotton farmers in West Africa and elsewhere in the developing world; – an agreement to negotiate new regulations to streamline trade and customs procedures, with an eye toward improving rules that can benefit developing countries; – a sharpened focus for the Doha round of trade talks to serve as a foundation on which higher-level negotiators can build and to enhance the chances the talks will be successfully concluded. On the basis of the agreement reached, the WTO Parties paved the way to the possible conclusion of the Doha round negotiations by the Sixth Ministerial Conference, which will be held in Hong Kong in December 2005. As to dispute settlement, the latest update provided by the WTO (covering up to the year 2004)1 shows that the overall number of complaints notified to the Dispute Settlement Body (DSB) since 1 January 1995 now amounts to 329. The number of Panel and Appellate Body Reports adopted in the period 1995-2004 now totals 84, while in the same period the mutually agreed solutions have been 45 and the other settled or inactive disputes are 27. At the reporting date (7 April 2005), a total number of 25 Panels were reported to be active. With regard to the Compliance Reports adopted pursuant to Article 21.5 of the DSU, the figures available at the reporting date show that 5 Compliance Panels are active. In the period 1995-2004, a total number of 12 Panel and Appellate Body

*

The introduction has been written by Massimiliano Montini, sections 2 and 3 by Federico Lenzerini. ** J.D., University of Siena; Ph.D., International Law. *** J.D., University of Siena; LL.M., University of London; Professor of EU Law, University of Siena. 1 See Update of WTO Dispute Settlement Cases, Doc. WT/DS/OV/23 (Updated to 31 March 2005), 7 April 2005, available at the WTO website, www.wto.org.


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(AB) Compliance Reports have been adopted, while 16 arbitrations on the level of suspensions of concessions have been concluded and 15 times the WTO has authorised a Member to proceed to the suspension of concessions towards other Members for the failure to comply with a DSB decision. 2. CASE-LAW OF THE APPELLATE BODY2 During the year 2004 the DSB adopted six AB dispute settlement reports. In chronological order, the first of these reports to be adopted was the one concerning the dispute United States – Sunset Review of Anti-dumping Duties on Corrosionresistant Carbon Steel Flat Products from Japan.3 In this case Japan complained that the determinations of the United States Department of Commerce (USDOC) and the United States International Trade Commission in the full sunset review of the anti-dumping duties imposed on imports of corrosion-resistant carbon steel flat products from Japan (issued respectively on 2 August 2000 and 21 November 2001) were erroneous and based on deficient rulings, procedures and provisions relating to the US Tariff Act of 1930 and related provisions, thus violating several rules pertaining to the WTO system, including GATT Articles VI and X, Article XVI:4 of the WTO Agreement and various Articles of the Anti-Dumping Agreement. The Panel was established by the DSB on 22 May 2002. The Panel Report was circulated on 14 August 2003.4 The Panel rejected all of Japan’s claims, concerning several aspects of the US pertinent legal provisions relating to the conduct of “sunset” reviews of anti-dumping duties pursuant to US law. On 15 September 2003 Japan sent its notification of appeal to the DSB. The Report of the AB was circulated on 15 December 2003. The AB reversed four of the seven Panel’s legal findings, but it did not make any finding that the United States had acted inconsistently with the WTO Agreement or the Anti-Dumping Agreement. In particular, whilst the AB reversed the Panel’s finding that the United States did not act inconsistently with Articles 2.4 or 11.3 of the Anti-Dumping Agreement by allegedly using a “zeroing” methodology5 in calculating dumping margins used for corrosion-resistant carbon 2 Most of the information described in the text has been taken, in addition to the relevant AB Reports, from the Update of WTO Dispute Settlement Cases, id. 3 See Doc. WT/DS244/AB/R of 15 December 2003. 4 See Doc. WT/DS244/R of 14 August 2003. 5 The “zeroing methodology”, commonly used by the USDOC when calculating dumping margins, consists in dividing the products under investigation into groups of identical or strictly similar product types, calculating a weighted average normal value and export price for each of such types and then comparing the weighted averages for each of them. This comparison may lead to the result that, in some instances, the weighted average export price for a given product type is less than the weighted average normal value or, in other instances, the weighted average export price is greater than the weighted average normal value. These values are then aggregated to produce one single value, which represents the margin of dumping for the product under

THE WTO ACTIVITY (2004)

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steel flat products sunset review, it found that there was not a sufficient factual basis to complete the analysis of Japan’s claim on such issue, on account of the “lack of factual findings by the Panel regarding the methodology used by USDOC in the administrative reviews”.6 The DSB adopted the AB Report and the Panel Report (as modified by the AB Report) on 9 January 2004. In United States – Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, Canada lamented that the final affirmative countervailing duty determination by the US Department of Commerce concerning certain softwood lumber from Canada violated Articles VI:3 and X:3 of the GATT 1994 as well as a number of provisions of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). The Panel Report was circulated on 29 August 2003.7 The Panel found that the USDOC Final Countervailing Duty Determination was not consistent with Article VI:3 of the GATT 1994 as well as a number of provisions of the SCM Agreement. The decision of the United States to appeal to the AB certain issues of the Panel Report was notified on 2 October 2003, then withdrawn for scheduling reasons on 3 October 2003, and finally re-notified on 21 October 2003. The Report of the AB was circulated on 19 January 2004.8 The AB upheld two and reversed three of the Panel’s findings. The AB, in particular, did not consider that the United States had acted inconsistently with Articles 10, 14 and 32.1 of the SCM Agreement with regard to the determination by the USDOC of the existence of the amount of benefit in its countervailing duty investigation,9 but found itself unable to complete the legal analysis on such point due to the insufficient factual basis to fulfil such analysis.10 At the same time, the AB upheld the Panel’s finding that “USDOC’s failure to conduct a pass-through analysis in respect of arm’s length sales of logs by tenured harvesters/sawmills to unrelated sawmills is inconsistent” with GATT Article VI:3 and Articles 10 and 32.1 of the SCM Agreement.11 The AB thus recommended that the DSB request the United States “to bring its measure […] into conformity with its obligations” under the GATT 1994 and the SCM Agreement.12 The AB Report and the Panel Report (as modified by the AB Report) were adopted by the DSB on 17 February 2004.

investigation for each investigated exporter. In such process of aggregation a value of “zero” is attributed to the product comparisons resulting in a weighted average export price which is greater than the weighted average normal value; the values resulting from the comparisons where the weighted average export price is lower than the weighted average normal value (“positive values”) are then aggregated, and the result is divided by the total value of exports, so as to obtain a weighted average margin of dumping. 6 See Doc. WT/DS244/AB/R of 15 December 2003, para. 138. 7 See Doc. WT/DS257/R of 29 August 2003. 8 See Doc. WT/DS257/AB/R of 19 January 2004. 9 Id., para. 121. 10 Id., para. 122. 11 Id., para. 159 (italics in the original text). 12 Id., para. 168.

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The two following AB Reports adopted by the DSB in 2004 related to, respectively, the case concerning the conditions for the granting of tariff preferences to developing Countries by the European Community (EC)13 and the dispute arising from the US final dumping determination on softwood lumber from Canada.14 The first of these two cases will be examined in details in the following section. As for the second, it was another very complex and technical controversy arising from a complaint by Canada, which lamented that the US investigation and the final affirmative determination of sales at less than fair value (dumping) concerning certain softwood lumber products from Canada violated GATT Articles VI and X:3(a) as well as a number of provisions of the Anti-Dumping Agreement. The Panel Report was circulated on 13 April 2004.15 The Panel rejected all Canadian claims, except the one concerning the assumption that, in its final dumping determination, the USDOC acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement “in determining the existence of margins of dumping on the basis of a methodology incorporating the practice of ‘zeroing’”.16 In this respect, however, a member of the Panel issued a dissenting opinion stating that Canada did not establish that the application of the “zeroing” methodology in the instant case “was inconsistent with the United States’ obligation under Article 2.4 to conduct a ‘fair comparison’” between export price and normal value.17 On 13 May 2004 the United States notified its decision to appeal the Panel’s decision to the AB. The Report of the AB was circulated on 11 August 2004.18 The AB found that the United States had violated the Anti-Dumping Agreement not only by using the practice of “zeroing” for calculating margins of dumping (thus upholding the Panel’s finding on such issue), but also with respect to Articles 2.2 and 2.4 of such Agreement, “in its calculation of the amount for financial expense for softwood lumber for Abitibi”, one of the Canadian companies subjected to investigation (reversing the Panel’s finding on this point),19 although not making findings on such issue. The AB Report and the Panel Report (as modified by the AB Report) were adopted by the DSB on 31 August 2004. A further case involving Canada and the United States was Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain.20 On 17 December 2002 the United States requested consultations with Canada, claiming that the treatment accorded to grain imported into Canada was inconsistent with GATT Article

13 See European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Doc. WT/DS246. 14 See United States – Final Dumping Determination on Softwood Lumber from Canada, Doc. WT/DS264. 15 See Doc. WT/DS264/R of 13 April 2004. 16 Id., para. 8.1(a)(i). 17 Id., para. 9.24. 18 See Doc. WT/DS264/AB/R of 11 August 2004. 19 Id., para. 183(b). 20 See Doc. WT/DS276.


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III and Article 2 of the Agreement on Trade-Related Investment Measures (TRIMs Agreement); the United States also claimed that the actions of the Canadian government and the Canadian Wheat Board (CWB) concerning the export of wheat violated GATT Article XVII:1. The question was devolved to a Panel, whose Report was circulated on 6 April 2004.21 The Panel found that certain provisions of the Canadian legislation concerning the treatment accorded to grain imported into Canada actually violated GATT Article III:4, and could not be justified under GATT Article XX(d). The Panel also found, on the other hand, that the United States had failed to establish that Canada had violated GATT Article XVII:1 with respect to the CWB export regime and that any breach of the TRIMs Agreement had occurred.22 The United States appealed the Panel’s finding that the CWB export regime was consistent with Canada’s obligations under GATT Article XVII:1. In its Report (which was circulated to WTO member States on 30 August 2004) the AB found no error in the Panel’s legal interpretations and upheld the Panel’s finding that the United States had failed to establish its claim that Canada had violated GATT Article XVII:1.23 The DSB adopted the AB Report (as well as the Panel Report as modified by the AB Report) at its meeting of 27 September 2004. The last AB Report adopted by the DSB in the year 2004 concerned the dispute United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods from Argentina.24 With regard to the sunset reviews of the anti-dumping duty order on such goods issued respectively in November 2000 and June 2001, and the USDOC’s notice of continuation of the anti-dumping duty concerning the same goods published on 25 July 2001, Argentina claimed that they were inconsistent with GATT Articles VI and X, with Article XVI:4 of the WTO and with several provisions of the Anti-Dumping Agreement. The Report of the Panel was circulated on 16 July 2004.25 The Panel found that the United States had actually breached Articles 6.1, 6.2 and 11.3 of the Anti-Dumping Agreement, while no other provision had been violated.26 Both the United States and Argentina appealed certain issues of law and legal interpretations developed in the Report of the Panel. The AB Report was circulated on 29 November 2004.27 The AB upheld most of the Panel findings, confirming that the United States had acted inconsistently with its obligations under Articles 6.1, 6.2 and 11.3 of the Anti-Dumping Agreement.28 The AB Report and the Panel Report (as modified by the AB Report) were adopted by the DSB on 17 December 2004.

21

See Doc. WT/DS276/R of 6 April 2004. Id., para. 7.4. 23 See Doc. WT/DS276/AB/R of 30 August 2004, para. 214. 24 See Doc. WT/DS268. 25 See Doc. WT/DS268/R of 16 July 2004. 26 Id., para. 8.1. 27 See Doc. WT/DS268/AB/R of 29 November 2004. 28 Id., para. 365. 22

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3. THE CASE CONCERNING THE CONDITIONS FOR THE GRANTING OF TARIFF PREFERENCES TO DEVELOPING COUNTRIES The case concerning the tariff preferences29 represents, to date, the latest development in the seemingly endless controversy concerning the preferential treatment granted by the European Community (EC) to certain developing countries, the so-called ACP States (African, Caribbean and Pacific countries) since the entry into force of the First Lomé Convention in 1976.30 After the blocking of two GATT panels by the EC respectively in 199231 and 1993,32 such controversy exploded in 1996 under the new WTO dispute settlement regime, with the so-called “Banana dispute”.33 In that occasion Ecuador, Guatemala, Honduras, Mexico and the United States successfully challenged the non-reciprocal tariff preferences system granted by the EC to the ACP States pursuant to the Fourth Lomé Convention.34 The EC system was found by both the Panel and the AB to be inconsistent with various GATT/WTO provisions (including Articles I, III and X of the GATT 1994) in spite of the Lomé Waiver (authorizing the EC “to provide preferential treatment for products originating in ACP States as required by the relevant provisions of the Fourth Lomé Convention, without being required to extend the same preferential treatment to like products of any other contracting party”).35 In view of making its policy of cooperation for development consistent with GATT/WTO rules (in the meantime such policy has been prolonged with the conclusion, in June 2000, of the Cotonou Partnership Agreement),36 in 2001 the EC Council adopted Regulation No. 2501/2001,37 extending preferential treatment

29

See supra note 13. See ACP-EEC Lomé Convention, signed on 28 February 1975, entered into force on 1 April 1976, OJ EC L 205 of 30 January 1976. 31 See Doc. DS 23/R of 3 June 1993. 32 See Doc. DS 38/R of 11 February 1994, ILM, 1995, p. 177. 33 See European Communities – Regime for the Importation, Sale and Distribution of Bananas, Doc. WT/DS27. See LENZERINI and MONTINI, “The Activity of the World Trade Organization (2000)”, IYIL, 2001, p. 191 ff., espec. p. 202 ff.; LENZERINI, “Le relazioni tra Organizzazione Mondiale del Commercio e Comunità europea nel settore della cooperazione allo sviluppo”, in FRANCIONI, LENZERINI and MONTINI (eds.), Organizzazione mondiale del commercio e diritto della Comunità europea nel settore della risoluzione delle controversie, Milano, 2005, p. 171 ff., espec. p. 182 ff. See also the sources cited in such article. 34 See Fourth Lomé Convention, 1989, ILM, 1990, p. 783. 35 See The Fourth ACP-EEC Convention of Lomé Decision of the CONTRACTING PARTIES of 9 December 1994, Doc. L/7604 of 19 December 1994. The waiver was later extended in 1996 (see EC – The Fourth ACP-EC Convention of Lomé Extension of Waiver, Decision of the WTO General Council of 14 October 1996, Doc. WT/L/186 of 18 October 1996). 36 See http://europa.eu.int/comm/development/body/cotonou/pdf/agr01_en.pdf#zoom=100. 37 OJ EC L 346 of 31 December 2001, p. 1. Article 41, para. 2, originally provided that the effects of this Regulation should expire on 31 December 2004, but Article 1 of Council Regulation (EC) No. 2211/2003 of 15 December 2003 amending Regulation (EC) No. 2501/2001 applying a 30


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granted to ACP States to other developing countries, particularly “to all countries recognized and classified by the United Nations as least developed countries”,38 including general arrangements, special incentive arrangements for the protection of labour rights and for the protection of the environment, and special arrangements for least developed countries and to combat drug production and trafficking.39 Furthermore, at the Doha Ministerial Conference, in November 2001, two decisions were agreed with the purpose of making the EC commercial relationship with ACP States consistent with its obligation under the GATT/WTO regime. The first of these decisions granted the EC a waiver “with respect to the EC’s separate tariff quota of 750,000 tonnes for bananas of ACP origin”, allowing the EC, subject to certain conditions,40 to derogate from paragraphs 1 and 2 of GATT Article I.41 The second decision adopted at the Doha Conference, concerning the policy of cooperation for development pursued by the EC, was devoted to the ACP-EC Partnership Agreement.42 It recognized that such Agreement “is aimed at improving the standard of living and economic development of the ACP States, including the least developed among them”,43 and it therefore granted a waiver with regard to Article I:1 of the GATT, until 31 December 2007 and subject to precise requirements,44 “to the extent necessary to permit the European Communities to provide preferential tariff treatment for products originating in ACP States as required by [...] the [...] Agreement”.45 Despite these “precautions”, the EC scheme of generalized tariff preferences has been challenged again before the DSB. On 5 March 2002 India requested to enter into consultations with the EC with regard to the conditions of application of such scheme pursuant to Regulation No. 2501/2001. Consultations took place on 25 March 2002, but did not lead to a mutually satisfactory resolution of the matter. India thus requested the DSB to establish a panel, which was actually established on 27 January 2003. India initially made claims concerning the special arrangements to combat drug production and trafficking provided for by Article 10 of Regulation No. 2501/2001 (hereinafter “drug arrangements”) as well as the special

scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004 and extending it to 31 December 2005 (OJ EC L 332 of 19 December 2003, p. 1) has extended such effects to the whole year 2005. 38 See the 5th recital of the Preamble and Annex 1. 39 See Article 1. 40 See LENZERINI and MONTINI, cit. supra note 33, p. 204. 41 See European Communities – transitional regime for the EC autonomous tariff rate quotas on imports of bananas, Decision of 14 November 2001, Doc. WT/MIN(01)/16 of 14 November 2001, available at http://www.wto.org, para. 1. 42 See European Communities – the ACP-EC Partnership Agreement, Decision of 14 November 2001, Doc. WT/MIN(01)/15 of 14 November 2001, available at http://www.wto.org. 43 Id., Preamble. 44 See LENZERINI and MONTINI, cit. supra note 33, p. 205. 45 See Doc. WT/MIN(01)/15, cit. supra note 42, p. 1.

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incentive arrangements for the protection of labour rights and for the protection of the environment contemplated by the same Regulation, but, on 28 February 2003, it declared that it had decided to limit its complaint to the drug arrangements, although reserving for itself to bring separate complaints concerning the other arrangements in the event that the EC were to implement them in a way detrimental to India’s trade interests or “if the European Communities were to renew them after the lapse of its current General System of Preferences [GSP] scheme on 31 December 2004”.46 India thus requested the Panel to ascertain that the drug arrangements were inconsistent with Article I:1 of the GATT 1994 and were not justified by the “Enabling Clause” of 1979,47 which allows GATT parties to “accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties”, notwithstanding the provisions of GATT Article I.48 The EC, on its part, contended that the Enabling Clause “is an autonomous right not an affirmative defence and it excludes the application of Article I”;49 consequently, it claimed that India had the burden of establishing that the drug arrangements were not covered by paragraph 2(a)50 or were inconsistent with paragraph 3(c)51 of the Enabling Clause. In addition, the EC also relied on Article XX(b) of GATT 199452 as supplementary counter-argument for the event that the Panel was to consider that the drug arrangements fall within GATT Article I:1 and were prima facie inconsistent with such provision.53 The Panel held that the Enabling Clause is to be considered as having the status of exception to GATT Article I:1;54 consequently, the EC had the burden of demonstrating that the drug arrangements fall within the scope of paragraph 2(a) of the

46

See the Report of the Panel, Doc. WT/DS246/R of 1 December 2003, para. 1.5. See Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (“Enabling Clause”), Decision of 28 November 1979 (L/4903), available at http://www.wto.org/english/docs_e/legal_e/enabling1979_e.htm. 48 Id., para. 1. 49 See Doc. WT/DS246/R, para. 3.5. 50 See supra note 47. Paragraph 2(a) states that the provisions of paragraph 1 apply to “[p]referential tariff treatment accorded by developed contracting parties to products originating in developing countries in accordance with the Generalized System of Preferences”; the meaning of this provision is further clarified by note 3 to the Enabling Clause, according to which such treatment must be “[a]s described in the Decision of the CONTRACTING PARTIES of 25 June 1971, relating to the establishment of ‘generalized, non-reciprocal and non discriminatory preferences beneficial to the developing countries’”. 51 See supra note 47. Paragraph 3(c) states that any differential and more favourable treatment provided under the Enabling Clause “shall in the case of such treatment accorded by developed contracting parties to developing countries be designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries”. 52 GATT Article XX(b) includes among the general exceptions any measure “necessary to protect human, animal or plant life or health”. 53 See Doc. WT/DS246/R, para. 3.7. 54 Id., para. 7.39. 47


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Enabling Clause.55 India had thus the only duty of establishing the inconsistency of the drug arrangements with GATT Article I:1.56 According to the Panel, “the tariff advantages under the Drug Arrangements are not consistent with Article I:1 of the GATT 1994”.57 It was thus necessary to ascertain whether the drug arrangements could be considered as included within the scope of the Enabling Clause, i.e. whether the preferential treatment granted by the EC to certain developing countries pursuant to such arrangements could be considered of non discriminatory character, as explicitly required by note 3 explicative of paragraph 2(a) of the Enabling Clause.58 In this perspective the Panel rejected the EC’s argument according to which the Enabling Clause would allow to grant a preferential treatment to only a limited number of developing countries when this is required by objective needs that are not shared by all such countries (as the need to combat drug production and trafficking provided for by Article 10 of Regulation No. 2501/2001 would actually be).59 According to the Panel, “[t]here could be no reasonable explanation why certain causes of the problem of development should be addressed through GSP and why other causes of the same development problem should not be so addressed”.60 This conclusion would be confirmed by pertinent practice, which would demonstrate that the term “non-discriminatory” included in note 3 requires that “identical tariff preferences under GSP schemes be provided to all developing countries without differentiation, except for the implementation of a priori limitations”.61 In addition, the Panel held that the term “developing countries” included in paragraph 2(a) “should be interpreted ‘to mean all developing countries’” (again, with the exception of cases of implementation of a priori limitations),62 since “the intention of the negotiators was to provide GSP equally to all developing countries and to eliminate all differentiation in preferential treatment to developing countries […]”.63 Accordingly, the Panel concluded that the drug arrangements had to be considered as inconsistent with paragraph 2(a) and non-justified by paragraph 3(c) of the Enabling Clause.64 Concerning the possible application to the controversy of GATT Article XX(b), the Panel held that “[e]ven assuming that market access is an important component of the international strategy to combat the drug problem, there was no evidence presented before the Panel to suggest that providing im55

Id., para. 7.42. Id., para. 7.53. 57 Id., para. 7.60. 58 See supra note 50. 59 See Doc. WT/DS246/R, para. 7.100. 60 Id., para. 7.103. 61 Id., para. 7.161. 62 Id., para. 7.174 (italics in the original text). 63 Id., para. 7.169. 64 Id., para. 7.177. 56

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NOTES AND COMMENTS

proved market access is aimed at protecting human life or health in drug importing countries”.65 As a consequence, the drug arrangements could not be considered as measures adopted with the specific purpose “of protecting life or health in the European Communities”,66 and they thus could not be considered as included within the scope of Article XX(b). This conclusion, according to the Panel, was reinforced by the fact that “the contribution of the Drug Arrangements to the realization of the European Communities’ claimed health objective is insecure for the future”,67 and that “the level of necessity of a measure must be linked to its effectiveness in achieving its objectives”.68 For these reasons, such arrangements would not satisfy the necessity test provided for by Article XX(b), in view of the fact that Article 26 of Regulation No. 2501/2001 contemplated the possibility of temporarily withdrawing the drug arrangements for reasons, such as “shortcomings in customs controls on exports or transit of drugs”,69 which by their own very nature are “unrelated to protecting human life or health”.70 Furthermore, the exclusion of Iran from the group of States which could benefice from the drug arrangements made such arrangements inconsistent with the chapeau of Article XX(b), according to which the measures taken in application of the exceptions provided for by such norm must not be “a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail”. This conclusion was reached on account of the fact that, according to statistics, “the seizures of opium and of heroin in Iran are substantially higher than, for example, the seizures of these drugs in Pakistan throughout the period 1994-2000”.71 In light of this, the fact that Pakistan was included among the beneficiaries of the drug arrangements while Iran was excluded demonstrated that such beneficiaries were not the most seriously drug-affected countries in the world, giving rise to a regime for which the EC had not established to the Panel’s satisfaction that it did not entail a discriminatory treatment according to the meaning of Article XX(b) chapeau.72 The EC appealed before the Appellate Body (AB) only the Panel’s findings concerning the presumed non-applicability of the Enabling Clause to the drugs arrangements, without raising any claim concerning the Panel’s interpretation of the issue relating to the applicability to the dispute of GATT Article XX(b).

65

Id., para. 7.207. Id., para. 7.211. 67 Id., para. 7.213. 68 Id., para. 7.214. 69 See Article 26(1)(d). 70 See Doc. WT/DS246/R, para. 7.216. 71 Id., para. 7.228. 72 Id., para. 7.235. 66


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The AB confirmed the nature of the Enabling Clause as exception to GATT Article I:173 and the applicability of such article as a rule.74 But, most importantly, it reversed the Panel’s findings that the term “non-discriminatory” in footnote 3 to paragraph 2(a) of the Enabling Clause requires that identical tariff preferences under GSP schemes must be necessarily granted to all developing countries with no differentiation (except for the implementation of a priori limitations),75 and that the term “developing countries” in paragraph 2(a) must be necessarily interpreted “to mean all developing countries”,76 since it may also mean “less than all developing countries”.77 In explaining such conclusion the AB clarified that, although the ordinary meaning of the term “non-discriminatory” implies that “preference-granting countries must make available identical tariff preferences to all similarly-situated beneficiaries”,78 it does not necessarily imply an obligation to “provide ‘identical’ tariff preferences under GSP schemes to ‘all’ developing countries”.79 The reason of this is that “developing countries may have ‘development, financial and trade needs’ that are subject to change and that certain development needs may be common to only a certain number of development countries […]. [T]he very purpose of the special and differential treatment permitted under the Enabling Clause is to foster economic development of developing countries. It is simply unrealistic to assume that such development will be in lockstep for all developing countries at once, now and for the future”.80 As a consequence, paragraph 3(c) of the Enabling Clause authorizes the implementation of measures taken with the view of addressing needs “that are not necessarily common or shared by all developing countries. Responding to the ‘needs of developing countries’ may thus entail treating different developing-country beneficiaries differently”.81 On the basis of this interpretation, the fact that they must be of “non-discriminatory” character is not infringed when preferential measures are granted only to a limited number of developing countries, on the condition that such measures are not “inconsistent with other provisions of the Enabling Clause, including the requirements that such preferences be ‘generalized’ and ‘non-recipro-

73

See the Report of the Appellate Body, Doc. WT/DS246/AB/R of 7 April 2004, para. 99. Id., para. 103. 75 Id., para. 174. 76 Id., para. 176 (italics in the original text). 77 Id. (italics in the original text). 78 Id., para. 154. 79 Id., para. 156. 80 Id., para. 160. 81 Id., para. 162 (italics in the original text). 74

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NOTES AND COMMENTS

cal’”.82 In other words, the use of the term “non-discriminatory” in paragraph 2(a) of the Enabling Clause simply requires that, in the event that a preferential treatment is granted to certain developing countries on account of special needs shared by them, such treatment must be designed so as to ensure that “identical treatment is available to all similarly-situated GSP beneficiaries, i.e. to all GSP beneficiaries that have the ‘development, financial and trade needs’ to which the treatment in question is intended to respond”.83 Accordingly, as pointed out by the AB, the term “developing countries” included in paragraph 2(a) of the Enabling Clause may also mean “less than all developing countries”.84 The AB thus reversed the key point of the Panel’s interpretation of the scope of the Enabling Clause. It was consequently necessary to ascertain whether the drug arrangements were incompatible with such Clause under a perspective different from the one considered by the Panel. In the AB’s words, it was necessary to ascertain whether “the preferences granted under the Drug Arrangements are available to all GSP beneficiaries that are similarly affected by the drug problem”.85 Such a requirement could not be considered as fulfilled for basically two reasons: first, Regulation No. 2501/2001 did not contemplate the possibility of updating (except in the case of an amendment to the Regulation itself) the list of countries eligible to enjoy the special tariff treatment under the Drug Arrangements (provided for by Annex I), that is to say that countries originally not included in such a list were not eligible to accede to such treatment even in the event that their domestic rate of drugs production and trafficking would quantitatively match or surmount that of States included in the list.86 Second, the Regulation provided for the removal of a country from Annex I (applying also to the Drug Arrangements) in the event that particular circumstances are met that do not relate “in any way to the degree to which the country is suffering from the ‘drug problem’”.87 In particular, Article 3 provided for the removal from Annex I of a country if particular criteria are met indicating that such country had reached a given degree of development. Article 12 also contemplated such removal with regard to a product sector in the event that the country concerned had attained a given level of development with respect to that sector. Title V provided for certain “temporary withdrawal and safeguard provisions”, common to all the preferential arrangements under the Regulation,88 which were also unrelated “to the question of whether the beneficiary is a ‘seriously drug-affected country’”.89 Concerning this

82

Id., para. 169. Id., para. 173. 84 Id., para. 176 (italics in the original text). 85 Id., para. 180. 86 Id., paras. 182, 183 e 187. 87 Id., para. 184. 88 See supra note 69 and corresponding text. 89 See Doc. WT/DS246/AB/R, para. 184. 83


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second point, while the AB analysis appears to be impeccable with regard to Title V, some doubts arise in relation to the reasoning on Articles 3 and 12, particularly in relation to Article 3, in the event that these provisions were applied on account of the fact that the developing country concerned was no longer… developing. Since Regulation No. 2501 was indeed intended to benefit developing countries, consistently with the text and the purpose of the Enabling Clause, when a country reaches a given degree of development which allows it to emerge from the group of developing countries, a developed State which granted such country a preferential treatment pursuant to the Enabling Clause has not only the faculty, but, in this writer’s opinion, even the obligation, to remove the said country from the list of countries eligible of preferential treatment. To hold otherwise would entail granting preferential treatment to a country which no longer falls within the scope of the Enabling Clause, thus violating GATT Article I. Be it as it may, the AB concluded that “the European Communities ‘failed to demonstrate that the Drug Arrangements are justified under paragraph 2(a) of the Enabling Clause’”.90 The Report of the AB (as well as the Panel Report, as modified by the AB Report) was adopted by the DSB on 20 April 2004. Although the final conclusion of the AB is the same as the Panel’s is, the reasoning that led to such conclusion is remarkably different and has changed the meaning and the implications of the decision for the EC. In particular, the AB has declared the compatibility with the Enabling Clause of preferential measures granted to a number of developing countries that is less than all developing countries, when this is justified by the purpose of achieving certain “development, financial and trade needs”91 which are common to only a part of developing countries, provided that the conditions and criteria contemplated by paragraph 3 of the Enabling Clause are respected. Thus, consistently with the only recommendation made by the AB, requiring the EC “to bring Council Regulation (EC) No. 2501/2001 […] into conformity with its obligations under the GATT 1994”,92 the EC will have the opportunity of continuing its policy of cooperation for development through the scheme provided by such Regulation, on the condition that it is adjusted so as to comply with the standards and criteria contemplated by the Enabling Clause as interpreted by the AB. At the DSB meeting of 19 May 2004 the EC declared its intention to fully comply with the recommendations of the AB Report as adopted by the DSB in a way compatible with its WTO obligations. The EC also stated that it would need a reasonable period of time to reach such goal, which, in the intention of the EC authorities, will be fulfilled through the adoption of a new GSP scheme, due to be enacted in 2005. On 16 July 2004 India requested that such period of time be deter-

90

Id., para. 189. See supra, text corresponding to note 80. 92 See Doc. WT/DS246/AB/R, para. 191. 91

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NOTES AND COMMENTS

mined through the recourse to arbitration pursuant to Article 21.3 of the DSU. The arbitrator, appointed by the WTO Director-General on 26 July 2004, decided on 20 September 2004 that the reasonable period of time “to implement the recommendations and rulings of the DSB in this dispute [should be] 14 months and 11 days from 20 April 2004, being the date of adoption of the Panel and Appellate Body Reports by the DSB”, and that it will therefore expire on 1 July 2005.93

93

See Doc. WT/DS246/14 of 20 September 2004, para. 60.

ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW

Classification Scheme

I.

INTERNATIONAL LAW IN GENERAL AND INTERNATIONAL CUSTOM

II.

LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

III.

STATES AND OTHER INTERNATIONAL LAW SUBJECTS

IV.


V.

TERRITORY

VI.

LAW OF THE SEA

VII.

ENVIRONMENT

VIII.

CULTURAL HERITAGE

IX.

AIR AND SPACE LAW

X.

TREATMENT OF ALIENS AND NATIONALITY

XI.

HUMAN RIGHTS

XII.

INTERNATIONAL CRIMINAL LAW

XIII.

INTERNATIONAL RESPONSIBILITY

XIV.

INTERNATIONAL DISPUTE SETTLEMENT

XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS

XVI.

INTERNATIONAL TRADE LAW

XVII.

INTERNATIONAL ORGANIZATIONS

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW XIX.

USE OF FORCE SHORT OF WAR AND PEACE-KEEPING

XX.

WAR, NEUTRALITY, AND DISARMAMENT

JUDICIAL DECISIONS (edited by Giuseppe Cataldi and Massimo Iovane) II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW (Cf. infra X, Tribunale di Torino, 23 January 2003 (order); Tribunale di Torino, 30 July 2003 (order); Tribunale di Pordenone, 14 August 2003 (decree); Tribunale di Bologna, 28 April 2004 (decree); XI, Corte Costituzionale, 28 November 2002, No. 494; Consiglio di Stato (Sez. I), 9 April 2003, No. 1926/02 (opinion); Corte di Assise di Milano, 15 December 2003; Corte di Cassazione (Sez. I civile), 17 June 2004, No. 11350; XV, Corte di Cassazione (Sezioni Unite penali), 18 June 2003, No. 13; Corte Costituzionale, 16 July 2004, No. 231; XVIII, Corte Costituzionale, 19 July 2004, No. 239; Corte Costituzionale, 22 July 2004, No. 258)

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS Immunity of foreign States from jurisdiction in civil matters as a customary rule automatically incorporated into the Italian legal order by virtue of Art. 10, para. 1, of the Constitution – 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters found not applicable to suits relating to sovereign acts – Generally recognised norms of international law protecting the liberty and the dignity of every human being as fundamental values – Acts violating fundamental values as international crimes – Deportation and forced labour as crimes of war prohibited by a jus cogens norm of general international law – Their commission during World War II as part of a precise strategy carried out by the German State – The protection of fundamental values is entrusted to peremptory norms that prevail over every other norm, whether customary or conventional – Criminal and civil universal jurisdiction – Human rights and tort exceptions to sovereign immunity – Immunity from jurisdiction denied Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044 Ferrini v. Federal Republic of Germany (Cf. supra in this volume the commentary by IOVANE, “The Ferrini Judgment of the Italian Supreme Court: Opening Up Domestic Courts to Claims of Reparation for Victims of Serious Violations of Fundamental Human Rights”) Immunity of State organs from criminal jurisdiction – Prime Minister of a State that is a member of a federal State – State members of a federal State are not


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subjects of international law – Recognition by other States as a non-constitutive element of international personality Corte di Cassazione (Sez. III penale), 17 September 2004 Re: Djukanovic In the judgment under review, the Corte di Cassazione had to establish whether the Prime Minister of Montenegro, Milo Djukanovic – having been convicted of criminal association aimed at the importation and traffic of contraband tobacco – could benefit from immunity from criminal jurisdiction. In this regard, the Court firstly observed that: “The existence of an international norm that guarantees Heads of State, Prime Ministers and Foreign Ministers of sovereign States personal inviolability [...] and immunity from criminal jurisdiction in respect of all activities carried out both as officials and private individuals is undisputed”. This is a customary provision which, by virtue of Art. 10, para. 1, of the Constitution (“The Italian legal system conforms to the generally recognized norms of international law”), is ipso facto binding within the Italian legal system and which allows for application of Art. 3 of the criminal code (whereby, inter alia, “Italian criminal law is compulsory for both citizens and aliens present in the territory of the State, unless provided for by [...] international law”). As the Court highlighted, however: “The same norm [...] states that inviolability and immunity apply only where the entity can be qualified as a sovereign one, comparable to a State”. Thus, the Court first had to establish whether Montenegro, as part of the State Union of Serbia and Montenegro, had an autonomous personality or not. The Court clarified that in order to qualify an entity as sovereign, two elements are necessary, namely effective government and independence. In contrast to previous jurisprudence (Sez. II, 16 July 1980, Re: Baccelli; Sez. III, 17 March 1997, Re: Ghiotti), the Court expressed the opinion that such an entity need not be recognized by other States: “Recognition of a State by other States […] does not produce any legal consequence (as in the case of non-recognition) and belongs to the political sphere, since it only shows the intention to establish friendly relations, to exchange diplomatic representatives and to start more or less intensive forms of cooperation by concluding treaties. Thus, it has no constitutive value in respect of international personality. […] Therefore, in this case, the fact that Italy (like other States) may or may not have recognized Montenegro as a sovereign State is irrelevant to granting Montenegro’s institutional organs immunity from criminal jurisdiction”. On this assumption, the Court reached the conclusion that:

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“Montenegro cannot be qualified as a sovereign State, i.e. an autonomous and independent subject of international law. As a consequence, Djukanovic […] does not enjoy the immunity from criminal jurisdiction recognised by a special provision of customary international law […], only for Heads of State, Prime Ministers and Foreign Ministers”. Two main arguments were used by the Court to justify this conclusion. First, the Court recalled that several advisory opinions have been issued by the Italian Foreign Office, unanimously affirming that Mr Djukanovic is not entitled to immunity from criminal jurisdiction due to a lack of international personality for the Republic of Montenegro. Second, the Constitutional Charter of the State Union of Serbia and Montenegro (Art. 14) expressly states that: “Serbia and Montenegro shall be a single personality in international law and member of international global and regional organizations that set international personality as a requirement for membership. The member States may be members of international global and regional organizations which do not set international personality as a requirement for membership”. Articles 15 and 19 of the Charter have similar content. The second argument used by the Court appears to be particularly decisive. Indeed, as correctly observed in legal doctrine, the question of the personality of the component units of a federation has to be determined in light of the constitution of the State in question (SHAW, International Law, 5th ed., Cambridge, 2003, p. 196). The judgment of the Court is even more commendable, given that it definitively clarifies the conditions under which an entity may be considered a sovereign one. It is also worth noting that the Court, following the opinion of several authors (see inter alia CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 17 ff.), has definitely abandoned the constitutive recognition theory, by highlighting that such an act has an exclusively political and declaratory nature. (The Italian text of the decision has not yet been published). FULVIO MARIA PALOMBINO Sovereign immunity from jurisdiction – Order of Malta – Subjects of international law – Jurisdiction over disputes concerning patrimonial aspects of labour relations Corte di Cassazione (Sezioni Unite), 12 November 2003, No. 17087 (order) Association of Italian Knights of the Sovereign Military Order of Malta v. Spatini

344


The order under review confirms the traditional tendency of Italian case-law to acknowledge that the Order of Malta is an international subject, generally entitled to sovereign immunity (from Italian jurisdiction). However, the order also confirms the more recent and welcome trend toward restricting this immunity and, in particular, affirms Italian jurisdiction over disputes concerning the patrimonial aspects of labour relations. Mr. Spatini, a member of the Military Corps of the Association of Italian Knights of the Sovereign Military Order of Malta, had petitioned a civil judge, asking for the payment of extra wages which he claimed he was entitled to. The Association, in turn, invoked a lack of jurisdiction and applied to the Corte di Cassazione for a preliminary ruling on the issue. In the first part of the ruling the Court recognised that the Order of Malta is a subject of international law: “The case-law of this Court is consistent in recognising the position held by the Sovereign Order of Malta as a subject of international law in the Italian legal system”. This opinion is in line with well-established practice in Italian case-law (see, for all, Cassazione, 14 July 1953, No. 2281, reproduced in Giur. It., 1954, I, 1, p. 462 ff.; 6 June 1974, No. 1653, ibidem, 1975, I, 1, p. 489 ff.; 18 March 1999, No. 150, reproduced in Giustizia civile, 1999-I, p. 3353 ff.), recently also confirmed by the Italian Parliament, which authorised the ratification and ordered the execution of an international treaty concluded with the Order concerning the management of its hospitals in Italy (see Law No. 157 of 9 June 2003 concerning the execution of the Treaty of 21 December 2000). However, the above-mentioned tendency has been heavily criticised by international law scholars, as one without support in the principles of international law. The opinion is commonly shared that this practice is the source of an absolutely unjustified situation of privilege (see, among others, BERNARDINI, “Ordine di Malta e diritto internazionale”, RDI, 1967, p. 497 ff.; PAONE, “Ordine di Malta e sistema giuridico internazionale”, ibid., 1979, p. 233 ff.; LARGER and MONIN, “A propos du protocole d’accord du 5 septembre 1983 entre les ‘Services Gouvernementaux Français’ et la ‘Représentation officielle en France de l’Ordre de Malte’ : quelques observations sur la nature juridique de l’Ordre de Malte”, AFDI, 1983, pp. 229-239; CONFORTI, “Sui privilegi e le immunità dell’Ordine di Malta”, Foro It., 1990, I, p. 2597 ff.). In light of these opinions, the judgment invites criticism when it claims that: “[T]he theory that the Order of Malta enjoys sovereign privileges is unanimously shared by legal scholars”. As the Order was considered an international subject, the Court applied, to the Italian Association, the principles on jurisdictional immunity in employment disputes that have been developed by Italian tribunals with regard to foreign States. The Court affirmed that: “[C]oncerning labour relations with foreign States, no immunity from jurisdiction shall be recognised when the dispute involves the per-

JUDICIAL DECISIONS

345

formance of peripheral activities that have no bearing on the institutional functions of the State in question. Similarly, a plea of immunity will also be dismissed when the dispute concerns activities performed by white-collar employees who participate in the sovereign functions of that State, provided that the claim involves exclusively financial matters. In fact, a decision on this kind of claim is incapable of interfering with the above-mentioned functions of a foreign State”. On this ground – given that the dispute concerned only financial matters – the Court affirmed Italian jurisdiction over the case. With regard to State immunity, a distinction between the “economic” and “organisational” aspects of employment relationships had been introduced by the Court in judgment No. 2329 of 15 May 1989, and confirmed on several occasions (see orders No. 5941 of 18 May 1992, reproduced in RDI, 1992, p. 402 ff., No. 9657 of 24 September 1993, ibid., 1993, p. 812 ff.). The Court’s conclusion here is in line with a trend in the Corte di Cassazione toward reducing the immunity attributed to the Order on other grounds (see, for example, the reference to waiver of immunity in judgments No. 3374 of 19 July 1989, reproduced in Foro It., 1990, I, p. 2595 ff., and, mutatis mutandis, No. 960 of 18 February 1989, ibid., 1989, I, p. 677 ff.; the significance attributed to the private nature of the activity carried out in judgment No. 1073 of 3 February 1988, reproduced in RDI, 1988, p. 905 ff.; or the relevance attributed to the financial character of the dispute in order No. 374 of 14 January 1992, reproduced in Diritto ecclesiastico, 1992-II, p. 3 ff.). This trend, strengthened by the findings of the Court in the present case, gives greater respect to the individual right of action guaranteed by the Italian Constitution and in human rights instruments and, for this reason, should be welcomed. Nevertheless – as has been said on several occasions in this Yearbook (see Vol. II, 1976, p. 328 ff.; Vol. VIII, 1988-1992, p. 38; Vol. IX, 1999, p. 154 ff.) – it would be preferable and more consistent with international law principles to abandon the theory of the Order’s international personality altogether. (The Italian text of the order has been published in RDIPP, 2004, pp. 1034-1036). FRANCESCA DE VITTOR

X. TREATMENT OF ALIENS AND NATIONALITY Alien – Public housing – Allocation of housing – Classification list – Additional points to Italian citizens – Discrimination based on race Tribunale di Milano, 21 March 2002 Alien – Building consortium – Articles of association – Members – Exclusion of non-EC citizens – Discrimination based on race

346


Tribunale di Monza, 27 March 2003 These judgments are among the first applications of the discipline provided for by Law No. 40 of 6 March 1998 (Rules on immigration and on the legal status of aliens, cf. IYIL, Vol. IX, 1999, p. 315 ff., transposed into Testo Unico by D.Lgs. No. 286/1998) relating to civil protection from discriminatory action or conduct by reason of race or nationality concerning entitlement to dwelling of aliens regularly residing in Italy. The 6th sub-section of Art. 40 of the Testo Unico provides for regularly resident aliens’ right to public housing on the same terms as Italian citizens. Consistent with Art. 43 of the Testo Unico, the provision of lett. c) allows for the possibility of initiating civil suits for refusal to assign public housing or for the imposition of disadvantageous conditions by reason of foreign status, race, religion, ethnic group or nationality. With the first judgment under examination, the Court of Milan censured the attribution of additional points to applicants of Italian citizenship in classification lists for the allocation of public housing as discriminatory behaviour. By a previous decree (judgment No. 323/2000, published in Diritto, immigrazione e cittadinanza, 2002, No. 2, p. 117 ff.), the Regional Administrative Court of Piemonte had dealt with a similar situation; but, having examined matters from a different perspective, ruled admissible the provision laid down in regional law providing, as a prerequisite for participation in allocation of public housing, not only that the alien be a regular resident but also that he be gainfully employed, either as a subordinate employee or as an autonomous worker, for at least three years (for concurrent critique of the decision, see GILI, “Una singolare pronuncia giurisdizionale in materia di diritto all’accesso agli alloggi pubblici da parte degli stranieri”, Diritto, immigrazione e cittadinanza, 2002, No. 2, p. 73 ff.). The Court of Milan, on the other hand – after having resolved preliminary issues relating to the jurisdiction and powers of ordinary judges and after having confirmed the absence of any issues of public order, as well as any legal regulations allowing the administration to proceed in this direction – reached the conclusion that the conduct under examination was discriminatory, because “[...] it results in the imposition of disadvantageous conditions upon aliens’ entitlement to public housing, even when such aliens regularly reside in Italy, (and this) only because of their status as foreign citizens”. We have, furthermore, to point out the recognition of the legitimacy of public interest organisations to initiate action. Initially this recognition was not provided for by the Testo Unico. The possibility was later expressly introduced by D.Lgs. No. 215/2003 – implementing EC Directive 2000/43 concerning equal treatment among people irrespective of their racial and ethnic origin – which stipulated that any such association be included in a list approved by the Minister of Labour and Social Policies, as well as by the Minister of Equal Opportunities, and have a formal proxy from the victim of the act of discrimination, except in cases of collective discrimination when the persons damaged cannot be directly and immediately identified.

JUDICIAL DECISIONS

347

The second judgment ruled against a provision in the articles of association of a building consortium to limit membership to EC citizens only, as an instance of discrimination for reasons of national origin. This judgment was issued as a result of the appeal filed by the building consortium against the previous order issued by the court, by which the judge had ordered the consortium to accept Mr. Mohsenifar Mostafa’s application for membership. Against the consortium’s argument that the judicial order was prejudicial to the autonomy and to the right to self-government granted by the articles of association, the judge answered that: “The regulations provided for by the articles of association of a consortium may not conflict with State regulations, under penalty of being declared illegitimate or voided, as in this specific case”. Since the prohibition against discrimination is an imperative precept, any conflicting provision of the articles of association is to be considered void. In support of this assertion, the judge cited numerous cases of violation of the (public order) principle of non-discrimination by sports associations – governed, like the building consortiums, by the principle of internal self-regulation – which denied membership cards to non-EC citizens (see Tribunale di Teramo, 30 March 2001 for basketball; Tribunale di Reggio Emilia, 2 November 2000 for football, both reproduced in Foro It., 2002, I, p. 898 f.). However, the judge did conclude that the protested decision had to be amended. Considering that admission to membership does not depend only on the applicant’s status as an EC-citizen, the direct order for acceptance of the application is to be replaced by: “[E]nunciation of the obligation to consider it on the basis of all the requirements laid down in the articles of association, with the exception of the requirement concerning nationality”. As previously mentioned, it must be pointed out that, with D.Lgs. No. 215/ 2003, Italy has recently implemented EC Directive 2000/43 concerning equal treatment among people irrespective of racial and ethnic origin. However, unlike the EC Directive, Arts. 43 and 44 of the Testo Unico specifically concern discrimination based on nationality. (Among other things, these provisions are the basis for the two judgments above, which could not have been issued if they had been based on the EC directive only). Considering this aspect of the issue, since the directive provides for a non-recourse clause, the prior most favourable legislation should thus remain in force (in these terms, see ACIERNO, “La tutela delle discriminazioni nel d.lgs. No. 215/2003”, Diritto, immigrazione e cittadinanza, 2004, No. 3, p. 47). However, some problems of interpretation will certainly be caused by the fact that the legislative decree that implements the directive expressly reproduces – more or less verbatim – the questionable provision of the directive stating that “this legislative decree does not cover difference of treatment based on nationality and is without prejudice to the national provisions and to the conditions relating to the entry, residence, access to occupation, social assistance and security of third country nationals and stateless persons in the territory of the State, nor any other legal treatment, established by law, arising out of the legal status of the aforementioned persons”.

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Should the interpretation allowing the domestic rules implementing the directive to supersede the previous provision prevail, there would be a risk that immigrants might be deprived of protection against a form of indirect racial and ethnic discrimination, resulting from alleged distinctions based on nationality. ANNA LIGUORI Expulsion order – Art. 8 of the European Convention on Human Rights (ECHR) – Right to respect for family life – Intervention of public authorities on the grounds of national security, crime prevention and protection of public morals – Art. 3, para. 1 of the United Nations Convention on the Rights of the Child – Principle of the best interest of the child – Prejudice for the child living in Italy deriving from deportation of a parent – Necessity of balance between public interest and individual right to family life – Degree of danger actually represented by the alien – Lack of necessity or proportion in State’s interference – Annulment of expulsion Tribunale di Torino, 23 January 2003 (order) Re: Evbadazehi K.E. Tribunale di Torino, 30 July 2003 (order) Re: Stajanovic T. Tribunale di Pordenone, 14 August 2003 (decree) Re: Vehbi E. Tribunale di Bologna, 28 April 2004 (decree) Re: X The decisions quoted above address two important issues, namely respect for family life in Italian immigration practice and the determination of applicable rules when this right is governed by conflicting domestic and international provisions. In order to tighten immigration policy, Italian immigration law was recently reformed, reducing the number of cases where the right to enter Italy is granted to aliens and increasing the power of competent authorities to revoke residence permits for public policy or public security reasons (D.Lgs. No. 268 of 1998, as modified by Law No. 189 of 2002, hereinafter Immigration Law). In particular, the Immigration Law provides a broader range of cases in which an alien may be expelled after conviction or violation of immigration rules. In the decisions discussed here, judges revised expulsion orders for aliens convicted of criminal or administrative offences. Following conviction, the aliens were expelled by the competent administrative authority, since their presence on domestic territory was considered dangerous for society and prejudicial to public order and national security.

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The first decision concerns an appeal filed by a Moroccan woman (Evbadazehi), convicted of aiding, abetting and exploiting prostitution, against an expulsion order issued on the basis of Art. 13(2)(c), of the Immigration Law. The Italian legal system gives particular weight to this offence, since it undermines public morals; and since the offender is considered dangerous to society (definition provided by Art. 1 of Law No. 1423/56 recalled by Art. 13(2)(c)). Applicant had complained that the expulsion order violated her right to respect for family life, as guaranteed by Art. 8, para.1, of the European Convention on Human Rights (ECHR). In particular, she claimed that public authorities’ interference in her family life would not be “appropriate in a democratic society” or proportionate to the legitimate aim, pursued by the Italian legislator, of fighting prostitution. The judge in this case recalled that Art. 8, para. 2, of the ECHR, indicates the circumstances in which public authorities can validly interfere with the right to respect for family life. The article states that: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals […]”. Although the instance of interference with family life in this case respects the legality requirement and pursues a legitimate aim, grounded in public morals, the judge found a need to ascertain “whether the requirements really exist, if the measure applied is indeed necessary to safeguard public order and to prevent offences”. According to the judge, a two-stage procedure has to be followed in determining whether the alleged violation of Art. 8 has actually occurred. The first step is to check whether the individual, in view of his conviction, could represent an real danger to society. If so, any interference with family life would be theoretically justified by Art. 8, para. 2. The second step encompasses the proportionality test, i.e. balancing the alien’s interest in remaining in Italy with his family with the State’s interest in safeguarding moral values. This test consists of comparing the real and concrete danger the alien represents to society with the severity of interference in his family life. In evaluating the criteria relevant to carrying out this assessment, Italian judges must take into account the factors (already) identified by the European Court of Human Rights (in particular reference is made to decision Boultif v. Switzerland of 2 August 2001): “[T]he nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is

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going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children in the marriage, and if so, their age; seriousness of the difficulties which applicants and their families would be likely to encounter in complying with the expulsion order”. In the present case, the Tribunal gave particular weight to three elements. Firstly, the alien has lived in Italy for many years, and is perfectly integrated; secondly, her three sons grew up in Italy and have no ties with their mother’s country of origin; thirdly, apart from the offence committed, applicant’s behaviour has been irreproachable. Taking these elements into account, the judge held that “the degree of danger actually shown [by the applicant] is not sufficient to require her expulsion from the State as a measure necessary for the ‘protection of the community’. The expulsion order is ‘undue’ and disproportionate, considering the overall disruption that the measure would have on the private and family sphere of the life of the person to be deported”. It has to be pointed out that the Constitutional Court has already addressed, if in an obiter dictum, the problem of a possible conflict between an individual’s interest in family life and the State’s interest in defending public order and national security (see IYIL, Vol. XII, 2002, p. 272). In that case, the Court stated that the interest of the individual “has to yield to the need to protect public order and the State’s security”. As many scholars have rightly pointed out, the Constitutional Court completely overlooked not only the importance of the rights of the family in our constitutional system in the decision, but also the Italian obligation to respect the limitations imposed by Art. 8 of the ECHR. The decision at issue thus has the merit of modifying the previous trend, by recognizing the existence of international State obligations in the field of human rights and by relying on them to assess the legitimacy of the measure being challenged. Moreover, the Tribunale di Torino, when deciding the extent to which the State may limit an individual’s right, chose to adhere strictly to the criteria established by the European Court of Human Rights in its case-law. Lastly, only by adopting a case-by-case approach and evaluating the concrete interests involved can the judge effectively balance the contrasting requirements acknowledged by the European Court’s case-law. (The Italian text of the decision is published in Diritto, immigrazione e cittadinanza, 2003, No. 2, p. 127 ff.). In the Stajanovic case, the expulsion of an alien, living in Italy with his family, had been ordered for non-renewal of a permesso di soggiorno (permits of stay).

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The alien, with both his own children and a two year-old nephew under his custody, appealed against the measure, alleging violation of both Art. 8 ECHR and Art. 3, para. 1, of the New York Convention on the Rights of the Child (ratified by Italy with Law No. 176 of 27 May 1991. The law at issue has been published in GU No. 135 of 11 June 1991). As to the violation of Art. 8 ECHR, the judge, seeking to balance the need to guarantee public order with that of protecting family life, granted applicant’s request in this case also. Indeed, in the judge’s view, firstly, the fingerprint records to which applicant had been previously subjected could not be considered decisive in proving that he was a social danger; and secondly, the social ties of the alien in Italy were such as to justify protection of his private and family life. With regard to the violation of Art. 3, para. 1, of the New York Convention (which recognizes the primacy of the best interest of the child), the judge determined that: “The definitive expulsion of the alien would be detrimental to the child, whose interest has to prevail in each administrative proceeding related to family unity”. In other words, the judge maintained that when a deportation measure concerns the parent (or person to whom custody of the minor has been entrusted) of a child living in Italy, the legitimacy of the measure has to be assessed in light of specific provisions on child protection. (The Italian text of the decision is published in Diritto, immigrazione e cittadinanza, 2003, No. 4, p. 134 ff.). The Vehbi case concerns an alien who, having been convicted for simple theft, did not obtain a renewal of his visa and, consequently, was notified of an imminent expulsion order. The domestic provision applicable in the case at issue was Art. 4, para. 3, of the D.Lgs. No. 286/98 (as modified by Art. 4 of Law 189/2002), according to which an alien convicted for certain offences (like theft, with aggravated circumstances) cannot be allowed to re-enter Italian territory. As a result, if the offender is found to be living in Italy, he is automatically deported. Mr. Vehbi maintained that the application of the provision led to violation of Art. 8 ECHR and, in this respect, asked the judge to suspend his deportation measure. The judgment is interesting, given that it concerns the central issues of whether ECHR provisions have to be directly applied in the Italian legal system; and of how possible conflicts between convention rules and subsequent domestic rules should be solved. As regards the second issue, the judge in the case relied on the view of the Corte di Cassazione, according to which the legal framework introduced to Italy by the ECHR cannot be modified by subsequent domestic provisions. Moreover, the same Court has affirmed that Italian law which enforces the European Convention in the Italian legal order represents an “atypical source”, with a primary nature, and, as such, prevails over domestic laws (Corte di Cassazione (Sez. I), 8 July 1998, No. 6672; Corte di Cassazione (Sezioni Unite), 6 May 2003, No. 6853). On this assumption, the judge in the Vehbi case reached the following conclusions:

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“a) had D.Lgs. No. 286/1998 intended to regulate the regime of family unity differently vis-à-vis the European Convention and in the absence of a change in the Convention, it would produce no nullifying effect [...]; b) the judge who discovers the existence of a conflict between the European Convention and D.Lgs. No. 286/98, should undoubtedly apply the first, without raising a question of constitutional legitimacy, given that […] the subsequent domestic provision would be inutiliter data; c) where the judge has to apply provisions of D.Lgs. No. 286/98, the interpretation of which appear uncertain and which may also be read in a manner seen to conflict with the Convention, he should choose the solution which guarantees respect of the Convention”. According to the judge, the third hypothesis prevails in the case at issue; and thus the apparent conflict between Art. 4, para. 3, of D.Lgs. No. 286/98 and Art. 8 ECHR can be solved by interpretation. In this regard, the judge underscored that Art. 4, para. 3, specifies the following: “Italy will permit entry to its own territory to the alien in accordance with obligations assumed under specific international agreements […]”. The legislator thus recognizes, in the provision above, that the application of domestic provisions on sojourn have to be interpreted in accordance with international obligations in force. Consequently, according to the Tribunal, the sole interpretation practicable is the one which guarantees the right to private life, as provided for in Art. 8 ECHR. The application of Mr. Vehbi had to be upheld on these grounds. The approach adopted by the Tribunal in order to reach such a conclusion, namely recourse to interpretation, is undoubtedly persuasive. Indeed, the inconsistency between Art. 8 ECHR and subsequent municipal provisions could be justified differently. First, the judge could have relied on the jurisprudence of the Constitutional Court, according to which Art. 10, para. 2, of the Constitution (“The legal status of the foreigner is regulated by law in accordance with international rules and treaties”) already guarantees the primacy of international obligations regarding the protection of aliens over subsequent domestic provisions. Second, reference could have been made to Constitutional Law (legge costituzionale) No. 3/2001, whose Art. 3(1) (which amends Art. 117(1) of the Italian Constitution) establishes that municipal laws have to respect international obligations. As already highlighted by an authoritative doctrine (CONFORTI, “Reflections on the Recent Amendments to the Italian Constitution Concerning Respect for International and European Community Law”, IYIL, Vol. XI, 2001, p. 3 ff.) and despite the fact that conflicting opinions have been expressed in this regard, the new Art. 117(1) of the Constitution means that a municipal law which does not respect the provisions of a treaty goes against the

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Constitution. On the basis of either Art. 10(2) or Art. 117(1) of the Constitution, the Constitutional Court could quash a subsequent domestic provision inconsistent with treaty norms. Thus, the judge could have relied on both of the two arguments to raise the issue of the constitutional legitimacy of the above-mentioned domestic provision. Nevertheless, our impression is that the approach adopted by the Tribunal was the most appropriate. The solution reached in the above-mentioned cases, i.e. the decision of directly interpreting domestic provisions in accordance with international obligations, allows for prompt and effective protection to the alien. It is noteworthy, in this regard, that the same doctrine favourable to a textual interpretation of Constitutional Law No. 3/2001 recognizes that the primacy of international obligations should be guaranteed primarily by means of interpretation. (The Italian text of the decision is published in Diritto, immigrazione e cittadinanza, 2003, No. 4, p. 145 ff.). The fourth decision to be considered is similar to the Stojanovic case, since it concerns a Moldovan citizen, living in Italy with a child, who was expelled because of an administrative infringement, i.e. the failure to submit her visa request within the period prescribed. The grounds for her claim, regarding the violation of Art. 24 of the Immigration Law, of Articles 29 and 30 of the Constitution, of Art. 8 ECHR and of the New York Convention on the Rights of the Child, were upheld by the judge in the case, who concluded: “By the joint application of the above-mentioned provisions of the Italian Constitution, of the European Convention on Human Rights and of the New York Convention on the Rights of the Child, an incontestable right of the 7-year old child of the claimant to live with both parents emerges. The best interest of the child and the rights and duties of the parents to bring up a child cannot be interfered with by reason of the interest of the State to punish an administrative infringement of an alien who has never been proven to be dangerous to society”. The reasoning of the judge reflects, for the most part, that developed in the other judgments. The sole difference lies in the fact that in the case at issue the judge applied Art. 28 of the Immigration Law, according to which: “In all administrative and judicial proceedings aiming to enforce the right to family unity and concerning children, the best interest of the child should above all be taken into account in accordance with what is provided for by Art. 3, para.1, of the Convention on the Rights of the Child”. (The Italian text of the decision is published in Diritto, immigrazione e cittadinanza, 2004, No. 2, p. 155 ff.). LUCIA ALENI

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XI. HUMAN RIGHTS 1989 United Nations Convention on the Rights of the Child – Right to Personal Identity – Equality Principle (Article 2 of the Italian Constitution) – 1975 European Convention on the Legal Status of Children Born Out of Wedlock – Children born out of an incestuous union Corte Costituzionale, 28 November 2002, No. 494 Corte di Cassazione, 4 July 2002 (order) In its order of 4 July 2002 the Corte di Cassazione challenged the constitutional legality of Article 278 paragraph 1 of the Italian Civil Code (hereinafter c.c.), and of Article 251 paragraph 1 c.c., providing for judicial recognition of paternity for children born out of an incestuous relationship. According to Article 278 paragraph 1, investigations of paternity are not admitted when recognition of such children is already prohibited in Article 251 paragraph 1. In the opinion of the Court of Cassation the prohibition of any investigation is in conflict with Articles 2 (Equality Principle), 3 (Non Discrimination Principle) and 30 paragraph 3 (Parental Duties) of the Italian Constitution. It also contradicts the right to personal identity provided for by Article 8 of the 1989 United Nations Convention on the Rights of the Child, as well as the right to paternal affiliation provided for by Article 3 of the 1975 European Convention on the Legal Status of Children Born Out of Wedlock. In its judgment, the Corte Costituzionale outlined the legal status of children born out of an incestuous association in the Italian legal order, from early codifications during the 19th century to the 1975 reform of the family law. The unequal legal status of children born to parents with family ties, compared to other children born out of wedlock, emerges from this analysis. The Court admitted that the child was a victim of a situation whose negative consequences on his rights led to an unjustifiable violation of the principle of equality of all citizens before the law. Article 2 of the Constitution, recognized as one of the most fundamental principles, offers general recognition and active protection of the inviolable rights of persons. Legal discrimination of an individual based on personal and social conditions is prohibited. The right to obtain a status filiationis can derive from this general protection. Although the Constitution (Article 30 paragraph 4) provides for the possibility of prescribing provisions and limits for parental affiliation in national legislation, any violation by law of the principles of Article 2 is in principio categorically excluded. The Convention on the Rights of the Child was expressly mentioned by the Constitutional judges when they took into account a possible conflict between the

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concepts of “family”, defined as “a natural association based on marriage” (Article 29 of the Constitution), and of “children born out of an incestuous union”, identifiable as “signs of a contradiction in the family order” but, as individuals, not the bearers of responsibility for the acts of their parents. In the opinion of the Corte Costituzionale, it is impossible for the protection of the family to prevail over children’s rights, even where there is justification for such protection is based on the need to prevent a threat against the family and its identity. Family identity might be seriously jeopardized only if a ‘totalitarian’ concept of the family is admitted. However, as stated on other occasions by the same Corte (see Judgment No. 120 of 5 March 2001): “[The Italian] Constitution does not provide for a concept of the family against and above individuals and their personal rights. In the present case, the right of a child to a formal parental affiliation must be guaranteed, whereas there are no reasons for denying it […] The above-mentioned right is part of the right to personal identity, protected not only by Article 7 and 8 of the United Nations Convention on the Rights of the Child, but also by Article 2 of the Constitution”. As a result, and with the purpose of giving effective protection to the personality of individuals, the Corte Costituzionale annulled that part of Article 271 paragraph 1 c.c. which excludes the establishment of paternal affiliation through judicial decision in cases – provided for by Article 251 paragraph 1 c.c. – where recognition of children born out of an incestuous relationship is forbidden. The judgment under examination invites some observations. First of all, any advance in the protection of the right to personal identity has to be welcomed. In particular, this decision deals with a case in which the persons involved bear no responsibility for the situation in which they find themselves. Concrete progress has therefore been achieved for the removal of discrimination towards children born out of an incestuous union. According to Article 7 paragraph 2 of the 1989 Convention of the Rights of the Child: “States Parties shall ensure the implementation of [children’s] rights in accordance with their national law”. It is the task of the State to widen, as far as possible, the application of the right to personal identity. The Court did not mention the 1975 European Convention on the Legal Status of Children Born Out of Wedlock, which had been recalled by the Corte di Cassazione in its order of 2002. In fact, Italy has signed but not yet ratified the Convention and, as a consequence, is not formally bound by it. At any rate, under the principle of good faith, any signatory State should, pending ratification, refrain from substantive acts against the “object and scope” of the treaty. Ratification of the 1975 Convention as a tool for the protection of children’s rights has also been recommended by the Committee on the Rights of the Child,

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a “treaty body” of independent experts established by the 1989 Convention and charged with the task of monitoring implementation of the Convention by State Parties. In considering Italy’s second periodic report in 2003, the Committee pointed out that the entry into force of the European Convention may help the attainment of the right to an identity for “every” child born out of wedlock (UN Doc. CRC/C/15/Add. 198 of 18 March 2003, para. 27). (The Italian text of the judgment has been published in Foro It., 2004, I, p. 1053 ff.). European Convention on Human Rights and Fundamental Freedoms – Rights of property – “Occupation-expropriation” rule – Effects of the judgments of the European Court of Human Rights Consiglio di Stato (Sez. I), 9 April 2003, No. 1926/02 (opinion) Presidenza del Consiglio dei Ministri A request for an advisory opinion had been lodged with the Consiglio di Stato by the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers) in order to ascertain the effects of a judgment by the European Court of Human Rights on the relationship between the State and its organs. The case concerned the application of the “occupation-expropriation” rule (occupazione acquisitiva or accessione invertita), under which the State may take possession of land in the public interest by using an expedited procedure, but thereby failing to issue an expropriation order. The rule had been scrutinized by the Strasbourg Court, which considered it a violation of the right to property, protected by Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR) (see, inter alia, Belvedere Alberghiera v. Italy, Application No. 31524/96, Judgment of 30 May 2000; Carbonara and Ventura v. Italy, Application No. 24638/94, Judgment of 30 May 2000). Specifically, the Court had found that constructive expropriation was not “provided for by the law”, as established by the ECHR, but had been created through domestic jurisprudential principles, applied on an inconsistent basis. In the present case, the Consiglio di Stato was asked if a judgment awarding compensation to the victims of the violation of Article 1 of the First Protocol of the ECHR might give rise to compensation claims by the Presidency of the Council of Ministers against local authorities, whose acts were the source of the ascertained violation. Any judgment rendered by the European Court is, in fact, directed to State Parties, and is normally delivered to the Presidenza del Consiglio dei Ministri, representing the State as a whole. The Consiglio di Stato analysed the European system of protection of fundamental rights, based on the ECHR and guaranteed by the Strasbourg Court. The judgements of the European Court of Human Rights are binding upon States, as per Article 46 ECHR; when a violation of the Convention and its Protocol is ascertained, the Court may afford just satisfaction to the injured.

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While Articles 244 and 256 or the European Union Treaty provide for direct application of judgments of the European Court of Justice, “[N]o provision of the ECHR establishes that judgments of the European Court of Human Rights are self-executing in domestic legal orders. The sole purpose of the process before the Court is to ascertain the possible default of a State with respect to obligations deriving from the treaty. The effects of the judgments remain on an international level, even though the obligation for the condemned State to give compensation to the plaintiff is established”. Such a conclusion would be consistent with the case-law of the Court and, in particular, with the Belvedere Alberghiera judgment, which did not directly grant compensation but asked the State to settle the question of quantifying the amount or identifying the means for compensation for damage incurred. The possibility for the Presidenza del Consiglio dei Ministri to sue local authorities on the basis of the existence of a judgment from the European Court may be excluded. Any possible action should be verified under domestic law, even though: “[A]ction [against local authorities] could be carried out where attainment of the principle under which ECHR provisions […] are directly applicable in the Italian legal order is affirmed”. The Consiglio di Stato then tackled the thorny question of the nature of ECHR obligations. First of all, it is ascertained whether the wording of Article 1 of the First Protocol allows for a provision of a self-executing nature. In the ECHR the right of property is ensured; a restriction of this right may be envisaged in the public interest, but only “subject to the conditions provided for by law and by the general principles of international law”. The State has the right to enforce laws “as it deems necessary to control the use of property in accordance with the general interest”, and “under the control of the European Court, where there is substantive compatibility of national laws with the limits set by the Convention (public interest; balance between loss of possession and compensation)”. With specific reference to the “occupation-expropriation” rule, violation of the ECHR was found by the European Court because, on the one hand, the rule would violate the legality principle and, on the other, would allow a State organ to benefit from a situation contrary to the law. The self-executing nature of the prohibition of the constructive expropriation rule may be detected from the outline above, with the ensuing result of: “[P]lacing an obligation on the public authority to face up to the consequences of its acts. Among these consequences, any organ would have the duty to compensate for damage incurred by the individual,

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but also to return to the State the amount due to the victim, in execution of a judgment of the Strasbourg Court”. But the Consiglio di Stato – recalling a precedent opinion (see Consiglio di Stato (adunanza generale), 1 March 2001, No. 2, cf. IYIL, 2001, p. 293 ff.) – excludes the possibility of considering the ECHR directly applicable in the national legal order. It asserts that the “occupation-expropriation” rule under scrutiny is now envisaged as a set of “accessible, precise and foreseeable” rules, since it has been included in the consolidated text (testo unico) of legislative and administrative measures on expropriation for public utility (DPR No. 327 of 8 June 2001, modified by D.Lgs. No. 302 of 27 December 2002). These provisions reconcile any possible contrast with the ECHR on the subject. The European Court may still intervene in the settlement of a dispute and establish “just satisfaction” when the determination of compensation by national authorities is restrictive vis-à-vis the real value of the goods expropriated. Another legislative intervention is then sought by the Consiglio di Stato. Once a judgment has been rendered by the European Court, the re-opening of internal jurisdictional proceedings should be allowed, in order to place an obligation on the local authority to pay compensation for damage caused by its erroneous determination of the value of the expropriated goods. Some conclusions may be drawn from the opinion under review. The Consiglio di Stato takes into consideration the difference between local and central authorities for the purpose of ascertaining responsibility for violation of the ECHR. In its view, when a violation of the right to property is found by the European Court as a result of the application of the “occupation-expropriation” rule, State authorities are also responsible for awarding compensation for damage incurred, even though the action was carried out by local authorities. It has to be pointed out that, even admitting that initial responsibility might be attributed to the actions of local authorities, violations of the ECHR are realised only when State Parties do not “secure to everyone” the rights defined in the Convention. The European Court of Human Rights can deal with the ascertainment of responsibility only after all domestic remedies have been exhausted. The “occupation-expropriation” rule has generally been considered compatible with the legality principle by Italian courts. Only after the exhaustion of all domestic judicial remedies, was the practice submitted to the Strasbourg Court for its compatibility with the ECHR, and found in violation of Article 1 of the First Protocol. Therefore, the judgments of the European Court are directed at the State as a whole because the latter incurs international responsibility for the violation of rights ensured by the ECHR. The International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts declare, at Article 4, that “the conduct of any State organ shall be considered an act of that State under

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international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State” (UN Doc. A/RES/56/83 of 28 January 2002). The task of the Court is accomplished when it discovers State responsibility. However, domestic law may provide for any relevant subsequent action for the determination of lower levels of accountability. As noted on other occasions (see IYIL, 2001, p. 296 ff.), the Consiglio di Stato has followed, and still follows, a very restrictive approach in the detection of the possible direct application of conventional rules in the domestic legal order. According to its view, general uncertainties on the subject would have consequences even on the positive outcome of a claim for compensation brought against a local authority. The legislative solution sought by the Consiglio can unquestionably settle the problem, but it seems to us complicated and far from being effectively realized. (The Italian text of the opinion has been published in Foro It., 2004, III, p. 336 ff.). GIOVANNI CARLO BRUNO Slavery – Reduction to slavery – International trafficking of human beings – Slavery Convention of 1926 – Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1957 – Article 600 of the Italian Criminal Code – Law No. 228/2003 providing “measures against trafficking of human beings” – Succession of criminal provisions Corte di Assise di Milano, 15 December 2003 Re: Toma and Others On 11 August 2003 the Italian Parliament passed Law No. 228/2003, providing measures preventing the trafficking of human beings. Article 1 of the abovementioned Act amended Article 600 of Italian criminal code relating to the crime of slavery. The judgment under review represents one of the first decisions handed down by an Italian court on Article 600 of the criminal code since the entry into force of the new law. In the present case the defendants, two Albanian citizens, had been charged with the crime of having reduced to slavery two women from the same country. The investigating authorities provided evidence attesting that the accused, having bought the women at clandestine markets, had trafficked them from Albania and, once in Italy, forced them into prostitution, in the process taking away their documents and depriving them of liberty. The decision deserves attention as the judges of the Corte di Assise (in the Italian criminal judiciary this jury tribunal has first instance jurisdiction over very serious crimes) had to scrutinize whether, as to the crime of reduction to slavery, Law No. 228/2003 simply abrogated the former crime (i.e. abolitio criminis) or,

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rather, replaced the former legal regime amending its scope of application. In effect, it is worth recalling that, prior to amendment, Article 600 punished “any person who reduces another to slavery, or to a condition similar to slavery” by imprisonment of between five and fifteen years, without clarifying what “reduction to slavery” meant. In contrast, the new formulation of Article 600 criminalizes “any person who exercises over another person powers attaching to the right of ownership, or reduces to or maintains another person in a condition of continuative slavery-like practice […]”. In other words, the Corte had to ascertain whether, pursuant to the legislative amendment: “[…] [T]he material conduct (i.e. actus reus) punishable under the former regime has lost criminal relevance; or, rather, still continues to fall within the scope of application of the new regime”. The judges of the Corte agreed with the second point of view, establishing that as regards the crime of reduction to slavery, Law No. 228/2003 had merely specified the scope of the former provision. According to the Corte, therefore, Law No. 228/2003 triggered the phenomenon of succession of criminal laws, regulated by the last in time rule as set forth in Article 2, paragraph 3, of the Italian Criminal Code. According to the judges: “Before legislative amendment, the Criminal Code did not provide any definition of slavery; due to this gap, this definition had, therefore, to be drawn from Article 1 of the Geneva Convention of 1926 […], according to which, slavery is ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’; this definition has been confirmed by the Supplementary Geneva Convention of 1956 […]”. Consequently: “[T]he rationale of the former provision [Article 600] was to criminalize practices involving a situation of material submission of an individual by means of powers that express a situation of dominance usually associated with the right of ownership. Therefore, the legislative amendment did not introduce any significant novelty as to the material conduct (i.e. actus reus), limiting itself to confirming a common view, according to which the definition of slavery had to be drawn from the above-mentioned international conventions”. The opinion of the domestic court seems to be substantially correct: it seems to reflect the legislator’s aim in enlarging the scope of the norm to provide appropriate provisions regulating contemporary forms of slavery within the domestic legal system. Indeed, while slavery in the traditional sense persists only in isolated cases, slavery-like practices, such as debt bondage, trafficking in persons for prostitution or forced recruitment of child labour still remain widespread. As to Italy, the pres-

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ence of massive slavery-like practices within its territory may be associated mainly with the position it occupies in the Mediterranean Sea: it is not surprising that this situation might justify the need to revise criminal provisions on slavery. The above-mentioned considerations lead us to consider that the establishment of an effective legal framework criminalizing contemporary slavery-like practices in the Italian legal system was at stake here. It is, in fact, worth recalling that before the adoption of Law No. 228/2003 domestic tribunals rarely applied the provisions set forth in former Article 600. The former article was, indeed, based on a traditional and historical notion of slavery, with features and dynamics that were completely different from those concerning contemporary forms of slavery. This difference justified a certain reluctance on the part of domestic judges in applying obsolete legal features (slavery, slave trade and servitude conditions) to situations that were objectively different and involved wider issues of law. More recently, some domestic tribunals tried to widen the scope of the criminal conduct foreseen in former Article 600. According to these courts the term “condition of slavery” did not need to be regarded as indicating situations regulated under well-established legal provisions: on the contrary, they considered this legal feature to be the expression of a de facto situation “that may be associated, as to the legal regime, to slavery stricto sensu” (see, among the others, Corte di Assise di Firenze, 23 March 1993, reproduced in Foro It., 1994, II, p. 298 ff.). In spite of these attempts, an enlargement of the scope of former Article 600 by virtue of extensive interpretation was prevented by the very same terminology: according to the majority of domestic judges, in fact, Article 600 seemed to require situations involving material or physical constraint and was, therefore, not applicable to psychological constraint. Moreover, taking into account that former Article 600 regulated an ancient legal feature no longer extant in Italy, its application to situations falling outside the historical and legal context of traditional forms of slavery raised strong concerns regarding the compatibility of the provision with the constitutional principle of legality. For instance, right under this aspect, the Italian Corte Costituzionale declared Article 603 of the criminal code, punishing the crime of plagiarism, to be incompatible with the Constitution (see Corte Costituzionale, 8 June 1981, No. 96, reproduced in Foro It., 1981, I, p. 1815 ff.). Consequently, in spite of the increase of slavery-like practices in Italy, the application of former Article 600 by domestic courts continued to be so as to require legislative involvement. It follows, as far as the present judgement is considered, that Law No. 228/ 2003 gave to the judges of the Corte di Assise di Milano the occasion to address well-established domestic case-law according to which Article 600 criminalized exclusively “slavery status” while the “condition of slavery” had to be considered as falling outside the scope of the norm. According to this point of view, and taking into account that Article 1 of the 1926 Geneva Convention distinguished between slavery “status” and “condition” of slavery, domestic courts used to grant legal relevance only to “slavery status” under former Article 600. The notion of “condition of slavery”, on the contrary, was seen as having “a factual and practical nature” and

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therefore had to be excluded from the scope of former Article 600 (see Corte di Cassazione (Sezioni Unite penali), 20 November 1996, Ceric, reproduced in Foro It., 1997, II, p. 313 ff.). In the judgment under review, on the contrary, the judges of the Corte di Assise, in interpreting the new legal framework, took the opposite view. In fact, in establishing that “[…] within the structure of the crime of reduction to slavery what seems to be legally relevant is the consequence of the criminal conduct, the criminal event: in other words the continuing, intensive and exclusive status of subjection that affects the victim”, and in declaring that the status of “slavery condition pertains to every de facto situation in which the criminal conduct leads the victim to be reduced to a material condition of slavery […]”, they seem to classify the case within the category of the crime of reduction to slavery: in other words, the Corte di Assise seems to leave behind that case-law of domestic tribunals according to which similar situations had to be regarded as cases of reduction to a slavery-like condition. Also under this perspective, the present judgement seems to be correct and consistent with the objectives of Law No. 228/2003. This law, in amending the text of Article 600 has not, in fact, modified the title of the article: in doing so it demonstrates that its aim is not to abrogate the former crime but, rather, to modify the norm enlarging its scope of application. Accordingly, the new provision encompasses and includes the crime foreseen by former Article 600. This might indicate that, pursuant to the need of fighting an increase in slavery-like practices in Italy, the legislator decided to also criminalize cases that were previously excluded from the scope of application of the former regime, due to the absence of the element of absolute control over the victim. According to this point of view, under new Article 600, therefore, the crime of reduction to slavery does not entail only the existence of a physical constriction but also requires the existence of a state of property-like control, or more reasonably a state of psychological supremacy over another person. It follows that the new regulation broadens the scope of former Article 600 to situations that were considered as being slavery-like practices falling outside the scope of the law. At the same time, in order to avoid the risk of an excessive widening of the scope of the provision, the legislator of Law No. 228/2003 fixed some boundaries which may not be derogated from: the situation criminalized under new Article 600 requires a destabilization of the emotive sphere of the victim so deep and systematic so as to generate a state of impotence in the individual. The judgment, finally, invites some considerations as to the status of slavery in the international legal system. International law has, in fact, moved from recognizing and regulating slavery and the slave trade as part of juris gentium to banning it completely, on acknowledging the idea that freedom is a basic condition for the full enjoyment of most other human rights. Thus, for the last 100 years slavery and the slave trade have been regarded as illegal under customary international law: this might lead to the conclusion that, in theory, the abolition of the slavery was, from a legal point of view, achieved long ago. (In practice it seems more realistic to state

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that slavery and the slave trade persist and continue to constitute an international problem). It follows that today slavery falls within the category of international crimes; its prohibition constitutes a ius cogens rule. Like piracy, genocide, torture, war crimes, crimes against humanity, etc., slavery threatens the security, peace and other essential values of society as a whole: its prohibition, consequently, binds all States and/or persons regardless of their consent. As a consequence of their ius cogens status, norms preventing these crimes constitute obligations erga omnes and create non-derogable duties. A State is, accordingly, obliged to either punish or extradite (aut dedere aut iudicare) a person who violates these norms; in this context, the universal jurisdiction principle may be applied (see, mutatis mutandis, as to the crime of torture, International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Furundzija, reproduced in ILM, 1999, p. 315 ff.). Since international law prohibits slavery and the slave trade, it is not surprising that a certain number of international treaties aim to reinforce this provision via the introduction of additional rules and/or sanctions. Accordingly, under international law of the sea, Article 13 of the Geneva Convention on the High Seas of 1958 and the homologous Article 99 of the UN Convention on the Law of the Sea of 1982 (UNCLOS) establishes that “Every State shall adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag, and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag shall ipso facto be free”. In addition, provisions prohibiting slavery, forced or “unfree” labour are included in every international human rights document. Accordingly, leaving aside the Slavery Convention of 1926 and subsequent instruments, Article 4 of the Universal Declaration of Human Rights states that no one “shall be held in slavery or servitude” and adds that “slavery and slave trade shall be prohibited in all their forms”. Provisions under the Covenant on Civil and Political Rights go further: in addition to the general prohibition of slavery and of servitude, Article 8(3)(a) of the Covenant affirms that “no one shall be required to perform forced or compulsory labour”. Finally, as to the European Convention on Human Rights, Article 4(1)(2) prohibits slavery, servitude and slavery-like practices, such as forced or compulsory labour. However, some exceptions are admitted under the Convention: in fact, certain categories of persons may be legitimately “forced” to perform particular tasks. This situation occurs in States where national military service is compulsory under domestic law: in this case, eligible persons are required to serve or, if conscientious objectors, may substitute military service by other activities. Persons sentenced to a term of imprisonment may also be expected to work or to undertake community service as a means of social rehabilitation. Further, in States in which the judiciary admits a jury system, citizens may be required to serve in a jury. Finally, in case of a national emergency threatening the well-being of the State, an individual may be lawfully “forced” to provide assistance. (The Italian text of the judgment has been published in Foro It., 2004, II, p. 585 ff.). MARCO FASCIGLIONE

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Article 6 paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms – Right to “reasonable time” in the length of proceedings – Applicability to tax proceedings – Interpretation of the European Convention on Human Rights and Fundamental Freedoms – Case-law of the European Court – Law No. 89 of 2001 (“Legge Pinto”) Corte di Cassazione (Sez. I civile), 17 June 2004, No. 11350 Ministero dell’economia e delle finanze v. Di Caprio The case originated in a decree (decreto) of the Court of Appeals (Corte d’Appello) of Rome, which had granted compensation for damage for the excessive length of proceedings before the District and the Regional Tax Commissions. According to the Ministry for Economy and Finance, which challenged the decision before the Corte di Cassazione, the measure had been decided by the erroneous application of Law No. 89/2001, known as Legge Pinto, which had established a system of compensation for violation of the right to a reasonable length of proceedings. Said right, provided for in Article 6 paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR), has been incorporated in Article 111 of the Italian Constitution. In the opinion of the plaintiff, the decision of the Appeals Court, based on an erroneous legal determination, had to be quashed. Tax proceedings were beyond the scope of the protection offered by Article 6 paragraph 1 of the ECHR; consequently, no compensation could be awarded according to Law No. 89/2001. The argument against the applicability of the ECHR had also been maintained by the European Court of Human Rights in some cases (i.e. Ferrazzini v. Italy, Application No. 44759/98, Judgment of 12 July 2001). Such case-law was applicable to the case under examination. The Corte di Cassazione shared this opinion. First of all it took into consideration “the genetic and functional connection between the [Pinto] Law and the ECHR, a connection repeatedly pointed out during the parliamentary preparatory work and expressly contained in the wording of Article 2”. To reinforce its view the Court quoted its former jurisprudence, referring expressly to Judgments No. 1338 and 1340 of 2004, in which the law-making process of Legge Pinto has been outlined in detail (see Corte di Cassazione (Sezioni Unite civili), 26 January 2004, No. 1338; Corte di Cassazione (Sezioni Unite civili), 26 January 2004, No. 1340, cf. IYIL, 2003, p. 245 ff.). The Court then recalled that the European system of protection of human rights is based on productive cooperation between national and international organs, according to the subsidiarity principle. The definitions of protected values are contained in the text of the Convention, but are complemented by the European Court through its case-law, defined as “living law”. Domestic courts thus have to consider the rights protected by the ECHR in their decisions according to the interpretation given to them by the Strasbourg Court.

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With specific reference to tax proceedings, a principle would be settled “according to which Article 6 paragraph 1 of the ECHR cannot be applied to disputes between the citizen and tax authorities, when such disputes concern the imposition of pecuniary obligations”. The European Court has on several occasions pointed out that the concept of disputes concerning “civil rights and obligations” or “criminal charge” is “autonomous” within the meaning of Article 6 paragraph 1 (see König v. Germany, Judgment of 28 June 1978, Series A No. 27, pp. 29-30, paras. 88-89, and Baraona v. Portugal, Judgment of 8 July 1987, Series A No. 122, pp. 17-18, para. 42). It has excluded the extension of protection offered by Article 6 paragraph 1 to disputes between citizens and public authorities regarding the lawfulness of financial obligations (see Schoethen Meldrum v. The Netherlands, Judgment of 9 December 1994, Series A No. 304, p. 21, para. 50). More recently, and in a case concerning Italy, the Court observed that: “[I]n the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the ‘civil’ sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant” (see Ferrazzini v. Italy, para. 29). The Corte di Cassazione concluded that no compensation needed to be awarded, because the system established by Law No. 89/2001 is not applicable to the possible excessive length of disputes on the State’s authority to impose taxes. In referring to the Ferrazzini case, it stated that such proceedings are not covered by the protection of Article 6 paragraph 1 of the ECHR. Any other conclusion would be inconsistent with the role of the judge, as interpreter of Law No. 89/2001. In fact, it had been maintained that Article 3 of the Legge Pinto, which includes the Ministry for Finance among the subjects against which an action can be started, would have widened the scope of protection offered by the law. But, in the Court’s view, this provision “must be read in the general – systemic – framework of domestic law and of international conventions, in the sense that [Article 2] refers only to disputes before tax authorities on ‘civil obligations’ […] and ‘criminal charges’”. The Corte di Cassazione also excluded any possible conflict between the Pinto Law and Article 111 of the Italian Constitution. It had been argued that the wording of Article 111, protecting “reasonable length” as an element of any “fair process”, also covered tax proceedings. But Law No. 89/2001 cannot be considered as the only act enforcing this provision. Therefore, such protection may be obtained by

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other means. Moreover, the competent authority – the legislative branch – might improve protection by passing a legislative act. In conclusion, the Corte di Cassazione quashed the challenged decree, decided on the merits and rejected the request of compensation for damage. The present judgment has to be considered important, since it clarifies the function of the Convention as a living instrument to be interpreted by the European judge, and then to be applied accordingly by national judges. Apart from this general consideration, the subject of the decision calls for a final remark. The question of non-applicability of the protection granted by the ECHR to tax matters, with the exception of those proceedings on “civil obligations” and “criminal charges” has been discussed in the above-mentioned case-law of the European Court, and also in legal literature (see, inter alia, DORIGO, “Il diritto alla ragionevole durata del giudizio tributario nella giurisprudenza recente della Corte europea dei diritti dell’uomo”, Rassegna tributaria, 2003, p. 42 ff.). Judge Ress observed, in his concurring opinion to the Ferrazzini judgment, that: “If account is taken of the sometimes very lengthy tax proceedings before tax authorities and courts dealing with tax cases, the taxpayer is left in a position which one would be hard pressed to describe as “part of the normal civic obligations in a democratic society. […] This is a factor which might […] induce the Court to review certain aspects of the application of Article 6 in taxation cases”. In his dissenting opinion, Judge Lorenzen, joined by Judges Rozakis, Bonello, Strážnická, Bîrsan and Fischbach, after a long analysis of the question, concluded that in the absence of “convincing arguments for maintaining the present case-law of the Court that proceedings regarding taxation do not determine ‘civil rights and obligations’ for the purposes of Article 6 of the Convention”. We share the opinion that a review of the Court’s approach towards total applicability of Article 6 to tax proceedings should be considered. It will be very interesting to observe the reactions of our courts in the event of a significant change of attitude by the European Court on the subject, as an important test of the effective narrowing of the gap between the Italian and the European application of the ECHR. (The Italian text of the judgment has been published in Foro It., 2004, I, p. 3393 ff.). GIOVANNI CARLO BRUNO

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS Extradition – Minimum rights of a person to be extradited – Right of an individual to judicial control on coercive measures ordered for his/her extradition

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– Guarantee of adversarial proceedings – Art. 127 of the code of criminal procedure – Favourable decision for extradition proceedings – Its effect in relation to judicial control – European Convention on Extradition – European Convention on Human Rights Corte di Cassazione (Sezioni Unite penali), 18 June 2003, No. 13 Re: Di Filippo In the judgment under review the Supreme Court dealt with two main issues: i) whether an individual to be extradited must be present at the proceedings aimed at revoking and substituting provisional measures of custody to which he has been subjected; ii) whether and to what extent a final decision favourable to extradition may bar proceedings against coercive provisional measures to be filed. Before analysing the approach adopted by the court, it would be worth clarifying some related notions concerning Italian extradition proceedings. The latter is both subject to international treaties and to Articles 697 ff. of the Italian code of criminal procedure. Two sub-proceedings may be identified from a global examination of the relevant provisions. The first sub-proceeding, whose purpose is to ensure that an Appeals Court renders a decision on extradition, is provided for in Articles 697-713 of the code. The second sub-proceeding, on the other hand, having an interlocutory nature, aims to apply coercive measures to the individual to be extradited and allows for seizure of his or her personal property, according to Articles 714-719 of the code. Article 718, in particular, provides for both repeal and substitution of provisional measures. It reads as follows: “1. The repeal and substitution of measures provided for in the previous articles are decided in council chamber (camera di consiglio) by the appeals court or, in proceedings before the Court of Cassation, by the court itself”. Thus, the provision refers to proceedings in council chamber (procedimento in camera di consiglio) whose particularity, according to Article 127, lies in more clear-cut and informal methods than those characteristic of ordinary proceedings. As to proceedings under Article 127 or in camera di consiglio, what is noteworthy is the fact that the accused may participate: in other words a “possible” or “conditional” adversarial proceeding applies (principio del contraddittorio eventuale). While Article 127 describes the general model of proceedings in council chamber, other and more specific provisions of the code may derogate, even by excluding possible participation of the accused. That said, as far as the first issue is concerned, the Supreme Court had to establish whether interlocutory proceedings of repeal and substitution of coercive measures required the possible participation of the individual to be extradited. The Court, in bypassing different approaches adopted by some of its chambers, answered in the affirmative. In order to draw such a conclusion, the Court adopted several interpretative tests. First, by a literal interpretation, the Court considered that: “Where in a specific provision it is established that the decision of the judge

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must be rendered ‘in council chamber’ and is not otherwise stated, the proceedings and basic forms provided for in Article 127 apply per relationem”. This means that the individual to be extradited has to be accomodated for the purposes of participation in an interlocutory proceeding of repeal or substitution of measures to which he has been subjected. Indeed, the general model drawn up by Article 127 applies. Second, an approach underpinning a systemic and teleological interpretation led the Court to point out two particular matters. On the one hand, in the Court’s view, both an accused and an individual to be extradited have to be subjected, as far as possible, to uniform treatment in Italy. On the other hand, the Italian code of criminal procedure, in providing for provisional measures to be applied pending extradition proceedings, allows an individual to be extradited to lodge an appeal only before the Court of Cassation, but not to take advantage of the broader range of remedies which an accused may otherwise enjoy. The balance of these opposing attitudes makes it clear, in the Court of Cassation’s view, that: “The disparity highlighted in the substantial and procedural guarantees provided for by different de libertate trials for the benefit of the accused and of the individual to be extradited, respectively, implies that forms peculiar to adversarial proceedings, albeit deferred and conditional, have to be granted on the merits of the decided restriction of personal freedom to the defence of the individual to be extradited, at least during proceedings in council chamber provided for in Article 718”. The Court of Cassation underscored this conclusion by also referring to resolution No. 12 adopted in 1975 by the Committee of Ministers of the Council of Europe and addressed to those States Party to the European Convention on Extradition. In this regard, the Court of Cassation highlighted how the above recommendation: “[A]lso establishes the right of the individual, in addition to his/her right to be heard by a judicial authority and to seek legal advice, to submit to scrutiny the above-mentioned authority’s recourse to his/her arrest for extradition purposes and the conditions of the extradition itself”. Furthermore, the Court relied on the right to judicial control over coercive measures imposed on the individual to be extradited, as provided for by Article 9(4) of the UN Covenant on Civil and Political Rights as well as by Article 5(1)(f) of the European Convention on Human Rights. In this respect, the Court quoted a decision adopted by the European Court: “[T]he interlocutory (extradition) proceedings must abide by the rules of fair trial, so as to guarantee the right to adversarial proceedings even to an individual to be extradited (‘to receive the benefit of a procedure that was really adversarial’: in this sense, European Court

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of Human Rights, Judgment of 21 October 1986, Sanches-Reisse v. Switzerland)”. Thus, the Court reached the following conclusion: “According to Article 718(1) of the code of criminal procedure, proceedings in council chamber before the Appeals Court, called to pass a decision on claims of repeal and substitution of coercive measures imposed on an individual to be extradited, must take place in conformity with the forms of the ‘participated’ (i.e. the individual’s physical presence) council chamber provided for by Article 127”. As far as the second issue is concerned, i.e. whether and to what extent a final decision favourable to the extradition of an individual is able to bar proceedings against coercive provisional measures to be filed, the Supreme Court reached its conclusions by pointing out two aspects. First, the code expressly provides for hypotheses of judicial review on provisional measures, which follow on from the final decision favourable to extradition (Article 708, paras. 2, 3 and 6). Second, the quoted code entitles the Minister of Justice to grant or, conversely, to negate extradition and, in the first case, to suspend the execution of the decision rendered by a Court of Appeals. In this light, the Court of Cassation considered that: “To unwarrantably continue restriction in vinculis of the individual to be extradited, pending handover, requires renewed judicial control in order to ascertain whether effective and actual precautionary needs are still valid which may justify either the revocation or substitution of the coercive measures”. Such an approach led the Court to formulate the following test: “[T]he exhaustion of extradition proceedings, together with a final and favourable decision, does not rule out judicial control on the request for repeal or substitution of the coercive measure, if such a request is founded on the grounds concerning the subsequent ineffectiveness of the measure or the groundlessness of precautionary needs, with particular regard to the danger of flight, and if the individual to be extradited, after the extradition has been granted, has not actually been surrendered to the requesting State”. In drawing up such a test, the Court of Cassation identified two requirements for the admission of a claim of repeal or substitution of provisional measures, notwithstanding the existence of a final and favourable decision on extradition: a) the existence of new elements to be evaluated, i.e. facta nova founded on the subse-

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quent ineffectiveness of coercive measures or the groundlessness of precautionary needs; b) the continuing presence of the individual to be extradited in the territory of the State. By broadening the guarantees of participation and facilitating domestic remedies, the above-examined decision seeks to identify a scheme of extradition proceedings that increasingly abides by the rules of a fair trial and by the effectiveness of remedies provided for the accused in cases of criminal convictions in domestic courts. (The Italian text of the decision has been published in RDI, 2003, p. 1170 ff.). Extradition – Coercive measures – Articles 314 and 714 of the code of criminal procedure – Compensation for unfair detention – Absence of conditions favouring an extradition order – Law No. 81 of 16 February 1987 of delegation for enacting the code – Implementation of international treaties – European Convention on Human Rights, Art. 5, para. 5 – UN Covenant on Civil and Political Rights, Art. 9, para. 5 Corte Costituzionale, 16 July 2004, No. 231 In the decision under review, the Corte Costituzionale addressed the following issue: whether a provision securing the right to compensation for unfair detention of an individual to be extradited exists in the Italian judicial system. The Corte, was, indeed, called to pronounce on the question of the constitutionality of Article 714 of the code of criminal procedure, submitted by the Court of Cassation for the reason that, in the Court’s view, such a norm does not provide for compensation in the case of unfair detention related to extradition proceedings. Article 714, which concerns precautionary measures pending extradition proceedings, recalls all the norms provided for by the code for “ordinary” precautionary measures, with the exception of Articles 273 and 280. While the first article provides for “general conditions for the applicability of the measures”, the second one specifically encompasses coercive measures. According to the Court of Cassation, Article 714, by ruling out the applicability of such provisions, also makes it clear that the compensation for unfair detention provided for in Article 314 of the same code cannot be awarded. Indeed, Article 314(2) guarantees the above-mentioned remedy where it has been ascertained that the general conditions provided for by Articles 273 and 280 have not been met. In reaching such a conclusion, the Court therefore considered that, insofar as the code does not provide for compensation for unfair detention pending extradition proceedings, a violation of constitutional principles, namely of Articles 2, 3, 13 and 24(4), takes place. Yet, the Corte Costituzionale deemed the question of constitutional legitimacy submitted by the Supreme Court to be unfounded, for the reason that an interpretation of Article 714 of the code of criminal procedure may be given that is in accordance with the Italian Constitution. Indeed, by ruling out the applicabil-

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ity of Articles 273 and 280 of the code, such a norm does not negate the right to compensation for unfair detention. Rather, what Article 714 says, according to the Corte Costituzionale, is that precautionary measures pending extradition proceedings must be founded on conditions different vis-à-vis those required by analogous measures adopted in “ordinary” domestic proceedings. Consequently, if different conditions are required for coercive measures to be imposed, this does not mean that redress for unfair detention is not provided for, but that such a remedy has to be evaluated in light of conditions peculiar to extradition proceedings and not of Articles 273 and 280 of the code. Thus, the judgement reached the following conclusion: “As far as individuals to be extradited are concerned, unfair detention has to be ascertained by verifying whether the specific requirements of applicability of coercive measures which, for these persons, Article 714(3) identifies as ‘conditions for a decision favourable to extradition’, have not been met”. The Corte Costituzionale considered that such an interpretation of the norm depends both on its own jurisprudence in the matter (Decisions Nos. 310/96, 446/97, 109/99, 284/03 and 230/04) and on relevant international provisions and standards. Having referred to Article 2 of the law of delegation for enacting the code of criminal procedure, according to which Italian procedural norms must abide by international treaties ratified by Italy, the Corte specifically referred to: “[T]he European Convention on Human Rights and Fundamental Freedoms and the Covenant on Civil and Political Rights […], which, in Article 5, para. 5 and in Article 9, para. 5, respectively, provide for the right to compensation in case of unfair detention, without any limitation”. Furthermore, it added that: “[W]ith specific regard to detention aimed at extradition, Recommendation No. R(86)13 of 16 September 1986 of the Committee of Ministers of the Council of Europe, on the subject matter of practical implementation of the European Convention on Extradition, demands that States ‘examine their own legislation, so as to allow individuals detained for the purpose of extradition but without justified reasons to claim for compensation on the same conditions provided for provisional unjustified detention’”. It is in light of such reasoning that the Corte Costituzionale dismissed the question submitted by the Supreme Court. (The Italian text of the decision has been published in RDI, 2004, p. 1129 ff.). Extradition – Coercive measures – Custody in another State pending extradition proceedings towards Italy – Art. 722 code of criminal procedure, as modified by Law No. 356 of 7 August 1992 – Time-limit of period for custody – Art. 3 of the Italian Constitution – Principle of equality

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Corte Costituzionale, 21 July 2004, No. 253 An individual to be extradited to Italy is held in custody in Holland from 29 March 1999 to 9 January 2003, while proceedings against him are carried out in Italy; and he is convicted and sentenced by both a Tribunal of First Instance and an Appeals Court. Yet, since the judgement rendered by the Appeals Chamber is annulled by the Supreme Court, a so-called regresso del procedimento occurs: namely, criminal proceedings are then subject to re-examination by the Appeals Chamber. The individual, held in custody in Italy since 9 January 2003, claims he should be released as the prescribed time-limit for custody has elapsed. Such a claim is dismissed by both the Tribunale del riesame and the Supreme Court for the following reason. The time-limit for custody is twofold: the code of criminal procedure provides for both a time-limit for the whole proceeding, encompassing all phases (Art. 303(1)), and a specific time-limit for each phase of the proceedings (Art. 303(2)). Given that Article 722, which regulates the subject matter with regard to custody pending extradition proceedings, solely refers to the time-limit provided for the whole proceeding, the time-limit of each phase is not considered in Italian law. According to the Tribunale del riesame and the Supreme Court, as far as an individual held in custody abroad is concerned, the time-limit of each phase has to be calculated exclusively from the moment the individual is surrendered to the Italian authorities. Such an interpretation, by ruling out the relevance of custody to which an individual has been subjected abroad because of an extradition order requested by Italy, is, in the view of the Supreme Court itself, incompatible with Articles 3 and 13 of the Constitution, since it violates both the equality principle and the right to personal freedom. In the judgment under review, the Corte Costituzionale considered that the question of constitutionality submitted by the Supreme Court in the terms above was well-founded. The core of the decision lies in a global analysis of the Italian juridical system, from which the Court inferred that to be held in custody abroad, awaiting extradition, and to be held in custody in Italy may not be considered separately for the purpose of receiving the same legal treatment (the Corte particularly refers to its Decision No. 212 of 1974 and to the Supreme Court’s Decision No. 21035 of 2003). Indeed, having established the equivalence of detention abroad awaiting extradition and precautionary custody in Italy, the Court considered that the same norms provided for the time-limit of custody in Italy have to be applied to precautionary custody abroad. In particular, according to the Court, the detention abroad may be traced back to legitimate impediments to appear, which causes the suspension of time limits for precautionary custody. This means that Article 722 of the code of criminal procedure violates the equality principle (Article 3 of the Constitution), since it does not provide for precautionary custody abroad pending extradition proceedings to be calculated with regard to the time-scales of each phase.

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Thus, the Corte clarified that when an individual to be extradited to Italy is held in custody abroad, the time of custody elapsed abroad has to be taken into account in calculating the maximum time-limit of custody with regard both to times provided for the entirety of proceedings and to specific times concerning each phase of said proceedings. (The Italian text of the decision has been published in RDI, 2004, p. 1136 ff.). EDUARDO SAVARESE

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW Regional competence to undertake international agreements – Agreements between the Region of Friuli-Venezia Giulia and Austria and Slovenia – Competence of the President of the Region Corte Costituzionale, 15 July 2003, No. 242 Presidente del Consiglio dei Ministri v. Regione Friuli-Venezia Giulia Regional competence to undertake international agreements – Coordination with foreign national policy – Consistency of Art. 6 of Law No. 131 of 5 June 2003 with Art. 117 of Italian Constitution Corte Costituzionale, 19 July 2004, No. 238 Provincia di Bolzano v. Presidenza del Consiglio dei Ministri; Regione Sardegna v. Presidenza del Consiglio dei Ministri Regional participation in the formation of European Community law – Coordination with State competence to conduct international and Community relations – Unity of Italian representation to the European Union – Consistency of Art. 5 of Law No. 131 of 5 June 2003 with Art. 117 of the Italian Constitution – Conditions required for a Region to expect the Government to propose a claim before the European Court of Justice at its request Corte Costituzionale, 19 July 2004, No. 239 Provincia di Bolzano v. Presidenza del Consiglio dei Ministri; Regione Sardegna v. Presidenza del Consiglio dei Ministri Regional competence to give direct application to European Community law – Agreements between the Regions of Friuli-Venezia Giulia and Veneto, the Province of Bolzano and the Austrian Länder of Tyrol, Carinz and Salzburg – Execution by Regions of a European Community program of cooperation

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Corte Costituzionale, 22 July 2004, No. 258 Presidente del Consiglio dei Ministri v. Regione Friuli-Venezia Giulia, Regione Veneto, Provincia di Bolzano; Provincia di Bolzano v. Presidente del Consiglio dei Ministri With the Senate’s approval of Constitutional Bill No. 2544 (23 March 2005) on the re-organization of the territorial units of the Italian Republic into a federal State, we have reached a decisive moment in the ongoing process of the reform of constitutional provisions dealing with local autonomy and the latter’s relation to national, international and EC law. The said reform was initiated by Constitutional Law No. 1/99, but up to now has been applied principally with regard to the reform of Title V, Part II of the Constitution (Constitutional Law No. 3 of 18 October 2001). The reform was implemented by Law No. 131 of 5 June 2003, containing “measures for the adjustment of the Republican order” to Law No. 3/2001 and by Law No. 11 of 4 February 2005, which envisages the introduction of “general rules on Italian participation in the decision-making processes of the European Union and on the procedures for execution of Community obligations” (see CONFORTI, “Reflections on the Recent Amendments to the Italian Constitution Concerning Respect for International and European Community Law”, IYIL, 2001, p. 3 ff., and, recently, the articles contained in CATALDI and PAPA (eds.), Formazione del diritto comunitario e internazionale e sua applicazione interna: ruolo delle Regioni e dello Stato nelle esperienze italiana e spagnola, Napoli, 2005). With the decisions above, the Constitutional Court provided a detailed explanation of the current system of relations between Regions and State, taking into account the changes that have taken place thus far. Decision No. 242 of 15 July 2003, issued in response to a claim filed by the central government, ruled on the constitutional legitimacy of the Statute of the Region Friuli-Venezia Giulia, with specific reference to the section contemplating the competence of the President of the Region to enter into international agreements with Slovenia and Austria for the coordination of soil protection activities. The Court ruled against the government’s contention that the statute contravened the provisions of Art. 117, para. 9, of the Constitution which allow for the possibility of “understandings” between Regions and the internal territorial bodies of other States, but not with sovereign States themselves. The provision contested was deemed to attribute to the President of the Region only the competence to enter into negotiations in order to conclude the “understandings” above, and thus had no impact on constitutional limitations. In other words, the determination of the internal competence of Regions falls, according to the Court, within the statutory autonomy of each Region. Violation of the constitutional norm, stated the Court,“is submitted, in the claim of the President of the Council of Ministers, only in a hypothetical sense and the complaint is intended to censure understandings and agreements with other States that have not yet been stipulated”.

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It must be noted, however, that the Court, though dismissing the claim of the central Government, certainly did not support the Region’s contention that the constitutional provision of Art. 117, para. 9, allows Regions to enter into agreements that have direct constitutional relevance (the Italian text of the judgment has been published in RDI, 2003, p. 817 ff.). Decisions Nos. 238 and 239, both dated 19 July 2004, provide different assessments of the consistency of Law No. 131 of 5 June 2003, which enforced the constitutional dictate, with the new text of Art. 117 of the Constitution. The first of the two decisions focuses on the issue of a Region undertaking international commitments with other States. On this particular point, and as we have already pointed out (see IYIL, 2003, p. 260 ff.), there is a certain ambiguity in the section of Art. 117 of the Constitution, para. 9, which states that “in matters that come under their competence, Regions may undertake agreements with States and understandings with territorial bodies of other States, in cases governed by and in accordance with the laws of the State”. This particular wording has led Regions, as well as some of Italian scholars, to maintain that they have been granted an autonomous treaty-making power. However, Art. 6 of Law No. 131/2003 rejects this interpretation, affirming that Regions may autonomously conclude only implementation and enforcement agreements of international covenants already in force, or technical-administrative or program agreements, if they have the consent of the State. The final part of the article also specifically contemplates that, in these cases, the Minister of Foreign Affairs shall confer “full signatory power as required by general international law and by the Vienna Convention on the Law of Treaties”. In their claim, the Region of Sardinia and the Province of Bolzano had argued that this solution did not comply with the Constitution, maintaining that the new formulation of Art. 117 brought about profound innovations. The Constitutional Court, on the other hand, has essentially reiterated the rulings and decisions issued prior to reform of Title V, Part II (cited in IYIL, 2003, p. 260 ff.), thereby confirming the exclusive competence of the State on the matter of undertaking international commitments. Even the possibility of an exception to this principle in favour of the Regions is envisaged only if empowered by the State and limited to promotional activities abroad, trans-border cooperation agreements and activities of “mere international relevance”. The Court’s ruling affirms: “The new Constitutional provisions do not diverge from the fundamental guidelines previously set forth by this Court: reserving to the State competence over foreign policy; acceptance of an international activity by regions; subordination of such activity to possible government control over regional initiatives to avoid any contradictions with the general direction of national foreign policy. The novelty that results from the changed normative picture is essentially the Constitutional recognition of the ‘external power’ of regions; that is, the authority to enter into not only understandings with comparable

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bodies of other States but also actual agreements with other States, within the framework of their own competences, albeit in circumstances and form determined by State laws (Art. 117, para. 9). This external power must be exercised in coordination with exclusive State competence over foreign policy; thus the State determines the ‘circumstances’ and the ‘form’, in order to safeguard the joint interests that are expressed in national foreign policy. In exercising this acknowledged authority, the Regions are not considered ‘delegates’ of the State but autonomous entities that deal directly with the foreign countries, although always within the framework of guarantees and coordination provided by the powers of the State”. Correctly, in our opinion (but see, for a different evaluation of the case CANNIZZARO, “Federalismo e rapporti internazionali nel nuovo modello delineato dal Titolo V della Costituzione italiana”, in CATALDI and PAPA (eds.), cit. supra, p. 171 ff.), the Court also specified the unacceptability of a Region entering into an agreement with a foreign country that would be binding only on the Region but not on the State: “The claimant maintains that the agreements entered into by Regions with other States are not ‘treaties’ between States, and as such do not obligate the State but only the stipulating body. This conclusion cannot be endorsed. The autonomy of national (constitutional) law, that is, the Regions’ authority to conclude agreements, is exercised within a system in which the State, as the sole arbiter of foreign policy, is responsible under international law for all agreements and their related consequences. The State therefore has the right and the duty to monitor the compliance of such agreements with the general direction of national foreign policy. This involves the need to adopt formal rules and proceedings aimed at providing assurance concerning the legitimation, on an international level, of entities wishing to conclude an agreement and the existence, in accordance with national law, of the ‘external power’ that the agreement embodies”. (The Italian text of the judgment has been published in RDI, 2004, p. 859 ff.). In Decision No. 239, the Court issued a ruling on an objection submitted by the Region of Sardinia and the autonomous Province of Bolzano to Art. 5, para. 1, of Law No. 131/2003. According to appellants, this legislation regulates the participation of Regions and Provinces in the formation of EC law (the so-called “ascending phase” of decision-making processes) in a restrictive manner, as compared to the requirements of the Constitution, specifically of Art. 117, para. 3, in the section which assigns to the concurrent competence of the State and Regions the management of “international relations and of relations of Regions with the European

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Union”. According to appellants, by not restricting itself to simply indicating fundamental principles but rather in dictating detailed instructions concerning the participation of Regions and autonomous Provinces in the decision-making process of the Community, the contested regulation restricts the context in which the latter are constitutionally entitled to set out Regional and Provincial laws. The Court clarified, on the contrary, that the constitutional norm of reference on the participation of Regions and Provinces in the formation of Community law is not para. 3 of Art. 117, but rather para. 5 of the same article, which: “[E]stablishes a special State competence supplementary to the competence envisaged by Art. 117, para. 3 of the Constitution, concerning the wider sector ‘of international relations and relations of the Regions with the European Union’. Referring specifically to the procedure to be followed in order for Regions and autonomous Provinces to participate in the so called ‘ascending phase’ of Community law, the Constitution did not establish concurrent competence but entrusted State law with the duty to establish the procedural methods of such participation”. In fact, para. 5 of Art. 117 reads as follows: “[T]he Regions and the autonomous Provinces of Trento and Bolzano, in matters of their competence, shall participate in decisions intended to form Community laws and shall arrange for the enforcement and the execution of international agreements and of the acts of the European Union, in compliance with the procedural standards established by State laws regulating the exercise of the substitutive authority in cases of non compliance”. Another interesting aspect of the relation of Regions with the Community system is clarified by the Court in this decision. This concerns the possibility of Regions and autonomous Provinces to assert their rights pertaining to any illegality of Community acts before the European Court of Justice. According to the appellants, the procedure envisaged at Art. 5, para. 2 of Law No. 131/2003 is clearly insufficient, as it simply allows the Government to submit the action requested by the Regions, in substance leaving the actual exercise of this faculty to the sole discretion of the Government itself. On this point the Court was very clear in stating that within the constitutional system, special Regions and autonomous Provinces do not have the prerogative to assert the legality of Community acts before competent bodies. Consequently, the legislator is not obliged to introduce any rules pertaining to the principles and modalities for Regions to submit appeals before the European Court of Justice. (The Italian text of the judgment has been published in RDI, 2004, p. 869 ff.).

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Decision No. 258 of 22 July 2004, on the other hand, concerns the so-called “descending phase” of Community law; that is, the direct application of Community law by Regions. In this case, the central Government raised the issue of a clash of attribution (conflitto di attribuzioni) in respect of the autonomous Province of Bolzano, the Region of Friuli-Venezia Giulia and the Region of Veneto with reference to the trans-border cooperation agreements they signed on 15 January 2002, as part of the Community initiative “Interreg IIIA, Italia-Austria” with the Austrian Republic Länder of Tyrol, Carinz and Salzburg. According to the Government, the Agreement in question is detrimental to the constitutionally (Art. 117) guaranteed competence of the State, as it was concluded without the prior authorization of the Government, as required by Art. 5 of the Law of 19 November 1984, which implemented, within the Italian system, the European Convention on Trans-Border Cooperation of Territorial Communities and Authorities, adopted in Madrid on 21 May 1980. The Court, however, considered the Agreement challenged from the perspective not of an autonomous commitment, regulated as such by the Madrid Convention, but simply as an “act that is clearly and strictly aimed at enforcing a Community program of trans-border cooperation”. As such, the Agreement “does not infringe on the limitations imposed by the Constitution regarding foreign policy authority reserved to the State”. Therefore, the principle of loyal cooperation between State and Regions is not violated, also in consideration of the fact that the central Government actively participated both in the preparatory and in the executive phase of the Community program implemented by the Agreement. The Court states: “[T]he Act at issue is simply the final institutional passage of a complex Community program of trans-border cooperation that finds its legitimacy in a Community source that is directly and mandatorily applicable within the legal system of the State (Regulation No. 1260/ 1999) and in successive acts of Community institutions in which, in this particular case, the State actively cooperated by submitting the program to the Commission and by preparing national laws for implementation, and through the participation of numerous ministries in all preparatory activities”. Prior agreement with the central Government should therefore have been considered as implicitly acquired. According to the Court: “The Agreement now being censured adds nothing to the trans-border cooperation programs as they have been studied and approved by competent Community fora; a further procedure of assent for signature of the Agreement would simply be a repetition of formal fulfillments and would lack any value”. Even the establishment of common bodies, also contemplated by the contested Agreement, cannot be interpreted as an interference with the foreign policy authority reserved to the State, as claimed by the latter, since, as the Court explained:

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“The offices and bodies established by the Agreement in question are contemplated directly as a mandatory feature by the Community source.” (The Italian text of the judgment has been published in RDI, 2004, p. 1138 ff.). It is obvious from the decisions above that with regard to the applicable legal regime, the Court (in our opinion in a very plain manner) clearly distinguishes between the assumption of international and Community commitments and their implementation within the national system. In the first case, relations between Regions and the central government are based on the requirement, except in the case of mere “understandings” without any legal value, that the central authority assume the obligation on a supranational level, possibly even (and this is the novelty introduced by the constitutional reform) through the Regions, invested in this case with the authority to negotiate and stipulate on behalf of the State. In the second case, the division of competence envisaged within the internal system requires that, in respect of issues that come under Regional competence, the Region be directly responsible for the correct fulfillment of obligations undertaken within the EC system or through international agreements, although the central Government nevertheless remains responsible in respect of other States. The interpretation attributed by Law No. 131/2003 to the new text of Art. 117 of the Constitution is therefore confirmed (the same approach can be found in some thoughts of CONFORTI, in CATALDI and PAPA (eds.), cit. supra, p. 261 ff. For an opinion that Law No. 131/2003 tends to deviate from its appropriate (implementing) function in respect of relations between regional autonomy and international relations and to determine its own direction – one not always compatible with that arising from the constitutional system – see CANNIZZARO, “Le relazioni esterne delle Regioni nella legge di attuazione del nuovo Titolo V della Costituzione”, RDI, 2003, p. 759 ff.). GIUSEPPE CATALDI

DIPLOMATIC AND PARLIAMENTARY PRACTICE (edited by Lara Appicciafuoco, Pietro Gargiulo, Giuseppe Nesi, Marco Pertile and Valeria Santori) II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 1. RESERVATIONS TO TREATIES On 8 November 2004, during the debate in the Sixth Committee of the UN General Assembly (LIX Session) on the Report of the International Law Commission on the Work of its Fifty-sixth Session (UN Doc. A/59/10), the Italian delegate, Mr. Braguglia, intervened on the topic of reservations to treaties. Mr. Braguglia said the following: “While appreciating the work done so far, the Italian delegation exhorts the Commission to begin addressing the most important part of the reservations to treaties: namely, the part on the legal regime of inadmissible reservations and objections to such reservations. This question, that the Vienna Convention does not regulate in a clear way, has not so far been addressed by the Special Rapporteur. In this regard, the Commission now puts forward a terminological question. How should the inadmissible reservations be named? The choice is not easy, as all the terms generally used present some difficulties. Saying that a reservation is not permitted, invalid or inadmissible reflects the determination that a State party to a treaty is not entitled to make that reservation. However, a reservation that cannot be considered as permissible by a State party, could be permissible for another State party. That reservation, therefore, should be considered as permissible with regard to that other State. The formula of ‘illegal reservation’ would be more suitable to distinguish between different States, as what is illegal for one State is not necessarily illegal also for another. On the other hand, the said formula presents the disadvantage of suggesting that legal consequences arise on the level of international responsibility for the State that made the reservation – which is incorrect. It could be concluded that a term equals the other, provided that the Commission clarifies the sense in which the term is used”. And he added: “Italy underlines that the Commission has not yet completed the discussion on the draft directive on the definition of the objections to


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reservations. Our delegation reasserts its wish that the Commission adopt a broad definition, which include any critic reactions by a State with regard to a reservation”.

VI. LAW OF THE SEA 1. ECOLOGICAL AND FISHERIES PROTECTION ZONE IN THE ADRIATIC SEA On 16 March 2004, a public hearing of the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Roberto Antonione, took place before the Permanent Committee III (Foreign and European Affairs) of the Camera dei Deputati (Chamber of Deputies) according to Article 143, paragraph 2, of the Chamber Regulation. On the unilateral decision taken by Croatia on 3 October 2003 to establish an ecological and fisheries protection zone in the Adriatic Sea, the Sottosegretario made the following statement: “I conclude with a brief mention to the question of the protection of the Adriatic Sea. Such question shows the need to interpret the problems in the Balkan-Adriatic area in a regional and European context, and presents, at the same time, important implications for bilateral relations. For us, the Adriatic Sea unifies coastal States: it does not divide them. This aspect is particularly recent, especially in light of Croatia’s unilateral decision, last October, to establish an ecological and fisheries protection zone in the Adriatic Sea. Such zone corresponds to a traditional exclusive economic zone, effective after a one-year transitory period and potentially armful to both Italian interests and regional dialogue. We expressed concern at this decision both as an Adriatic country and, at that moment in time, in our capacity as President of the European Union. Italy’s position on this question has always been clear: we share the need to protect the Adriatic Sea and the opportunity to examine, together with all involved countries and the European institutions, agreed modalities for the protection of resources in the Adriatic Sea. However, we oppose any unilateral initiative that is not in compliance with the European principle of regional cooperation and consensual solutions. Similarly, we are against any other decisions susceptible to cause tensions and failing to contribute to seek for long-lasting and shared solutions”. On the same topic, on 16 April 2004 Italy transmitted to the Secretary-General of the United Nations as depositary of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, the following Note Verbal:

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“If the United Nations Convention on the Law of the Sea of 1982 recognizes to coastal States the right to establish exclusive economic zones or other zones of functional State jurisdiction more limited in scope, in its Part IX it makes reference to various forms of cooperation among coastal States in enclosed or semi-enclosed seas in situations in which the narrowness of marine spaces affects the claims of surrounding States to establish zones of functional jurisdiction beyond their territorial sea. To this end, Article 123 of the 1982 Convention poses on contracting States that are bordering or not bordering enclosed or semi-enclosed seas, the obligation to cooperate in the management, conservation, exploration or exploitation of living resources of the sea, in the protection and preservation of the marine environment and in scientific research, as a solution aimed at guaranteeing the respect of the various interests of the coastal States involved, thus in adherence to the spirit of the Convention. This obligation to cooperate does not cease if a coastal State bordering an enclosed or semi-enclosed basin decides to establish reserved zones of functional jurisdiction. The above mentioned obligation should consist in the specific obligation to cooperate in determining the limits of the zone of functional jurisdiction, i.e. in agreeing on those limits with other interested States, also in compliance with Article 74 of the 1982 Convention. The obligation to cooperate is even more evident in cases regarding enclosed or semi-enclosed basins that are particularly narrow, as is the case for the Adriatic Sea, where the proclamation of zones of functional jurisdiction beyond the territorial sea involves in a direct manner the interest of neighbouring coastal States. In those circumstances the coordination in determining the zone of functional jurisdiction is even indispensable. The above mentioned obligation to cooperate was not fulfilled by Croatia when it made the unilateral declaration concerning the ecological and fisheries protection zone referred to in the initial paragraph of the present Note. Moreover, it should be added that in any case the determination, in a temporary manner – implementing Article 74 of the 1982 Convention –, of the limit of the ecological and fisheries protection zone coinciding with the delimitation contained in the 1968 Agreement concluded between Italy and the Socialist Federal Republic of Yugoslavia, concerning the continental shelf, is against Italian interests in the Adriatic Sea. In fact, the automatic extension of the delimitation of the seabed, agreed in 1968, is not legally well founded because that limit was agreed on the basis of special circumstances that differ from the

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circumstances to be considered in the determination of superjacent waters. Furthermore, the 1968 delimitation was agreed in a moment in which the notion of exclusive economic zone was not well defined in the international law of the sea. That automatic extension is against Italian interests because it does not take into account the change of relevant geographical circumstances that took place after the conclusion of the 1968 Agreement, which implies a consequential change of the objective parameter of the median line. The Permanent Mission of Italy to the United Nations would highly appreciate if the Secretary-General informs the States Parties to the 1982 United Nations Convention on the Law of the Sea of the content of this Note and publishes it in the next ‘Law of the Sea Bulletin’”.

2. THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE During the LIX Session of the UN General Assembly, on 16 November 2004, after the adoption of the Resolution on “Oceans and the Law of the Sea” (A/59/ L.23), the Italian delegate, Mr. Nesi, declared: “Italy voted in favour of the Resolution concerning Agenda item 49(a), ‘Oceans and the Law of the Sea’, although this year it did not co-sponsor the Resolution. In this regard, Italy would like to underline its concerns deriving from paragraph 7 of the Resolution. First, Italy believes that reference should have been made to UNCLOS in general, since Article 149 – in addition to Article 303 – also refers to the protection of the underwater cultural heritage. Moreover, Italy thinks that mention should also have been made of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. The UNESCO Convention has been negotiated and adopted to clarify and strengthen the content of the relevant UNCLOS provisions and to provide a specific and better regime for the protection of the underwater cultural heritage. The UNESCO Convention deserved to be mentioned in the Resolution”.

3. THE CONSERVATION AND SUSTAINABLE USE OF BIODIVERSITY IN MARINE AREAS BEYOND THE LIMITS OF NATIONAL JURISDICTION During the V Meeting of the United Nations open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS), on 9 June 2004, the Italian delegate, Mr. Scovazzi, made the following statement in the panel discussion on “New Sustainable Uses of the Oceans, Including the Conservation and Management of Biological Diversity of the Seabed in Areas beyond National Jurisdiction”:


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“It would be repetitive to recall the invitation contained in paragraph 52 of UN General Assembly Resolution 58/240 and the outcome of the last Conference of the Parties to the Convention on Biological Diversity. There is a need for international cooperation and action to improve conservation and sustainable use of biodiversity in marine areas beyond the limits of national jurisdiction, especially where vulnerable ecosystems are located, such as hydrothermal vents, seamounts, cold-water corals. As recalled in the Plan of Implementation adopted at the 2002 World Summit on Sustainable Development, the establishment by the year 2012 of representative networks of marine protected areas, consistent with international law and based on scientific information, is an important tool to achieve the required objective. In this regard, attention should also be given to the studies and proposals submitted by nongovernmental organizations and the civil society in general, such as the results of the workshop on High Seas Protected Areas, held in Malaga in 2003 under the sponsorship of the World Conservation Union (IUCN), the World Commission on Protected Areas (WCPA) and WWF International, or the recommendations adopted by the World Parks Congress held in Durban in 2003, the suggestion by the 2003 Cairns workshop on governance of high seas biodiversity conservation. Italy wishes to elaborate on the issue of the appropriate legal framework to address the question discussed by this Panel. The basic obligation can be found in Article 194, paragraph 5, of the United Nations Convention on the Law of the Sea (UNCLOS). It provides that the measures taken to protect and preserve the marine environment ‘shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. This provision has a general scope of application. It covers any kind of vulnerable marine ecosystems and habitats, wherever they are located, including the high seas and the seabed beyond the limits of national jurisdiction. Under UNCLOS Article 197, States are bound to cooperate on a global or regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices to achieve inter alia the objective set forth in Article 194, paragraph 5. Other relevant obligations are contained in the Convention on Biological Diversity, namely Article 3 (obligation to ensure that activities within the jurisdiction or control of a State do not cause damage to the environment of areas beyond the limits of national jurisdiction) and

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Article 5 (obligation to cooperate for the conservation and sustainable use of biological diversity in areas beyond national jurisdiction). It follows that there is already a clear legal duty on States to prohibit their nationals and ships flying their flag from engaging in any activity which could endanger vulnerable seabed ecosystems and habitats (for instance, mining, marine scientific research, bioprospecting, tourism, etc., depending on the manner in which they are carried out) and to elaborate forms of international cooperation to preserve and protect such ecosystems and habitats. The pending question is whether the existing legal framework is sufficient to comply with these obligations. Several responses can be given and deserve consideration. But Italy is inclined to believe that there is a legal lacuna to be filled, as also suggested by the 2004 Secretary-General’s report on Oceans and the Law of the Sea (paragraph 266); and that the best way to address the issue is to envisage an ad hoc legal instrument, preferably a treaty of worldwide scope, that would provide a mechanism for the establishment and regulation on an integrated basis of marine protected areas on the high seas and the seabed beyond the limits of national jurisdiction. In the absence of a treaty, it is difficult to see how diverse sectoral measures, such as those adopted under the domestic legislation of the States concerned or under the regulatory powers of different international organizations, could reach the level of integration and coordination needed to ensure the preservation of vulnerable ecosystems and habitats. Nothing prevents States, if they deem it appropriate, to adopt another ‘implementation agreement’ which would build upon Part XII of the UNCLOS (in particular, Article 194, paragraph 5) and set forth a specific regime to preserve and manage marine biological diversity”. And he added: “In envisaging the possibility of a treaty, Italy is also motivated by the fruitful cooperation and mechanism already established in the Mediterranean region under the Protocol Concerning Specially Protected Areas and Biological Diversity (Barcelona, 1995). This instrument is also applicable to the high seas areas that still exist in the Mediterranean. It provides for the establishment of a List of Specially Protected Areas of Mediterranean Interest (SPAMI List). Once the areas are included in the SPAMI List, all the parties agree ‘to recognize the particular importance of these areas for the Mediterranean’ and ‘to comply with the measures applicable to the SPAMIs and not to authorize nor undertake any activities that might be contrary to


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the objectives for which the SPAMIs were established’. This gives to the SPAMIs and to the measures adopted for their protection an erga omnes partes effect”.

X. TREATMENT OF ALIENS AND NATIONALITY 1. DIPLOMATIC PROTECTION On 1st November 2004, speaking before the Sixth Committee of the General Assembly (LIX Session) on the Report of the International Law Commission on the Work of its Fifty-sixth Session (UN Doc. A/59/10), the Italian delegate, Mr. Braguglia, commenting on Chapter V of the Report on “Diplomatic Protection”, made the following statement with regard to the solutions that the Commission adopted on the question of the protection of shareholders: “Although in the framework of treaty practice there is a general tendency to increase the number of cases for the protection of shareholders for an injury to their respective corporations, international general law does not seem to reflect such evolution. This may be explained in light of the existing difficulties in determining the shareholders’ nationality due to easy shares circulation. This consideration helps clarifying the solution chosen by the Commission to admit the protection of shareholders for injury to the corporation only so long as the latter has ceased to exist or if the corporation’s establishment was required by the State where the investment was made as a necessary requirement to make the investment itself. These are border cases, where the need to protect seems to justify an exception to the general rule. […] The solution that the Commission adopted on the question of the protection of members of ships’ crews who often have a nationality different from the ship’s, provides for the intervention of the flag State even acting on grounds different from the diplomatic protection. This solution seems appropriate, as it avoids that the members of the crew remain de facto deprived of any protection. It seemed also useful to recall in Article 17 of the Draft Articles that the conditions for the exercise of diplomatic protection do not prevent a recourse to other actions or procedures aiming to guarantee a reparation for the injury. Available remedies in the framework of the protection of human rights and investments show the relevance of such option. It appears evident that, in such a hypothesis, whereas a State can make use of its right to protect its citizen, it cannot encroach upon the individual right to appeal enjoyed by its citizen”.

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2. RIGHT TO ASYLUM A. The Cap Anamur Case On 8 July 2004, at the Camera dei Deputati (Chamber of Deputies) (632nd Meeting, XIV Legislature), the Sottosegretario di Stato per l’interno (UnderSecretary of State for Home Affairs), Mr. Antonio D’Alì, answered a parliamentary question regarding the case of the Cap Anamur, a German ship that, after having rescued at sea 37 survivors, was denied access to the Italian territorial waters. The Sottosegretario recalled that the ship had first anchored in the area of Search and Rescue operations at sea (SAR Zone) of the Republic of Malta and stated that, according to EC law, the member State responsible for the appraisal of the asylum application is the one of first entrance in the European Union. With regard to the procedure of appraising requests for the recognition of refugee status in Italy, he declared: “Those claims are processed and decided by the Central Commission for the recognition of the refugee status. I would like to specify that the lack of an organic Act concerning asylum, which was criticised by the questioners, has not prevented and does not prevent the requests from being dealt with according to standards complying with international law and EC provisions. That, pending the passage of the Act on humanitarian protection and right to asylum, which is being heard in Parliament at present. Taking up the issue of the Cap Anamur again, albeit recognising its difficult humanitarian aspects, from this last point of view respect for international and EC law is absolutely binding and a possible derogation unilaterally decided by a State would establish a dangerous precedent and would pave the way for disputes and abuse”.

B. The Practice of Providing Shelter on Board of Warships to Persons Requesting Asylum On 20 July 2004, at the Camera dei Deputati (Chamber of Deputies) (494th Meeting, XIV Legislature), the Sottosegretario di Stato per l’Università, l’istruzione e la ricerca (Under-Secretary of State for University, Education and Research), Mrs. Valentina Aprea, answered a question concerning the practice of providing shelter to persons requesting asylum on board of warships. Describing the change in international practice and the position of the Italian Navy, she declared: “As particularly concerns request of shelter on board of warships, the mentioned legal concept underwent a transformation in international


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practice, which shed light on its real and more correct scope as ‘temporary refuge’. In general terms, the international source of the right to asylum is to be found in Article 14, paragraph 1 of the Universal Declaration of Human Rights adopted by the UN General Assembly on 10 December 1948, according to which ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. It is, however, to be noted that the preceding international custom according to which the right to asylum was automatically granted to foreigners who had found shelter on board of warships in order to avoid persecution on grounds of race, religion, national or social origin, has not become established in time thus not being valid at the international practice level. Moreover, it is totally evident that recognition of the particular legal status deriving from the granting of asylum to foreigners who declare themselves to be persecuted, can only be carried out by governmental authorities or at least by diplomatic and consular agents. It is also to be taken into account that the Commander of a warship is unlikely to be aware of the notions that are necessary to assess the socio-political situation of the country of which the refugee is national, or rather to verify the fulfilment of the conditions for granting asylum to individuals who, having come up alongside, ask for shelter referring to the legal concept at issue. In view of the foregoing, it is clear that temporary protection on board of warships may not, while ascertaining the fulfilment of the requirements for the possible recognition of the legal status connected to asylum, aim at guaranteeing safety and/or fundamental rights of persons declaring themselves persecuted. Therefore, the Italian Navy deemed it indispensable to conform ‘The Instructions of Naval Law for Naval Commanders’ (published by the General Staff of the Navy in 1996 and still in force) to the relevant international legal framework, by providing, in Article 11 of the mentioned publication, that the Commander of a unit of the Navy ‘in a foreign port shall give temporary shelter, as far as possible, to Italian nationals whose security is threatened by an impending danger, on condition that they are not, on the basis of information provided by the Italian diplomatic and consular agents, wanted by the competent local authorities for ordinary offences or international crimes and must not be handed over to them’”. And he further stated: “According to the Article at issue, that duty of protection covers also EU nationals in ports of non-member States.

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Furthermore, Article 12, paragraph 1 of the mentioned publication states that the Commander of a unit of the Navy ‘gives protection to foreign nationals (which are not nationals of the coastal State) in agreement with the national diplomatic and consular authorities, provided that the mission of the warship and the orders given are compatible with that and in any case in compliance with international law’. Paragraph 2 of the Article at hand provides that, in case of serious political upheavals in the country in the waters of which the unit is and on grounds of emergency reasons, the Commander, after ascertaining the conditions for security of the unit itself and for its crew, and in agreement with the national diplomatic and consular authorities ‘may give temporary shelter for humanitarian reasons to foreign nationals (those of the coastal State included) whose life or personal safety is exposed to an impending and serious danger, subsequently ordering the disembarkment at the end of the situation of need’”.

XIII. INTERNATIONAL RESPONSIBILITY 1. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS On 5 November 2004, during the debate in the Sixth Committe of the UN General Assembly (LIX Session) concerning the report of the International Law Commission on the Work of its Fifty-sixth Session (UN Doc. A/59/10), the Italian delegate, Mr. Ferrari Bravo, considered the report of the Commission on the topic of responsibility of international organisations. Mr. Ferrari Bravo stated what follows: “The Italian delegation positively considers the progress made by the Commission on the topic of responsibility of international organisations. On the question of attribution of conduct to an international organisation, the Commission has just adopted a number of relatively simple rules adapting the approach taken in the Draft Articles on State responsibility to the question of responsibility of international organisations. These rules opportunely take account, in particular, of the importance of the factual element in attributing a conduct to an international organisation. This particularly in cases where a State or another international organisation places an organ at the disposal of an international organisation. Italy shares the approach followed by the Commission not to include in its new Draft Articles exceptions to the rules on attribution of a conduct to a State, as they were adopted by the Commission in 2001 in second reading. Indeed, the conduct of a State organ must remain attributable to that same State so long as such conduct is carried out in pursuance of a decision of an international


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organisation of which the State is a member. In such situation, then, the question remains to know to what extent the international organisation is liable too. The answer might be found in an analysis of the factual circumstances of each specific case with a view to determine the extent to which the international organisation contributed to the conduct of the State in question. If that State is not the addressee of the international obligation at stake, the international organisation will be the only one liable. Another matter is the question of the possible subsidiary liability of the member States in case where the international organisation is liable. This question was evoked by the Commission in its commentary on the Draft Articles and it should be addressed in the framework of those cases – representing an exception to the general rule contained in Draft Article 3 – where the liability does not presuppose an attribution. It is not certain that a solution to this question common to all international organisations can be found”.

2. RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS On 29 October 2004, during the LIX Session of the Sixth Committee of the UN General Assembly, on the item of the “Responsibility of States for Internationally Wrongful Acts”, the Italian delegate, Mr. Nesi, stated: “On several occasions, Italy has expressed reservations about various aspects of the final project. Nevertheless, we accepted the compromise solution adopted by the Commission in 2001. These reservations referred mainly to the following points: the deletion from the Draft Articles of a category of particularly serious illicit acts, called ‘international crimes’, while maintaining the substance of the specific norm; the use of the category of peremptory norms of general international law; the requirement that a breach be deemed ‘serious’ before it can qualify as a violation of an international obligation under Article 40; the consequences of a serious breach of a peremptory norm of international law under Article 41; the implementation of State responsibility, i.e., the execution of the obligation of cessation and reparation by a State that has committed an international breach. We do not intend to restate Italy’s noted position on these or other specific aspects of the Draft Articles. Therefore we will focus today on the form that should be taken by the Draft on Responsibility of States for Internationally Wrongful Acts. Italy joins other delegations in saying that an international convention is not the proper instrument for preserving the work of the ILC on the topic. The opening of a negotiating process with unforeseeable results

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would waste resources and pose a possible threat to the delicate compromise reached within the Commission. We believe that international practice could further contribute to the development of customary law in the areas where the Draft Articles are not to be considered as general international law. This is why Italy proposes that the General Assembly task the UN Secretariat to collect international practices in this area in order for the Sixth Committee to reconsider how the Draft Articles are perceived in international relations, on the basis of practice and, in any event, no earlier than the 63rd UNGA”.

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. THE CLONING OF HUMAN BEINGS On 22 October 2004, during the LIX Session of the Sixth Committee of the UN General Assembly, on the item “International Convention against the Reproductive Cloning of Human Beings”, the Permanent Representative of Italy to the UN, Ambassador Spatafora, stated: “We will limit ourselves to a brief summary of those reasons together with new perspectives that deserve our careful reflection. i) Since the beginning of these negotiations, Italy has consistently reiterated that the distinction between reproductive cloning and the so-called ‘therapeutic’ cloning of human beings is a false distinction. What is normally meant by ‘therapeutic’ cloning is that human embryos are created for the express purpose of scientific experimentation after which they are discarded, denying them the potential to become human beings. Hence, we need to ban all forms of human cloning. ii) The use of adult stem cells, i.e., inter alia, stem cells derived from the blood of umbilical cord, has recently proven to be successful in the fight against many diseases. This past September in Italy scientists announced the case of a young boy who recovered from thalassemia, also known as Mediterranean anaemia (although it also occurs in other parts of the world), after being treated with stem cells obtained from the umbilical cord blood of his two younger brothers. By contrast, no concrete result has been obtained, to our knowledge, from experiments using human embryos. iii) The failures of experiments using human embryos indicates that the supporters of ‘therapeutic’ cloning should take a more cautious approach. The results to which I refer concern experiments begun


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years ago which still continue. These results give the lie to the argument that a ban on human cloning would impede scientific progress. We maintain, instead, that there is no reason why scientific progress should have to come at the expense of human dignity. Italy would like to recall a new element that forces us to reflect: on 29 January 2004, the European Parliament passed a Resolution (by a vote of 367 in favour, 62 against, 14 abstentions) by which it ‘reiterates its call for a worldwide ban on the cloning of humans, and supports Costa Rica’s initiative in this connection and the UN General Assembly’s decision to work on a corresponding Convention in 2004 (Resolution on the relations between the European Union and the United Nations)’. The text of the Resolution and the result of the vote in the European Parliament are self-explanatory and Italy associates itself with that text”.

XVII. INTERNATIONAL ORGANIZATIONS 1. UNITED NATIONS A. Security Council Reform On 23 September 2004, during the LIX UN General Assembly, the Permanent Representative of Italy, Ambassador Spatafora, intervened in the open debate on the “Question of Equitable Representation and on Increase in the Membership of the Security Council and related matters”. On that occasion, he stated: “I will focus here on few key principles, in fact six principles, that Italy feels are crucial for the possibility of a successful reform: Principle No. 1: broad consensus. Like any constitutional reform in our national countries, the Security Council reform should not have a divisive fallout on the membership, otherwise it would defeat the very purpose of a UN reform. Any proposal of reform will have to build upon a broad political consensus; and all possible efforts should therefore be made by all of us, showing flexibility and pragmatism, in order to promote an approach which will be able to command broad consensus in the Assembly. Under this point of view, the SecretaryGeneral’s Panel, and if I may the Secretary-General himself, should seek to promote such a consensus on an equitable and comprehensive reform proposal. I see that even countries that are in favour of an increase in the number of permanent members are well aware of the need of a broad consensus, because only a broad consensus will

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prevent disaffection among Member States, who will be otherwise tempted by disengagement. And with disengagement there will not be effective and efficient UN […]. Principle No. 2: equitable representation. Addressing the current imbalance in the north/south presence in the Security Council. This principle reflects a fundamental urgent need, if we wish to have a Security Council more in tune with the world of today, and therefore more credible and effective. I think that, also here, there is definitely common ground among the membership. But I have some doubts that it would be coherent, with such a perceived need, to propose an increase in the number of permanent members by five units, with 40% of the privilege being offered to two countries of the industrialized world. Definitely, there has to be a different way to redress more effectively the imbalance north/south. Principle No. 3: comprehensiveness. In other words, what is needed, and what we want, is a ‘package approach’ in a process of reform aimed at strengthening the UN and enhancing its ability effectively to meet current and future challenges, in the field of peace and security of course, but also, with equal priority, in the field of development. We will have to address policy issues, as well as institutional issues well beyond the matter of the Security Council enlargement (let’s just mention the refocusing of relations between Security Council, General Assembly and ECOSOC; the strengthening of ECOSOC; the redefining of the working methods of the Security Council, etc.) […]”. Ambassador Spatafora continued stating: “Principle No. 4: inclusiveness, and principle No. 5: accountability. I will address them at the same time, because they are inextricably linked. […] […] [T]he proposal to add new permanent members, even without veto, entails serious drawbacks. It would be highly divisive among UN membership, and would establish a new layer of hierarchy within the Council itself: but do we really want to have a first-class membership, a second-class membership and a third-class membership? […] Whatever the so called G-4 may say, and however attractive would be the ‘packaging’ of this scenario of reform, the fact is that we would lay the foundations for what would be, by definition, new privileges for some members, to the detriment of others. And that would go against the tide, in a world where priority is now given, and has to be given, to an ongoing process of democratization in the handling and management of international relations, through multilateral institutions. So that every Member State, every member of this Assembly,


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as a stake holder, will feel comfortable, and will feel that he will be more adequately taken on board. Would this happen with the establishment of new permanent members, which would not be accountable to the membership through elections? […]”. Moreover, he added that: “[…] [T]he enlargement of the Security Council, in whatever shape it will take place, will be limited in number. The figure generally mentioned is around 24 members. With a higher number of members the Security Council would not be effective and efficient. Well, if it is so, it is clear – it has to be clear to all Member States – that we have a ‘zero sum game’: if we will increase the number of permanent members, there will be less room for the rest of the membership who concur to the non permanent seats. We will ‘give’, let’s suppose, to five member States (who would become permanent members) and what we will give to them we will take away from what other 181 Member States have the right to expect, regarding the possibility for them to offer a direct contribution to shape the Security Council’s actions and policies. Let’s not forget that, after 60 years, still 77 countries, it is to say 40% of the membership, have never served in the Security Council. And how best can we address such a situation? Certainly not by increasing the number of members of the Security Council and by ‘freezing’ in favour of few members more than half the increase (5 out of 9). Moreover, new permanent members would go, by definition, against the principle of ‘accountability’, which would imply that all members of the Security Council have to undergo periodic scrutiny, through elections, by the General Assembly. Let’s not forget that the organization, in its action, is stressing more and more, and preaching to members, the need to improve governance: and to improve governance means to improve accountability, because accountability is the substance of democracy, as well as the foundation for a healthy and sound development”. Furthermore, he underlined, with particular emphasis: “Principle No. 6: the regional and geopolitical factor. The need to strengthen its role and its weight within the Security Council. Also here I feel that there is common ground among the membership, and we will have to build on it. I would therefore say that what is needed is that any proposal of reform of the Security Council should focus on the importance of the regional and geopolitical factor, of the regional constituencies, of the regional interests. Not the national interests. And to this

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end, a closer relationship should be built between elected members and their regional constituencies. This would enhance the accountability of elected members and make deliberations perceived as more legitimate. In other words, more should be done to give relevance and weight to the regional and geopolitical realities within the UN system and in the Security Council. As far as Italy is concerned, as a founding member of the European Union, the depositary of its Treaties, and the host for the solemn signature on the 29 October of the new European Constitution, we believe that today’s EU, strong of 25 members, has a fundamental contribution to make to the purposes of the UN. Italy is working to find ways and means to allow the EU to speak in the Security Council with a single, more influential voice. We realize, of course, that it will not be an easy path; and that, within the UN, each regional constituency finds itself in a different stage of political and socio-economic development. Nonetheless, we feel that we must stay the course and not jeopardize the achievement of this goal”. He concluded his speech by stating: “In the meantime, summing up, we will have to shape the Security Council reform in such a way as: a) to give more appropriate relevance to the contribution that a Member State is capable and willing to offer to the maintenance of peace and security and to the other purposes of the UN, as foreseen by Article 23, paragraph 1 of the Charter; b) to give a proper and more appropriate weight to the regional and geopolitical factor; redressing at the same time the current imbalance north/ south; c) having in mind the need of ensuring, through the election of all members of the Security Council, accountability, inclusiveness, ownership by the membership. Well, to accommodate all these principles, values and needs, we will have to be flexible, with no entrenched positions, with our minds open to new and bold scenarios of reform. Centered, for example, on the concept of rotation among elected members on a given seat, not excluding the possibility of a longer duration and/or a more frequent presence in the Council than the one currently foreseen by the Charter”.

2. EUROPEAN UNION A. Human Rights Protection and Democracy (the Ukrainian Case) On 2 December 2004, at the Camera dei Deputati (Chamber of Deputies) (554th Meeting – XIV Legislature), the Sottosegretario di Stato per i rapporti con


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il Parlamento (Under-Secretary of State for the Relationships with the Parliament), Mr. Cosimo Ventucci, answering a parliamentary question, described the position of the Italian Government on the Ukrainian crisis and the relations between the European Union and Ukraine. With regard to the latter issue, he declared: “As it is known, EU relations with Ukraine are based on a partnership and co-operation agreement, which entered into force in 1998, and on a common strategy adopted in 1999, the length of which was recently extended until the end of 2004. The partnership and cooperation agreement at present in force, which is the institutional framework for the development of the political dialogue with Kiev, qualifies respect for a list of democratic standards and fundamental values as an essential element in the relationship between the European Union and Ukraine”.

XX. WAR, NEUTRALITY, AND DISARMAMENT 1. THE IRAQI CRISIS A. Italy’s Participation in the Multinational Force and the Political Transition in Iraq On 24 February 2004, during a joint Meeting of Permanent Committees III (External and European Affairs) and IV (Defence) of the Camera dei Deputati (Chamber of Deputies), discussing the conversion into legge (Law) of the decreto legge (Decree-Law) No. 9 of 20 January 2004 providing for a six-month extension of the Italian participation to international operations, the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Luigi Alfredo Mantica, stated what follows: “[…] [W]ith the adoption of Security Council Resolution 1511 of 16 October 2003, the United Nations authorized the deployment of a Multinational Force under unified command with the mandate to take all necessary measures to maintain peace and stability in Iraq. That same Resolution provides that the United Nations’ role in Iraq be reinforced, and sets forth a timeframe for the political transition to a new State entity in Iraq. The United Nations itself recognized that the role of the Coalition forces is essential to stabilize the country […]. The [Italian] Government’s engagement in Iraq aims to guarantee the full implementation of the United Nations Resolutions and to promote a quick return to Iraqi people’s sovereignty in the country. The Italian military contingent’s action in Iraq takes place in the framework of an international mission endorsed by the United Nations with a view

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to guarantee peace and stability in the country. Peace and stability in Iraq are essential conditions for return of sovereignty to Iraqi people by means of democratic elections. The Government is working to guarantee that consultations take place as soon as possible and in an adequate security environment […]”. On the same occasion, the Sottosegretario di Stato per la difesa (UnderSecretary of State for Defence), Mr. Francesco Bosi, observed that in Iraq: “[…] [T]he military force’s purpose is also to create the necessary conditions for the implementation of the calendar and the program, as well as to contribute to the safety of the United Nations Assistance Mission in Afghanistan, the Governing Council, the other institutions of the provisional administration and the main economic and humanitarian infrastructures. In particular, Resolution 1511 confirms the humanitarian purpose of the intervention and sets up a path aiming to the restitution of powers to the Iraqi people as soon as possible in the framework of the affirmation of Iraq’s territorial integrity and effective authority. The fact that Resolution 1511 was adopted unanimously shows that now the whole international community recognises that the international presence operates in Iraq with the full legitimisation of the United Nations. Confirming the Italian presence in Iraq means fully embracing that project and its clear strategy: effectiveness and territorial integrity are the goals of the project for the reconstruction and moral and political regeneration of Iraq. Italy is a country that historically asserted its strong belief and support for the United Nations and its peace initiatives in disrupted regions. In this moment, Italy’s disengagement from Iraq, albeit partial, would imply a repudiation of the United Nations’ value and is credibility – a view that Italian people do not share”. Moreover, referring to the possibility that NATO and the European Union assume a major role in the stabilisation of the post-conflict situation in Iraq, he stated that: “In the framework of a more multilateral handling of the crisis, it could be possible to envisage, in a future perspective, the hypothesis of a NATO’s leading role of the international forces, on the basis of the Afghan model. Such a role would well fit in the framework of NATO’s Twenty-first Century new interventions ‘out of area’. On the other hand, the now prevailing idea, put forward in UN Resolution 1511, of an international handling of the post-conflict situation in Iraq, lacks a subject able to implement it: NATO could represent the


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quickest and most effective solution. Of course, remarks were made to the effect that NATO presence should be deployed on the basis of a request from a recognised local authority and not imposed. In light of this, the necessary conditions for the transfer of powers from the USled provisional administration to a stable Iraqi Government will have to be met before thinking of a possible intervention of the Alliance […]. Furthermore, it should not be excluded that the moment is now near to consider a more direct role of the European Union to the extent that it will be able autonomously to carry out military operations […]”. On 14 April 2004, the Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco Frattini intervened during a public hearing on the situation in Iraq at the joint Meeting of the Permanent Committees III (Foreign and European Affairs) and IV (Defense) of the Camera dei deputati (Chamber of Deputies) and III (Foreign Affairs and Emigration) and IV (Defense) of the Senato della Repubblica (Senate of the Republic). The Ministro declared what follows: “The new path that faces the Italian Government [in Iraq] presents two major steps: first, Italy will work with a view to guarantee that the United Nations, by means of a Security Council’s Resolution, can offer an explicit, both formal and substantive, legitimisation to an Iraqi Government that will come into existence by 30 June and will take up its functions on 1st July. At the same time, Italy will work with a view to guarantee that, even before the 30 June deadline, the United Nations will be able to accompany the process of political transition of Iraq until this country will assume real and full sovereignty. This strategy will be the object of a formal request of the Italian Government that I will present to the United States in the coming week. […] Italy reasonably believes that this strategy can gather a broad consensus. Such consensus, representing the second step of a necessary strategy, will enable the Iraqi Government to be established on 30 June with the legitimisation of the United Nations and the Security Council, to evaluate what it believes to be the better strategy to maintain security and to stabilise the situation on the ground […]”. On 30 June 2004, in a joint Meeting, Permanent Commissions III (Foreign and European Affairs) and IV (Defense) of the Camera dei Deputati (Chamber of Deputies) examined the disegno di legge (Bill) No. C. 5088 transforming into legge (Law) the decreto legge (Decree-Law) No. 160 of 24 June 2004, which provides for a six-month extension of the Italian participation into international missions. This Bill aimed to allow the continuation of the Italian presence in Iraq and the participation of Italian military and civilian personnel to other ongoing interna-

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tional missions beyond 30 June 2004, date in which the relevant mandates would have expired. The Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Alfredo Luigi Mantica, and the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Francesco Bosi, intervened during the debate. The former stated what follows: “[…] [T]he humanitarian mission decided by the Government immediately after the end of the hostilities in Iraq and approved by Parliament on 15 April 2003 represented a remarkable and prompt institutional commitment. This commitment aimed to guarantee, by sending a military contingent and a group of civilian experts in a country disrupted by decades of dictatorship and wars, the necessary security environment to carry out emergency operations with a view to avoid the Iraqi people further suffering and to ensure the supply of essential services in the complex post-conflict phase. The mission has a high political value. It is mandated concretely to contribute to the stabilisation and reconstruction of Iraq in the framework of a multilateral coalition and in response to the appeal contained in Resolution 1483 of May 2003 as confirmed and detailed in Resolution 1511 of November 2003. Since the outset, the mission responded to a multilateral approach to the solution of the Iraqi crisis, aimed to grant the United Nations a central role. […] From this viewpoint, the Italian Government carried out an intense diplomatic activity, particularly during the Italian semester of Presidency of the European Union, to give impetus and unity to the European action and to broaden the consensual basis in the international community. Such action intensified particularly during the negotiations in the weeks preceding the adoption of Resolution 1546, sanctioning the reacquisition by Iraq of its full powers. […] The recent six-month extension of the mission, approved last 22 June by the Council of Ministers, falls within the framework of the Iraqi legitimisation and sovereignty. This presents an encouraging broader multilateral framework, characterised by a stronger multinational cohesion face to the challenges that terrorism and guerrilla ravaging Iraq still cast on the international community. […]. Resolution 1546, adopted unanimously by the Security Council last 8 June, provides that the Multinational Force, authorised by the Council on the basis of a request from the Iraqi authorities, serves the purposes of the process of political transition toward a constitutional democracy with democratic elections. The first phase of such process is represented by the assumption of full powers by an interim Iraqi Government that took place on 28 June. Such developments introduce new elements as well as a need for continuity. […] Whereas the Coalition Provisional Authority was dissolved, Resolution 1546


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exhorts the international community to sustain the present phase of political transition in Iraq by offering the local Government professional and technical assistance”. The Camera dei Deputati (Chamber of Deputies) approved the disegno di legge (Bill) on 12 July 2004 and transmitted it to the Senato della Repubblica (Senate of the Republic). The latter approved the Bill on 27 July 2004 and turned it into Law No. 207 of 30 July 2004.

B. Treatment of Prisoners Arrested on Iraqi Territory On 26 May 2004, speaking before Permanent Committee IV (Defense) of the Camera dei Deputati (Chamber of Deputies), the Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco Frattini answered a parliamentary interrogation on the question of the treatment of Iraqi prisoners. The interrogating deputies, while condemning the mistreatment of Iraqi prisoners, recalled that “the evident breaches of the Geneva Conventions and international humanitarian law by the Coalition forces involve also our armed forces as they operate in the framework, and under the command, of the US/UK-led military operations in Iraq. Moreover, as the Government declared, the Italian contingent transfers Iraqi prisoners arrested in that country to the British forces and to Iraqi police administering the detention facility in Nassirya”. Those deputies required the Ministro to provide the Parliament with specific guarantees that the prisoners’ rights be fully respected, as well as information as to what measures had been taken to that effect and who was in charge of ensuring their enforcement. Mr. Frattini answered as follows: “The appalling conduct of personnel belonging to armed forces of Coalition countries who allegedly abused Iraqi prisoners calls for the highest indignation and the firmest condemnation by the Italian Government. The Italian Government strongly hopes that those who are responsible for such conducts will undergo an appropriate punishment. Having said that, it is known that Security Council Resolutions 1483 and 1511 bestow the status of occupying powers to the United States and the United Kingdom, which implies a series of responsibilities and obligations. Resolution 1483 expressly recalls the 1949 Geneva Conventions and the 1907 Hague Regulations. Resolution 1511, while stressing that Iraq’s sovereignty remains with the Iraqi State and in light of the fact that security and stability affect the process of reconstruction of Iraq, authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in the area. At the same time, that Resolution underlines the need to establish an effective Iraqi

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civilian police to maintain order and security in Iraq, as well as to combat terrorism. In this context falls, on the one hand, with particular regard to the unified command, the transfer of prisoners by Italian forces to UK command; and, on the other, with particular reference to the Iraqi police function, the transfer of common criminals to the latter. According to the obligations deriving from the above-described legal framework, the UK took the responsibility of holding and safeguarding persons transferred to its forces. In this regard, with a view to monitor the treatment and the health conditions of persons that Italy transferred, it was established that monthly visits to the prisoners be carried out by a team including a legal expert, a medical personnel from the Italian Joint Task Force, together with officers in charge of the British military police. An inspection by this team showed that the modalities of treatment and detention in the British detention facility in Al Shaiba are generally satisfying and are in compliance with the Geneva Conventions and humanitarian law. Furthermore, it appears that the International Committee of the Red Cross carried out inspections in Al Shaiba every two months in February, April and May 2004 that produced what have been defined as ‘excellent’ results. Moreover, a UK parliamentary group visited that same facility on 17 February 2004. The relevant framework of international humanitarian law, relevant agreements and procedures offer, as a whole, sufficient guarantees on the British Government’s willingness and ability to apply the relevant rules on treatment of prisoners. As regards the perpetrators of common crimes, they are transferred to the Iraqi police, which, in turns, refers to the judicial authority of the sovereign country operating in the framework of its judicial system. In this sense, it appears superfluous to recall that the exercise of the criminal jurisdiction represents one of the main expression of States’ sovereignty. The ICRC, in agreement with the Coalition Provisional Authority, proposed to carry out inspections to the detention facilities of the local police. Moreover, among the various activities carried out by our personnel with a view to guarantee the full respect for human rights rules, the accurate training of the Iraqi police must be recalled. Let me finally recall that, also as a consequence of the resonance of the episodes of violence and abuses against the Iraqi prisoners, the Italian contingent applies all possible measures to guarantee, before the transfer takes place, that captured and delivered persons are treated in conformity with international human rights standards”.1

1 The treatment and detention conditions of Iraqi nationals arrested by the Italian Forces and handed over to the British Command of the Coalition and the conformity of these conditions with


2. ITALY’S PARTICIPATION OPERATIONS

IN

INTERNATIONAL

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MILITARY

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CIVIL

On 20 January 2004, the Senato della Repubblica (Senate of the Republic) discussed the disegno di legge (Bill) No. 2700 disposing the conversion into legge (Law) of the decreto legge (Decree-Law) No. 9 of 20 January 2004 providing for a six-month extension of the Italian participation to international operations. The decreto legge established the extension until 30 June 2004 of the Italian participation to international military and civil missions, in particular, in Iraq, the Balkans, Afghanistan, Hebron and Horn of Africa, as well as, finally, the participation of police forces to international operations in the Balkans. Asking for the floor during the debate, the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Francesco Bosi, made observations on a preliminary question concerning the compatibility of the decreto legge with the Constitution that was raised by Mr. Villone in light of the fact that the decreto legge in question provides for the application of the rules of the Military Criminal Code only in certain cases and not in others. Mr. Bosi stated: “According to the preliminary constitutional question, the mention in the decreto legge of the Military Criminal Code would amount to a breach of Article 11 of the Constitution providing that Italy repudiates war as a means to settle international disputes. […] I would like to stress that the application of the Military Criminal Code relates to a seriously high-risk mission and aims to protect weak actors, that is local populations, against possible war crimes”.

the Geneva Conventions and international humanitarian law have been also the subject-matter of a Memorandum of Understanding, signed by the Ministro della difesa (Minister for Defence) of Italy, the UK and other countries of the Multinational Force legitimized by the United Nations. This Memorandum, already recalled in a Meeting of the Camera dei Deputati (Chamber of Deputies) (Meeting 466th – XIV Legislature) by the Ministro della difesa, Mr. Antonio Martino, is mentioned again by the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Francesco Bosi, on 17 June 2004, in his intervention at the Senato della Repubblica (Senate of the Republic) (632nd Meeting – XIV Legislature). The Sottosegretario, answering a parliamentary question which, inter alia, asked the Government to inform the Parliament on the content of the Memorandum, stated that this Memorandum “deals with various issues including the treatment of prisoners, to whom compliance with international humanitarian law must be guaranteed”. The Sottosegretario also confirmed – as already emphasized on 26 May 2004 by the Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco Frattini (see above) – that the treatment and detention conditions in the British Prison of Al Shaiba in Iraq “are on the whole satisfactory and in compliance with the Geneva Conventions and international humanitarian law”, as verified through the inspections carried out by the special team – composed of experts from the Italian Joint Task Force and officers of the British Military Police – the International Committee of the Red Cross, and a UK parliamentary group.

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On 24 February 2004, in a joint Meeting, Permanent Committees III (External and European Affairs) and IV (Defence) of the Camera dei Deputati (Chamber of Deputies) examined the disegno di legge (Bill) No. C. 4725, approved by the Senato della Repubblica (Senate of the Republic) and transforming into legge (Law) the decreto legge (Decree-Law) No. 9 of 20 January 2004, which provides for a six-month extension of the Italian participation to international operations. The Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Luigi Alfredo Mantica intervened in the debate and, with regard to the international operations in which Italy is involved, he observed that: “[…] Italy continues its participation to the International Security Assistance Force (ISAF) and operation ‘Enduring Freedom’ in Afghanistan. Although separate, these operations pursue complementary goals and find their legal basis and legitimacy in the favourable position of the United Nations, in the indications of the Italian Parliament and in the laws authorising the Italian intervention”. He also recalled that: “ISAF operates under Chapter VII of the United Nations Charter with the mandate to help the Afghan Interim Authority, established in Kabul on 22 December 2001, maintain a secure environment in the city of Kabul and its surroundings in the framework of the Bonn Agreement. The operation’s command rotates every six months and it is presently held by NATO Command CINCNORTH. On the other hand, the operation ‘Enduring Freedom’ continues a broader campaign against international terrorism with a coalition made of more than 70 countries. Operation ‘Enduring Freedom’ was launched in 2001 according to a series of Security Council’s Resolutions setting forth the operation’s purposes: the stabilisation and reconstruction of Afghanistan under a legitimate Government. The Italian contribution to the operation is limited to a naval unit with 230 crew members operating in the Indian Ocean in the framework of the European Naval Cooperation Scheme (Italy, Spain, France and Portugal). Such unit aims to operations of identification, patrolling and recognition, maritime interdiction, contrast to Al Qaeda’s leadership, and monitoring of illicit trafficking. On 13 October 2003, the Security Council approved Resolution 1510 authorising the extension of ISAF’s mandate to cover areas outside Kabul and to support the Afghan Transitional Authority in maintaining security in the area. Although ISAF and ‘Enduring Freedom’ are separate operations with different mandates, military tasks and goals, it would be preferable to follow a comprehensive approach to them in order to attempt a positive development of Afghanistan’s relation-


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ship with neighbouring countries, as well as progress in the fight against the terrorist threat. Our mission in the Balkans continues as a primary interest of Italy for both economic, historic and political reasons, as well as for geographical proximity. […] Italian military forces are engaged in Kosovo, Albania and Bosnia in the framework of NATO operations. Italian forces are also engaged in the FYROM in the framework of both EU and NATO operations. Starting from Spring 2002, thanks to the progressive improvement of the general situation in the region, NATO could launch a program for the rationalisation of the structures of command and the gradual downsizing of the forces deployed. The goal was to reach a minimum level of forces sufficient to allow the Balkan countries’ participation in the program for the Euro-Atlantic integration of the Partnership for Peace. […] In Albania and Macedonia, following NATO’s reorganisation, the pre-existing commands have been restructured into two new NATO headquarters located in Tirana and Skopjie. […] The main task of the Italian presence there is to assist Albanian authorities in border controls, counter-trafficking, monitoring of communications lines, and support to the Command of the operation. Around 160 militaries are present in FYROM. They are divided into three main components, of which 135 units are engaged in operation ‘Joint Guardian’ for the logistic support to the Italian contingents present in Kosovo, and 25 units within the NATO Command Headquarters in Skopjie with the mandate to promote coordination between the Macedonian Government and NATO”.

AGREEMENTS TO WHICH ITALY IS A PARTY (edited by Federico Casolari, Marcello Di Filippo, Marco Gestri and Marina Mancini) This section is divided into two parts. Part A) contains a list of agreements signed by Italy and published in the Gazzetta Ufficiale in 2004. Part B) contains a list of agreements signed by Italy and published before 2004, but of which the entry into force was announced in the Gazzetta Ufficiale in 2004. These agreements are listed by subject in both parts, and within the same subject, multilateral agreements are placed before bilateral agreements. Multilateral agreements are in chronological order, while bilateral agreements are listed in order of the international subject with which they were signed. In the case of more than one bilateral agreement signed with the same international subject, they are in chronological order. A comment is annexed to the list of agreements regarding a particular area. The comment relates to the most significant agreements of that list and the laws authorising ratification, wherever such laws have been enacted and present interesting features. If an agreement has entered into force, the date of entry into force is indicated. For those agreements requiring a law authorising ratification, the date of entry into force has been deduced, as a rule, from the schedules published periodically by the Ministero degli affari esteri (Ministry of Foreign Affairs) in the Supplemento Ordinario (Suppl.) of the Gazzetta Ufficiale (GU).

A) AGREEMENTS SIGNED BY ITALY, PUBLISHED IN THE GAZZETTA UFFICIALE IN 2004

IV. DIPLOMATIC AND CONSULAR RELATIONS Bilateral Agreements Consular Convention between Italy and Georgia, done at Tbilisi on 17 July 2002, implemented by Law No. 201 of 19 July 2004 (GU No. 186 of 10 August 2004); Consular Convention between Italy and Libya, done at Rome on 4 July 1998, implemented by Law No. 65 of 26 February 2004 (GU No. 62 of 15 March 2004);


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ITALIAN PRACTICE RELATING TO ITALIAN LAW

Consular Convention between Italy and Moldova, done at Rome on 23 February 2000, implemented by Law No. 212 of 27 July 2004 (GU Suppl. to No. 192 of 17 August 2004).

Comment The conclusion of the Consular Conventions with Georgia, Libya and Moldova shows Italy’s intention to strengthen relations with these States in the political, economic, cultural and social fields. In effect, the intensification of bilateral relations between States requires the strengthening of the protection of nationals, which is strictly linked to the role played by consular offices (see e.g., SHAW, International Law, 5th ed., Cambridge, 2003, p. 733). Moreover, it should be noted that, apart from Italy, only Georgia was a party to the 1963 Vienna Convention on Consular Relations when the bilateral Consular Conventions were signed. The Vienna Convention is a multilateral treaty on consular relations, immunities and privileges, which largely reflects customary international law (this universal Convention, which presently binds 167 countries, was implemented in Italy by Law No. 804 of 9 August 1967, published in GU Suppl. to No. 235 of 19 September 1967). According to their preambles, the three bilateral Conventions listed above reaffirm principles and rules contained in the 1963 Vienna Convention on Consular Relations. This notwithstanding, the position of the Conventions vis-à-vis the 1963 Vienna Convention partially differs (on the general issue concerning relations between bilateral consular conventions and the 1963 Vienna Convention, see ECONOMIDÈS, “Consular Treaties”, in BERNHARDT (ed.), Encyclopedia of Public International Law, 1992, Vol. I, p. 768 ff.). As for Georgia, which is a party to the 1963 Vienna Convention since 1993, the mechanism established by Article 73.2 of the 1963 Vienna Convention has been applied. By virtue of this disposition “[n]othing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”. Accordingly, the preamble of the bilateral Convention notes that the provisions of the 1963 Vienna Convention “shall continue to be applicable to matters not expressly regulated by the present Convention”. In other words, the legal framework established under the Consular Convention of 17 July 2002 constitutes a supplement to the 1963 Vienna Convention, particularly with regard to consular functions (see Camera dei Deputati-XIV Legislatura, Disegno di Legge No. 4920, Relazione, p. 2). On the contrary, the Consular Convention between Italy and Moldova will constitute, from its entry into force, the only treaty law applicable to relations between the two States on consular issues. In fact, since Moldova is not a party to the 1963 Vienna Convention, the rules laid down by the universal Convention are applicable

AGREEMENTS TO WHICH ITALY IS A PARTY

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to consular relations between the two States to the extent that they reflect customary international law. Libya acceded to the 1963 Vienna Convention on 4 September 1998, i.e. after the signature of the bilateral Consular Convention, which has not yet entered into force. The bilateral Convention establishes that, from its entry into force, the contracting parties shall apply the 1963 Vienna Convention on reciprocal consular relations (Article 1.1). Consequently, the further provisions of the bilateral Convention constitute, according to Article 73.2 of the 1963 Vienna Convention, a supplement to this instrument. As for the content, the three Consular Conventions reaffirm several provisions of the 1963 Vienna Convention on the status of consular organs (e.g., definitions; establishment of consular posts, appointment of members of the consular post and exercise of consular functions; facilities, privileges and immunities; main consular functions), supplementing or extending some aspects of the consular relations established by the universal treaty (this practice is also seen in the Consular Convention between Italy and the Russian Federation, done in Rome on 15 January 2001). On the other hand, one also has to note that some of the provisions established by the bilateral Conventions in the field of consular relations are not contained in other bilateral instruments concluded by Italy in consular matters. For instance, one can cite the discipline on consular functions relating to nationality and cooperation with the receiving State (see Article 40.1 of the Consular Convention between Italy and Georgia and Article 43.1 of the Consular Convention between Italy and Moldova). According to this discipline, consular officers shall cooperate with the competent authorities of the receiving State at their request in order to determine the nationality of persons not possessing a passport or other identification card and who are presumed by the authorities of the receiving State to be nationals of the sending State. Evidently, the rationale of these provisions is represented by the need to strengthen bilateral co-operation in the fight against illicit immigration. Of particular relevance are also the provisions concerning the right of consular officers to register their nationals and issue them their corresponding documents (see Article 38.1 of the Consular Convention between Italy and Georgia; Article 6(a) of the Consular Convention between Italy and Libya; Article 38.1 of the Consular Convention between Italy and Moldova), as well as the provisions relating to the electoral formalities, according to which consular officers are entitled to fulfil formalities related to the participation of nationals of the sending State in referenda and elections in the said State (see Article 42(e) of the Consular Convention between Italy and Georgia and Article 44(e) of the Consular Convention between Italy and Moldova). Moreover, all three bilateral Conventions emphasise the consular functions that enable consular officers to communicate freely with nationals of the sending States and to have access to them. In particular, one has to stress the right of consular officers to communicate and visit a national of the sending State who has been arrested, sentenced to prison or to custody pending trial or detained in any other manner. In

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this respect, the authorities of the receiving State shall inform the consular post if a national of the sending State is being detained within a maximum of two days from the day in which the national is arrested, committed to prison or deprived of his/her liberty in any manner (see Article 48 of the Consular Convention between Italy and Georgia; Article 13 of the Consular Convention between Italy and Libya; Article 49 of the Consular Convention between Italy and Moldova). Only the Consular Convention between Italy and Libya expressly establishes that the authorities of the receiving States shall inform the consular post if a national of the sending State has to be expelled from the receiving State (Article 13.4). With regard to the powers of consular officers relating to vessels and their crew, one has to note that the Consular Convention signed with Libya gives consular officers the right to inspect vessels of third States directed to ports of the sending State in order to issue all documents allowing the vessel to reach the territory of the sending State. Nevertheless, consular officers cannot intervene without the consent of the master of the vessel (Article 19). As a consequence of Italy’s participation in the EU integration process, all three Conventions establish that Italian consular officers may also exercise consular functions in the territory of the receiving State in favour of citizens of other EU Member States that do not have a consular post within the consular district of said officers (see Article 60.2 of the Consular Convention between Italy and Georgia; Article 22.2 of the Consular Convention between Italy and Libya; Article 61.2 of the Consular Convention between Italy and Moldova). This obligation is consistent with the provision of Article 20 of the EC Treaty which provides for diplomatic and consular protection from the authorities of any Member State when the EU citizen’s country is not represented in a non-Union country. The diplomatic protection laid down by the EC Treaty represents a specification of the classic principle of diplomatic protection, according to which every State is allowed to protect its nationals and may take up their claims against foreign States (see the Mavrommatis Palestine Concessions case, PCIJ Series A, No. 2, 1924, p. 12 ff.). Finally, for disputes between contracting parties relating to the application or interpretation of the Consular Conventions, different methods of settlement have been established. The Consular Convention between Italy and Moldova provides that all disputes shall be resolved through diplomatic channels (Article 76). Moreover, the Convention establishes a Joint Commission made of officials appointed by each of the two States. This Joint Commission shall meet upon request of the parties in order to ensure that the provisions of the Convention are implemented in the best possible way (Article 75). The recourse to diplomatic channels is also provided for in the Consular Convention between Italy and Georgia. Nevertheless, this Convention establishes that, whenever disputes between parties are not settled through diplomatic channels, they shall be submitted to the International Court of Justice (Article 74). The submission of disputes to the International Court of Justice is also provided for in the Consular Convention between Italy and Libya. In this case, each of


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the two parties may invoke the intervention of the World Court whenever (i) such disputes are not settled through diplomatic channels, and (ii) an arbitration tribunal, entitled to settle the disputes, is not established within two months from the request of a party (Article 24.3). According to Article 24.2 of the Consular Convention, the arbitration tribunal shall consist of a collegiate body of three arbitrators. Each party shall appoint one arbitrator; the third arbitrator shall be appointed by arbitrators already nominated or, in case of disagreement, by the President of the International Court of Justice. (Federico Casolari)

VII. ENVIRONMENT Multilateral Agreements Accession Protocol of the Principality of Monaco to the Convention of the Alps, with One Annex, done at Chambery on 20 December 1994, implemented by Law No. 18 of 10 January 2004 (GU No. 23 of 29 January 2004), entered into force on 7 August 2004 (GU No.176 of 29 July 2004); Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, adopted at Beijing during the Eleventh Meeting of the Parties on 3 December 1999, implemented by Law No. 185 of 30 June 2004 (GU No. 175 of 28 July 2004); Cartagena Protocol on Biosafety to the Convention on Biological Diversity, with Three Annexes, done at Montreal on 29 January 2000, implemented by Law No. 27 of 15 January 2004 (GU Suppl. to No. 28 of 4 February 2004).

X. TREATMENT OF ALIENS AND NATIONALITY 1. IMMIGRATION AND EMIGRATION Bilateral Agreements Memorandum of Understanding between Italy and Australia on Visas for Working Vacations, done in Rome on 1 October 2003, entered into force on 2 January 2004 (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Moldova on the Re-admission of Persons in Irregular Position, done at Rome on 3 July 2002, entered into force on 1 May 2004 (GU Suppl. to No. 206 of 2 September 2004).

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XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION Bilateral Agreements Memorandum of Understanding between Italy and Croatia on the Cooperation for Small and Medium-Sized Enterprises, done at Zagreb on 25 March 2003, entered into force on 10 March 2004 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and Moldova on Industrial Cooperation and Development of Small and Medium-Sized Enterprises, done at Rome on 27 November 2003, entered into force on 22 April 2004 (GU Suppl. to No. 206 of 2 September 2004). 2. TAXATION Multilateral Agreements Protocol Amending the Convention of 23 July 1990 on the Elimination of Double Taxation in Connection with the Adjustment of Profits on Associated Enterprises (Arbitration Convention), with Final Act, done at Brussels on 25 May 1999, implemented by Law No. 132 of 28 April 2004 (GU No. 121 of 25 May 2004), entered into force on 1 November 2004 (GU No. 291 of 13 December 2004).

Bilateral Agreements Convention between Italy and Syria on the Prevention of Double Taxation, with regard to Income Taxes, and of Fiscal Avoidance, with an Additional Protocol, done at Damascus on 23 November 2000, implemented by Law No. 130 of 28 April 2004 (GU No. 121 of 25 May 2004); Convention between Italy and Uzbekistan on the Prevention of Double Taxation, with regard to Income Taxes and Capital Levies, and of Fiscal Avoidance, with an Additional Protocol, done at Rome on 21 November 2000, implemented by Law No. 22 of 10 January 2004 (GU Suppl. to No. 26 of 2 February 2004).


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3. INVESTMENTS Bilateral Agreements Agreement between Italy and Angola on the Promotion and Protection of Investments, with a Protocol, done at Rome on 10 July 1997, and a Subsequent Exchange of Notes, done at Luanda on 16 July 2002, implemented by Law No. 25 of 10 January 2004 (GU No. 27 of 3 February 2004); Agreement between Italy and Ecuador on the Promotion and Protection of Investments, done at Rome on 25 October 2001, implemented by Law No. 177 of 30 June 2004 (GU No. 168 of 20 July 2004); Agreement between Italy and Mauritania on the Promotion and Protection of Investments, done at Nouakchott on 5 April 2003, implemented by Law No. 211 of 28 July 2004 (GU No. 190 of 14 August 2004); Agreement between Italy and Nigeria on the Reciprocal Promotion and Protection of Investments, done at Rome on 27 September 2000, implemented by Law No. 64 of 26 February 2004 (GU No. 61 of 13 March 2004); Agreement between Italy and Zambia on the Promotion and Protection of Investments, done at Lusaka on 30 April 2003, implemented by Law No. 181 of 30 June 2004 (GU No. 170 of 22 July 2004).

4. ECONOMIC DEVELOPMENT AND DEVELOPMENT CO-OPERATION Bilateral Agreements Memorandum of Understanding between Italy and Albania on a Programme Concerning the Importation of Electricity from Italy in order to Reduce the Damages Caused by the Electric Scarcity in Albania, done at Tirana on 19 April 2002, entered into force on 1 November 2002 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Albania for the Implementation of the Programme of Technical and Managerial Re-structuring of the Kesch Company and of Empowering of the Albanian Electric System, done at Tirana on 13 February 2003, entered into force on 21 January 2004 (GU Suppl. to No. 88 of 15 April 2004);

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Memorandum of Understanding between Italy and China on the Project “Health Care to Women and Children in the Autonomous Region of Inner Mongolia”, done at Beijing on 15 January 2003, entered into force on 19 April 2004 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and China on the Project “Basic Education in the Provinces of Hainan and Jilin”, done at Beijing on 15 January 2003, entered into force on 13 May 2004 (GU Suppl. to No. 206 of 2 September 2004); Cooperation Convention between Italy, Ecuador and Peru on the Management of the “Programme of Social and Health Cooperation in Support of the Bi-national Peace Plan between Ecuador and Peru”, done at Macarà on 23 January 2004, entered into force on the same day (GU Suppl. to No. 88 of 15 April 2004); Memorandum of Understanding between Italy and Indonesia on the Concession of an Aid Credit for the “Support Project for the Indonesian Shoes Service Centre”, done at Jakarta on 30 January 2003, entered into force on 23 September 2003 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and Jordan on the Constitution, Use and Management of the Bilateral Counterpart Funds, with Three Annexes, done at Amman on 29 May 2002, entered into force on 5 December 2003 (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Mozambique on the Implementation of the “Programme for Fostering the Private Sector”, with a Technical Annex, done at Maputo on 18 November 2003, entered into force on the same day (GU Suppl. to No. 88 of 15 April 2004); Protocol of Agreement between Italy and Senegal on the Project “Public Health in the Sedhiou Department”, done at Dakar on 21 May 1997, entered into force on 28 October 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and the United Nations Industrial Development Organization (UNIDO) for the Implementation in Algeria of the Project “Strengthening of the Capabilities of the Support and Assistance Structures to the Agricultural and Food Small and Medium-Sized Enterprises in Algeria”, done at Vienna on 8 October 2003, entered into force on the same day (GU Suppl. to No. 62 of 15 March 2004); Framework Agreement between Italy and Venezuela on Economic, Industrial, Infrastructures and Development Co-operation, with a Protocol, done at Caracas on


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14 February 2001, implemented by Law No. 8 of 10 January 2004 (GU No. 17 of 22 January 2004), entered into force on 1 April 2004 (GU No. 210 of 7 September 2004); Memorandum of Understanding between Italy and Vietnam on the Concession of a Soft Loan for the “Improving the Flood Forecasting and Warning System in Vietnam – First Phase” Project, done at Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to No. 206 of 2 September 2004); Agreement between Italy and Vietnam for the Implementation of the Water Sector Program Aid in support to the Balance of Payments in favour of the Ministry of Finance of the Socialist Republic of Vietnam to be financed with a Grant in the Amount of Euro 2,737,221.50, with a Technical Annex and One Appendix, done in Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and Vietnam on the Concession of a Soft Loan for the “Water Supply and Distribution in Ca Mau City” Project, done at Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and Vietnam on the Concession of a Soft Loan for the “Water Supply and Distribution in Quang Ngai City” Project, done at Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to No. 206 of 2 September 2004); Memorandum of Understanding between Italy and Vietnam on the Concession of a Soft Loan for the “Water Supply and Distribution in Me Linh” Project, done at Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to No. 206 of 2 September 2004).

5. DEBT CONSOLIDATION AND CANCELLATION TREATIES Bilateral Agreements Agreement between Italy and Burkina Faso on the Consolidation of the Debt, done at Rome on 19 April 2000, entered into force on 7 October 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Indonesia on the Consolidation of the Debt, done at Rome on 10 January 2001, entered into force on 3 June 2003 (GU Suppl. to No. 62 of 15 March 2004);

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Agreement between Italy and Madagascar on the Cancellation of the Debt (Paris Club, 7 March 2001), done at Rome on 8 January 2004, entered into force on the same day (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Nicaragua on the Cancellation of the Debt, done at Managua on 21 October 2003, entered into force on the same day (GU Suppl. to No. 62 of 15 March 2004); Memorandum of Understanding between Italy and Pakistan on the Consolidation of the Debt (Paris Club, 13 December 2001), with Technical Annexes, done at Islamabad on 24 February 2003, entered into force on 23 June 2003 (GU Suppl. to No. 206 of 2 September 2004); Agreement between Italy and Yemen on the Restructuring of the Debt (Paris Club, 14 June 2001), with Annexed Lists, done at Sana’a on 14 August 2002, entered into force on 8 November 2003 (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Zambia on the Consolidation of the Debt, done at Lusaka on 18 December 1997, entered into force on 9 September 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Zambia on the Consolidation of the Debt, done at Lusaka on 1 March 2000, entered into force on 9 September 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Zambia on the Cancellation of the Debt (Paris Club, 13 September 2002), done at Lusaka on 22 December 2003, entered into force on the same day (GU Suppl. to No. 88 of 15 April 2004).

6. TRANSPORT, TRAFFIC, COMMUNICATION Multilateral Agreements Convention for the Unification of Certain Rules for International Carriage by Air, with Final Act and Resolutions, done at Montreal on 28 May 1999, implemented by Law No. 12 of 10 January 2004 (GU Suppl. to No. 20 of 26 January 2004).

Bilateral Agreements Agreement between Italy and Argentina for Mutual Recognition of Driving Permits, with Two Annexes, done at Rome on 17 July 2003, entered into force on


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17 February 2004 (GU Suppl. to No. 88 of 15 April 2004); Protocol amending the Agreement on Maritime Transports between Italy and China, done at Rome, on 3 June 2002, implemented by Law No. 26 of 10 January 2004 (GU No. 28 of 4 February 2004); Memorandum of Understanding between Italy and India in the Field of Telecommunications, done at Rome on 28 October 2002, entered into force on 9 May 2003 (GU Suppl. to No. 62 of 15 March 2004); Exchange of Notes between Italy and Japan for Mutual Recognition of Driving Permits, done at Rome on 29 September 2003, entered into force on 29 October 2003 (GU Suppl. to No. 206 of 2 September 2004); Exchange of Notes establishing an Agreement between Italy and the Slovak Republic in the Field of Driving Permits Recognition, done at Rome on 14 February 2004 and 2 September 2004, entered into force on 13 April 2004 (GU Suppl. to No. 88 of 15 April 2004).

7. TOURISM Bilateral Agreements Agreement between Italy and Syria on Collaboration in the Field of Tourism, done at Rome on 20 February 2002, implemented by Law No. 175 of 30 June 2004 (GU No. 167 of 19 July 2004).

8. SOCIAL AND HEALTH MATTERS Multilateral Agreements International Treaty on Plant Genetic Resources for Food and Agriculture, adopted during the thirty-first FAO Conference at Rome on 3 November 2001, implemented by Law No. 101 of 6 April 2004 (GU Suppl. to No. 95 of 23 April 2004), entered into force on 16 August 2004 (GU No. 210 of 7 September 2004).

Bilateral Agreements Agreement between Italy and Moldova on Employment, with One Protocol, done at Rome on 27 November 2003, entered into force on 1 May 2004 (GU Suppl.

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to No. 206 of 2 September 2004); Convention between Italy and Tunisia on Co-operation in the Field of Health, done at Tunis on 26 September 1996, implemented by Law No. 13 of 10 January 2004 (GU No. 20 of 26 January 2004); Convention between Italy and Vietnam on International Adoptions, done at Hanoi on 13 June 2003, entered into force on 21 April 2004 (GU Suppl. to No. 206 of 2 September 2004).

9. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION Bilateral Agreements Memorandum of Understanding between Italy and Albania on the Functioning of the Bilingual (Italian – Albanian) Courses, done at Tirana on 26 April 2003, entered into force on 22 September 2003 (GU Suppl. to No. 62 of 15 March 2004); Cultural, Scientific and Technological Agreement between Italy and Algeria, done at Alger on 3 June 2002, implemented by Law No. 11 of 10 January 2004 (GU No. 18 of 23 January 2004), entered into force on 11 May 2004 (GU No. 136 of 12 June 2004); Agreement between Italy and Bangladesh on Scientific and Technological Cooperation, done at Rome on 4 December 2000, implemented by Law No. 364 of 11 December 2003 (GU No. 4 of 7 January 2004); Agreement between Italy and Cyprus on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex, done at Nicosia on 10 February 2003, implemented by Law No. 137 of 3 May 2004 (GU Suppl. to No. 125 of 29 May 2004); Agreement between Italy and Ecuador on Scientific and Technological Cooperation, done at Quito on 8 February 1999, implemented by Law No. 362 of 11 December 2003 (GU No. 3 of 5 January 2004); Memorandum of Understanding between Italy and Egypt on the Program: “Extension of the Medical Research Institute, University of Alexandria – Second Phase”, done at Cairo on 14 May 2003, entered into force on 14 May 2003 (GU Suppl. to No. 62 of 15 March 2004);


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Framework Agreement between Italy and the European Training Foundation, done at Rome 18 September 2003, entered into force on 18 September 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and France on Scientific and Technological Co-operation, done at Turin on 29 January 2001, implemented by Law No. 134 of 3 May 2004 (GU No. 123 of 27 May 2004), entered into force on 1 September 2004 (GU No. 289 of 10 December 2004); Agreement between Italy and Moldova on Technical Co-operation, done at Rome on 27 November 2003, entered into force on 1 May 2004 (GU Suppl. to No. 206 of 2 September 2004); Agreement between Italy and the Russian Federation for the Organization of Bilingual Sections (Italian-Russian) in the Secondary School Institutions, done at Rome on 5 November 2003, entered into force on 6 April 2004 (GU Suppl. to No. 206 of 2 September 2004); Agreement between Italy and Ukraine on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex, done at Rome on 13 March 2003, implemented by Law No. 198 of 19 July 2004 (GU No. 183 of 6 August 2004); Agreement between Italy and Uruguay for the Co-production of Cinematographic Works, with One Annex, done at Montevideo on 13 March 2001, implemented by Law No. 23 of 10 January 2004 (GU No. 26 of 2 February 2004), entered into force on 6 May 2004 (GU No. 126 of 31 May 2004).

10. LEGAL AND JUDICIAL CO-OPERATION Bilateral Agreements Exchange of Letters between Italy and France on the Extradition of the Italian Citizen Angelo Cuccu, born at Villasimius on 15 January 1945, according to Article 5 of the European Convention on Extradition of 13 December 1957, done at Paris on 19 March-4 April 2003, entered into force on 4 April 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Kuwait on Judicial Co-operation, Recognition and Execution of Judgments in Civil Matters, done at Kuwait City on 11 December 2002, implemented by Law No. 209 of 28 July 2004 (GU No. 189 of 13 August 2004);

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Agreement between Italy and Peru on Extradition, done at Rome on 24 November 1994, and Protocol Amending Article 6 of the Agreement, done at Lima on 20 October 1999, implemented by Law No. 135 of 3 May 2004 (GU No. 124 of 28 May 2004); Memorandum of Understanding between Italy and Sri Lanka that Amends the Agreement of Extradition of 5 February 1873, done at Colombo on 11 August 1999, implemented by Law No. 7 of 10 January 2004 (GU No. 16 of 21 January 2004).

11. MILITARY AND SECURITY MATTERS Bilateral Agreements Technical Agreement between the Ministry of Defense of Italy and the Ministry of Defense of Bulgaria on the Establishment of a Military Representative, done at Varna on 17 July 2002, entered into force on 20 November 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and France on Co-operation in Observation of Hearth, done at Turin on 29 January 2001, implemented by Law No. 20 of 10 January 2004 (GU No. 25 of 31 January 2004), entered into force on 1 September 2004 (GU No. 245 of 18 October 2004); Agreement between Italy and Georgia in the Field of Defense, done at Rome on 15 May 1997, implemented by Law No. 216 of 27 July 2004 (GU No. 194 of 19 August 2004); Agreement between Italy and Jordan on Defense Co-operation, done in Amman on 11 June 2002, implemented by Law No. 19 of 10 January 2004 (GU No. 24 of 30 January 2004), entered into force on 21 June 2004 (GU No. 170 of 22 July 2004).

12. FRIENDSHIP AND CO-OPERATION TREATIES Bilateral Agreements Agreement between Italy and Hungary for the Perpetual Memory of Military and Civilian Victims of the World Wars and for Determining the Status of their Graves, done at Rome on 9 September 2003, entered into force on 1 March 2004 (GU Suppl. to No. 206 of 2 September 2004);


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Friendship and Co-operation Treaty between Italy and Kyrgyzstan, done at Rome on 3 March 1999, implemented by Law No. 14 of 10 January 2004 (GU No. 21 of 27 January 2004), entered into force on 8 June 2004 (GU No. 159 of 9 July 2004).

13. NEIGHBOURLY RELATIONS Bilateral Agreements Exchange of Letters between Italy and the Holy See Establishing an Understanding on the Water Supply of the Vatican City, done at Rome on 13 January 2004, entered into force on the same day (GU Suppl. to No. 88 of 15 April 2004); Protocol between Italy and Switzerland Establishing Centers of Co-operation of Customs Police, with One Annex, done at Chiasso on 17 September 2002, entered into force on 1 February 2004 (GU Suppl. to No. 88 of 15 April 2004).

XVII. INTERNATIONAL ORGANIZATIONS 1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS Multilateral Agreements Memorandum of Understanding among Italy, the United Nations Industrial Development Organization (UNIDO) and the International Institute for the Unification of Private Law (UNIDROIT) regarding the Establishment of a UNIDO Investment Technology Promotion Office in Rome, done at Rome on 25 May 2004, entered into force on the same day (GU Suppl. to No. 206 of 2 September 2004).

2. EUROPEAN UNION Multilateral Agreements Protocol, drawn up on the basis of Article 43.1 of the Convention on the Establishment of a European Police Office (Europol Convention), amending Article 2 and the Annex to that Convention, done at Brussels on 30 November 2000, implemented by Law No. 221 of 29 July 2004 (GU No. 196 of 21 August 2004); Decision of the Council, meeting in the Composition of the Heads of State or Government of 21 March 2003 on an Amendment to Article 10.2 of the

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Statute of the European System of Central Banks and of the European Central Bank, entered into force on 1 June 2004 (GU Suppl. to No. 206 of 2 September 2004); Accession Treaty to European Union between Member States of the European Union and Czech Republic, Republic of Estonia, Republic of Cyprus, Republic of Lithuania, Republic of Hungary, Republic of Malta, Republic of Poland, Republic of Slovenia, Slovak Republic, with Accession Act, Annexes, Protocols, Declarations, Exchange of Letters and Final Act, done at Athens on 16 April 2003, implemented by Law No. 380 of 24 December 2003 (GU Suppl. to No. 17 of 22 January 2004).

Bilateral Agreements Exchange of Letters establishing an Agreement between Italy and Belgium on privileges and immunities of the liaison officers at the European Police Office (Europol), done at Rome on 22 March 1999, implemented by Law No. 105 of 14 April 2004 (GU No. 97 of 26 April 2004); Agreement establishing an Association between the European Community and its Member States, of the one part, and Chile, of the other part, with Annexes, Protocols, Declarations and Final Act, done at Brussels on 18 November 2002, implemented by Law No. 109 of 27 April 2004 (GU Suppl. to No. 101 of 30 April 2004); Stabilization and Association Agreement between the European Communities and their Member States, of the one part, and Croatia, of the other part, with Annexes, Protocols, Declarations and Final Act, done at Luxembourg on 29 October 2001, implemented by Law No. 219 of 29 July 2004 (GU Suppl. to No. 195 of 20 August 2004); Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and Egypt, of the other part, with Five Protocols, Annexes, Declarations and Final Act, done at Luxembourg on 25 June 2001, implemented by Law No. 382 of 29 December 2003 (GU Suppl. to No. 21 of 27 January 2004).


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3. OTHER INTERNATIONAL AGENCIES Multilateral Agreements Amendments to the Agreement relating to the International Telecommunications Satellite Organization (INTELSAT), done at Washington DC on 17 November 2000, implemented by Law No. 21 of 10 January 2004 (GU Suppl. to No. 26 of 2 February 2004).

Bilateral Agreements Agreement between Italy and the United Nations Educational, Scientific and Cultural Organization (UNESCO) concerning the Third World Academy of Sciences (TWAS), done at Paris on 8 December 1998, implemented by Law No. 17 of 10 January 2004 (GU No. 23 of 29 January 2004).

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING Bilateral Agreements Memorandum of Understanding between Italy and the United Nations Interim Administration Mission in Kosovo, done at Rome on 18 September 2003, entered into force on the same day (GU Suppl. to No. 62 of 15 March 2004).

XX. WAR, NEUTRALITY, AND DISARMAMENT Multilateral Agreements Amendment to Article I of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of 10 October 1980, done at Geneva on 21 December 2001, implemented by Law No. 131 of 28 April 2004 (GU No. 121 of 25 May 2004).

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Bilateral Agreements Additional Protocol to the Agreement between Italy and the Russian Federation on the Italian Assistance in the Destruction of the Russian Chemical Weapons Stocks of 20 January 2000, done at Rome on 17 April 2003, implemented by Law No. 196 of 19 July 2004 (GU No. 182 of 5 August 2004).

B) AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2004, THE ENTRY INTO FORCE OF WHICH WAS ANNOUNCED IN THE GAZZETTA UFFICIALE IN 2004

IV. DIPLOMATIC AND CONSULAR RELATIONS Bilateral Agreements Consular Convention between Italy and the Russian Federation, done at Rome on 15 January 2001, implemented by Law No. 243 of 19 August 2003 (GU Suppl. to No. 203 of 2 September 2003), entered into force on 1 May 2004 (GU No. 56 of 8 March 2004).

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION Bilateral Agreements Fifth Protocol between Italy and Malta on the Economic, Technical and Financial Assistance, done at Rome on 20 December 2002, implemented by Law No. 359 of 11 December 2003 (GU No. 302 of 31 December 2003), entered into force on 5 January 2004 (GU No. 50 of 1 March 2004).

2. TAXATION Bilateral Agreements Convention between Italy and Georgia on the Prevention of Double Taxation,


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with regard to Income Taxes and Capital Levies, and of Fiscal Avoidance, with an Additional Protocol, done at Rome on 31 October 2000, implemented by Law No. 242 of 11 July 2003 (GU Suppl. to No. 181 of 6 August 2003), entered into force on 19 February 2004 (GU Suppl. to No. 206 of 2 September 2004); Convention between Italy and Mozambique on the Prevention of Double Taxation, with regard to Income Taxes, and of Fiscal Avoidance, done at Maputo on 14 December 1998, implemented by Law No. 110 of 23 April 2003 (GU Suppl. to No. 116 of 21 May 2003), entered into force on 6 August 2004 (GU No. 206 of 2 September 2004).

3. INVESTMENTS Bilateral Agreements Agreement between Italy and Cameroon on the Reciprocal Promotion and Protection of Investments, with a Protocol, done at Yaoundé on 29 June 1999, implemented by Law No. 20 of 15 January 2003 (GU No. 35 of 12 February 2003), entered into force on 26 February 2004 (GU No. 118 of 21 May 2004); Agreement between Italy and Iran on the Reciprocal Promotion and Protection of Investments, with a Protocol, done at Rome on 10 March 1999, implemented by Law No. 171 of 11 July 2002 (GU No. 184 of 7 August 2002), entered into force on 8 August 2003 (GU No. 256 of 30 October 2004); Agreement between Italy and Mozambique on the Reciprocal Promotion and Protection of Investments, with a Protocol, done at Maputo on 14 December 1998, implemented by Law No. 154 of 3 June 2003 (GU No. 150 of 27 1 July 2003), entered into force on 17 November 2003 (GU Suppl. to No. 62 of 15 March 2004); Agreement between Italy and Qatar on the Reciprocal Promotion and Protection of Investments, with a Protocol, done at Rome on 22 March 2000, implemented by Law No. 331 of 3 November 2003 (GU Suppl. to No. 276 of 27 November 2003), entered into force on 1 August 2004 (GU No. 186 of 10 August 2004); Agreement between Italy and Syria on the Promotion and Protection of Investments, with a Protocol, done at Rome on 20 February 2002, implemented by Law No. 258 of 19 August 2003 (GU No. 214 of 15 September 2003), entered into force on 13 November 2003 (GU No. 269 of 16 November 2004); Agreement between Italy and Turkey on the Reciprocal Promotion and Protection of Investments, done at Ankara on 22 March 1995, implemented by

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Law No. 294 of 27 October 2003 (GU No. 256 of 4 November 2003), entered into force on 3 March 2003 (GU No. 296 of 18 December 2004).

4. SOCIAL AND HEALTH MATTERS Bilateral Agreements Agreement between Italy and Australia on the Documents to Be Produced by the Australian Citizens Who Intend Marrying in Italy, done at Rome on 10 February and 11 April 2000, implemented by Law No. 233 of 27 September 2002 (GU No. 251 of 25 October 2002), entered into force on 1 July 2004 (GU No. 159 of 9 July 2004).

5. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION Multilateral Agreements Convention concerning the Construction and Operation of an European Synchrotron Radiation Facility, with Annexed Statute and Three Annexes, done at Paris on 16 December 1988, entered into force on 9 July 2004 (GU No. 231 of 1 October 2004).

Bilateral Agreements Agreement between Italy and Albania for the Co-production of Cinematographic Works, with One Annex, done at Tirana on 10 May 2002, implemented by Law No. 338 of 6 November 2003 (GU No. 302 of 31 December 2003), entered into force on 1 June 2004 (GU No. 132 of 8 June 2004); Agreement between Italy and Malta on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, done at Rome on 11 April 2000, implemented by Law No. 164 of 18 June 2003 (GU No. 158 of 10 July 2003), entered into force on 1 February 2004 (GU No. 68 of 22 March 2004); Agreement between Italy and New Zealand on Cinematographic Co-operation, with One Annex, done at Rome on 30 July 1997, implemented by Law No. 416 of 19 October 1999 (GU Suppl. to No. 268 of 15 November 1999), entered into force on 15 February 2000 (GU No. 50 of 1 March 2004);


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Interim Agreement between Italy and Palestine Liberation Organization for the Benefit of the Palestine National Authority on Cultural, Scientific and Technological Co-operation, with One Explicative Note, done at Rome on 7 June 2000, implemented by Law No. 169 of 18 June 2003 (GU No. 160 of 12 July 2003), entered into force on 12 December 2004 (GU No. 296 of 18 December 2004); Agreement between Italy and South Africa concerning Co-operation in the Field of Arts, Culture, Education and Sport, done at Cape Town on 13 March 2002, implemented by Law No. 312 of 24 October 2003 (GU No. 268 of 18 November 2003), entered into force on 11 May 2004 (GU No. 132 of 8 June 2004); Agreement between Italy and Turkey on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex, done at Rome on 10 September 2001, implemented by Law No. 250 of 19 August 2003 (GU No. 208 of 8 September 2003), entered into force on 1 January 2004 (GU No. 34 of 11 February 2004); Agreement between Italy and Yemen on Co-operation in the Fields of Culture, Education, Science and Technology, done at Sana’a on 3 March 1998, implemented by Law No. 94 of 23 April 2003 (GU No. 100 of 2 May 2003), entered into force on 18 March 2004 (GU No. 100 of 29 April 2004).

Comment The entry into force of the Interim Agreement between Italy and the Palestine Liberation Organization (PLO) for the Benefit of the Palestine National Authority (PNA) requires some general remarks. The Interim Agreement constitutes the first example of Agreement signed by the PLO with Western States in the field of cultural co-operation (see Camera dei Deputati-XIV Legislatura, Disegno di Legge No. 2460, Relazione, p. 2). Furthermore, while reinforcing relations between Italy and Palestine, it is meant to facilitate achievement of a just and comprehensive peace process in the Middle East Area and the establishment of an independent State in Palestine. In particular, the Interim Agreement is intended to promote and implement activities, to encourage mutual knowledge of the respective cultural and scientific heritage of the parties, and to encourage cultural, scientific, technological and artistic co-operation (Article 1). At the same time, this agreement shows some interesting elements concerning the international personality of the PLO and the PNA. The status of the PLO as a subject of international law has been largely discussed by the relevant literature (see, inter alia, O’BRIEN, “The PLO in International Law”, Boston University International Law Journal, Vol. 2, 1984, p. 344 ff.; VAN DE CRAEN, “Palestine Liberation Organization”, in BERNHARDT (ed.), Encyclopedia of Public

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International Law, 1997, Vol. III, p. 870 ff.; MARCELLI, “Gli accordi fra Israele e OLP nel diritto internazionale”, RDI, 1994, p. 430 ff.; WATSON, The Oslo Accords: International Law and the Israeli-Palestinian Peace Arrangements, Oxford, 2000). According to most scholars, the PLO is a particular kind of national liberation movement in that it is not fighting against a colonial or racist regime. As pointed out more precisely, “the State of Israel cannot be considered as an example of a colonial or racist regime […]. Israel is rather a combination of a belligerent and a trustee-occupant régime, legally and illegally controlling ‘Palestine’ Territory” (VAN DE CRAEN, cit. supra, pp. 870-871). In other words, the definition of the PLO as a national liberation movement is directly linked to the nature of the right to self-determination which, as stated by the International Court of Justice, is a right erga omnes (see, for instance, East Timor (Portugal v. Australia), Judgment, ICJ Reports, 1995, p. 102 ff., para. 29). As a national liberation movement, the PLO is characterized by limited international subjectivity, strictly linked to developments in the principle of self-determination relating to the Palestinian people (on the relationship between the international subjectivity of a national liberation movement and the affirmation of the self-determination principle, see RONZITTI, Introduzione al diritto internazionale, Torino, 2004, p. 21 ff.). From this point of view, during the last decade, several events relating to the self-determination of the Palestinian people took place and the PLO’s position began to evolve considerably. A decisive role was definitely played by two Israeli-PLO Agreements, which followed the understandings on the Middle East peace process reached at Madrid in October 1991. In particular, reference has to be made to the Declaration of Principles on Interim Self-Government Arrangements, signed in Washington on 13 September 1993 (reprinted in ILM, Vol. 32, 1993, p. 1525 ff.), and to the Cairo Agreement of 4 May 1994 (reprinted in ILM, Vol. 33, 1994, p. 622 ff.). These two Agreements, together with subsequent understandings (in particular: the Protocol of 25 August 1995; the Interim Agreement on the West Bank and Gaza of 28 September 1995; the Hebron Agreement of 17 January 1997; the Wye River Memorandum of 23 October 1998; the Sharm el Sheikh Memorandum of 5 September 1999), provided for: (i) recognition of the PLO by Israel as the legitimate representative of the Palestinian people, (ii) withdrawal of Israeli forces from Jericho and the Gaza Strip, and (iii) establishment of a Palestinian Authority – the Palestinian National Authority – having certain legislative, executive and judicial powers as well as an increasing territorial jurisdiction. The bilateral relations established between Israel and the PLO show that, as noted by the International Court of Justice, “the existence of a ‘Palestinian people’ is no longer in issue” (see Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, reprinted in ILM, Vol. 43, 2004, p. 1009 ff., para. 118). On the other hand, the internal autonomy acquired by the PNA according to these agreements raises the question of the status of the PLO and the PNA in the international arena.


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The sui generis character of this situation is well represented by the Interim Agreement concluded with Italy. In fact, it was concluded by the Palestine Liberation Organization on behalf of the Palestinian National Authority. Accordingly, its preamble notes that the parties to the Agreement are the Government of Italy and the Palestinian National Authority. In this respect, the Interim Agreement is not the only example. There have been other cases in recent years, such as the Memorandum of Understanding between Italy and the PLO for the benefit of the Palestinian National Authority in the Electronic Sector, done at Gaza on 28 June 2000, the Basic Agreement between the Holy See and the PLO, in its capacity of Representative of the Palestinian People working for the benefit and on behalf of the Palestinian National Authority, signed on 15 February 2000, and the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, on the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip on the other part, done at Brussels on 24 February 1997 (published in the OJ EC No. L 187 of 16 July 1997, p. 3 ff.). How should this practice be interpreted? Reference has to be made here to Article VI.2 of the Cairo Agreement. According to this provision, “the Palestinian Authority will not have powers and responsibilities in the sphere of foreign relations” (sub-para. (a)). On the other hand, sub-para. (b) provides that “the PLO may conduct negotiations and sign agreements with States or international organizations for the benefit of the Palestinian Authority in the following cases only: (1) economic agreements […]; (2) agreements with donor countries for the purpose of implementing arrangements for the provision of assistance to the Palestinian Authority; (3) agreements for the purpose of implementing the regional development plans […]; (4) cultural, scientific and educational agreements” (emphasis added). The effective role of such a provision is not clear. In fact, one could be tempted to read it and the related practice (including the conclusion of the Interim Agreement with Italy) as confirmation of the PNA’s affirmation of a limited international personality (this affirmation has also been stressed in the legal literature: see e.g., REECE THOMAS, “Non-Recognition, Personality and Capacity: The Palestine Liberation Organization and the Palestinian Authority in English Law”, Anglo-American Law Review, 2000, p. 228 ff.). According to such a reading, the PLO could be considered an organ of the Authority, negotiating, drafting and entering into international treaties concerning the subjects mentioned in Article VI.2(b) of the Cairo Agreement. Nevertheless, this reading hardly seems compatible with several factual elements. It is important to recall that, as observed by the majority of legal scholars, the international personality of a subject depends on a strict relationship between legal and factual criteria: a fortiori if the subject in question (i.e. the PNA) is taking on the characteristics of embryonic statehood. In this respect, it seems that the relationships between Israel and Palestine still remain characterized by the right of

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self-determination of the Palestinian people (see RONZITTI, cit. supra, p. 14; SHAW, cit. supra, p. 222). Consequently, the PLO continues to play an essential role in the affirmation of Palestinian statehood. This situation also has repercussions on the relationship between the PLO and the PNA. For instance, several members of the PLO Executive Committee also hold responsibilities in the framework of the PNA structure. Moreover, the transfer of powers and competences from the PLO to the PNA has been very partial and limited because of the outbreak of the second Intifada in September 2000. In other words, the PLO, as legitimate representative of the Palestinian people, still remains strictly associated with the government structures and the embryonic Palestine statehood (in this respect see also TREVES, Diritto internazionale. Problemi fondamentali, Milano, 2005, p. 188). This means that, with respect to the form in which the Interim Agreement was concluded, it is difficult to consider the PLO a mere organ of the PNA. Probably, the PLO will only decrease its influence on the Palestinian people and be transformed into a political force when the PNA takes on a more authoritative international personality. This process might increase in the coming months as a consequence of the death (on 11 November 2004) of Yasser Arafat, Chairman of the Executive Committee of the PLO and President of the PNA. (Federico Casolari)

6. LEGAL AND JUDICIAL CO-OPERATION Bilateral Agreements Additional Agreement between Italy and Albania to the Convention on the Transfer of Convicts of 21 March 1983, done at Rome on 24 April 2002, implemented by Law No. 204 of 11 July 2003 (GU Suppl. to No. 181 of 6 August 2003), entered into force on 25 June 2004 (GU No. 185 of 9 August 2004); Agreement between Italy and Hong Kong Special Administrative Region of the People’s Republic of China on the Transfer of Convicts, done at Hong Kong on 18 December 1999, implemented by Law No. 149 of 11 July 2002 (GU Suppl. to No. 173 of 25 July 2002), entered into force on 14 December 2002 (GU Suppl. to No. 62 of 15 March 2004).

7. MILITARY AND SECURITY MATTERS Multilateral Agreements Agreement among Italy, France, Portugal and Spain, Containing the Statute of EUROFOR, done at Rome on 5 July 2000, implemented by Law No. 251 of 19


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August 2003 (GU No. 209 of 9 September 2003), entered into force on 4 February 2004 (GU Suppl. to No. 88 of 15 April 2004).

Bilateral Agreements Agreement between the Ministry of Defense of Italy and the Ministry of Defense of Bulgaria on Bilateral Co-operation, done at Rome on 11 July 1995, implemented by Law No. 78 of 20 March 2003 (GU No. 91 of 18 April 2003), entered into force on 30 October 2003 (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Croatia on Defense Co-operation, done at Ancona on 19 May 2000, implemented by Law No. 75 of 20 March 2003 (GU No. 91 of 18 April 2003), entered into force on 4 September 2003 (GU Suppl. to No. 88 of 15 April 2004); Memorandum of Understanding between the Ministry of Defense of Italy and the Ministry of Defense of India on Co-operation in Defense Materials, done at Rome on 4 November 1994, implemented by Law No. 103 of 23 March 1998 (GU Suppl. to No. 89 of 17 April 1998), entered into force on 4 November 2004 (GU Suppl. to No. 62 of 15 March 2004); Agreement between the Ministry of Defense of Italy and the Ministry of National Defense of Romania, done at Rome on 26 February 1997, implemented by Law No. 8 of 14 January 2003 (GU No. 23 of 29 January 2003), entered into force on 3 April 2003 (GU Suppl. to No. 88 of 15 April 2004); Agreement between Italy and Uzbekistan on Defence Co-operation, done at Tashkent on 26 November 1999, implemented by Law No. 324 of 24 October 2003 (GU No. 272 of 22 November 2003), entered into force on 25 March 2004 (GU No. 124 of 28 May 2004).

8. FRIENDSHIP AND CO-OPERATION TREATIES Bilateral Agreements Agreement between Italy and the Russian Federation on Co-operation in the Youth Activities, done at Rome on 15 January 2001, implemented by Law No. 153 of 3 June 2003 (GU No. 150 of 1 July 2003), entered into force on 17 October 2003 (GU No. 29 of 5 February 2004).

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9. NEIGHBOURLY RELATIONS Bilateral Agreements Agreement between Italy and San Marino on Cultural and Scientific Co-operation, done at Rome on 21 March 2002, implemented by Law No. 299 of 24 October 2003 (GU No. 261 of 10 November 2003), entered into force on 19 January 2004 (GU No. 76 of 31 March 2004); Agreement between Italy and Slovenia on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex (not published), done at Rome on 14 November 2001, implemented by Law No. 303 of 24 October 2003 (GU No. 263 of 12 November 2003), entered into force on 1 April 2004 (GU No. 87 of 14 April 2004).

XVII. INTERNATIONAL ORGANIZATIONS 1. OTHER INTERNATIONAL AGENCIES Multilateral Agreements Agreement Establishing the International Organization of Vine and Wine, with Annexes and Final Act, done at Paris on 3 April 2001, implemented by Law No. 26 of 15 January 2003 (GU No. 43 of 21 February 2003), entered into force on 1 January 2004 (GU Suppl. to No. 88 of 15 April 2004); Amendment to the Protocol on the Privileges and Immunities of the European Organization for the Exploitation of Meteorological Satellites (EUMETSAT) of 1 December 1986, done at Bern on 25-26 June 2001, entered into force on 1 January 2004 (GU Suppl. to No. 206 of 2 September 2004).

LEGISLATION (edited by Pia Acconci, with the co-operation of Chiara Battistini, Federico Lenzerini, Massimiliano Montini and Gianluca Rubagotti) VII. ENVIRONMENT D.Lgs. No. 42 of 22 January 2004 (GU Suppl. to No. 45 of 24 February 2004) Legislative Decree No. 42/2004 contains the new “Code on Cultural Goods and Landscape”, which was adopted by the Government upon a specific delegation by the Parliament. The new Code provides principles, guidelines and regulations for the safeguard, use, valorisation, circulation, trade and export of national cultural goods and heritage and for landscape protection. Law No. 36 of 6 February 2004 (GU No. 37 of 14 February 2004) Law No. 36/2004 contains provisions on the re-organisation of the a special Police Force, namely the “Corpo Forestale dello Stato”, which has a specific competence on the preservation of natural flora and fauna, on the safeguard of agricultural, environmental and forestry resources, on landscape preservation, and more generally on environmental protection. DPR No. 142 of 30 March 2004 (GU No. 127 of 1 June 2004) Decree No. 142/2004 introduces provisions for the reduction and prevention of noise pollution from road traffic, implementing Article 11 of Law No. 447/1995, the Framework Law on Noise Protection. DM 1 April 2004 (GU No. 84 of 9 April 2004) Decree 1 April 2004 of the Ministry of the Environment and Territory sets new guidelines and technical requirements within the framework of the Environmental Impact Assessment (EIA) procedure. Projects approval under the EIA procedure is now performed through innovative systems for environmental protection based on new technical assessment and certification criteria. Decrees of 20 July 2004 (GU No. 205 of 1 September 2004) Two new decrees, issued on 20 July 2004, amend two previous Decrees of 24 April 2001, which had identified some energy-saving goals and obligations, so to


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enhance energy efficiency of end-use equipment and promote renewable energy. Moreover, the two Decrees of 24 April 2001 had introduced an energy efficiency market, based on the exchange of white certificates (Titoli di Efficienza Energetica, TEE), each one amounting to the value of 1 tonne of oil equivalent (tep) of energy saving. The two new decrees postpone the start of the market to 1 January 2005 and modify a few procedural and administrative aspects, including the definition of energy efficiency targets. National quantitative energy efficiency targets are fixed on an annual basis from 2005 to 2009 and the fifth year cumulative target corresponds to 2,9 Mtoe (primary energy savings). The decrees apply to electricity and gas distributors >100.000 customers at 31 December 2001, on the basis of their market share. Target sectors are all energy end-use sectors (plus intermediate uses in the gas sector), but at least 50% of the target shall be reached via a reduction of electricity and gas end-uses. Compliance with the energy efficiency obligations is achieved via: – “in-house” energy efficiency projects; – energy efficiency projects developed jointly with third parties; – exchange of tradable Energy Efficiency Certificates (White Certificates); – payment of the sanction for non-compliance. The Italian Regulatory Authority for Electricity and Gas (AEEG) is responsible for projects verification and energy savings certification. AEEG issues Energy Efficiency Certificates indicating the energy savings produced. Law No. 239 of 23 August 2004 (GU No. 215 of 13 September 2004) Law No. 239/2004 deals with the re-organisation and consolidation of the national energy sector and contains a delegation to the Government for the re-formulation of the existing national legislation aiming at the promotion of specific energy sources. The new law modifies the renewable energy certificate system, by introducing the possibility to obtain “green certificates” also by electricity produced from hydrogen, fuel cells as well as for energy produced from combined heat and power (CHP) plants. Law No. 308 of 15 December 2004 (GU Suppl. to No. 302 of 27 December 2004) This law delegates the Government to adopt, within 18 months, one or more legislative decrees for the re-organisation, co-ordination and integration of the existing national environmental legislation, possibly also by means of new specific consolidated texts. The environmental legislation must be re-organised along the following areas: – waste management and soil decontamination; – water pollution and water resources management; – soil protection and desertification prevention; – management of protected areas and conservation of protected fauna and

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flora; – rectification of environmental damage; – procedures for environmental impact assessment (EIA), strategic environmental assessment (SEA) and integrated environmental authorisation (IPPC); – air protection and reduction of air emissions. Pursuant to Article 77 of the Italian Constitution, Law No. 308/2005 determines the principles and guidelines to be followed by the Government in the exercise of its delegated competence. They include: – the implementation of the EC environmental law objectives and principles, as enshrined in Article 174 EC Treaty; – the achievement of an increased level of efficiency in the performance of environmental checks and in the issuance of sanctions; – the full respect of the EC legislation in force, also with regard to the competitiveness of national companies and territories; – the promotion of the EC EMAS Scheme, in particular for SMEs. Law No. 311 of 30 December 2004 (GU Suppl. to No. 306 of 31 December 2004) Law No. 311/2004 (“Budget Law for the year 2005”) introduces a six year programme (2005-2010) involving duty exemptions for biodiesel, with the limit of 200.000 tonnes/year. It also establishes a fund for the promotion of energy from renewable sources with an initial capacity of 10 million EURO. Such a fund will finance studies and research in the environmental sector aimed at the enhancement of renewable energy. MASSIMILIANO MONTINI

X. TREATMENT OF ALIENS AND NATIONALITY 1. NATIONALITY Law No. 193 of 28 July 2004 (GU No. 180 of 3 August 2004) Extension and re-financing of Law No. 72 of 16 March 2001 concerning actions for the protection of the historical and cultural heritage of the community of Italian refugees coming from Istria, Fiume and Dalmatia, as well as of Law No. 73 of 21 March 2001 concerning actions on behalf of the Italian minority living in Slovenia and Croatia. Law No. 193/2004 authorizes the payment of EURO 1,550,000 for 2004, 2005, 2006 each, in order to re-finance the measures for the protection of the historical and cultural heritage of the community of Italian exiles coming from Istria, Fiume and Dalmatia.

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According to Law No. 72 of March 2001, the expenditure of the funds required the conclusion of a special convention between the Ministry for Cultural Activities and the Federation of Associates of exiles coming from Istria, Fiume and Dalmatia, after consultation with the Ministry for Foreign Affairs and with the Presidency of the Council of Ministers. Law No. 193/2004 modifies Art. 1(4) of Law No. 72/2001, and establishes that the Ministry for Foreign Affairs must be part of such a convention and that both Ministries together with the Federation must hear the opinion of the Presidency of the Council of Ministers only. Art. 2 of Law No. 193/2004 extends certain important provisions of Law No. 73 of 21 March 2001, concerning the Italian minority living in Slovenia and Croatia, until 31 December 2006. On behalf of this minority, Law No. 193/2004 authorizes the payment of EURO 4,650,000 for the period from 2004 to 2006. Liquid assets of the Ministry for Foreign Affairs are to be employed to finance both payments. (Cf. IYIL, 2001, pp. 397-398) Law No. 194 of 22 July 2004 (GU No. 181 of 4 August 2004) Extinction, through the payment of a lump sum premium, of pension and extraordinary allowances annexed to the decorations for bravery given the Italian soldiers who were employed at the former Italian Administration of Eritrea. Law No. 1117 of 2 November 1955 assigned to the Italian soldiers who were employed at the former Italian Administration of Eritrea – which ceased at the end of the World War II – a pension and some extraordinary allowances annexed to the decorations for bravery. According to Art. 1 of Law No. 194/2004, those benefits could be substituted by one single lump-sum cash payment, which consists in an amount equal to the double of the last four years allowances. To this end, Law No. 194/2004 provides the payment of EURO 508,000 for 2004, by means of liquid assets of the Ministry for Foreign Affairs. By Decree of the Minister for Economy and Finance, the beneficiaries of the allowances are to be informed about the possibility to opt for the lump-sum premium and about its conditions of payment. If a beneficiary opting for the lump sum dies before this is paid, the sum can not be received by his heirs. DM of the Minister for Italians in the World of 19 January 2004 (GU No. 81 of 6 April 2004) Organization of the Department for Italians in the World. According to DM of 19 January 2004, the Department for Italians in the World (hereinafter the Department) is the structure by which the President of the Council of Ministers coordinates the action of the government in the following fields:

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– Cultural promotion; – Protection of political and civil rights of Italians residing abroad; – Joint State and Regional interventions in favour of Italian communities abroad; – General policies concerning Italian communities abroad. The Department is divided in four Offices. Each of these Offices is called after its own field of competence. Every subject, pertaining to a specific Office, is analyzed, controlled and managed separately. The Minister for Italians in the World administrates the whole Department by coordinating the Offices, by defining priorities and goals and by verifying the correspondence between the Department activity and its aims. DPCM of 14 July 2004 (GU No. 189 of 13 August 2004) Appointment of the members of the General Council for Italian citizens abroad; (Cf. IYIL, 1999, p. 314) Decree of the General Director for Italian Citizens Abroad of 27 July 2004 (GU No. 195 of 20 August 2004) Extension of the condition of necessity to repatriate Italian citizens residing in Eritrea. By Decree of 11 June 1998 (GU No. 140 of 18 June 1998), the Ministry for Foreign Affairs established the condition of necessity to repatriate Italian citizens residing in Eritrea from 7 June 1998 on, in consideration of the political instability in that country. Since it is not yet considered appropriate for Italian citizens residing in that country to stay, Decree of 27 July 2004 maintains the condition of necessity for the period from 8 June 2004 to 7 June 2005, as Decrees of 7 June 2000 (GU No. 148 of 27 June 2000), of 9 September 2002 (GU No. 253 of 28 October 2002), of 16 October 2003 (GU No. 249 of 24 October 2003) did for the period from 7 June 1998 to 8 June 2004. Decree of the General Director for Italian Citizens Abroad of 17 November 2004 (GU No. 274 of 22 November 2004) Statement of the condition of necessity to repatriate Italian citizens residing in Cote d’Ivoire. Since the political instability of the territory in Cote d’Ivoire does not make appropriate for Italian citizens residing in that country to stay, Ministry for Foreign Affairs establishes, by Decree of the General Director for Italian citizens abroad, that it is necessary to repatriate them during the period from 1 November 2004 to 31 October 2006. CHIARA BATTISTINI

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2. IMMIGRATION AND EMIGRATION Law No. 271 of 12 November 2004 (GU No. 267 of 13 November 2004) Enactment as a law, with amendments, of Decree Law No. 241 of 14 September 2004, concerning urgent measures in the field of migration. This Law has the fundamental aim of amending the provisions concerning the expulsion of illegal immigrants, as a result of the judgment of the Constitutional Court (Corte Costituzionale) No. 222 of 15 July 2004. Constitutional judges in fact considered the procedures there established to be in breach of the guarantees enshrined in Art. 13 of the Italian Constitution (limits on the acts of detention, inspection or personal perquisition). According to these amendments, the local chief of State police (questore), within 48 hours from the adoption of an expulsion order, shall communicate it to the competent ordinary judicial authority (giudice di pace). The order is thus suspended until the decision about its validation. The hearing shall take place with the necessary participation of a defending counsel. The judge convalidates the order with a motivated decree, within 48 hours, after hearing the person involved, if present, and verifying that all the conditions are met. During this period the foreigner shall stay in one of the centres for temporary presence. If the expulsion is confirmed by the judge, the decree becomes executory and the foreigner shall be accompanied to the frontier, while if it is not confirmed, or after the time-limit mentioned above, the order of questore loses its effect. Against the decree of validation of the expulsion it is possible to lodge a petition with the Italian Supreme Court (Corte di Cassazione), which anyway does not suspend the execution of the expulsion. DPCM of 20 April 2004 (GU No. 102 of 3 May 2004) Planning of the quota of workers from the EU new member States who can enter the territory of Italy during 2004; DPCM of 8 October 2004 (GU No. 269 of 16 November 2004) Planning of the quota of workers from the EU new member States who can enter the territory of Italy during 2004. These two decrees take into consideration the consequences of the new accessions to the EU as regards immigration policies. In fact each member State can continue to apply national measures concerning the access to the national labour market vis-à-vis citizens coming from some new EU Countries such as Estonia, Latvia, Lithuania, Poland, Slovakia, Slovenia, Hungary and the Czech Republic, as a temporary derogation to the EU rules on the free circulation of workers. The Decrees of 19 December 2003 concerning the temporary planning of the quota of non-EU workers for 2004 (see IYIL, 2003, pp. 332-333) authorised a total

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amount of 79,500 entries for non-EU workers, 20,000 of which for non-seasonal employed jobs for citizens coming from non-EU Countries that had signed or were about to sign specific cooperation agreements in the field of migration. Art. 2 of DPCM of 20 April 2004 therefore establishes a further quota of 20,000 entries for citizens coming from the Countries listed above (besides those already admitted before 1 May 2004, in accordance with the Decrees of 19 December 2003), for employed jobs. Art. 1 of DPCM of 8 October 2004 furthermore authorises 16,000 entries for the year 2004, for seasonal employed workers, especially in the agricultural sector, coming from the countries listed above, in accordance with the principle of “communitarian preference” established by the treaty of accession. Both Decrees state that the Ministry of Welfare shall both monitor all the entries in order to respect the total quota and guarantee that the conditions of access to the job market for the citizens of such Countries shall not be more restrictive than those existing when the treaties of accession were signed. DPCM of 17 December 2004 (GU No. 26 of 2 February 2005) Temporary planning of the quota of non-EU workers who can enter the territory of Italy during 2005. This decree was adopted in conformity with the Italian law on immigration (see Law No. 189/2002, IYIL, 2002, pp. 346 ff.), according to which, in the absence of the decree of the annual global maximum quota, the Prime Minister can determine it by decree, as an interim measure, within the limits established for the previous year. Taking into consideration the Decrees of 19 December 2003, concerning the quota for 2004, as well as the general level of labour supply within the national territory, Art. 1 authorises a maximum quota of 79,500 entries for both self-employed and employed, either seasonal or non-seasonal workers, to be allocated to the Italian regions and autonomous provinces by the Ministry of Welfare. Within this quota, Art. 2 specifies that 30,000 entries are for non-seasonal employed workers, 15,000 of which for domestic or assistance work. Art. 3 states that a quota of 2,500 permits shall be granted to such self-employed workers as researchers, entrepreneurs whose activities are of interest for the national economy, professionals, internationally-known artists employed by public or private organisations and few others. It furthermore allows, within this quota, convertions of residence permits for study or professional training to residence permits for self-employed work, up to a maximum amount of 1,250. Art. 4 establishes that 200 entries shall be granted to non-seasonal employed or self-employed workers of Italian origin who are resident in Argentina, Uruguay and Venezuela, according to the ad hoc lists prepared by the diplomatic or consular authorities.

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Art. 5 allocates a quota of 20,800 non-seasonal employed workers, besides a quota of 1,000 entries for executives or highly qualified professionals, to those Countries that have signed or are about to sign specific cooperation agreements concerning migration, according to this list: 3,000 citizens from Albania; 3,000 citizens from Tunisia; 2,500 citizens from Morocco; 2,000 citizens from Egypt; 2,000 citizens from Nigeria; 2,000 citizens from Moldova; 1,500 citizens from Sri Lanka; 1,500 citizens from Bangladesh; 1,500 citizens from the Philippines; 1,000 citizens from Pakistan; 100 citizens from Somalia; 700 citizens from other non-EU Countries that sign agreements concerning the regulation of migration fluxes. As far as seasonal employed workers are concerned, Art. 6 establishes a quota of 25,000 entries to allocate to Italian regions and autonomous provinces by the Ministry of Welfare. This quota relates to the citizens of such Countries as SerbiaMontenegro, Croatia, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Bulgaria and Romania, as well as those Countries that have signed or are about to sign cooperation agreements concerning migration, such as Tunisia, Albania, Morocco, Moldavia and Egypt, and finally those foreign citizens with a residence permit for seasonal employed work in the years 2003 and 2004. Art. 7 provides that, after 120 days from the entry into force of this Decree, in case significant amounts of these quotas are not used, different allocations, within the maximum amount, may be established, based on the actual needs of the labour market. DM 3 August 2004 (GU No. 235 of 6 October 2004) Adoption of uniform technical and security rules concerning the permits of stay, according to EC Regulation No. 1030/2002 of 13 June 2002. This Decree of the Ministries of Home Affairs and of Technologies and Innovations provides a uniform model for the document of stay, in conformity with EC Regulation No. 1030/2002 of 13 June 2002. This document has in fact to contain a series of data, even of a personal nature, that are listed in the Decree and its annexes, and that are the same for all the permits of stay issued by EC countries to non-EU citizens. The uniformity of the models according to the EU provisions has the general aim of helping the competent authorities when checking permits and documents of stay.

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The protection of such personal data is granted according to the provisions of Italian laws concerning the respect of the right to privacy. DPR No. 303 of 16 September 2004 (GU No. 299 of 22 December 2004) Procedures for the granting of the status of refugee. This act describes the procedures that are necessary for a foreigner to be granted the status of refugee, starting from the moment he or she enters the territory of Italy. The frontier police office receiving the application for asylum records all the data of the foreigner and addresses him or her to the competent local State police office (questura). The local chief of State police (questore) may decide to send the asylum-seeker to an identification centre or to a temporary stay and assistance centre, according to the concrete situation and conditions, or otherwise may issue a permit of stay whose validity is three months, but which may be extended until the status of refugee is finally granted or denied. The asylum-seeker is provided with a brochure containing all the information concerning the procedures, the rights and duties and other practical aspects that may be useful. The DPR then describes the functionning of such centres, in terms of personnel, rights and duties of the people living there, possibility for external visitors to enter (basically NGOs with at least three years of experience in the sector), medical assistance, etc. The application of the asylum-seeker is examined by one of the territorial commissions established in the Italian territory according to Art.1-quater of Law No. 39 of 28 February 1990 (Provisions concerning the right of asylum). There is then a hearing to which the asylum-seekers is invited, with the possibility, for the foreigner, to use his or her own language, to ask for an interpreter, and to be assisted by a lawyer. At the end of the hearing, within three days, the Commission takes one of the following decisions: a) grants the status of refugee to the asylum-seeker meeting the requirements set out in the Geneva Convention; b) rejects the request of the asylum-seeker who does not meet the requirements set out in the Geneva Convention; c) rejects the request of the asylum-seeker who does not meet the requirements set out in the Geneva Convention, but asks the questore to take into consideration the possibly negative consequences of a repatriation and grants a permit of stay for humanitarian reasons. The foreigner who has been denied the status of refugee has to leave the Italian territory, unless he or she has obtained a permit of stay for other reasons. Art. 16 provides for the possibility of a re-examination of the application that has been rejected, within five days from such a decision. The second decision, in

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case it confirms the previous one, may be appealed in front of the competent tribunal. In such a hypothesis, the asylum-seeker can ask the administrative chief of State police (prefetto) to grant him or her an authorisation to stay in the territory of Italy, in a centre of identification or of assistance, until the final decision of the tribunal is taken. GIANLUCA RUBAGOTTI

XI. HUMAN RIGHTS Law No. 40 of 19 February 2004 (GU No. 45 of 24 February 2004) Provisions concerning Medically Assisted Procreation Law No. 40/2004 regulates the controversial matter of assisted procreation and human cloning, on the basis of a well definite ethical choice. This choice is already clear from Article 1 (introducing the chapter on the general principles), which allows recourse to medically assisted procreation, with the purpose of favouring the solution of reproductive problems deriving from human sterility or infertility, only within the limits and strict modalities and conditions established by the law. The aim is to ensure the protection of all involved subjects, including the conceived one (i.e. the embryo). Also, medically assisted procreation may be used when no other means exist for removing the causes of sterility or infertility of the persons concerned (see Article 1 para. 2). Chapter II of the Law deals with the modalities of access to medically assisted procreation techniques. Article 4, after having reiterated the principle expressed in Article 1 para. 2, adds that such access is limited to cases of infertility, both unexplained or explained, certified by a medical act. Paragraph 2 contemplates the principles guiding the application of medically assisted procreation techniques, that is to say graduality (i.e., recourse to interventions must not be more invasive than what is strictly necessary for the person concerned) and informed consent. This latter principle is later explained by Article 6, which specifies that the persons concerned must receive detailed information concerning, inter alia, bioethical problems and possible risks relating to any phase of the treatment of medically assisted procreation they are subjected to and that their consent to such treatment must be given in written form. Article 4 para. 3, finally, forbids tout court the recourse to medically assisted techniques of heterologous procreation (the violation of such provision is punished, according to Article 12 para. 1, with an administrative fine ranging from 300,000 to 600,000 EURO). Article 5 establishes the requirements that must be met for being entitled to access medically assisted procreation techniques; they are: heterosexual couples of persons, who are married or live together, both living, being adults and of a potentially fertile age. Chapter III contains provisions concerning the protection of the child(ren) born consequently to the application of medically assisted procreation techniques; in

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particular, the parents who have given their consent to the use of such techniques pursuant to Article 6 must recognize the child as their legitimate son or daughter (Article 8) and the legal or common-law husband of the mother of the child, who has given his consent as provided for by Article 6, cannot exercise the legal action of denial of his paternity (Article 9). Chapter IV is devoted to the rules for identifying the medical structures which are authorized to operate medically assisted procreation techniques. According to Article 11, such structures must obligatorily be inscribed in an ad hoc register kept by the Ministry of Health. However, medical and paramedical personnel is not obliged to take part in the procedures for the application of assisted procreation techniques when, as contemplated by Article 16, a preventive declaration of conscientious objection is made. Such objection may be revoked at any time. One of the most controversial parts of Law No. 40/2004 is represented by Chapter VI, contemplating a number of measures for the protection of the embryo. Article 13 prohibits, as a general principle, any kind of experimentation on human embryos (para. 1), allowing only clinic and experimental research on a single embryo on the condition that no alternative methodology is available and that it is carried out for exclusively therapeutic and diagnostic purposes for the protection of the health and development of that embryo (para. 2). In any event, paragraph 3 explicitly prohibits the following practices: a) production of human embryos for experimentation or research or for any purpose not explicitly contemplated by the present law; b) any form of eugenic selection of embryos or gametes or any other intervention which, trough the use of techniques of selection, manipulation or any other artificial process, is aimed at altering or determining certain traits of the embryo’s (or gamete’s) genetic patrimony, with the exception of interventions having diagnostic or therapeutic purposes; c) cloning for reproductive or research purposes; d) insemination of a human gamete with a gamete belonging to a different animal species and production of hybrids or chimeras. According to paragraph 4, the infringement of one of the prohibitions provided for by paragraphs 1 and 3 constitutes a criminal offence. Article 14 also contains very controversial provisions: paragraph 1 prohibits the crioconservation and the suppression of embryos (without prejudice for the provisions of Law No. 194 of 22 May 1978 (GU No. 140 of 22 May 1978), concerning the voluntary interruption of pregnancy), while paragraph 2 specifies that the number of embryos produced for the implementation of the medically assisted procreation techniques regulated by the present law must not exceed what is strictly necessary in any specific case, and in no case such number can be more than three. Also, in the event that the implantation of one of the embryos in the woman’s womb is not possible (for exceptional reasons relating to the woman’s health and not foreseeable at the moment of the insemination of the embryos) such embryo can be preserved through crioconservation, but the implantation of the embryo concerned in the woman’s womb must be realized as soon as possible (para. 3). The reduction of implanted embryos in the event of multiple pregnancies is prohibited, except in the cases contemplated by Law No. 194/1978,

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concerning voluntary termination of pregnancy (para. 4). Crioconservation of gametes is allowed with the prior and informed written consent of the person concerned (para. 8). Article 18 establishes a special fund in view of favouring access to medically assisted procreation techniques by interested persons as defined by Article 5; such fund is distributed among the regions and the autonomous provinces of Trento and Bolzano on the basis of criteria established by a decree of the Minister of Health. The adoption of Law No. 40/2004 has split Italian public opinion. The fact that the law in point is definitely oriented towards a given ethical approach (i.e. the recognition of the human dignity of the embryo since the very moment of the fecundation, thus excluding scientific research on embryos except that aimed at the preservation of the health of the specific embryo concerned) has left unsatisfied all those citizens who believe that the equation between the embryo and a person is unacceptable, especially from the point of view of the rights of women. From the legal point of view, Italian law does not resolve in a definite way the core question whether the embryo has the dignity of the human person: on the one hand, certain “functional” rights are in fact recognized by law also to the foetus (e.g. the right of inheriting from a parent dead before his/her birth), thus demonstrating that he/she is, at least to a certain extent a subject of the law; on the other hand, however, full legal personality is only acquired at the birth. As a result, just a few months after its entry into force, Law No. 40/2004 has been the object of five requests for popular referendum. The first of these requests had the purpose of abrogating the whole law, while the second concerned certain specific provisions included in its text. In the very first days of 2005 the Constitutional Court ruled on the admissibility of such requests. With regard to the first one, the Court declared the referendum as inadmissible (see Judgment No. 45/2005 of 13 January 2005, available at www.cortecosti tuzionale.it/ita/attivitacorte/pronunceemassime/pronunce/filtro.asp), on account of the fact that Law No. 40/2004 is to be considered “constitutionally necessary”, thus unsusceptible, according to the constant jurisprudence of the Court since 1978, of being the object of a popular referendum. In the view of the Court, this character of “constitutional necessity” derives from the fact that Law No. 40/2004 is the first “organic legislation concerning a delicate sector, which in the most recent years has developed proportionally to the development of research and medical techniques, and that without doubts involves a plurality of constitutional interests, which, considered as a whole, require at least to be balanced one with another so as to ensure a minimum level of legislative protection” (see paragraph 6 of the judgment). Such need of balancing the different values at stake is also affirmed, according to the Court, in certain international instruments which Italy has signed and authorised for ratification, such as the 1997 Oviedo Convention on Biomedicine (Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997, CETS No. 164; ratification by Italy authorised with Law No. 145 of 28 March 2001), its 1998 Paris Protocol prohibiting human

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cloning (Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, Paris, 12 January 1998, CETS No. 168; ratification by Italy also authorised with Law No. 145 of 28 March 2001), as well as Article 3 of the Charter of Fundamental Rights of the European Union (concerning the integrity of the human person). However, it should be noted that Italy is not a Party to these two instruments, as it never deposited its instruments of ratification with the Secretary General of the Council of Europe, notwithstanding the adoption of the above-mentioned law authorising ratification by the President of the Republic. The Constitutional Court has reached a different conclusion with regard to the other four requests of popular referendum concerning Law No. 40/2004, and involving four questions aiming at the abrogation of the following parts of the law in point: i) the limitations to clinical and experimental research on embryos provided for by Article 12 para. 7 (with the view of limiting such prohibition to the sole cases of cloning processes having the purpose of producing “identical” human beings), Article 13 para. 2 (which allows research on embryos only when it is finalized to the exclusive therapeutic and diagnostic protection of the health and development of the embryo concerned and when no alternative methodology is available), Article 13 para. 3(c) (which prohibits human cloning through nucleus transfer) and Article 14 para. 1 (prohibiting embryos crioconservation); ii) the limitations to the access to medically assisted procreation techniques contemplated by Article 1 para. 1 (the very introductory words stating that the recourse to medically assisted procreation is only allowed for favouring the solution of reproductive problems deriving from human sterility or infertility), Article 1 para. 2 (according to which medically assisted procreation may also be used when no other means exist for removing the causes of sterility or infertility), Article 4 para. 1 (stating that access to the techniques in point is only limited to cases of infertility, both unexplained or explained, certified by a medical act and that cannot be removed with other means), Article 4 para. 2 (concerning the principle of “graduality”), the reference to Article 4 para. 1 included in Article 5 para. 1, Article 6 para. 3 (stating that, with regard to the principle of informed consent, such consent may not be revoked by the persons concerned after the fecundation of the egg cell), the reference to Article 13 para. 2 included in Article 13 para. 3(b) (thus limiting the exceptions to the prohibition of eugenic selection of embryos to the cases of therapeutic or diagnostic needs specifically relating to the embryo concerned), the general limitation of three embryos provided for by Article 14 para. 2, and the limitations contemplated by Article 14 para. 3 in allowing embryos crioconservation only for exceptional reasons relating to the woman’s health and not foreseeable at the moment of the insemination of the embryos and in prescribing that the implantation of the embryo(s) concerned in the woman’s womb must in any case be realized as soon as possible;

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iii) certain provisions concerning the purposes of Law No. 40/2004, the rights of the involved persons and the limitations of access to medically assisted procreation techniques (in most part coinciding with the content of second question), including: the entire Article 1, the principle of “graduality” contemplated by Article 4 para. 1(a), the reference to Article 4 para. 1 included in Article 5 para. 1, the impossibility of revoking the consent after the fecundation of the egg cell pursuant to Article 6 para. 3, the reference to Article 13 para. 2 included in Article 13 para. 3(b) (also including the word “therapeutic”), and the limitations contemplated by Article 14 already addressed by the second question; iv) the prohibition of heterologous procreation provided for by Article 4 para. 3 and recalled by Article 9 paras 1 and 3 and Article 12 paras. 1 and 8. In dealing with such questions (see Judgments Nos. 46/2005, 47/2005, 48/ 2005 and 49/2005 of 13 January 2005, full text available at www.cortecostituzi onale.it/ita/attivitacorte/pronunceemassime/pronunce/filtro.asp), the Court considered them as admissible in view of the fact that they did not relate to laws for which the recourse to popular referendum is explicitly or implicitly excluded by Article 75 of the Constitution, and did not conflict with the principles of the 1997 Oviedo Convention on Biomedicine and of its 1998 Paris Protocol prohibiting human cloning. The Court also noted that the possible abrogation of the provisions contemplated by the questions under examination was not susceptible of giving rise to the lack of the constitutionally required minimum level of protection, which in principle would require the declaration of inadmissibility of a question of popular referendum. The results of the four popular referenda concerning Law No. 40/2004, considered as admissible by the Constitutional Court, will be examined in the next volume of this Yearbook. FEDERICO LENZERINI Law No. 92 of 30 March 2004 (GU No. 86 of 13 April 2004) Establishment of the “Memorial Day” in order to remember the Foibe victims, the massive exodus of the Italians from Dalmatia and Istria, as well as what happened at the east border and provisions to award these victims’ families. According to Law No. 92/2004, 10 February of every year is designated to keep memory of the Foibe victims, of the massive exodus of Italians from Dalmatia and Istria and of the complex situation in the east border during, as well as immediately after, the World War II. Foiba, plural Foibe, is the name adopted to define deep natural sinkholes common in Carso/Kras region, a karstic district located between Italy and Slovenia. Actually this name is used in relation to massacres of Italians committed by Slav civilian peoples and combatants during and shortly after World War II. In particular, these slaughtering begun in September 1943, after the armistice between Italy and Allies, with the subsequent collapse of Italian army and administration, as a reaction to the policy of italianization and repression

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of Slavs followed by fascist regime in the previous decades. The mass executions continued until the end of 1945, when Yugoslav partisans led by Tito occupied Venezia Giulia and Istria and followed a policy of ethnic cleansing. On the whole, thousands (6,000 to 15,000, depending on sources) of Italian-speaking inhabitants of those regions were thrown in Foibe, many of those suffering this fate while they were still alive. In order to spread the awareness about those tragic events, cultural initiatives will be held among youths in schools. Moreover, public institutions will support the realization of studies, meetings and discussions to deepen and reinforce the memory of what happened. All these initiatives shall emphasize the cultural, historical, literal and artistic heritage of those Italians coming from Istria, Fiume and Dalmatia and, in particular, their contribution to cultural and social development of those territories and their efforts to preserve the traditions of all Istrian-Dalmatian communities residing in Italy or abroad. As to Art. 2, the State recognizes and supports the Museum of the IstrianFiuman-Dalmatian civilization, located in Trieste and the Museum-Archive of Fiume, located in Rome. To this aim, the Regional Institute for Istrian-FiumanDalmatian Culture and the Society of Studies on Fiume are financed with an amount of EURO 100,000 each to be paid every year, beginning from 2004. Law No. 92/2004 provides that liquid assets of the Ministry of Economy and Finance are to be employed for these payments. In order to honour the memory of those who were killed and then abandoned into Foibe in the period between 8 September 1943 and 10 February 1947 in Istria, Dalmatia, or in the other eastern territories, Art. 3 states that their relatives can request a courtesy title, consisting in a special medal with the inscription “The Italian Republic remembers” and a certificate, signed by the President of Republic. The same right is recognized to the heirs of those who disappeared or who were killed, drowned, shot, slaughtered or were victims because of any other form of attack, in the same period and territory, as well as to the relatives of Italian citizens who died in consequence of torture, deportation or captivity after 10 February 1947 and before the end of 1950 (except for those who were voluntary members of groups that were not serving Italy at that time). The applications must be addressed, within 10 years, to the Presidency of the Council of Ministers, in a package including the description of facts, location and date (known or presumed) of the events, together with eventual evidences, studies, publications or memoirs. A special Commission, composed by ten members and chaired by the President of the Council of Ministers, will examine these applications, in order to choose who will have to be excluded from the courtesy title and who will be awarded, in an annual collective ceremony, with the certificate and the medal. Anyway, the Commission will not award the relatives of those committed brutal crimes against people.

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(Cf. supra X.1, Law No. 193 of 28 July 2004 as regards the community of Italian refugees coming from Istria, Fiume and Dalmatia) CHIARA BATTISTINI Law No. 232 of 25 August 2004 (GU No. 210 of 7 September 2004) Extension of the deadline to close the activity of the parliamentary enquiry commission on the reasons of the disappearance of dossiers concerning Nazi crimes which was established by Law No. 107 of 15 May 2003. According to Law No. 107/2003, the parliamentary enquiry commission had to perform its task within a year from its establishment. Law No. 232/2004 extends its duration until the end of the current Italian legislature, that is 2006. (Cf. IYIL, 2003, pp. 335-336) PIA ACCONCI

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. FOREIGN TRADE Decree of 22 June 2004 (GU No. 213 of 10 September 2004) Distribution of the 2003 portion of the special Fund for Italian participation in the process of stabilizing, reconstructing and developing the Balkans. This portion is assigned to the Ministry of Production Activities (Ministero delle attività produttive) to finance activities for promoting and developing enterprises. The Fund for Balkans was established by Law No. 84/2001. (Cf. IYIL, 2001, pp. 420-422)

2. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT Law No. 60 of 26 February 2004 (GU No. 53 of 4 March 2004) Italian financial contribution to first increasing the capital of the Interamerican Investment Corporation (IIC) and to re-building up the funds of the Asian Fund for Development, the International Fund for Agricultural Development (IFAD) and the Asem Trust Fund. Italy is an IIC Member State in conformity with its Law No. 165 of 29 April 1988. Law No. 60/2004 authorizes the Italian financial contribution to first in-

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creasing the IIC capital. Therefore, Law No. 60/2004 authorizes the payment of US Dollars 15.360.000 for the period of time from 2000 to 2007. In particular, EURO 7,680,000 are to be paid for 2003 and EURO 1,980,000 are to be paid each year from 2004 to 2007. To this end, liquid assets of the Ministry of Economy and Finance are partly to be employed. The Ministry of Economy and Finance has to control the implementation of these provisions. Besides, Law No. 60/2004 authorizes the Italian financial contribution to rebuilding up the funds of the Asian Fund for Development. Thus, Law No. 60/2004 authorizes the payment of EURO 110,221,542 for the period of time from 2001 to 2004. In particular, EURO 82,666,157 are to be paid for 2003 and EURO 27,555,385 for 2004. To this end, liquid assets of the Ministry of Economy and Finance are partly to be employed. Moreover, Law No. 60/2004 authorizes the Italian financial contribution to the fifth re-building up of the IFAD funds. In particular, Law No. 60/2004 authorizes the payment of EURO 28,806,000 for the period of time from 2001 to 2003. To this end, liquid assets of the Ministry of Economy and Finance are partly to be employed. Law No. 60/2004 also authorizes the payment to IFAD of EURO 3,720,000 which are to be employed in the Heavily Indebted Poor Countries (HIPC) Debt Initiative. To this end, liquid assets of the Ministry of Economy and Finance are partly to be employed. Furthermore, Law No. 60/2004 authorizes the Italian financial contribution to re-building up the funds of the Asem Trust Fund. In particular, Law No. 60/2004 authorizes the payment of EURO 2,000,000 for 2003. To this end, liquid assets of the Ministry of Economy and Finance are partly to be employed. Law No. 155 of 17 June 2004 (GU No. 147 of 25 June 2004) Extension of the Italian Agency for Payments in Agriculture (Agenzia per le erogazioni in agricoltura – AGEA) functions which is regulated by Art. 3 of Law No. 413 of 29 December 2000. Law No. 413/2000 authorized accession of Italy, as a Member State of the European Community, to the International Convention concerning Food Aid as re-negotiated in 1999. Since the duration of this Convention has been extended in accordance with its Art. XXV, the Italian Agency for Payments in Agriculture functions have also been extended until 30 June 2003. At first, the Aid Food Convention was supposed to remain in force until and including 30 June 2002. To finance the extension of the Italian Agency for Payments in Agriculture, Law No. 155/2004 authorizes the payment of EURO 36,2 millions for 2003. To this end, liquid assets of the Ministry of Foreign Affairs are partly to be employed.

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3. CO-OPERATION IN SECURITY MATTERS Law No. 138 of 26 May 2004 (GU No. 125 of 29 May 2004) Enactment as a law, with amendments, of Decree-Law No. 81 of 29 March 2004 concerning urgent measures to deal with situations dangerous for public health. In order to improve the Italian fight against infectious diseases and bioterrorism, Law No. 138/2004 establishes two specialized bodies, that is the Italian National Centre for the Prevention and Control of Diseases (Centro nazionale per la prevenzione e il controllo delle malattie) and the National Institute of Molecular Genetics and other Modern Diagnostic Methods (Istituto di riferimento nazionale specifico sulla genetica molecolare e su altre moderne metodiche di rilevazione e di diagnosi). Law No. 138/2004 also authorizes the payment of EURO 12,945,000 for 2004, EURO 12,585,000 for 2005, and EURO 12,720,000 for 2006 to finance research projects concerning the protection of health against cancer, rare diseases and bioterrorism. These projects are to be carried out in collaboration with the United States of America. A decree of the Minister of Health will indicate these projects. To this end, liquid assets of the Ministry of Economy and Finance and of the Ministry of Health are to be employed. PIA ACCONCI

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING Law No. 68 of 12 March 2004 (GU No. 65 of 18 March 2004) Enactment as a law, with amendments, of Decree-Law No. 9 of 20 January 2004 concerning urgent measures for the extension of the Italian participation in international military operations as well as provisions for the benefit of military and civil victims of terrorist attacks abroad; Law No. 207 of 30 July 2004 (GU No. 188 of 12 August 2004) Enactment as a law, with amendments, of Decree-Law No. 160 of 24 June 2004 concerning the extension of the Italian participation in international military operations; Law No. 208 of 30 July 2004 (GU No. 188 of 12 August 2004) Extension of the Italian participation in international military operations. These laws extend Italian military and civil participation in international operations until 30 June 2004 (Law No. 68/2004) and 31 December 2004 (Law No. 207/2004 and Law No. 208/2004).

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The operations involved are carried out in various countries. Each law authorises the payment of the necessary amount of money (as regards previous Italian decree-laws and laws concerning Italian participation in these peace operations, see IYIL, 2003, p. 341 ff.) Art. 1 and Art. 2 of Law No. 68/2004 authorise expenses up to EURO 11,627,450 and EURO 209,017,084 for the complex humanitarian and reconstruction mission in Iraq. According to Art. 9-bis the Ministry of Defence is authorised to give to Iraqi Armed and Police Forces materials, equipments and vehicles no longer in use. Art. 1 of Law No. 207/2004 identifies the material sectors of the Italian intervention: health sector to assist the population, institutional and technical support, support to small and medium enterprises, especially in Southern Iraq, communication sector. Art. 1 authorises expenses for EURO 20,925,066, while Art. 6 provides EURO 556,788 for the year 2004 for the participation of Italian military experts in the reorganisation of the Iraqi Ministry of Defence as well as in the training of the personnel of the Iraqi Armed Forces. According to Art. 3 of Law No. 68/2004 and Art. 1 of Law No. 208/2004, other international operations involved are: Joint Forge in Bosnia, Multinational Specialized Unit in Bosnia and Kosovo, Joint Guardian in Kosovo and Former Yugoslav Republic of Macedonia, NATO Headquarters Skopje in Former Yugoslav Republic of Macedonia, United Nations Mission in Kosovo and Criminal Intelligence Unit in Kosovo, Albit, Albania 2 and NATO Headquarters Tirana in Albania, Temporary International Presence in Hebron, United Nations Missions in Ethiopia and Eritrea, as well as the European Union monitoring mission in the territories of Former Yugoslavia and the peace processes concerning Somalia and Sudan (EURO 292,919,802 for the first extension and other various amounts for the second part of the year). Art. 4 of Law No. 68/2004 authorises expenses for EURO 7,282,927 for the participation of State Police staff in Kosovo (United Nations Mission in Kosovo), in Albania and in the Balkan area, in Bosnia-Erzegovina (EUPM) and in Former Yugoslav Republic of Macedonia (EUPOL Proxima). Arts. 10 and 11 of Law 68/2004 as well as Art. 3 of Law No. 208/2004 extend the assistance to logistically support and train to the Romanian infantry troop (see IYIL, 2002, p. 362) and to the Albanian Armed Forces, while Art. 12 (Art. 7 of Law No. 208/2004) states on the one hand that the wartime military criminal code shall apply to the military personnel deployed in all these international operations and on the other hand that the crimes committed by a foreigner against the State or Italian citizens deployed in such international missions shall be punished upon request from the Ministry of Justice, after consultation with the Ministry of Defence in case of crimes against the staff of the Armed Forces. As for activities of scientific research for sanitary prevention, Art. 13-ter authorises expenses up to EURO 1,175,330 (a further amount of EURO 800,000 is authorised by Art. 8 of Law No. 208/2004) for an epidemiologic study with a view

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to ascertaining the levels of uranium and other possibly toxic elements in biological specimen of the military staff deployed in such international operations. Art. 10 of Law 208/2004 establishes that, until the entry into force of a new law in favour of the victims of terrorism, the provisions of Law No. 369 of 24 December 2003 (see IYIL, 2003, pp. 343-344) concerning measures for the benefit of military and civil victims of terrorist attacks abroad shall apply and allows expenses in this respect up to EURO 415,600. (Cf. supra XV.1, Decree of 22 June 2004 as regards the special Fund for the Italian participation in the process of stabilization, reconstruction and development of the Balkans’ Countries) Law No. 226 of 23 August 2004 (GU No. 204 of 31 August 2004) Anticipated suspension of compulsory military service. This law provides the framework for the new system of selection of the voluntary members of the Italian armed forces. After the end of the compulsory recruitment the personnel of the army, the navy and the air forces will operate on a voluntary basis, initially for a period of one or four years. The law specifies the requirements, in terms of age, education, physical conditions, moral standards as well as the material formalities ruling the procedures for the public competition granting access to the armed forces. GIANLUCA RUBAGOTTI

BIBLIOGRAPHIES

ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW 2004 (edited by Giulio Bartolini, Alessandro Chechi, Federico Lenzerini and Massimiliano Montini) This bibliography includes books and articles published during the year 2004, with some exceptions going back to 2003. Items are listed only once, under their most appropriate heading. Headings correspond to the Classification Scheme adopted for the Italian practice relating to international law. Unless otherwise specified, texts are in the same language as corresponding entries in the bibliography. When available, translations of titles have been reproduced from the original source. The bibliography includes only works on public international law. Works considered as belonging to European Community law and to private international law are generally omitted. Any indication of items inadvertently omitted will be appreciated with a view to publication in the next volume of the Yearbook.

TEXTBOOKS AND GENERAL SURVEYS BOSCHIERO N. (ed.), Ordine internazionale e valori etici (International Legal Order and Ethical Values), Napoli, 2004, pp. 497. CASSESE A., International Law, 2nd ed., Oxford, 2004, pp. 530. CASSESE A. and GAETA P., Diritto internazionale. Vol. II: Problemi della Comunità internazionale (International Law. Vol. II: Problems of the International Community), Bologna, 2004, pp. 252. COLOMBO A. and RONZITTI N. (eds.), L’Italia e la politica internazionale (Italy and International Politics), Bologna, 2004, pp. 344. FOCARELLI C., Digesto del diritto internazionale (International Law Digest), Napoli, 2004, pp. 1228. IOVANE M., “The Activity of the International Law Commission During Its 55th Session”, IYIL, 2003, p. 171 ff. LEANZA U., Storia e diritto nelle relazioni internazionali della Repubblica di San Marino (History and Law of San Marino International Relations), Napoli, 2004, pp. 212. PICCHIO FORLATI L. and PALMISANO G., “La lezione di una vita: cos’è e com’è il diritto internazionale” (The Lesson of a Life: What Is and How Is International


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Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. XVII ff. RONZITTI N., Introduzione al diritto internazionale (Introduction to International Law), Torino, 2004, pp. 392.

I.

INTERNATIONAL LAW IN GENERAL AND INTERNATIONAL CUSTOM

BARGIACCHI P., “Evoluzioni (possibili) ed involuzioni (certe) dell’ordinamento internazionale in relazione alla vicenda irakena” (Iraq Invasion: (Potential) Evolutions and (Certain) Involutions of the International Legal Order), RCGI, 2004, p. 40 ff. BATTAGLINI G., “L’equità infra legem nei giudizi internazionali” (Infra Legem Equity in International Case-Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 265 ff. BENVENUTI P., “Principi generali del diritto, giurisdizioni internazionali e mutamenti sociali nella vita di relazione internazionale” (General Principles of Law, International Jurisdictions and Social Changes in International Relations), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 295 ff. BERLINGIERI F., “Interpretazione uniforme delle convenzioni internazionali” (Uniform Interpretation of International Conventions), DM, 2004, p. 594 ff. BUZZINI G.P., “La ‘généralité’ du droit international général: réflexions sur la polysémie d’un concept” (The General Character of International Law: Remarks on the “Polysemy” of a Concept), RGDIP, 2004, p. 381 ff. CARBONE S.M., “Valori etici ed esigenza di costruire un nuovo ordine giuridico internazionale” (Ethical Values and the Need to Build a New International Legal Order), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 303 ff. GIANELLI A., Unione Europea e diritto internazionale consuetudinario (The European Union and International Customary Law), Torino, 2004, pp. 300. GUARINO G., “Personalità giuridica di diritto internazionale” (Legal Personality of International Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 85 ff. IOVANE M., “Peremptory Norms in the Field of Human Rights and General Principles of Law Recognised by Civilised Nations”, in Alberico Gentili: L’ordine internazionale in un mondo a più civiltà, Milano, 2004, p. 155 ff. LATTANZI F., “Comunità internazionale e tutela del processo di democratizzazione” (The International Community and the Protection of the Democratisation Process), in ORRÙ C. and SCIANELLA L.G. (eds.), Limitazioni di sovranità e processi di democratizzazione, Torino, 2004, p. 23 ff. MARCHISIO S., “Eurocentrismo e multiculturalità nella scienza del diritto internazionale” (Eurocentrism and Multiculturalism in the Science of International

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Law), in Alberico Gentili: L’ordine internazionale in un mondo a più civiltà, Milano, 2004, p. 113 ff. PIETROBON A., “Dalla Comity all’Opinio Juris” (From Comity to Opinio Juris), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 355 ff. SCALESE G., La definitiva affermazione del principio di necessità nel diritto internazionale (The Definitive Recognition of the Necessity Principle in International Law), Napoli, 2004, pp. 128. ZICCARDI CAPALDO G., “Trasformazione del processo decisionale mondiale” (Transformation of the World’s Decisional Process), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 421 ff.

II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 1. GENERAL DE NARDO V., La teoria dell’accordo nel diritto internazionale per governare la globalizzazione (The Theory of Agreement as a Governing Tool in International Law), Padova, 2004, pp. 188. MAINETTI V., “Les traités secrets en droit international” (Secret Treaties in International Law), in ZEN-RUFFINEN P. (ed.), Les secrets et le droit, Zurich, 2004, p. 399 ff.

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS BIANCHI A., “L’immunité des Etats et les violations graves des droits de l’homme: la fonction de l’interprète dans la détermination du droit international” (State Immunity and Gross Violations of Human Rights: The Function of the Interpreter in the Determination of International Law), RGDIP, 2004, p. 63 ff. BIANCHI A., “International Law and US Courts: The Myth of Lohengrin Revisited”, EJIL, 2004, p. 751 ff. CANNIZZARO E., “Fragmented Sovereignty? The European Union and Its Member States in the International Arena”, IYIL, 2003, p. 35 ff. CICIRIELLO M.C., “La soggettività internazionale dell’Ordine di Malta” (International Personality of the Order of Malta), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 47 ff. CONDORELLI L., “L’évolution du champ d’application de la protection diplomatique” (The Evolution of the Scope of Application of Diplomatic Protection), in FLAUSS J. (ed.), La protection diplomatique, Bruxelles, 2003, p. 3 ff. GAJA G., “Droits des Etats et droits des individus dans le cadre de la protection diplomatique” (Rights of States and Individual Rights in the Context of Dip-

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BIBLIOGRAPHIES

lomatic Protection), in FLAUSS J. (ed.), La protection diplomatique, Bruxelles, 2003, p. 63 ff. FERRARI BRAVO L., “La pratique italienne de la protection diplomatique” (Italian Practice on Diplomatic Protection), in FLAUSS J. (ed.), La protection diplomatique, Bruxelles, 2003, p. 87 ff. LEANZA U., “Le Regioni nei rapporti internazionali e con l’UE a seguito della riforma del Titolo V della Costituzione” (The International and European Relations of Italian Regions after the Reform of Title V of the Italian Constitution), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 109 ff. MIELE A., “L’indipendenza degli Stati” (State Independence), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 169 ff. STARACE V., “Obblighi comunitari e internazionali e rapporti tra Stato e Regioni nel nuovo Titolo V della parte seconda della Costituzione” (International and EC Obligations and the Relations between State and Regions under the New Title V of the Second Part of the Constitution), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 137 ff.

V. TERRITORY MILANO E., “Territorial Disputes, Unlawful Territorial Situations and State Responsibility”, The Law and Practice of International Court and Tribunal, 2004, pp. 509-541. SCIACOVELLI A.L., “La controversia confinaria tra Eritrea ed Etiopia” (The Border Dispute between Eritrea and Ethiopia), RDI, 2004, p. 730 ff.

VI. LAW OF THE SEA CATALDI G., “L’Italia e la delimitazione degli spazi marini. Osservazione sulla prassi recente di estensione della giurisdizione costiera sul Mediterraneo” (Italy and the Delimitation of Marine Spaces. Analysis of Recent Practice in regards of Extension of Coastal Jurisdiction in the Mediterranean Sea), RDI, 2004, p. 621 ff. SCOVAZZI T., “Marine Protected Areas on the High Sea: Some Legal and Policy Considerations”, International Journal of Marine and Coastal Law, 2004, p. 1 ff. SCOVAZZI T., “La sicurezza della navigazione marittima: profili di diritto internazionale” (Safety of Maritime Navigation: International Law Aspects), in ZANELLI A. (ed.), Inquinamento del mare e sicurezza della navigazione, Napoli, 2004, p. 19 ff.


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SCOVAZZI T., “L’importance des côtes en matière de délimitations maritimes” (The Importance of Coasts in the Field of Maritime Delimitations), in Le processus de délimitation maritime-Etude d’un cas fictif, Paris, 2004, p. 44 ff. SCOVAZZI T., “La révision de l’Accord RAMOGE” (The Revision of the RAMOGE Agreement), Annuaire de droit maritime et océanique, 2004, p. 107 ff. SCOVAZZI T., “Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority”, International Journal of Marine and Coastal Law, 2004, p. 383 ff. SESSA E., “La decisione del Tribunale Internazionale del Diritto del mare nel caso ‘Volga’” (The Decision of the International Tribunal for the Law of the Sea in the Volga Case), DM, 2004, p. 945 ff. TREVES T., “The International Tribunal for the Law of the Sea (2003)”, IYIL, 2003, p. 157 ff. TREVES T., “Flags of Convenience before the Law of the Sea Tribunal”, San Diego International Law Journal, 2004, p. 179 ff.

VII. ENVIRONMENT BURCHI S., “International Rivers and Lakes/Groundwater”, YIEL, 2003, p. 280 ff. DI LEVA C., RAGAZZI M. et al., “World Bank”, YIEL, 2003, p. 774 ff. DI LIETO A., “Il diritto all’acqua nel diritto internazionale” (The Right to Water under International Law), RGA, 2004, p. 749 ff. FODELLA A., Il movimento transfrontaliero di rifiuti pericolosi nel diritto internazionale (Transboundary Movement of Hazardous Waste in International Law), Torino, 2004, pp. 432. FODELLA A., “Mountains and Sustainable Development: The Legal Instruments Adopted at the World Summit on Sustainable Development (Johannesburg 2002)”, in TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 27 ff. FORNARI M., “L’accordo di Kuala Lumpur contro l’inquinamento transfrontaliero da fumi provocati da incendi forestali” (The Kuala Lumpur Agreement on Transboundary Pollution Provoked by Forest Fires), RGA, 2004, p. 553 ff. FORNARI M., “Italy”, YIEL, 2003, p. 499 ff. GALIZZI P., “International Law and the Protection of the Environment: ‘Shared Universal’ Rules or ‘Unethical’ Imposition of a Western Agenda?”, in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 327 ff. LENZERINI F., “Lo ‘sfruttamento minerario sostenibile’ come principio emergente nel diritto internazionale contemporaneo” (“Sustainable Mining” as Emerging Principle of Contemporary International Law), RGA, 2004, p. 165 ff. LENZERINI F., “International Law and Mountain Protected Areas”, in TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain

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BIBLIOGRAPHIES

Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 163 ff. MARINI L., Il principio di precauzione nel diritto internazionale e comunitario (The Precautionary Principle in International and EC Law), Padova, 2004, pp. 432. MARRONI A., “Sette anni dopo Kyoto: i risultati della nona conferenza delle parti (COP 9) della convenzione quadro sui cambiamenti climatici (UNFCCC)” (Seven Years after Kyoto: The Decisions Adopted by the Ninth Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC)), RGA, 2004, p. 323 ff. MORGERA E., “From Stockholm to Johannesburg: From Corporate Responsibility to Corporate Accountability for the Global Protection of the Environment?”, RECIEL, 2004, p. 214 ff. MORGERA E., “Whale Sanctuaries: An Evolving Concept within the International Whaling Commission”, Ocean Development and International Law, 2004, p. 319 ff. NESPOR S., “Oltre Kyoto: il presente e il futuro degli accordi sul contenimento del cambiamento climatico” (Beyond Kyoto: The Present and the Future of the Agreements on Climate Change), RGA, 2004, p. 1 ff. NESPOR S., “L’accesso alla giustizia nelle controversie giudiziarie in materia ambientale: considerazioni su due recenti volumi” (Access to Justice in Environmental Disputes: Some Remarks about Two Recent Volumes), RGA, 2004, p. 861 ff. PAPANICOLOPULU I., “The Secretariat of the Alpine Convention”, in TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 215 ff. PAVONI R., Biodiversità e biotecnologie nel diritto internazionale e comunitario (Biodiversity and Biotechnology in International and European Community Law), Milano, 2004, pp. 526. PAVONI R., “Accesso alle risorse fitogenetiche e diritti di proprietà intellettuale dopo il Trattato della FAO del 2001” (Access to Plant Genetic Resources and Intellectual Property Rights after the 2001 FAO Treaty), in ROOK BASILE E., MASSART A. and GERMANÒ A. (eds.), Prodotti agricoli e sicurezza alimentare, Milano, 2004, p. 227 ff. PINESCHI L., “The Convention for the Protection of the Alps and Its Protocols: Evaluation and Expectations”, in TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 191 ff. SCOVAZZI T., “Deep Seabed and Ocean Floor”, YIEL, 2003, p. 343 ff. SCOVAZZI T., “Le protocole méditerranéen sur les aires spécialement protégées” (The Mediterranean Protocol on Specially Protected Areas), Annuaire de droit maritime et océanique, 2003, p. 347 ff.


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SINDICO F. and GUPTA J., “Moving the Climate Change Regime Further Through a Hydrogen Protocol”, RECIEL, 2004, p. 175 ff. TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Developments of Mountain Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, pp. 374. URBINATI S., “Non-Compliance Procedure under the Kyoto Protocol”, Baltic Yearbook of International Law, 2003, p. 229 ff.

VIII. CULTURAL HERITAGE CAMARDA G., “La normativa nazionale ed internazionale per la protezione del patrimonio culturale subacqueo del Mediterraneo. Considerazioni introduttive su limiti e funzioni delle convenzioni regionali” (Italian and International Legislation for the Protection of Underwater Cultural Heritage. Introductory Remarks on Limits and Functions of Regional Conventions), in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 327 ff. FERRO D., “La tutela del patrimonio culturale subacqueo nell’ordinamento italiano” (The Protection of Underwater Cultural Heritage in the Italian Legal Order), in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 277 ff. FRANCIONI F., “Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity”, Michigan Journal of International Law, 2004, p. 1209 ff. FRANCIONI F., “Fighting Deliberate Destruction of Cultural Heritage in International Law”, in Symposium: The Revitalization of Cultural Environment – Management for the Preservation of Cultural Heritage, Kyoto, 2004, p. 3 ff. FRIGO M., “Traces of Relativism in the Contemporary Practice of International Protection of Cultural Property: Reciprocal v. Erga Omnes Duties?”, in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 15 ff. GARABELLO R., La convenzione UNESCO sulla protezione del patrimonio culturale subacqueo (UNESCO Convention on Underwater Cultural Heritage), Milano, 2004, pp. 484. GARABELLO R., “Sunken Warship in the Mediterranean. Reflections on Some Relevant Examples in State Practice relating to the Mediterranean Sea”, in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 17 ff. GARABELLO R. and SCOVAZZI T. (eds.), The Protection of the Underwater Cultural Heritage. Before and after the 2001 UNESCO Convention, Leiden, 2003, p. 292. LENZERINI F., “Revitalization of Intangible Cultural Heritage”, in Symposium: The Revitalization of Cultural Environment – Management for the Preservation of Cultural Heritage, Kyoto, 2004, p. 59 ff.

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LENZERINI F., “The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step forward and Two Steps back”, IYIL, 2003, p. 131 ff. MAINETTI V., “Quelle protection pour le patrimoine culturel subaquatique en Méditerranée? En attendant l’entrée en vigueur de la Convention de l’UNESCO de 2001” (What Kind of Protection for Underwater Cultural Heritage in the Mediterranean? Waiting for the Entry into Force of the 2001 UNESCO Convention), in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 121 ff. PAPANICOLOPULU I., “La zona contigua archeologica e la sua delimitazione” (The Archaeological Contiguous Zone and Its Delimitation), in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 3 ff. SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo (The Protection of Submarine Cultural Heritage in the Mediterranean Sea), Milano, 2004, pp. 448. SCOVAZZI T., “The Convention on the Protection of the Underwater Cultural Heritage”, in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 23 ff. SCOVAZZI T., “La strada per la rimozione dalla Lista del Patrimonio Mondiale dell’UNESCO” (The Procedure for the Withdrawal from the UNESCO World Heritage List), RGA, 2004, p. 961 ff. SCOVAZZI T., “Un remède aux problèmes posés par l’application de la salvage law au patrimoine culturel subaquatique” (A Remedy to the Problems Raised by the Application of Salvage Law to Underwater Cultural Heritage), in La mere et son droit. Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec, Paris, 2003, p. 565 ff. SCOVAZZI T., “La Protection du patrimoine culturel sous-marin de la Méditerranée” (The Protection of Submarine Cultural Heritage of the Mediterranean Sea), L’Observateur des Nations Unies, 16/2004, p. 81 ff. SCOVAZZI T., “Un futuro accordo sulla protezione del patrimonio culturale sottomarino del Mediterraneo” (A Future Agreement for the Protection of Underwater Cultural Heritage in the Mediterranean) , in SCOVAZZI T. (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004, p. 157 ff.

IX. AIR AND SPACE LAW MARCHISIO S., “The 1986 United Nations Principles on Remote Sensing”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1311 ff.


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X. TREATMENT OF ALIENS AND NATIONALITY 1. GENERAL ACCONCI P., “Determining the Internationally Relevant Link between a State and a Corporate Investor. Recent Trends concerning the Application of the ‘Genuine Link’”, Journal of World Investment and Trade, 2004, p. 139 ff. BALBO P., Extracomunitari. Profili penali e giurisprudenza interna ed internazionale (Non Communitarian Citizens. Criminal Profiles and National and International Case-Law), Torino, 2004, pp. 336. DI BLASE A., “Universal v. Intercivilizational Approach in the Economic Interstate Relations and the Role of International Organizations. The Place of Patrimonial Rights of the Individual”, in Alberico Gentili: L’ordine internazionale in un mondo a più civiltà, Milano, 2004, p. 197 ff. MANCA L., “La partecipazione degli stranieri alla vita pubblica tra diritto internazionale e diritto interno” (Participation of Foreigners to the Political Life between International Law and National Law), Affari sociali internazionali, 2004, p. 155 ff. NASCIMBENE B. (ed.), Diritto degli stranieri (The Law on Foreigners), Padova, 2004, pp. 1284. PALCHETTI P., “Costituzione italiana e norme internazionali in tema di diritto di voto agli stranieri” (Italian Constitution and International Norms: A Comparison in matters of Right to Vote for Foreigners), Diritto, immigrazione e cittadinanza, 2004, p. 37 ff. VALENTI M., “Il trattamento ‘conforme al diritto internazionale’ degli investimenti stranieri nelle convenzioni internazionali” (The Treatment of Foreing Investments “in Conformity with International Law” in International Conventions), DCI, 2004, p. 973 ff.

2. IMMIGRATION AND EMIGRATION MUNARI F., “Immigrazione e diritto internazionale dell’economia: alcuni spunti di riflessione” (Immigration and International Economic Law: Some Remarks), DCI, 2004, p. 251 ff.

3. REFUGEES AND RIGHT TO ASYLUM CHIEFFI L., “La tutela costituzionale del diritto d’asilo e di rifugio a fini umanitari” (The Protection of Refugees and of the Right to Asylum for Humanitarian Purposes Provided for by the Italian Constitution), Diritto, immigrazione e cittadinanza, 2004, p. 25 ff.

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LENZERINI F., “La compatibilità dei disegni di legge della XIV Legislatura in materia di diritto di asilo con i principi di diritto internazionale relativi alla salvaguardia dei diritti fondamentali” (The Compatibility of the Italian Bills on the Right of Asylum with Principles of International Law Concerning the Protection of Fundamental Human Rights), Rassegna parlamentare, 2004, p. 338 ff. MATTONE M.C., “I rifugiati e la loro tutela in ambito internazionale” (Protection of Refugees in International Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 177 ff. SAULLE M.R., “L’immigrazione e l’asilo nell’Europa allargata” (Immigration and Right to Asylum in the Enlarged Europe), Affari sociali internazionali, 2004, p. 107 ff. SPATTI M., “Prime riflessioni sul diritto d’asilo in Italia alla luce del respingimento della famiglia al-Sakhri” (The al-Sakhri Case: Some Consideration as regards the Right to Asylum in Italy), CI, 2004, p. 119 ff.

XI. HUMAN RIGHTS 1. GENERAL BALBO P., “Pedofilia. Un approccio internazionale” (Paedophilia. An International Approach), Cassazione penale, 2004, p. 2167 ff. BARGIACCHI P., “Sulla necessità di norme generali di diritto internazionale per una tutela effettiva dei diritti umani” (On the Need of General International Law Provisions for an Effective Protection of Human Rights), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 89 ff. BESTAGNO F., Diritti umani e impunità (Human Rights and Impunity), Milano, 2004, pp. 299. BETTONI G., “Spunti, ragguagli e riflessioni sui sistemi attuali di tutela dei diritti umani nel mondo” (Remarks and Reflections on the Present Systems for the Worldwide Protection of Human Rights), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1819 ff. BONIVER M., “La collocazione dei diritti dell’uomo nel mondo del ‘dopo 11 settembre’. Il ruolo dell’Italia e dell’UE” (Human Rights in the World in the Aftermath of the September 11 Attacks. The Role of Italy and the EU), CI, 2004, p. 209 ff. BORELLI S., “The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 39 ff. BOTTIGLIERO I., Redress for Victims of Crimes under International Law, Leiden, 2004, pp. 310.


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BRUNO G.C., “Il trattamento dei ‘diritti culturali’ nel Patto sui diritti economici, sociali e culturali e nel Patto sui diritti civili e politici” (The Treatment of “Cultural Rights” in the International Covenant on Economic, Social and Cultural Rights and in the International Covenant on Civil and Political Rights), in Alberico Gentili: L’ordine internazionale in un mondo a più civiltà, Milano, 2004, p. 223 ff. CASSESE A., I diritti umani nel mondo contemporaneo (Human Rights in the Contemporary World), 10th ed., Bari, 2004, pp. 172. CATALDI G., “Universality of Human Rights and Cultural Diversity: Some Thoughts”, in Alberico Gentili: L’ordine internazionale in un mondo a più civiltà, Milano, 2004, p. 173 ff. CITRONI G., L’orrore rivelato. L’esperienza della Commissione della Verità e della Riconciliazione in Perù: 1980-2000 (Horror Revealed. The Experience of the Truth and Reconciliation Commission in Peru: 1980-2000), Milano, 2004, pp. 215. CONDORELLI L. and DE SENA P., “Les droits de l’homme à Guantánamo: en attendant la Cour Suprême des Etats-Unis” (Human Rights in Guantánamo Awaiting the United States Supreme Court), in Libertés, justice, tolérance. Mélanges en hommage au Doyen Gérard Cohen-Jonathan, Vol. I, Bruxelles, 2004, p. 445 ff. CONDORELLI L. and DE SENA P., “The Relevance of the Obligations Flowing from the UN Covenant on Civil and Political Rights to US Courts Dealing with Guantánamo Detainees”, JICJ, 2004, p. 107 ff. DE SALVIA M., “Liberté de religion, esprit de tolérance et laïcité dans la jurisprudence de la Cour européenne des droits de l’homme” (Freedom of Religion, Spirit of Tolerance and Laicism under the Case-Law of the European Court of Human Rights), in Libertés, justice, tolérance. Mélanges en hommage au Doyen Gérard Cohen-Jonathan, Vol. I, Bruxelles, 2004, p. 591 ff. DE SENA P., “Esigenze di sicurezza nazionale e tutela dei diritti dell’uomo nella recente prassi europea” (National Security and Protection of Human Rights in Recent European Practice), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 195 ff. DI STASI A., Il sistema interamericano dei diritti umani. Circolazione e mutamento di una international legal tradition (The Inter-American System of Human Rights. Circulation and Change of an International Legal Tradition), Torino, 2004, pp. 432. LA TORRE M., “Universalità e relatività dei diritti fondamentali. Diritti dell’uomo, diritti delle donne, diritti ‘culturali’” (Universalism and Relativism of Fundamental Rights. Human Rights, Women Rights, and “Cultural” Rights), Ragion pratica, 2004, p. 411 ff. MARCHESI A., La pena di morte. Una questione di principio (Death Penalty. A Question of Principle), Bari, 2004, pp. 184. MIGLIAZZA M., Profili internazionali ed europei del diritto all’informazione e alla

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riservatezza, (International and European Legal Aspects of the Right of Information and Privacy), Milano, 2004, pp. 222. MOROZZO DELLA ROCCA P., “Il principio di dignità della persona umana nella società globalizzata” (The Principle of Human Dignity in the Globalized World), Democrazia e diritto, 2004, p. 195 ff. NOBILE M., “Donne e diritti umani” (Women and Human Rights), Notizie di Politeia, 2004, p. 35 ff. ODDENINO A., “Diritto umanitario, diritti umani e sanzioni economiche: rapporti, problematiche e paradossi” (Humanitarian Law, Human Rights and Economic Sanctions: Relationships, Problems and Paradoxes), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 201 ff. PALOMBELLA G., “La tutela dei diritti, le discriminazioni, l’uguaglianza. Dai diritti umani ai diritti fondamentali” (Protection of Rights, Discriminations, Equality. From Human Rights to Fundamental Rights), Ragion Pratica, 2004, p. 381 ff. PISILLO MAZZESCHI R., Esaurimento dei ricorsi interni e diritti umani (Exhaustion of Domestic Remedies and Human Rights), Torino, 2004, pp. 300. POCAR F., “Tutela dei diritti fondamentali e livelli di protezione nell’ordinamento internazionale” (Protection of Fundamental Rights and Levels of Protection in the International Legal Order), in BILANCIA P. and DE MARCO E. (eds.), La tutela multilivello dei diritti umani, Milano, 2004, p. 1 ff. PORRO G., “La Comunità internazionale e la tutela dei diritti umani” (The International Community and Protection of Human Rights), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 3 ff. RAIMONDI G., “Garanzie del giusto processo in relazione ai meccanismi di cooperazione giudiziaria internazionale” (Guarantees of Fair Process Concerning Mechanisms of International Judicial Cooperation), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 185 ff. RAIMONDO F., “Il diritto non cade in prescrizione: I ‘desaparecidos’ italoargentini. I diritti umani tra negazione e internazionalizzazione” (Law Cannot Fall in Prescription: Italo-Argentinian Desaparecidos. Human Rights between Denial and Internationalisation), EJIL, 2004, p. 1054 ff. SALERNO F., “Evoluzione e determinatezza del divieto di tratta nel diritto penale internazionale ed italiano” (Evolution and Determination of the Prohibition of Slave Trade in International and Italian Criminal Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2107 ff. SPATAFORA E.G., “Pena di morte e diritti dell’uomo nell’accordo tra l’Unione europea e gli Stati Uniti d’America sull’estradizione” (Death Penalty and Human Rights in the EU-US Agreement on Extradition), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 51 ff. ZAGATO L., “Nuovo ruolo di alcune clausole di salvaguardia dopo l’11 settembre” (The New Role of Certain Safeguard Clauses after September 11), in Studi di


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diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2323 ff. ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo (Judicial Cooperation in Criminal Matters and Human Rights), Torino, 2004, pp. 360. ZANGHÌ C. and VASAK K. (eds.), Le droit fondamental à l’éducation. Les droits et les obligations decoulant des instruments internationaux (The Fundamental Right to Education. Rights and Obligations Stemming from International Instruments), Torino, 2004, pp. 288.

2. INTERNATIONAL HUMAN RIGHTS CASSESE A., “Are International Human Rights Treaties and Customary Rules on Torture Binding upon US Troops in Iraq?”, JICJ, 2004, p. 872 ff. CONDORELLI L. and DE SENA P., “The Relevance of Obligations Flowing from the UN Covenant on Civil and Political Rights to US Courts Dealing with Guantánamo Detainees”, JICJ, 2004, p. 107 ff. DE SANCTIS F., “The Practice of National and International Courts on Transnational Seizure: Is a Fair Balance between Human Rights and Accountability Possible?”, Netherlands Quarterly of Human Rights, 2004, p. 529 ff. DIOTALLEVI G., “La riduzione in schiavitù: un fenomeno antico ancora attuale” (The Reduction to Slavery: An Ancient Plague still Present), Diritto, immigrazione e cittadinanza, 2004, p. 64 ff. LANZI A. and SCOVAZZI T., “Una dubbia repressione della tortura e di altri gravi crimini di guerra” (A Dubious Repression of Torture and of Other Gross War Crimes), RDI, 2004, p. 685 ff. LENZERINI F., “Diritti dei lavoratori, nuove forme di schiavitù e commercio internazionale” (Workers’ Rights, New Forms of Slavery and International Trade), Il diritto del lavoro, 2004, p. 121 ff. SACCUCCI A., “Il Protocollo istitutivo della Corte Africana dei Diritti dell’Uomo e dei Popoli: un primo confronto con le Corti regionali” (The Protocol Establishing the African Court of Human and Peoples’ Rights: A Comparison with Regional Courts), RDI, 2004, p. 1036 ff. SAULLE M.R., “La Convenzione delle Nazioni Unite sui diritti del bambino e la sua applicazione negli ordinamenti interni con particolare riferimento all’ordinamento italiano” (The UN Convention on Child’s Rights and Its Application within National Legal Orders with Particular Attention to the Italian Legal Order), Affari sociali internazionali, 2004, p. 75 ff. SCISO E., “Guerra al terrorismo globale e garanzie non comprimibili dei diritti umani fondamentali: l’opinione della Corte Suprema degli Stati Uniti” (War to Global Terrorism and Guarantees for Fundamental Human Rights: The Position of the Supreme Court of the United States), RDI, 2004, p. 752 ff.

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SPATAFORA E.G., “Pena di morte e diritti dell’uomo nell’accordo tra l’UE e gli USA sull’estradizione” (Death Penalty and Human Rights in the EU-US Agreement on Extradition), RCGI, 2004, p. 28 ff. TARBASSI L., “The First OPCW Review Conference of the Chemical Weapons Convention”, YIHL, 2002, p. 407 ff.

3. EUROPEAN SYSTEM BARBISAN B., “Il ‘new judicial federalism’ negli Stati Uniti e la Corte Europea di Strasburgo in un caso sulla libertà sessuale degli omosessuali” (The ‘New Judicial Federalism’ in the US and the Decision of the European Court of Human Rights Concerning the Sexual Freedom of Homosexuals), DPCE, 2004, p. 179 ff. BULTRINI A., La pluralità dei meccanismi di tutela dei diritti dell’uomo in Europa (The Plurality of Mechanisms of Human Rights Protection in Europe), Torino, 2004, pp. 376. CIRILLO L. and DEL CORVO A., “La giurisprudenza della Corte europea dei diritti dell’uomo in materia di diritti del minore in ambito processual-penalistico” (The Case-Law of the European Court of Human Rights Relating to the Rights of Minors in the Context of Criminal Procedure), Cassazione penale, 2004, p. 1800 ff. DIDONE A., “Il nuovo processo societario e la Convenzione europea dei diritti dell’uomo” (The New Company Law’s Trial and the European Convention on Human Rights), Giur. It., 2004, p. 488 ff. DIDONE A., “La Cassazione, la legge Pinto e la Convenzione Europea dei Diritti dell’Uomo” (The Court of Cassation, the Pinto Law and the European Convention on Human Rights), Giur. It., 2004, p. 954 ff. FASCIGLIONE M., “Verso un allineamento della Suprema Corte alle posizioni della Corte di Strasburgo in tema di durata ragionevole del processo” (Towards an Alignment of the Positions of the Italian Supreme Court and of the Strasbourg Court in matters of Reasonable Length of Trial), Giur. It., 2004, p. 1147 ff. GRANATA S., “Review of Judgments and Decisions Delivered by the European Court of Human Rights in 2003 in Subjects Relevant to International Law”, IYIL, 2003, p. 207 ff. GRIGOLO M., “Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject”, EJIL, 2004, p. 1023 ff. GUARNERI G., “Il caso ‘Soering’ davanti alla Corte europea dei diritti dell’uomo” (The Soering Case before the European Court of Human Rights), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 93 ff. LATTANZI F., “Diritti di difesa nella Convenzione europea dei diritti dell’uomo e nella giurisprudenza della Corte” (Defence Rights in the European Convention


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of Human Rights and in the Jurisprudence of the Court), in La sentenza della Corte europea dei diritti dell’uomo del 20 luglio 2001, Milano, 2001, p. 31 ff. MIRATE S., “L’applicabilità dell’art. 6, par. 1, CEDU al processo amministrativo secondo la giurisprudenza della Corte Europea dei Diritti dell’Uomo” (The Applicability of Article 6, para. 1, ECHR to Administrative Trial According to the Case-Law of the European Court of Human Rights), RIDPC, 2004, p. 119 ff. PADELLETTI M.L., “Le sezioni unite correggono la rotta: verso un’interpretazione della legge Pinto conforme alle decisioni della Corte europea dei diritti dell’uomo” (The United Sections of the Italian Court of Cassation Moves Towards an Interpretation of the Pinto Law in Accordance with the Decisions of the European Court of Human Rights), RDI, 2004, p. 452 ff. PAPA A., “Brevi considerazioni sulla tutela del diritto alla ragionevole durata del processo tra giudici nazionali e Corte europea dei diritti dell’uomo” (Brief Remarks on the Right to Reasonable Lenght of the Process between National Judges and the European Court of Human Rights), in BILANCIA P. and DE MARCO E. (eds.), La tutela multilivello dei diritti umani, Milano, 2004, p. 303 ff. PIRRONE P., L’obbligo di conformarsi alle sentenze della Corte europea dei diritti dell’uomo (The Obligation to Comply with the Decisions of the European Court of Human Rights), Milano, 2004, pp. 284. SACCUCCI A., “Il caso Mamatkulov dinanzi alla Corte europea dei diritti umani: un problematico revirement in tema di efficacia delle misure provvisorie” (The Mamatkulov Case Before the European Court of Human Rights: A Problematic Shift in matters of Efficacy of Provisional Measures), RDI, 2004, p. 70 ff. SALERNO F., “Il processo matrimoniale canonico documentale e le decisioni della Corte di Strasburgo” (The Canonic Documental Marriage Process and the Decisions of the Strasbourg Court), in La sentenza della Corte europea dei diritti dell’uomo del 20 luglio 2001, Milano, 2001, p. 265 ff. SAULLE M.R., “I diritti della famiglia della giurisprudenza della Corte Europea dei Diritti dell’Uomo” (Family Rights in the Case-Law of the European Court of Human Rights), Rivista di studi politici internazionali, 2004, p. 619 ff. SAVARESE E., “Il Protocollo n. 14 della Convenzione europea dei diritti dell’uomo” (Protocol No. 14 to the European Convention on Human Rights), RDI, 2004, p. 714 ff. SEATZU F., “Sulla detenzione ed il trattamento sanitario coattivo di soggetti malati di mente alla luce della Convenzione europea dei diritti dell’uomo” (Detention and Mandatory Sanitary Treatment for Mentally Ill Persons in the Light of the European Convention on Human Rights), RCGI, 2004, p. 40 ff. TAMIETTI A., “Applicazione diretta delle disposizioni convenzionali e previo esaurimento delle vie di ricorso interne nella giurisprudenza della Corte di Cassazione italiana e della Corte Europea dei Diritti dell’Uomo” (Direct Applicability of Conventional Provisions and Exhaustion of Domestic Remedies in the Case-Law of both the Italian Court of Cassation and the European Court of Human Rights), Cassazione penale, 2004, p. 4265 ff.

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TAMIETTI A., “Cumulo di funzioni ed imparzialità degli organi giudiziari: il differente approccio della Corte europea dei diritti dell’uomo e della Corte costituzionale italiana” (Accumulation of Functions and Impartiality of Judicial Organs: The Different Approach of the European Court of Human Rights and of the Italian Constitutional Court), Cassazione penale, 2004, p. 2996 ff. VILLANI U., “Diritti fondamentali tra Carta di Nizza, Convenzione europea dei diritti dell’uomo e progetto di Costituzione europea” (Fundamental Rights among the Charter of Nice, the European Convention on Human Rights and the Draft European Constitution), DUE, 2004, p. 73 ff. VILLANI U., “Il Protocollo 14 della Convenzione Europea dei Diritti dell’Uomo” (Protocol No. 14 to the European Convention of Human Rights), CI, 2004, p. 487 ff. ZAGREBELSKI V., “I giudici nazionali, la Convenzione e la Corte europea dei diritti umani” (National Judges, the Convention and the European Court of Human Rights), in BILANCIA P. and DE MARCO E. (eds.), La tutela multilivello dei diritti umani, Milano, 2004, p. 99 ff. ZANGHÌ C., “Le Sezioni Unite risolvono il contrasto fra la Cassazione e la Corte europea dei diritti dell’uomo” (The United Sections (of the Italian Court of Cassation) Settle the Conflict between the Court of Cassation and the European Court of Human Rights), RCGI, 2004, p. 7 ff.

4. BIOETHICS CAMPIGLIO C., “Eugenetica e diritto internazionale” (Eugenetics and International Law), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 453 ff. CAMPIGLIO C., Procreazione assistita e famiglia nel diritto internazionale (Medically Assisted Procreation and Family in International Law), Padova, 2004, pp. 348. CAMPIGLIO C., “Procreazione assistita: regole italiane e internazionali a confronto” (Italian and International Rules on Assisted Reproduction: A Comparison), RDIPP, 2004, p. 531 ff. FRANCIONI F., “Qualche considerazione su valori etici, scienza e tecnologia” (Some Considerations in matters of Ethics, Science and Technology), Rivista di studi politici internazionali, 2004, p. 567 ff. MARCHISIO S., “L’attuazione in Italia della direttiva sulla brevettivibilità delle biotecnologie” (The Implementation in Italy of the EC Directive on Patentability of Biotechnologies), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 437 ff. NESI G., “Il divieto di clonazione di esseri umani. Recenti dibattiti in ambito Nazioni Unite” (The Prohibition of Human Clonation. Recent Debates within the United Nations), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 447 ff.


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RUBINACCI C., “Bioetica e diritti umani: una sfida per l’istruzione nella società globale” (Bioethics and Human Rights: A Challenge for Education in the Global Community), Affari sociali internazionali, 2004, p. 165 ff. TANCREDI A., “Genetica umana ed altre biotecnologie nel diritto comunitario ed europeo” (Human Genetics and Other Biotechnologies in European Law), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 381 ff.

5. MINORITIES AND INDIGENOUS PEOPLES CONETTI G., Studio sulle minoranze nel diritto internazionale (A Study on Minorities in International Law), Parma, 2004, pp. 261. PENTASSUGLIA G., “Minority Issues as a Challenge in the European Court of Human Rights: A Comparison with the Case Law of the United Nations Human Rights Committee”, GYIL, 2003, p. 401 ff.

XII. INTERNATIONAL CRIMINAL LAW ACQUAVIVA G., “Il Tribunale per la ex-Iugoslavia: bilancio e sfide a dieci anni dalla sua istituzione” (The International Criminal Tribunal for the Former Yugoslavia: Appraisal and Challenges Ten Years after Its Institution), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 29 ff. ACQUAVIVA G., “Unlawful Transfer, Unlawful Labour, Plunder, and Prosecution: The State of the Law in Prosecutor v. Maletilic and Martinovic”, The Global Community, 2004, p. 145 ff. ARCARI M., “Tribunali penali ad hoc, Corte Penale Internazionale e Consiglio di Sicurezza delle Nazioni Unite” (Ad Hoc Criminal Tribunals, International Criminal Court and UN Security Council), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 3 ff. BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, pp. 549. BIANCHI A., “Enforcing International Law Norms against Terrorism: Achievements and Prospects”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 491 ff. CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale (From the International Criminal Tribunal for the Former Yugoslavia to the International Criminal Court), Milano, 2004, pp. 446. CARCANO A., “Requests for Review in the Practice of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda”, Leiden JIL, 2004, p. 103 ff.

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CARCANO A., “The ICTY Appeals Chamber’s Nikolić Decision on Legality of Arrest: Can an International Criminal Court Assert Jurisdiction over Illegally Seized Offenders?”, IYIL, 2003, p. 77 ff. CASSESE A., “Black Letter Lawyering v. Constructive Interpretation: The Vasiljević case”, JICJ, 2004, p. 265 ff. CASSESE A., “International Criminal Law”, GYIL, 2003, p. 772 ff. CASSESE A., “State Sovereignity v. International Criminal Justice”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 25 ff. CASSESE A., “Terrorism as an International Crime”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 213 ff. CASSESE A., “The ICTY: A Living and Vital Reality”, JICJ, 2004, p. 585 ff. CASSESE A., “The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty”, JICJ, 2004, p. 1130 ff. CASTELLANETA M., “Limiti della primazia del Tribunale penale internazionale per il Ruanda in materia di esecuzione delle sentenze e di concessione della grazia” (Limits of the Primacy of the International Criminal Tribunal for Rwanda with regard to Execution of Judgements and the Grant of Pardons), RDI, 2004, p. 463 ff. CATANI L., “I primi passi della Corte penale internazionale” (The First Steps of the International Criminal Court), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 57 ff. CIAMPI A., “Crimini internazionali e giurisdizione” (International Crimes and Jurisdiction), Cassazione penale, 2004, p. 2656 ff. CIAMPI A., “The International Criminal Court”, The Law and Practice of International Courts and Tribunals, 2004, p. 143 ff. CONDORELLI L., “Conclusions générales” (General Conclusions), in POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 149 ff. CONSO G., “Riflessioni sul futuro della Corte criminale internazionale” (Remarks on the Future of the International Criminal Court), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 215 ff. DE SANCTIS F., “L’arresto internazionale contro Charles Taylor” (The International Arrest Warrant against Charles Taylor), Giustizia penale, 2004, p. 153 ff. DE SANCTIS F., “L’immunità dalla giurisdizione nelle Corti penali internazionali: il caso Taylor e la Corte speciale per la Sierra Leone” (Immunity from Jurisdiction before International Criminal Courts: The Taylor Case and the Special Court for Sierra Leone), CI, 2004, p. 693 ff. DE VITTOR F., “La partecipazione del pubblico ufficiale quale elemento della definizione del crimine di tortura: in margine al caso Kunarac” (Participation of the State Agent as a Key Element for the Definition of the Crime of Torture: The Kunarac Case), RDI, 2004, p. 427 ff.


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DRAETTA U., “The Internet and Terrorist Activities”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 453 ff. FORNARI M., “Stati Uniti, Unione europea e competenza della Corte penale internazionale” (The United States, the European Union and the Competence of the International Criminal Court), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 107 ff. FRULLI M., “The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities?”, JICJ, 2004, p. 1118 ff. GAETA P., “Is the Practice of ‘Self-Referrals’ a Sound Start for the ICC?”, JICJ, 2004, p. 949 ff. GAETA P., “May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?”, JICJ, 2004, p. 785 ff. GAETA P., “National Prosecution of International Crimes”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1923 ff. GAJA G., “The Respective Roles of the ICC and the Security Council in Determining the Existence of an Aggression”, in POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 119 ff. GATTINI A., “Kelsen’s Contribution to International Criminal Law”, JICJ, 2004, p. 795 ff. GIOIA A., “Terrorismo internazionale, crimini di guerra e crimini contro l’umanità” (International Terrorism, War Crimes and Crimes against Humanity), RDI, 2004, pp. 5 ff. GREPPI E., “Qualche riflessione su ordine superiore e responsabilità dell’individuo nei crimini internazionali” (Some Reflections on Superior Order and Individual Responsibility in International Crimes), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1945 ff. LEANZA U., “The Historical Background”, in POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 1 ff. MORI P., “Il Tribunale speciale iracheno per i crimini contro l’umanità: quale giustizia?” (The Special Iraqi Tribunal for Crimes against Humanity: Which Justice?), RDI, 2004, p. 458 ff. NESI G., “An Outsider View”, in POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 163 ff. PALOMBINO F.M., “Il potere inerente di riesame dei Tribunali internazionali: in margine al caso Celibici” (The Inherent Power of Review of International Tribunals: Remarks on the Celibici Case), CI, 2004, p. 707 ff. PANELLA L., “La risposta giudiziaria al terrorismo: giusto equilibrio tra giustiziabilità e protezione dei diritti dell’uomo” (The Judicial Response to Terrorism: The Right Balance between Justiciability and Human Rights Protection), in

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ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 23 ff. PIACENTE N., “Importance of the Joint Enterprise Doctrine for the ICTY Prosecutorial Policy”, JICJ, 2004, p. 446 ff. PINESCHI L., “Forze delle Nazioni Unite e obblighi di cooperazione con i Tribunali penali ad hoc in materia di testimonianza” (UN Forces and Obligations of Cooperation with Ad Hoc Criminal Tribunals Concerning Witnesses), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1647 ff. PISCIOTTA L., “Quale giudice per i crimini di aggressione?” (Which Judge for the Crime of Aggression?), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 87 ff. POCAR F., “The Proliferation of International Criminal Courts and Tribunals: A Necessity in the Current International Community”, JICJ, 2004, p. 304 ff. POLITI M., “The Debate Within the Preparatory Commission for the International Criminal Court”, in POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 41 ff. POLITI M. and NESI G. (eds.), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, pp. 193. PORCHIA O., “La Corte penale internazionale e il sistema delle Nazioni Unite: tra punizione dei crimini collettivi e sicurezza collettiva” (The International Criminal Court and the UN System: Between Punishment of Collective Crimes and Collective Security), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 35 ff. RIVELLO R., “Le operazioni militari all’estero e le fonti del diritto internazionale penale” (Military Operations Abroad and the Sources of International Criminal Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 67 ff. ROMANO C.P.R. et al. (eds.), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia, Oxford, 2004, pp. 500. SCALAMBRINO M., “Fighting against International Terrorism: The Latin American Response”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 163 ff. SCOVAZZI T., “I crimini di guerra e la giustizia dei vincitori” (War Crimes and Victors’ Justice), Affari esteri, 2004, p. 616 ff. SCOVAZZI T., “La repressione internazionale dei crimini di guerra: alcune divagazioni sul tema della giustizia dei vincitori” (The International Repression of War Crimes: Some Remarks on the Topic of Victors’ Justice), in CALVETTI G. and SCOVAZZI T. (eds.), Dal Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004, p. 125 ff. TURONE G., “The Denial of the Accused’s Right to Make Unsworn Statements in Delalić”, JICJ, 2004, p. 455 ff. VIERUCCI L., “Is the Geneva Convention on Prisoners of War Obsolete? The Views


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of the Counsel to the US President on the Application of International Law to the Afghan Conflict”, JICJ, 2004, p. 866 ff. VIERUCCI L., “The European Arrest Warrant: An Additional Tool for Prosecuting ICC Crimes”, JICJ, 2004, p. 275 ff. ZAPPALÀ S., “Human Rights in International Criminal Proceedings”, GYIL, 2003, p. 827 ff. ZAPPALÀ S., “L’universalità della giurisdizione sui crimini internazionali: ‘Dittatura dei virtuosi’ o tutela diffusa di valori universali?” (The Universality of Jurisdiction on International Crimes: “Virtuous Dictatorship” or Widespread Protection of Universal Values?), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 309 ff. ZAPPALÀ S., “The Iraqi Special Tribunal’s Draft Rules of Procedure and Evidence: Neither Fish nor Fowl?”, JICJ, 2004, p. 855 ff. ZAPPALÀ S., “The Prosecutor’s Duty to Disclose Exculpatory Materials and the Recent Amendement to Rule 68 ICTY RPE”, JICJ, 2004, p. 620 ff. ZOLO D., “Peace through Criminal Law?”, JICJ, 2004, p. 727 ff. ZOLO D., “The Iraqi Special Tribunal: Back to the Nuremberg Paradigm?”, JICJ, 2004, p. 313 ff.

XIII. INTERNATIONAL RESPONSIBILITY 1. STATE RESPONSIBILITY BONAFÉ B.I., “Imputazione all’individuo di crimini internazionali e immunità dell’organo” (Indictment of Individuals for International Crimes and Immunity of State Organs), RDI, 2004, p. 393 ff. CASSESE A., “Are International Human Rights Treaties and Customary Rules on Torture Binding upon US Troops in Iraq?”, JICJ, 2004, p. 872 ff. CONFORTI B., “Reflections on State Responsibility for Breach of Positive Obligations: The Case-Law of the European Court of Human Rights”, IYIL, 2003, p. 3 ff. CONFORTI B., “Exploring the Strasbourg Case-Law: Reflections on State Responsibility for the Breach of Positive Obligations”, in FITZMAURICE M. and SAROOSHI D. (eds.), Issues of State Responsibility before International Judicial Institutions, Oxford, 2004, p. 129 ff. CORTESE B., “International Economic Sanctions as a Component of Public Policy for Conflict-of-Laws Purposes”, in PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in International Law, Leiden, 2004, p. 717 ff. FOIS P., “Sul rapporto tra i crimini internazionali dello Stato e i crimini internazionali dell’individuo” (On the Relationship between International Crimes of States and International Crimes of Individuals), RDI, 2004, p. 929 ff. FRULLI M., “The Question of Charles Taylor’s Immunity”, JICJ, 2004, p. 855 ff.

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GAJA G., “How Does the European Community’s International Responsibility Relate to Its Exclusive Competence?”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 747 ff. GAJA G., “In tema di reazione alle violazioni di obblighi erga omnes” (Reactions to Violations of Erga Omnes Obligations), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 43 ff. GIANELLI A., “Crimini internazionali ed immunità degli Stati dalla giurisdizione nella sentenza Ferrini” (International Crimes and State Immunity from Jurisdiction According to the Ferrini Case), RDI, 2004, p. 643 ff. GIANELLI A., “Aspects of the Relationship between the Law of Treaties and State Responsibility”, in Studi di diritto internazionale in onore di Gaetano ArangioRuiz, Vol. II, Napoli, 2004, p. 757 ff. GIARDINA A., “Responsabilità internazionale, esaurimento dei mezzi interni di ricorso e carattere sussidiario della tutela internazionale dei diritti dell’uomo” (International Responsibility, Exhaustion of Local Remedies and Subsidiary Character of International Human Rights Protection), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1019 ff. MARCHESI A., “The Distinction between Obligations of Conduct and Obligations of Result following its Deletion from the Draft Articles on State Responsibility”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 827 ff. PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in International Law, Leiden, 2004, pp. 868. PICCHIO FORLATI L., “The Legal Core of International Economic Sanctions”, in PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in International Law, Leiden, 2004, p. 99 ff.

XIV. INTERNATIONAL DISPUTE SETTLEMENT BERLINGIERI F., “Trasporto marittimo e arbitrato” (Maritime Transport and Arbitration), in Forme di tutela e profili sostanziali nel diritto marittimo contemporaneo, l’arbitrato marittimo internazionale nel terzo millennio. Tavola rotonda internazionale. Venezia, 7 novembre 2003, DM, 2004, p. 423 ff. CARBONE S.M., “Il caso del Cermis” (The Cermis Case), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 663 ff. CARLEVARIS A., “L’obbligo di versamento dell’anticipo sulle spese dell’arbitrato nella recente prassi internazionale” (The Obligation to Pay in Advance a Portion of the Arbitration Fees in Recent International Practice), DCI, 2004, p. 991 ff. DEL VECCHIO A., “Nuovi profili della giurisdizione internazionale” (New Aspects of International Adjudication), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 971 ff.


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DI PIETRO D., “Incorporation of Arbitration Clauses by Reference”, Journal of International Arbitration, 2004, p. 439 ff. FOIS P., “Il nuovo ordine internazionale, il regionalismo e la soluzione pacifica delle controversie” (The New International Legal Order, Regionalism and Peaceful Settlement of Disputes), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 997 ff. GAJA G., “Natura dell’‘arbitrato rituale’ e Convenzione di New York” (The Nature of the Italian Code of Civil Procedure’s Arbitration and the New York Convention), Rivista dell’arbitrato, 2004, p. 411 ff. GALIZZI P., “International Court of Justice (ICJ)”, YIEL, 2003, p. 606 ff. GATTINI A., “La legittima difesa nel nuovo secolo: la sentenza della Corte internazionale di giustizia nell’affare delle piattaforme petrolifere” (Self-Defence in the New Century: The Decision of the International Court of Justice in the Oil Platform Case), RDI, 2004, p. 147 ff. LAUDISA L., “Arbitrato internazionale e ordine pubblico” (International Arbitration and Public Order), Rivista dell’arbitrato, 2004, p. 857 ff. NAZZINI R., “International Arbitration and Public Enforcement of Competition Law”, ECLR, 2004, p. 153 ff. PALMISANO G., “Reflections on ‘Directed’ Conciliation in a Conflict Prevention Perspective”, in Studi di diritto internazionale in onore di Gaetano ArangioRuiz, Vol. II, Napoli, 2004, p. 1095 ff. PARRA A.R., “The New Amendments to the ICSID Regulations and Rules and Additional Facility Rules”, The Law and Practice of International Courts and Tribunals, 2004, p. 181 ff. PEDRAZZI M., “Uguaglianza della parti e contraddittorio nel processo internazionale” (Equality of Parties and Hearing Rights in the International Process), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1129 ff. SACERDOTI G., “Investement Arbitration under ICSID and UNCITRAL Rules: Prerequisites, Applicable Law, Review of Awards”, ICSID Review-Foreign Investment Law Journal, 2004, p. 1 ff. SAVARESE E., “Il concorso di giurisdizioni nelle controversie tra Stati e privati in materia d’investimenti: a proposito di due contrastanti sentenze dell’ICSID” (Concurrent Jurisdictions in the Disputes among States and Private Operators relating to Investments: Remarks on Two Conflicting ICSID Decisions), DCI, 2004, p. 955 ff. TREVES T., “Provisional Measures Granted by an International Tribunal pending the Constitution of an Arbitral Tribunal”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1243 ff. TREVES T., FRIGESSI DI RATTALMA M., TANZI A., FODELLA A. and PITEA C. (eds.), Civil Society, International Courts and Compliance Bodies, Cambridge, 2005, pp. 338.

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XV. COOPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. ECONOMIC AND FINANCIAL CO-OPERATION CADIN R., CARLETTI C. and SPATAFORA E., Sviluppo e diritti umani nella cooperazione internazionale. Lezioni sulla cooperazione internazionale per lo sviluppo umano (Development and Human Rights in International Cooperation. Lessons on International Cooperation for Human Development), Torino, 2004, pp. 276. CANTONI S., Cooperazione multilaterale e finanziamento allo sviluppo (Multilateral Cooperation and Funding of Development), Napoli, 2004, pp. 314. GIUFFRIDA R., “Lo sviluppo sostenibile” (Sustainable Development), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1039 ff. MARCELLI F., Il debito estero dei paesi in via di sviluppo nel diritto internazionale (Foreign Debt of Developing Countries in International Law), Milano, 2004, pp. 186. NANETTI F. and SQUILLANTE F., “Recenti sviluppi dell’ordinamento internazionale in materia di concorrenza fiscale dannosa” (Recent Developments in the International Legal Order Concerning Harmful Fiscal Competition), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2263 ff. TOSATO G.L., “The Monetary Constitution of the International Community since the Second World War”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1443 ff. VISMARA F., Profili internazionali dell’imposizione tributaria (International Aspects of Fiscal Obligations), Milano, 2004, pp. 234.

2. JUDICIAL AND LEGAL CO-OPERATION AGRIMI M., “La cooperazione giudiziaria internazionale nella Convenzione di Palermo contro il crimine organizzato transnazionale e la tutela dei diritti umani” (International Judicial Cooperation in the Palermo Convention against Transnational Organized Crime and Human Rights Protection), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 73 ff. BORRELLI S., “The Rendition of Terrorist Suspects to the United States: Human Rights and the Limits of International Cooperation”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 331 ff. CARTA M., “Gli obblighi di cooperazione giudiziaria degli Stati con le giurisdizioni penali internazionali e la tutela dei diritti dell’uomo” (State Obligations


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of Judicial Cooperation with International Criminal Jurisdictions and Human Rights), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 287 ff. CIATTAGLIA F., “Lotta al terrorismo, cooperazione penale e diritti umani nella recente prassi interamericana” (The Fight against Terrorism, Criminal Cooperation and Human Rights in the Recent Inter-American Practice), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 123 ff. GARDELLA A., “The Fight against the Financing of Terrorism between Judicial and Regulatory Cooperation”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 415 ff. LAURÀ M.C., “Cooperazione giudiziaria e Comitato ONU dei diritti dell’uomo: la comunicazione n. 470/1991” (Judicial Cooperation and UN Human Rights Committee: Communication No. 470/1991), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 97 ff. MAZZA R., “Recenti sviluppi nella repressione internazionale dei crimini informatici: la Convenzione di Budapest del 2001” (Recent International Developments against Cybercrime: The 2001 Budapest Convention), CI, 2004, p. 91 ff. PARISI N., “Brief Remarks on Judicial Co-operation in Criminal Matters and the Rights of Individuals in the Light of International and Domestic Praxis”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2081 ff. PERRINI F., “Il tentativo del Consiglio d’Europa di tutelare i diritti umani nell’ambito della cooperazione giudiziaria nella lotta al terrorismo” (The Attempt of the Council of Europe to Protect Human Rights in the Context of Judicial Cooperation against Terrorism), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 109 ff. PISANI M., MOSCONI F. and VIGONI D., Codice delle convenzioni di estradizione e di assistenza giudiziaria in materia penale (Code of the Conventions on Extradition and Judicial Assistance in Criminal Matters), Milano, 2004, pp. 1130. POCAR F., “Cooperazione penale internazionale e diritti fondamentali: i Tribunali penali internazionali” (International Criminal Cooperation and Fundamental Rights: The International Criminal Tribunals), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 177 ff. RADICATI DI BROZOLO L., “Freezing the Assets of International Terrorist Organizations”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 377 ff. REGGIO A., “Cooperation with the International Criminal Court and National Legal Systems: An Overview of the Implementing Legislation Enacted So Far”, The Global Community, 2004, p. 211 ff.

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STARACE V., “In tema di estradizione e revisione del processo, di innovazioni legislative riguardanti le rogatorie all’estero e di mandato di arresto europeo” (On Extradition, Process Revision, Legislative Innovations Concerning Rogatio, and the European Arrest Warrant), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 199 ff. VALVO A.L., “La Corte penale internazionale tra cooperazione giudiziaria e diritti dell’uomo” (The International Criminal Court between Judicial Cooperation and Human Rights), in ZANGHÌ C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti dell’uomo, Torino, 2004, p. 251 ff. VIERUCCI L., “The European Arrest Warrant”, JICJ, 2004, p. 275 ff.

3. MILITARY AND SECURITY MATTERS SINAGRA A., “La stabilità e la sicurezza nel mediterraneo orientale, la questione cipriota e il piano Annan” (Stability and Security in the Eastern Mediterranean, the Cypriot Issue and the Annan Plan), RCGI, 2004, p. 61 ff.

XVI. INTERNATIONAL TRADE LAW ACCONCI P., “Promoting Corporate Social Responsibility at an International Law Level” (Presented at the First Annual Forum on Business Ethics and Corporate Social Responsibility in a Global Economy. University of Milan, March 12 and 13, 2004), Notizie di politeia, 2004, p. 275 ff. ADINOLFI G., “La soluzione delle controversie nell’OMC e il contenzioso eurostatunitense” (Dispute Settlement in the WTO and the US-European Controversies), in VENTURINI G. (ed.), L’Organizzazione Mondiale del Commercio, 2nd ed., Milano, 2004, p. 191 ff. ALEMANNO A., “Judicial Enforcement of the WTO Hormones Ruling Within the European Community: Toward EC Liability for the Non-Implementation of WTO Dispute Settlement Decisions?”, Harvard ILJ, 2004, p. 547 ff. BALDI S., “Una realtà poco conosciuta: l’applicazione della Convenzione di New York in Cina” (Application of the New York Convention in China: A Little Known Issue), Rivista dell’arbitrato, 2004, p. 367 ff. BARONCINI E., “The WTO Dispute between Peru and the European Community on the EC Trade Description of Sardins”, The Global Community, 2004, p. 159 ff. BORGHI P., L’agricoltura nel Trattato di Marrakech. Prodotti agricoli e alimentari nel diritto del commercio internazionale (Agricolture in the Marrakech Treaty. Agricultural and Food Products in International Trade Law), Milano, 2004, pp. 220.


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CADIM R.M., “E’ più immorale o antigiuridico secondo il diritto internazionale copiare un brevetto o negare l’accesso ai farmaci essenziali ai malati di AIDS nei paesi poveri?” (According to International Law, Is It More Immoral or AntiJuridical Copying a Patent or Denying Accessibility to Essential Medicines to HIV Patients in Developing Countries?), RCGI, 2004, p. 40 ff. CHIMENTI V., “La rilevanza dei principi fondamentali OMC rispetto alla politica della concorrenza” (The Relevance of WTO General Principles with respect to Competition Policy), DCI, 2004, p. 891 ff. CONTALDI G., “Tutela delle invenzioni e accesso ai farmaci essenziali nell’Accordo TRIPS” (Legal Protection of Inventions and Access to Essential Medicines in the TRIPS Agreement), RDI, 2004, p. 955 ff. DI GASPARE G., “Globalizzazione, mercati finanziari ed investimenti in beni pubblici: spunti per un dibattito in corso” (Globalization, Financial Markets and Investments in Public Assets: Some Remarks), JUS, 2004, p. 179 ff. DORDI C., “Gli accordi sul commercio dei servizi” (The Agreements on Trade in Services), in VENTURINI G. (ed.), L’Organizzazione Mondiale del Commercio, 2nd ed., Milano, 2004, p. 65 ff. GALEOTTI M. and KEMFERT C., “Interactions between Climate and Trade Policies: A Survey”, JWT, 2004, p. 773 ff. GALGANO F. and MARRELLA F., Diritto del commercio internazionale (International Trade Law), Padova, 2004, pp. 621. GIOIA F., “Alicante and the Harmonization of Intellectual Property Law in Europe: Trade Marks and Beyond”, CML Rev., 2004, p. 975 ff. LA PECCERELLA C., “L’Accordo di Cotonou e gli accordi multilaterali dell’Organizzazione mondiale del commercio” (The Cotonou Agreement and the WTO Multilateral Agreements), DPCE, 2004, p. 1925 ff. LENZERINI F. and MONTINI M., “The Activity of the World Trade Organization (2003)”, IYIL, 2003, p. 189 ff. LUPONE A., “Gli aspetti della proprietà intellettuale attinenti al commercio internazionale” (Trade Related Aspects of Intellectual Property), in VENTURINI G. (ed.), L’Organizzazione mondiale del commercio, 2nd ed., Milano, 2004, p. 131 ff. MARTINES F., “Organizzazione mondiale del commercio e sovranità statale nella tutela di valori sociali” (WTO and State Sovereignty in the Protection of Social Values), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1341 ff. MENGOZZI P., “L’invocabilità in giudizio delle regole dell’Organizzazione mondiale del commercio e la giurisprudenza comunitaria” (The Possibility of Invoking WTO Rules in Legal Proceedings and EC Case-Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 551 ff. MUNARI F., “L’applicazione del GATS ai servizi di interesse generale” (GATS Application to Services of General Interest), DCI, 2004, p. 819 ff.

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PERFETTI A., “Sviluppi dell’antidumping nell’OMC: l’illiceità del metodo dello ‘zeroing’” (Developments in Anti-Dumping in the WTO Context: The Unlawfulness of the “Zeroing” Methodology), DCI, 2004, p. 935 ff. PERONI G., “La tutela degli interessi privati nel sistema OMC e il possibile concorso di giurisdizione con altri ordinamenti ad esso esterni” (The Protection of Individual Interests According to the WTO System and the Jurisdictional Competition with Other External Legal Orders), DCI, 2004, p. 725 ff. PITRUZZELLO S., “Trade Globalization, Economic Performance, and Social Protection: Nineteenth-Century British Laissez-Faire and Post-World War II US-Embedded Liberalism”, Int. Org., 2004, p. 705 ff. SEATZU F. and ROCCA A., “Reform, but not Revolution: The Access to Essential Medicines under the WTO Decision on Implementation of Paragraph 6 of the Doha Declaration”, DCI, 2004, p. 847 ff. TANCREDI A., “EC Practice in the WTO: How Wide is the ‘Scope for Manoeuvre’?”, EJIL, 2004, p. 933 ff. TRAMPETTI M., “Gli accordi d’integrazione economica regionale: tendenze e prospettive” (Regional Agreements for Economic Integration: Tendencies and Perspectives), Affari sociali internazionali, 2004, p. 9 ff. VANZETTI D. et al., “Blend It Like Beckham – Trying to Read the Ball in the WTO Negotiations on Industrial Tariffs”, JWT, 2004, p. 773 ff. VENTURINI G. (ed.), L’Organizzazione mondiale del commercio (The World Trade Organization), 2nd ed., Milano, 2004, pp. 600. VENTURINI G., “L’OMC e la disciplina degli scambi internazionali di merci” (The WTO and the Regulation of International Trade in Goods), in VENTURINI G. (ed.), L’Organizzazione mondiale del commercio, 2nd ed., Milano, 2004, p. 3 ff.

XVII. INTERNATIONAL ORGANIZATIONS 1. GENERAL GAZZINI T., “The Normative Element Inherent in Economic Collective Enforcement Measures: United Nations and European Union Practice”, in PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in International Law, Leiden, 2004, p. 279 ff. PARSI V.E., “Dalla global governance al multilateralismo” (From Global Governance to Multilateralism), CI, 2004, p. 475 ff. SCHIAVONE G., “International Organizations between Regionalization and Globalization at the Dawn of the 21st Century”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1403 ff.


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2. UNITED NATIONS AGO R., “L’Organizzazione internazionale dalla Società delle Nazioni alle Nazioni Unite” (International Organization from the League of Nations to the United Nations), CI, 2004, p. 505 ff. ARCARI M., “L’articolo 40 della Carta delle Nazioni Unite e le misure provvisorie del Consiglio di Sicurezza” (Article 40 of the UN Charter and Security Council Provisional Measures), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1476 ff. BALLADORE PALLIERI G. “Gli emendamenti allo statuto delle Nazioni Unite” (Amendments to the UN Statute), CI, 2004, p. 273 ff. BENEDETTI E., “Successione tra Stati ed appartenenza alle Nazioni Unite: il caso dell’ex Yugoslavia” (Succession of States and UN Membership: The Case of the Former Yugoslavia), RCGI, 2004, p. 81 ff. BOBBIO N., “Il ruolo dell’ONU nel nuovo assetto internazionale. Problemi giuridici, etici e politici in un mondo trasformato” (The Role of the UN in the New International Legal Order. Juridical, Ethical, and Political Problems in a Changed World), CI, 2004, p. 47 ff. BOBBIO N., “Nazioni Unite: bilancio critico di un quarantennio” (United Nations: Critical Assessment of the Last Forty Years), CI, 2004, p. 35 ff. BOSCO G., “L’accordo tra l’Italia e le Nazioni Unite per l’esecuzione delle sentenze del Tribunale Penale Internazionale per il Ruanda” (The Agreement between Italy and UN for the Execution of the Sentences of the International Tribunal for Rwanda), RCGI, 2004, p. 21 ff. DELLA FINA V., Il bilancio nel diritto delle Nazioni Unite (The Budget in UN Law), Milano, 2004, pp. 378. DI TURI C., “Le Nazioni Unite e la transizione politica in Iraq” (The UN and the Political Transition in Iraq), CI, 2004, p. 53 ff. FRATTINI F., “L’Italia e le Nazioni Unite” (Italy and the UN), CI, 2004, p. 403 ff. FRULLI M., “Il rigetto delle credenziali di governi non democratici da parte dell’Assemblea generale dell’ONU: uno strumento di tutela della democrazia?” (The Refusal of Credentials of Non Democratic Governments by the UN General Assembly: An Instrument for the Protection of Democracy?), in ORRÙ C. and SCIANELLA L.G. (eds.), Limitazioni di sovranità e processi di democratizzazione, Torino, 2004, p. 65 ff. MILANO E., “Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status”, EJIL, 2004, p. 999 ff. SCISO E., “La risoluzione 1511 del Consiglio di sicurezza: verso una ‘sanatoria’ dell’intervento contro l’Iraq?” (UN SC Resolution 1511: Towards an ‘Amnesty’ for the War against Iraq?), RDI, 2004, p. 171 ff. SEMINARA A., “La legittima difesa nello Statuto delle Nazioni Unite” (Self-Defence According to the UN Statute), Giustizia penale, 2004, p. 604 ff. STARITA M., “L’occupation de l’Iraq. Le Conseil de Sécurité, le droit de la guerre

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et le droit des peuples à disposer d’eux-mêmes” (The Occupation of Iraq. The Security Council, the Law of War, and the Peoples’ Right to Self-determination), RGDIP, 2004, p. 883 ff. TOSI G., “Alle origini della politica estera della Repubblica. L’Italia e la nascita dell’ONU” (At the Origins of the Italian Foreign Policy. Italy and the Establishment of the UN), CI, 2004, p. 419 ff.

3. NATO BELLINZONA C., “Quale futuro per la NATO? La proiezione dell’Alleanza in nuove aree di crisi: scenari per il vertice di Istanbul” (Which Future for NATO? The Attention of the Alliance for New Areas of Crisis: Scenarios for the Istanbul Summit), CI, 2004, p. 225 ff. GAZZINI T., “L’eredità problematica dell’Art. VII par. 8 della Convenzione tra le parti del Trattato Nord-Atlantico sullo statuto loro forze armate” (The Problematic Legacy of Art. VII para. 8 of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces), RDIPP, 2004, p. 1313 ff.

4. OTHER INTERNATIONAL ORGANIZATIONS VILLANI U., “La politica europea in materia di sicurezza e di difesa e i suoi rapporti con le Nazioni Unite” (The EU Common Foreign and Security Policy and Its Relationship with the United Nations), CI, 2004, p. 63 ff.

5. OTHER INTERNATIONAL AGENCIES BARBERINI G., Sicurezza e Cooperazione da Vancouver a Vladivostock. Introduzione allo studio dell’Organizzazione per la Sicurezza e la Cooperazione in Europa (OSCE), (Security and Cooperation from Vancouver to Vladivostock. Introduction to the Study of OSCE), 2nd ed., Torino, 2004, pp. 274. FUMAGALLI MERAVIGLIA M., Compliance Review nel Consiglio d’Europa (Compliance Review in the Council of Europe), Milano, 2004, pp. 306. PISTOIA E., “Il ruolo del Fondo monetario internazionale nella crisi economicofinanziaria dell’Argentina” (The Role of the International Monetary Fund in the Economic-Financial Crisis of Argentina), in ORRÙ C. and SCIANELLA L.G. (eds.), Limitazioni di sovranità e processi di democratizzazione, Torino, 2004, p. 185 ff. VIGNI P., “The Establishment of the Secretariat of the Antarctic Treaty”, IYIL, 2003, p. 147 ff.


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XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW 1. GENERAL BIANCHI A., “International Law and US Courts: The Myth of Lohengrin Revisited”, EJIL, 2004, p. 751 ff. BUQUICCHIO M., “Premesse ad uno studio sulle attività di rilievo internazionale di Comuni e Province (dopo la riforma del Titolo V della Costituzione)” (Comments on a Study Concerning the International Action of Municipalities and Provinces after the Reform of Title V of the Italian Constitution), Rassegna parlamentare, 2004, p. 517 ff. CONFORTI B., “Note sulle recenti modifiche della Costituzione italiana in tema di rispetto degli obblighi internazionali e comunitari” (Remarks on the Recent Amendments to the Italian Constitution Concerning Respect of International and EC Obligations), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 495 ff. FLORENZANO D., “Gli atti pattizi delle Regioni italiane nell’ambito delle attività di cooperazione trasfrontaliera alla luce del rinnovato quadro costituzionale” (The Agreements Undertaken by Italian Regions in the Context of Transnational Cooperation and in the Light of the Reform of Title V of the Italian Constitution), DPCE, 2004, p. 680 ff. FLORENZANO D., L’autonomia regionale nella dimensione internazionale. Dalle attività promozionali agli accordi ed alle intese (Regional Autonomy in the International Dimension. From ‘Promotional’ Activities to Agreements and Understandings), Padova, 2004, pp. 358. PANEBIANCO M., “Soft law e materie costituzionali” (Soft Law and Constitutional Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 183 ff. PARISI N., “Note sul concorrente ruolo di autorità esecutive e giudiziarie nell’esecuzione di obblighi internazionali in materia penale” (Observations on the Concurrent Role of Executive and Judicial Authorities in the Enforcement of International Obligations in Criminal Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 309 ff. PARODI G., “Il potere estero delle Regioni e delle Provincie autonome italiane” (The External Power of Italian Self-Governing Regions and Provinces), DPCE, 2004, p. 766 ff. PISTOIA E., “La questione del carattere self-executing o meno delle norme in materia di diritto penale adottate nel quadro del Terzo pilastro” (The Problem of the Self-Executing Nature of Norms on Criminal Matters Adopted in the Framework of the Third Pillar of the EU), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 593 ff.

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RONZITTI N., “L’adattamento dell’ordinamento italiano alle norme imperative del diritto internazionale” (The Incorporation into the Italian Legal Order of Peremptory Norms of International Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 633 ff. SCISO E., “I ‘nuovi’ poteri esterni delle Regioni” (The “New” External Powers of Italian Regions), CI, 2004, p. 659 ff. SEVERINI G., “Realtà internazionale e art. 11 della Costituzione Italiana” (International State of Affairs and Article 11 of the Italian Constitution), Rassegna parlamentare, 2004, p. 64 ff.

2. RELATIONSHIP BETWEEN HUMAN RIGHTS LAW AND DOMESTIC LAW CATALDI G., “In tema di applicazione delle norme consuetudinarie sui diritti umani nei giudizi interni” (On the Application of Customary Norms on Human Rights by Domestic Courts), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 441 ff.

3. RELATIONSHIP BETWEEN TREATY LAW AND DOMESTIC LAW ARREGHINI R., “La Carta europea delle lingue regionali o minoritarie e la sua peculiarità specifica” (The European Charter of Minority Languages and Its Peculiarities), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 227 ff. CARBONE S.M., “L’attuazione del diritto marittimo uniforme nell’ordinamento italiano tra codificazione e decodificazione” (The Implementation of Uniform Marittime Law in the Italian Legal Order between Codification and Decodification), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 153 ff. DEL TUFO M., “Problemi di adeguamento ai trattati internazionali in materia penale” (Problems Relating to the Implementation of International Treaties on Criminal Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 163 ff. NEGRI S., “Attuazione dei trattati di estradizione, divieto di applicazione della pena di morte e Costituzione italiana” (Implementation of Treaties on Extradition, Prohibition of Application of the Death Penalty and Italian Constitution), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 233 ff. ORIOLO A., “Ratifica e attuazione in Italia dello Statuto di Roma: questioni di compatibilità costituzionale e opportunità di un’armonizzazione legislativa” (Ratification and Implementation in Italy of the Rome Statute of the Inter-


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national Criminal Court: Issues of Constitutional Compatibility and Need for Legislative Harmonisation), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 265 ff. SCUDIERO M., “Trattati che regolano materie costituzionali” (Treaties on Constitutional Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 163 ff. VILLANI U., “Attuazione dei trattati che riguardano la mutua difesa e prevedono l’uso della forza” (Implementation of Treaties of Mutual Defence Contemplating the Use of Force), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 189 ff. ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria (Implementation of International Treaties and the Italian Constitution: A Priority Reform), Napoli, 2004, pp. 320. ZICCARDI CAPALDO G., “Verso una regolamentazione del rapporto tra ordinamento italiano e trattati internazionali. Contenuti di una riforma possibile dopo le modifiche al Titolo V della parte seconda della Costituzione” (Towards a Regulation of the Relationship between the Italian Legal Order and International Treaties. Contents for a Possibile Reform Following the Modifications to Title V of the Second Part of the Italian Constitution), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p 17 ff.

4. IMPLEMENTATION OF UN SANCTIONS PIRRONE P., “L’attuazione delle decisioni del Consiglio di Sicurezza tra ordinamento nazionale e ordinamento comunitario” (The Implementation of the Decisions of the Security Council between the Italian and EC Legal Orders), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 563 ff.

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING BARGIACCHI P., “Peace in Home and Peace in the World in the Thought and in the Political Action of Mustafà Kemal Ataturk”, RCGI, 2004, p. 23 ff. CANNIZZARO E., “Sui rapporti tra Consiglio di sicurezza e Assemblea generale nel campo del mantenimento della pace” (About the Relationship between the Security Council and the General Assembly in matters of Peace-Keeping), RDI, 2004, p. 1066 ff.

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CELLAMARE G., “Caratteri della Missione delle Nazioni Unite in Etiopia ed Eritrea (UNMEE)” (Features of the UN Mission in Ethiopia and Eritrea (UNMEE)), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1571 ff. DI PAOLA G., “Il ruolo delle forze armate italiane nell’ambito delle missioni internazionali” (The Role of Italian Armed Forces in the Context of International Peace-Keeping Operations), CI, 2004, p. 409 ff. FRULLI M., “Il ruolo (cessato) dell’Unione dell’Europa Occidentale alla luce della Carta delle Nazioni Unite” (The (Ceased) Role of the WEO in the Light of the UN Charter), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 343 ff. INGRAVALLO I., “L’azione internazionale per la ricostruzione dell’Afghanistan” (The International Action for the Reconstruction of Afghanistan), CI, 2004, p. 525 ff. LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo (Regional Organizations and Maintenance of Peace in the Practice of the End of the XX Century), Napoli, 2004, pp. 412. MARCHESI A., “Il ruolo dell’OUA nella prevenzione e gestione dei conflitti e brevi cenni alla cooperazione con le Nazioni Unite” (The OUA Role in the Prevention and Management of Conflicts and Brief Remarks on the Cooperation with the UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 33 ff. MARTINES F., “Il ruolo dell’Unione europea e suo coordinamento con le Nazioni Unite e con la UEO” (The Role of the European Union and Its Coordination with the UN and the WEO), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 377 ff. MINUTI A., “ASEAN e mantenimento della pace nel quadro del sistema Nazioni Unite” (ASEAN and Maintenance of Peace in the UN Framework), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 161 ff. NESI G., “La cooperazione fra OSCE e Nazioni Unite” (The Cooperation between OSCE and the UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 131 ff. ODONI M., “La partecipazione della NATO ad azioni per il mantenimento della pace realizzate ‘under the authority’ del Consiglio di Sicurezza” (NATO Participation to Peace-Keeping Operations Performed under the Authority of the Security Council), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 293 ff.


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PENSABENE F., “Le competeze e il ruolo della Lega degli Stati Arabi nella gestione delle crisi della regione anche alla luce della cooperazione con le Nazioni Unite” (Competences and Role of the Arab League of States in the Management of the Crisis in the Arabian Area also in the Light of the Cooperation with the UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 107 ff. PIRRONE P., “I rapporti tra Organizzazione degli Stati americani e Organizzazione delle Nazioni Unite” (The Relationship between OAS and UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 63 ff. PISTOIA E., “Prevenzione e gestione dei conflitti nella CSI e sistema delle Nazioni Unite” (Prevention and Management of Conflicts in the CIS and the UN System), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 235 ff. PORRETTO G., “Il raccordo fra Nazioni Unite e Comunità economica degli Stati dell’Africa occidentale (ECOWAS)” (The Link between the UN and the Economic Community of African States (ECOWAS)), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 181 ff. RONZITTI N., “The Legality of Covert Operations against Terrorism in Foreign States”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 17 ff. SANTORI V., “Il processo di democratizzazione in Kossovo dall’azione di Stati (e gruppi di Stati) a quella delle Nazioni Unite. Riflessi sulla sovranità e integrità territoriale della ex Repubblica federale di Jugoslavia oggi Unione di Serbia e Montenegro” (The Democratisation Process in Kosovo from State Action to UN Action. Impact on the Sovereignty and Territorial Integrity of the Former Republic of Yugoslavia, Now Serbia-Montenegro), in ORRÙ C. and SCIANELLA L.G. (eds.), Limitazioni di sovranità e processi di democratizzazione, Torino, 2004, p. 97 ff. SANTORI V., “The United Nations Interim Administration Mission in Kosovo and the Sovereignity and Territorial Integrity of the Federal Republic of Yugoslavia”, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1689 ff. SCOTTO G., “I bombardamenti a tutela delle zone di interdizione al volo in Iraq” (The Shelling for the Protection of No-Flying Zones in Iraq), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1723 ff. TANZI A., “Il ruolo delle organizzazioni regionali nel dibattito alle Nazioni Unite” (The Role of Regional Organizations in the UN Debate), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo, Napoli, 2004, p. 1 ff.

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VEDOVATO G., “SdN-ONU: Gestire la pace” (League of Nations-UN: Governing Peace), Rivista di studi politici internazionali, 2004, p. 625 ff.

XX. WAR, NEUTRALITY, AND DISARMAMENT 1. GENERAL BERNARDINI A., “Diritto e forza nel sistema internazionale” (Law and Force in the International System), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1527 ff. DE FIORES C., “Riforma dei codici militari e guerre di globalizzazione” (Reform of Military Codes and Wars of Globalization), Democrazia e diritto, 2004, p. 105 ff. DI BLASE A., “La ‘dottrina Bush’ e il diritto internazionale” (The ‘Bush Doctrine’ and International Law), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1587 ff. FRIGESSI DI RATTALMA M., “Qualche riflessione sull’azione bellica in Afghanistan e la legittima difesa” (Some Remarks on the Armed Action in Afghanistan and Self-Defence), in Studi di diritto internazionale in onore di Gaetano ArangioRuiz, Vol. III, Napoli, 2004, p. 1623 ff. FRIGESSI DI RATTALMA M., “War in Afghanistan, Self-Defence and Questions of Attribution of the September 11 Attacks to the Afghan-Taliban Regime”, IYIL, 2003, p. 59 ff. GIARDINA A., “Diritto internazionale e uso della forza” (International Law and Use of Force), in CARNEVALE P. (ed.), Guerra e Costituzione, Torino, 2004, p. 13 ff. IOVANE M. and DE VITTOR F., “La doctrine européenne et l’intervention en Iraq” (The European Doctrine and the Intervention in Iraq), AFDI, 2003, p. 17 ff. IOVANE M., “Il divieto dell’uso della forza armata tra obblighi degli Stati e diritto dei popoli alla pace” (The Prohibition of the Use of Armed Force between State Obligations and the Right of Peoples to Peace), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 79 ff. RONZITTI N., “La proibizione della forza armata e le sue eccezioni: lo stato del diritto dopo il conflitto iracheno” (The Prohibition of Armed Force and Its Exceptions: The State of Law after the Iraqi War), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 47 ff. RONZITTI N., “L’intervento in Iraq e il diritto internazionale” (The Intervention in Iraq and International Law), in COLOMBO A. and RONZITTI N. (eds.), L’Italia e la politica internazionale, Bologna, 2004, p. 67 ff. SCOVAZZI T., “La battaglia tra la Kearsage e l’Alabama” (The Battle between the Kearsage and the Alabama), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2169 ff.


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TANZI A., “Dike Versus Ares. Etica, diritto e uso della forza nelle relazioni internazionali” (Dike Versus Ares. Ethics, Law and Use of Force in International Relations), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 131 ff. VILLANI U., “L’uso unilaterale della forza per la tutela degli interessi fondamentali della Comunità internazionale” (The Unilateral Use of Force for the Protection of the Fundamental Interests of the International Community), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 55 ff. VILLANI U., “Legittima difesa e lotta al terrorismo nell’operazione ‘Enduring Freedom’” (Self-Defence and Fight against Terrorism in the Operation “Enduring Freedom”), in Studi di diritto internazionale in onore di Gaetano ArangioRuiz, Vol. III, Napoli, 2004, p. 1771 ff. ZICCARDI CAPALDO G., “Legality vs. Effectivity in the Global Community: The Overthrowing of Saddam Hussein”, The Global Community, 2004, p. 107 ff.

2. HUMANITARIAN LAW BOSCO C., BRUNO C., DELLA FINA V., DINUZZI R., EBOLI V. and FERRAJOLO O., “Correspondent’s Reports – Italy”, YIHL, 2002, p. 545 ff. CANTONI S., “Il Comitato internazionale della Croce Rossa e lo sviluppo del diritto internazionale umanitario” (The International Committee of the Red Cross and the Development of International Humanitarian Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 155 ff. CONDORELLI L. and NAQVI Y., “The War against Terrorism and Jus In Bello: Are the Geneva Conventions Out of Date?”, in BIANCHI A. (ed.), Enforcing International Law Norms against Terrorism, Oxford, 2004, p. 25 ff. DINI S., “Contributo della giurisprudenza italiana all’evoluzione del diritto umanitario” (The Contribution of Italian Jurisprudence to the Evolution of Humanitarian Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 3 ff. FRIGO M., “Cultural Property v. Cultural Heritage: A ‘Battle of Concepts’ in International Law?”, International Review of the Red Cross, 2004, p. 367 ff. LATTANZI F., “Il confine fra diritto internazionale umanitario e diritti dell’uomo” (The Border between International Humanitarian Law and Human Rights), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1985 ff. LEANZA U., “Il rafforzamento della tutela internazionale del patrimonio culturale in tempo di guerra nel nuovo diritto dei conflitti armati” (The Strengthening of the International Protection of Cultural Heritage during Wartime in the New Law of Armed Conflict), in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2037 ff. MAINETTI V., “De nouvelles perspectives pour la protection des biens culturels

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en cas de conflit armé: l’entrée en vigueur du Deuxième Protocole relative à la Convention de La Haye de 1954” (New Perspectives for the Protection of Cultural Heritage in the Event of Armed Conflict: The Entry into Force of the Second Protocol to the 1954 Hague Convention), International Review of the Red Cross, 2004, p. 337 ff. PORRO G. (ed.), Studi di diritto internazionale umanitario (Studies on International Humanitarian Law), Torino, 2004, pp. 224. RONZITTI N., “Un cambio di orientamento della Cassazione che favorisce i risarcimenti delle vittime” (A Change in the Jurisprudence of the Italian Court of Cassation which Makes Reparation to Victims Easier), Guida al diritto – Il Sole 24 Ore, 2004, No. 14, p. 38 ff. VELLANO M., “La guerra sottomarina e il diritto internazionale umanitario” (Underwater War and International Humanitarian Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario, Torino, 2004, p. 131 ff. VENTURINI G., “Garanzie di tutela dei diritti fondamentali della persona e conflitti armati” (Guarantees of Protection of Individual Human Rights and Armed Conflicts), in BILANCIA P. and DE MARCO E. (eds.), La tutela multilivello dei diritti umani, Milano, 2004, p. 13 ff. ZORZI GIUSTINIANI F., “Responsabilità di governo dell’occupante e diritto all’assistenza umanitaria: il caso iracheno” (Government Responsibility of the Occupying Power and the Right to Humanitarian Aid: The Case of Iraq), DPCE, 2004, p. 1589 ff.

3. DISARMAMENT PAVONE I.R., “Armi di distruzione di massa e diritto internazionale” (Weapons of Mass Destruction and International Law), RCGI, 2004, p. 36 ff.

REVIEW OF BOOKS UK MINISTRY OF DEFENCE (ed.), The Manual of the Law of Armed Conflict, Oxford, Oxford University Press, 2004, pp. 611. The long awaited manual on the law of armed conflict produced by the United Kingdom Ministry of Defence follows the famous volume published by HMSO in 1958 under the tile The Law of War on Land, being Part III of the Manual of Military Law. Like its antecedent the present manual has taken profit from the advice of eminent scholars, whose work has been precious because of the complexity of the contemporary law of armed conflict. Unlike the 1958 Manual, the present one is a tripartite manual, since it deals with law of war on land, air and at sea. It comprises 16 Chapters, including two dedicated, respectively, to Peace Support Operations (PSO) and Internal Armed Conflicts. These two Chapters are very appropriate, since PSO and Non-International Armed Conflicts have become a permanent feature of contemporary hostilities. The reader appreciates that the Manual’s rules are properly introduced with a doctrinal presentation and footnotes, where necessary. Chapter 3 (The Applicability of the Law of Armed Conflict) points out that “war” has become a term “largely void of current international legal significance except in the case of declared war” (p. 29). Indeed, the Manual is correctly entitled “Law of Armed Conflict”, abandoning the 1958 title which relied on the classical term “Law of War”. Law of Armed Conflict is an appropriate title and should be preferred to other formulae such as “Humanitarian Law in Armed Conflict”, as the German Manual is entitled. It is true that humanitarian law now encompasses both the law of The Hague and the law of Geneva. However, the title of the UK Manual better renders the idea of what the book deals with and avoids any confusion between humanitarian law and human rights law. Even more so since the Manual often refers to human rights and to the 1950 ECHR or the 1966 ICCPR and takes into account the connection between humanitarian law and human rights, particularly in the Chapter devoted to internal armed conflict (Chapter 16). The decision to produce a joint services manual is very felicitous. The distinction between war on land, on air and at sea seems to be rather artificial. It is true that the latter two branches have their specificity which marks a difference from the former. However, there are common principles on which the three branches rely. Common principles may generate common rules, as proven by the ones that Protocol I dedicates to bombardment and which apply to land bombardment as well as to naval and air bombardment. The UK Manual follows the modern stream, since out of 16 Chapters it contains only two dedicated, respectively, to Air Operations and Maritime Warfare. For Air Warfare, a largely uncodified body of law, the Manual refers not only to the few rules contained in Protocol I but also to the 1923 Hague Rules on Aerial Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.) © 2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 23-38

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Warfare which were never transformed into a treaty. The Manual states that they are regarded to a large extent as reflecting principles and customary rules (p. 10). For War at Sea, the UK Manual draws extensively not only on the relevant Hague Conventions, but also on the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which is an academic endeavour, not a governmental publication. The influence of the UN Charter on the law of armed conflict is duly taken into account, for instance in connection with neutrality and armistices. The Manual correctly states that “the traditional law of neutrality has been affected by and, to a large extent, superseded by the UN Charter” (p. 20). The Manual also recognizes the Charter’s influence on the modes for suspending or terminating hostilities. A grave violation of a permanent armistice does not entitle the aggrieved party to resume hostilities automatically and recourse to force is allowed only if the UN Charter so authorizes. One of the merits of the UK manual is its clarity. It has already been quoted in official documents, for instance by the Commission of Inquiry on Darfur which relied heavily upon it for its findings. The interpretation of rules governing armed conflict is not an easy task, given their complexity. Contemporary rules have been drafted by a large number of States and negotiated by consensus. Indeed, compromise and “constructive ambiguity” are necessary ingredients of consensus, but this often adds obscurity to complexity – a negative feature, since law of war is a body of rules which is applied in difficult times, when relations between States are strained and governed by the force of arms. The value of the UK Manual should not let us forget that some of the listed rules raise controversy. This is particularly true of the regulation of belligerent reprisals (sections 16.16-16.19.2). Section 16.17 states the conditions required for undertaking reprisals. This is commendable. During the Diplomatic Conference which adopted Protocol I, France tried to propose rules on lawful reprisals, but its efforts were defeated. Sections 16.18 and 16.19 deal with unlawful reprisals such as those against civilians, the civilian population and civilian objects. However, Section 16.19.1 quotes the UK statement at the time of ratification of Protocol I which affirms that the obligations under Articles 51 to 55 of Protocol I are accepted on the basis of reciprocity. It follows that the United Kingdom reserves the right to take reprisals against protected persons and objects, even though reprisals are explicitly forbidden by those provisions. “This means”, Section 16.19. 2 states, “that reprisals taken in accordance with the statement are permissible by and against the United Kingdom”. In a footnote to Section 16.19.2, the Manual challenges the finding of the ICTY, which in the Kupreskic case labeled attacks on civilians by way of reprisal as prohibited by customary international law. The UK statement is clear if compared with the French and Italian reservations on the same subject which are ambiguous. The UK Manual has translated the government’s position into an operational rule. It is however open to question whether the UK stance is accept-

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able from the perspective of the latest development of humanitarian law. In UK eyes, a reprisal against the civilian population, if lawfully undertaken, does not amount to a war crime. It was for this purpose that a declaration was made at the time of ratification of the ICC Statute (see UK Manual, section 16.34 and footnote 163). Will the UK position change in the future? Amendments to the Manual are always possible and are easy to publish as they will be posted on the website (at www.mod.uk) once adopted. A careful perusal of the UK Manual could reveal other rules that are controversial and are a UK interpretation of the law of war rather than the law as it stands. This is unavoidable, but does not diminish the value of the war manual which should be appreciated for its clarity, legal craftsmanship, comprehensiveness and accuracy. The UK Manual will surely influence the drafting of other instruments of this kind. NATALINO RONZITTI*

BRIGITTE STERN and HÉLÈNE RUIZ FABRI (eds.), La jurisprudence de l’OMC/The Case-Law of the WTO, 1996-1997, Leiden/Boston, Martinus Nijhoff Publishers, 2004, pp. 708. The increasing number of international tribunals and the accumulating body of their case law present scholars, practitioners and interested officials, not to speak of students, with the difficult task of coping with the wealth of material thus offered. Forty years ago, when those who now sit in those tribunals or work as senior academics were preparing their dissertations, it was enough to subscribe to a couple of law reviews, issued four times a year in order to keep updated to international jurisprudence. Texts of decisions could be easily found there in their integrity, possibly all those issued by the ICJ and ad hoc interstate arbitration and so sparse was then the case law. For some regional specialized bodies, such as the European Court of Justice or the European Court and Commission of Human Rights, the official reports offered an easy and manageable access. It was thus possible to read the decisions, take note of the most important holdings and developments, compare them among themselves and with relevant precedents. This is not possible any more, since the increase of the case load of those bodies, the establishment of more permanent specialized regional tribunals, notably the international criminal tribunals, and the flourishing of investment arbitration. Internet resources and research offer of course an indispensable tool to keep up with international judicial developments; specialized centres providing selected information on line make it easier to learn about new cases and decisions; summaries

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allow the reader to discard texts that do not appear relevant to one’s research. One must admit that specialization by international lawyers is a necessary consequence of the development of international law in new realms that in the past were only occasionally or marginally regulated by treaty (international criminal law, trade, investments). It is also the consequence of the important contribution that judicial and arbitral bodies make to those branches of international law. Still, maintaining unity in the face of this fragmentation is also a necessary task for international lawyers and for the members of those bodies. The most relevant outcome of judicial practice has to be digested, so as not to remain confined to the experts of this or that field and in order that cross fertilization be maintained. In this perspective, the initiative of Brigitte Stern and Hélène Ruiz Fabri, the well known experts on the international judicial process and international trade law from Paris, deserves a special praise for their original approach in dealing with this issue in the context of WTO case law. The case law developed by the panels and the Appellate Body since the establishment of the World Trade Organization in 1995 presents a formidable challenge: ten year later the figures indicate about 90 reports by panels and 60 reports by the Appellate Body. These are lengthy decisions, as required by the need to summarize complicate facts and detailed parties’ arguments, as well as to develop adequate legal reasoning to sustain the multiple findings corresponding to the various issues. Most of the time a scholar is not interested so much in the final holding but rather in the reasoning leading to it. The way in which issues of treaty interpretation are addressed may be of special interest for those who do not deal with trade but are concerned with the coherence in application of those criteria by different international courts. The possibility of selecting the relevant paragraphs of the text through key words and other electronics search mechanism and the existence of repertories based on these techniques (such as the Repertory of the Appellate Body case law published in 2005 and available in the WTO website) supplies an important but partial answer to the need of support felt by researchers. The volume under review covers the first nine reports. It is the first of a series which intends to present chronologically all Appellate Body reports through timely volumes (the second volume is already available). The approach is novel in many respects. In the first place, material and comments appear both in French and English. This will not only accommodate a larger public but will hopefully help bridging one of the several divides that threaten the unity of international law in its current explosion: the language barrier. This is especially saddening because languages have never prevented international lawyers in the past to maintain a dialogue based on reciprocal knowledge of their respective work. For each case the volume includes in a few pages for each item a synopsis, bibliographical references, a summary of the facts and of the procedure, the claims of the parties, the findings of the panel and the issues raised in appeal. A summary, with excerpts, of the reasoning of the Appellate Body and the full conclusions follow. The final paragraph of each presentation is devoted to the subsequent imple-

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mentation. This is a welcome inclusion since it is often difficult to trace the relevant information in the WTO documents. After this objective presentation of the case a comment of the case, called “Observations”, of eight to ten pages follows, in a standard format, addressing in a scholarly way the basic issues as decided by the Appellate Body. Their authors have a variety of backgrounds. The contributors include doctoral candidates as well as established researchers, practitioners, and academics, both English and French speaking. The initiative undertaken by the two general editors commends itself as a valuable tool to approach a larger public of international lawyers to the asperities, secrets and (if I may say so) treasures of the WTO jurisprudence, thus putting it in a wider perspective. GIORGIO SACERDOTI*

ANTONIO CASSESE, International Criminal Law, Oxford, Oxford University Press, 2003, pp. 472. In recent years, international criminal law has undergone remarkable developments and its rules have undoubtedly faced a rapid evolution. The increasing importance of the subject and the quick expansion of this area of law render real – nowadays more than ever – the need for its systematization. Indeed, norms of international criminal law have developed not always uniformly and with the tendency of reflecting the historical context of the period in which they emerged. A significant enrichment of international legal literature on the subject is, therefore, welcome and Antonio Cassese’s International Criminal Law represents a substantial step forward in this direction. In his book, Professor Cassese expounds the fundamentals of substantive and procedural international criminal law and provides the reader with a thorough picture of the present status of this particular branch of public international law. His contribution to the field is particularly valuable, considering the fact that Cassese himself has since long played a very important role in the development of international law. His book, therefore, benefits from the author’s significant years of experience. Moreover, the author offers – through his work – a personal perspective for understanding the role of international criminal law in the modern society. A notable feature of this is that, as starting point for introducing the readership to the study of the subject, Cassese has chosen the issue of the reaction of the international community to atrocities, thereby giving immediately a central place to serious violations of human rights amounting to international crimes. The suggested perspective is to consider the prosecution and punishment of international crimes

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within the broader framework of the manner in which the international community reacts to atrocities. In doing so, international criminal law, as a tool for preventing and punishing atrocities, acquires its utmost relevance and is placed within the context of a desirable tendency towards a stronger community reaction to the commission of gross breaches of international law. It is against this background that the author additionally tackles the question of the role of the international community and of States in the implementation of international criminal law. Upon reading Cassese’s book, the reader is – already in the introduction – immediately impressed by the volume and central role given to case-law, and by the extraordinary effort of the author to contextualise concepts and rules of international criminal law through linking them to their concrete application by courts and tribunals. The subdivision of the book is into four parts, comprising a total of 23 chapters. Part I, by way of introduction, lays down the fundamentals of international criminal law, starting with its general concept, highlighting its general features and proceeding to the historical evolution and the notion of international crimes, thereby setting the scene for the following part. Part II of the book is devoted to substantive criminal law, with two different sections dedicated to international crimes (section I) and to the fundamentals of international criminal responsibility (section II). Regarding the analysis of international crimes, Cassese’s textbook covers not only the so-called ‘core crimes’, namely genocide, crimes against humanity and war crimes, but also other international crimes such as aggression, torture and terrorism. For each of these crimes, the author begins with an introductory examination of the concept and the possible historical developments, and then goes on to cover the elements (objective and subjective) of each crime. Once again the relevance of case-law is conveyed. As demanded by a systematic and comprehensive examination of the subject, in highlighting the relevant features of international crimes and in describing their constitutive elements, the author extends the analysis through constant references to the case-law (especially the jurisprudence of the two ad hoc Tribunals) and customary international law. Section II of Part II, after having set out the general principles of individual criminal responsibility, proceeds to examine specific issues such as the mens rea of international crimes, the different forms of perpetration of crimes (including omission), cumulative offences, the various circumstances excluding criminal liability, and the issue of immunities. It is worth noting the significant attention paid to national legal systems and national case-law, and the effort in drawing comparisons between the national and the international level in order to better explain the features of international criminal law, and to highlight similarities and differences between the two levels. Similarly, when possible, the author points out at the relevant differences between the common law and civil law systems. This element turns out to be very useful to the reader, facilitating as it does the ability to immediately grasp the significance of some aspects specific to the different systems.

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Part III and Part IV analyse the prosecution and punishment of international crimes by, respectively, national and international courts. In Part III, after the analysis of the different legal grounds of jurisdiction, and before dealing with the legal impediments to the exercise of jurisdiction at the national level, the author focuses on the impact of international law on national legislations, addressing the questions of whether there exist international customary rules obliging or authorising States to prosecute international crimes, and then reflecting on the scant influence that international law has apparently exercised so far on national courts and national systems. Considered overall, the part devoted to the prosecution and punishment of international crimes by national courts is a very welcome addition to the topics generally comprised in textbooks on international criminal law. The fourth and last part of the book deals with the prosecution and punishment of international crimes by international courts. It features a general section which gives a historical overview of the establishment of international criminal tribunals, from references to the Nuremberg and Tokyo Tribunals to the establishment of the UN ad hoc Tribunals, the International Criminal Court and the recent mixed or hybrid criminal courts and tribunals. Part IV then focuses on some critical issues which arise from the necessity of coordinating the activities of international courts or tribunals with that of the national courts: primacy, complementarity and co-operation are the main models of the interface between international and national jurisdictions. The author does not dwell, however, excessively on all aspects, but rather primarily confines the analysis to the main features of each model. Finally, the last section of the book is devoted to international criminal trials. In this framework, as introductory chapeau, Professor Cassese presents a highly interesting comparison between the adversarial and the inquisitorial systems, covering the fundamental features – both theoretical and procedural – of the two models, explaining their reciprocal influence, the choices leading to the initial predominance of the adversarial model in international proceedings, and the recent and gradual incorporation of significant features of the inquisitorial model in the UN ad hoc Tribunals’ systems. The author, then, moves on to analyze the general principles governing international criminal trials and outlines the main stages of international proceedings: the prosecutor’s investigations, pre-trial and trial proceedings, appellate and review proceedings, enforcement of sentences. The beginning and the end of Cassese’s textbook are strictly linked one to another. The book starts by introducing the importance of a strong reaction by the international community to the commission of atrocities and ends with the re-affirmation of the same idea. In the concluding chapter, the author reflects on the possible ways of improving international criminal justice, making references to recent and innovative trends, both judicial and extra-judicial. The importance of reacting to widespread atrocities can be thus considered as a meaningful component of international criminal law viewed as one of a number of methods open to the international community as a whole.

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Since Cassese is an expert in the field, it comes at no surprise that his work presents a number of merits. Firstly, the book under review renders the essence and important functions of international criminal law more understandable through an in-depth reading and interpretation of an impressive amount of case law, which is indeed the most fruitful way to explain the evolution of norms and rules. Secondly, the treatment of all subjects is based on extensive analysis and recurring references to jurisprudence and literature from different jurisdictions. Finally, the broad importance given to national case-law (besides the jurisprudence of international tribunals) is to be welcomed, especially when assessing the existence of customary international law. Moreover, the textbook’s utility – and its additional value as a research source – is enhanced by the tables inserted at the beginning, in particular the Table of Cases (national and international case-law) and the Table on National Legislation (for a comparative perspective on national laws), both of which list and specify cases and laws, and indicate where they are treated and located within the book. Despite the numerous merits, one can observe that, paradoxically, one of the primary strengths of the book – that is the great amount of information and analysis that the author carries out in relation to national and international jurisprudence – may result at the same time in one of its major weaknesses. Owing to the sheer volume of the information, it is at times easy to lose the thread and the reader may find it difficult to immediately grasp the core points of the topics discussed. Furthermore, being Professor Cassese highly involved in the development of international criminal law, a critical remark may be that – necessarily and consequently – the vision of the subject he offers is a subjective one, connoted by his personal understanding of international criminal law. But, again, at the same time this consideration could be made in support of the strength of this textbook as a remarkable insight on the subject. Another aspect that the reader cannot fail to note is the lack of a comprehensive bibliography at the end of the textbook. The choice made in this regard is of using several “select bibliographies” at the end of each chapter; a choice that – on the one hand – can be useful as it immediately indicates the relevant references for the topic discussed, but that – on the other hand – can obstruct a quick search and a global overview of the literature referred to. The result is to have several “thematic” bibliographies – specific to the different subjects dealt with – but very short, thereby depriving the reader of an alphabetical and complete list of references. On the other side, an undoubtedly novel and valuable feature of the book is the fact that it is associated with a website, created specially, which allows the book itself to avoid lengthy appendices and to present a fairly manageable size. This companion website comprises three main sections, the most useful of which is “Resources”. It contains links to all relevant materials quoted in the book, comprising key international documents and foreign legislation. For every chapter, a link leads to the relevant documents (international conventions and protocols, Statutes of international tribunals and courts, national legislations, etc.) utilized in that

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particular section. Also of benefit is the presence of web-links related to the topics covered by the book. Professor Cassese’s book is indeed a praiseworthy contribution to the field of international criminal law, a textbook suitable for both students and practitioners alike. The reader will find the volume particularly helpful in developing a deeper knowledge of international criminal law also through a critical assessment of the jurisprudence related to it. More than just a textbook, this latest work by Cassese is a “call for action”, stemming from the realistic understanding that only a combination of different actions can be effective: “there is no single response to the multifarious aspects of international criminality” and, therefore, “one must perforce resort to a whole gamut of responses, each most suited to a specific condition, effectively to stem international crimes” (see the author himself at p. 458). SILVIA D’ASCOLI*

YORAM DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, Cambridge University Press, 2004, pp. 275. The book under review is the companion volume to the Author’s seminal textbook War, Aggression and Self-Defence, the third edition of which was published by Cambridge University Press in 2001 and reviewed in this Yearbook (see the review by RONZITTI, IYIL, Vol. XI, 2001, pp. 468-471). Dinstein’s new textbook is a thorough and careful analysis of the rules governing the conduct of hostilities in international armed conflict, as they are prescribed and implemented at present. It is divided into nine chapters respectively dedicated to: the general framework; lawful combatancy; prohibited weapons; legitimate military objectives; protection of civilians and civilian objects from attack; special protection measures; environmental protection; other methods and means of warfare; war crimes, command responsibility and defences. The first chapter elucidates the scope of the Author’s analysis. The study of the rules governing the conduct of hostilities is confined to international armed conflicts. The growing complexity of contemporary armed conflicts, however, is not neglected. As Dinstein rightly emphasises, an armed conflict may present elements of both intra-State and inter-State conflict, as in the case of the armed conflict in Afghanistan in 2001. Moreover, an armed conflict may start as an intra-State conflict and evolve into an inter-State one, such as the armed conflict in the former Yugoslavia in the 1990s. The conduct of hostilities in international armed conflict is studied against the background of customary norms and treaties in force. Relevant pronouncements of international and national courts are also recalled.

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PhD Researcher, Department of Law, European University Institute, Florence.

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Dinstein describes the law of international armed conflict as “a checks-andbalances system, intended to minimise human suffering without undermining the effectiveness of military operations” (p. 17) and stresses the need of the widest possible dissemination of its rules as the only way to guarantee that no serious violations will be committed. His book goes in this very direction, since it is intended to be not only a scholarly contribution on the law of international armed conflict, but also a tool for the instruction of military officers. The second chapter focuses on the fundamental distinction between combatants and civilians and the connected distinction between lawful and unlawful combatants. As the Author correctly points out, the latter aims at preserving the former. In fact, civilians can be effectively protected from attack only if the enemy forces properly identify them as non-combatants. Combatants who conceal their identity and do not abide by the law of international armed conflict, that is, unlawful combatants, tend to blur the distinction between combatants and civilians and, for this very reason, when captured by the enemy forces, do not benefit from the status of prisoners of war. However, the denial of benefits appertaining to the status of prisoners of war is irrelevant to an increasing number of unlawful combatants, namely those disguised in civilian clothes who successfully carry out suicide bombings. In this respect, Dinstein highlights a serious flaw in the law of international armed conflict. In fact, successful suicide bombers cannot be deterred by the sanction imposed for unlawful combatancy nor by any other measure of law. The third chapter opens with an analysis of the two cardinal principles, respectively, prohibiting weapons that are incapable of distinguishing between civilian and military targets, and weapons causing combatants superfluous injury or unnecessary suffering. After looking into these principles, Dinstein separately examines those weapons whose use is inconsistent with them and, therefore, is explicitly interdicted by specific multilateral treaties. Yet, these treaties do not cover the entire range of weapons that violate the above-mentioned principles. For want of a treaty provision that explicitly interdicts the use of certain weapons, States, scholars and experts often disagree about their legitimacy. Suffice it to mention the opposite views expressed with regard to the legitimacy of the use of cluster bombs and depleted uranium projectiles over recent years. Regrettably, Dinstein does not elaborate on this point, limiting himself to noting that “in reality, the salient problem often is use of a weapon in a particular setting, rather than its original characteristics” (p. 62). The fourth chapter deserves a great deal of consideration. It focuses on the definition of military objectives contained in Article 52(2) of the 1977 Protocol I Additional to the Geneva Conventions of 1949, and its practical application in international armed conflict. Military objectives, against which solely attacks may be directed, are defined by the aforesaid Article as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances

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ruling at the time, offers a definite military advantage”. In Dinstein’s opinion, this definition, which is generally considered as embodying customary international law, is far from satisfactory. Its abstract and generic wording and the absence of any, if only illustrative, list of military objectives are stressed in particular. In many instances, classifying an object or an individual/group of individuals as a military objective under Article 52(2) is not free of difficulties. Dinstein carefully examines these instances and differentiates: retreating troops; targeting individuals; police; industrial plants; oil, coal and other minerals; electricity grids; civilian airports and maritime ports, trains, trucks and barges; civilian television and radio stations; government offices; and political leadership. As far as targeted killings are concerned, Dinstein states that the law of international armed conflict “prohibits treacherous killing of enemy individuals”, but “does not preclude singling out an individual enemy combatant as a target, if the attack is carried out without treachery” (p. 94). From this point of view, he considers targeted killings of suspected Palestinian terrorists by Israeli combat helicopters, tanks and infantry units as fully legitimate. In actual fact, the legitimacy of Israel’s practice of targeted killings is highly controversial. In particular, after the Israeli execution of two Hamas leaders (Yassin and Rantisi) in the Gaza Strip in 2004, this practice was strongly condemned as violating the fundamental principles of the law of international armed conflict by many States, including the Russian Federation, China, the United Kingdom, France and all the other European Union Member States (see the debate held in the Security Council on 19 April 2004: UN Doc. S/PV 4945). The fifth chapter analyses the customary and treaty norms protecting civilians and civilian objects from attacks. The Author thoroughly considers: the prohibition of direct attacks against civilians; the ban of indiscriminate attacks; the principle of proportionality; the duty to take precautionary measures with respect to attacks; the prohibition of shielding military objectives with civilians; and the ban on the deliberate starvation of civilians. Noteworthy observations on the flaws of the present norms and the numerous references to contemporary State practice supplement his analysis. The sixth chapter deals with the special protection measures afforded to certain categories of persons and objects. As for persons entitled to special protection, it includes: women and children; the wounded and sick; the shipwrecked; parachutists from aircraft in distress; surrendering members of armed forces; parlementaires; medical personnel; religious personnel; civil defence personnel; relief personnel; and journalists. With regard to this last category of persons, one cannot but observe the conspicuous violations of even the most elementary protection rules in recent international armed conflicts. As to objects entitled to special protection, the following are worthy of mention: cultural property and places of worship; medical establishments and units; works and installations containing dangerous forces. From Dinstein’s study of the norms protecting cultural property, it may be inferred that a customary rule has developed according to which this property is only liable to attack when it is used in

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such a way that qualifies it as a military objective. Evidently, the aforesaid rule does not offer any viable solution when property of great importance to the cultural and spiritual heritage of mankind is at stake. Dinstein appropriately cites the dilemma faced by Israel in 2002 as an example, upon the armed takeover of the Church of the Nativity in Bethlehem by a group of Palestinian armed combatants; and remarks that “some outstanding cultural and spiritual places cannot be subjected to a mechanical application of the ordinary rules of the law of international armed conflict” (p. 163). In actual fact, military manuals often recommend that the circumstances prevailing at the time of application of these rules should be taken into account. For instance, The Handbook of Humanitarian Law in Armed Conflicts, edited by D. Fleck, states that the “cultural property which the enemy uses for military purposes shall also be spared as far as possible” (p. 387). The seventh chapter contains a careful examination of treaty law relating to the protection of the environment in time of armed conflict. Special attention is devoted to the rules enshrined in the 1976 ENMOD Convention and those set out in 1977 Protocol I. As far as the latter are concerned, Articles 35(3) and 55(1) come into question. Both prohibit the use of methods or means of warfare that are intended, or may be expected, to inflict “widespread, long-term and severe damage” to the natural environment. At the time of the adoption of the 1977 Protocol I, this prohibition certainly constituted an innovation in the law of international armed conflict. Nowadays, it is highly disputed whether it reflects customary international law. Dinstein is of the view that Articles 35(3) and 55(1) have not yet crystallised into customary rules. He quotes the International Court of Justice Advisory Opinion in the Nuclear Weapons case in 1996. As regards Articles 35(3) and 55 of the 1977 Protocol I, the Court stated that “taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals”, but added that “these are powerful constraints for all the States having subscribed to these provisions” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996, p. 226 ff., p. 242, para. 31). From the latter assertion, Dinstein infers that the Court considered the aforesaid articles as bare treaty rules. In the eighth chapter, the Author takes a fresh look at the long-standing question of the legitimacy of certain methods and means of warfare, namely perfidy, ruses of war, espionage, pillage, seizure as booty of war, capture and condemnation as prize, other destruction and seizure of enemy property, and belligerent reprisals. As regards the last, Dinstein inter alia addresses the issue of the legitimacy of belligerent reprisals against civilians. Article 51(6) of the 1977 Protocol I prohibits attacks against civilians by way of reprisals. The International Criminal Tribunal for the Former Yugoslavia, in its judgement in the Kupreškić case in 2000, stated that, after the adoption of the 1977 Protocol I, “a customary rule of international law has emerged on the matter under discussion” (Prosecutor v. Kupreškić et al.,

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Judgement, ICTY Trial Chamber, Case No. IT-95-16-T, 14 January 2000, para. 531). Dinstein, however, does not share this assertion, contending that it is not supported by State practice. The last chapter focuses on war crimes. The Author reviews the definition of war crimes contained in Article 6(b) of the 1945 Charter of the International Military Tribunal at Nuremberg and the most recent one established in Article 8(2) of the 1998 Statute of the International Criminal Court. As far as the latter is concerned, he concedes that it largely corresponds to customary international law, but stresses that certain segments clearly depart from customary rules, such as the one referring to direct and indirect transfer by the Occupying Power of its own civilian population into the occupied territory as a war crime (Article 8(2)(b)(viii)). A sharp distinction is also drawn between the concepts of war crimes and unlawful combatancy. However, the possibility of an unlawful combatant being a war criminal at the same time is not ignored. Finally, Dinstein considers the complex issue of the commander’s responsibility with respect to war crimes committed by his subordinates and assesses the admissibility of defence pleas usually invoked in war crimes trials, including obedience to superior orders. The Author concludes his study on the law regulating the conduct of hostilities in international armed conflict with laudable remarks on the major problems confronting it at present. Above all, he rightly stresses the need for reviving the twentieth century tradition of the periodic review of the main body of the law of international armed conflict. Dinstein’s new textbook is not only a learned treatise but also a useful tool with a wealth of references to practice. The Author’s writing is also very accessible. For its numerous qualities, this new textbook is expected to become a classic on the law governing the conduct of hostilities in international armed conflict. MARINA MANCINI*

*

Researcher of International Law, Mediterranean University of Reggio Calabria.

BOOKS RECEIVED BENEDETTO CONFORTI, Le Nazioni Unite, 7th ed., Padova, Cedam, 2005, pp. 360. ORNELLA FERRAJOLO (ed.), Il caso Tellini. Dall’eccidio di Janina all’occupazione di Corfù, Milano, Giuffrè, 2005, pp. 176. FRANCESCO FRANCIONI, FEDERICO LENZERINI and MASSIMILIANO MONTINI (eds.), Organizzazione mondiale del commercio e diritto della Comunità europea nella prospettiva della risoluzione delle controversie, Milano, Giuffrè, 2005, pp. 304. FRANCESCO GALGANO and FABRIZIO MARRELLA, Diritto del commercio internazionale, Padova, Cedam, 2004, pp. 621. FABIO MARCELLI, Il debito estero dei Paesi in via di sviluppo nel diritto internazionale, Milano, Giuffrè, 2004, pp. 186. BASIL MARKESINIS, Il metodo della comparazione, Italian translation, Milano, Giuffrè, 2004, pp. 286. ESPERANZA ORIHUELA CALATAYUD, Los tratados internacionales y su aplicación en el tiempo, Madrid, Dykinson, S.L., 2004, pp. 341. ERNST-ULRICH PETERSMANN (ed.), Reforming the World Trading System, Oxford, Oxford University Press, 2005, pp. 569. PAOLA PUOTI, La questione jugoslava davanti alla Corte internazionale di giustizia, Napoli, Editoriale Scientifica, 2004, pp. 349. ROSA MARÍA RIQUELME CORTADO, Las reservas a los tratados: lagunas y ambigüedades del Régimen de Viena, Murcia, Universidad de Murcia, Servicio de Publicaciones, 2004, pp. 433. NATALINO RONZITTI (ed.), I rapporti di vicinato dell’Italia con Croazia, SerbiaMontenegro e Slovenia, Roma/Milano, Luiss University Press/Giuffrè, 2005, pp. 436. SILVIA SANNA, Diritti dei lavoratori e disciplina del commercio nel diritto internazionale, Milano, Giuffrè, 2004, pp. 301.

508

BIBLIOGRAPHIES

TULLIO SCOVAZZI, La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, Giuffrè, 2004, pp. 448. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, International Investment Agreements: Key Issues, Volume I, New York/Geneva, United Nations, 2004, pp. 392. GABRIELLA VENTURINI (with the collaboration of GIOVANNA ADINOLFI, CLAUDIO DORDI and ANGELA LUPONE), L’Organizzazione Mondiale del Commercio, 2nd ed., Milano, Giuffrè, 2004, pp. 600. PATRIZIA VIGNI, Concorrenza fra norme internazionali: il regime giuridico dell’Antartide nel contesto globale, Milano, Giuffrè, 2005, pp. 339.

INDEX*

African Charter of Human and People’s Rights, 197

Article 39, 14 Article 53, 8 Article 103, 216

Aliens, treatment of, 45, 46, 188, 190, 193, 295, 345-353 see also Italy American Convention on Human Rights, right to life, 110, 111, 309

Chapter VII, 5, 6, 8, 9, 274, 283, 284, 404 Chapter VIII, 9 Chapter XIII, 19 law of armed conflict, 494

Asylum and refugees, 76, 388 ff., 441 see also Italy Geneva Convention on the Status of Refugees, 441

territorial integrity principle, 254, 261-262, 264 Chemical Weapons Convention, 12

Biological Weapons Convention, 12

Common heritage of humanity, 113114, 504

Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 166-168, 341

Commonwealth of Independent States (CIS), 247, 249, 253

Charter of the United Nations, 4, 7, 10, 18, 21, 73, 251, 262, 286, 396 see also Self-defence

*

Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States (CIS), 317-318 CIS Commission, 317-318

This Index has been compiled by Alessandro Chechi and Riccardo Pavoni. The most significant judicial cases and legal instruments cited throughout the volume have also been included.

510

INDEX

Convention on the Elimination of All Forms of Discrimination against Women, 93 Convention on the Law of the Nonnavigational Uses of International Watercourses, 238 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 238 Convention on the Rights of the Child, 106, 117, 118, 146, 348, 351, 353, 354 Council of Europe, 102, 118, 303, 368, 371, 445 Additional Protocol to the Oviedo Convention on the Prohibition of Cloning Human Beings, 87, 442 ff.

notion, 108-109 universal jurisdiction, 172, 182, 184-187, 189, 285 Cultural heritage, 435 ff., 447, 503504 Cultural property, international protection, 433 Underwater Cultural Convention, 384

Heritage

Customary/general international law, 24, 25, 128, 131, 140, 143, 159, 166 ff., 196, 215, 217, 219, 225, 227, 229, 232, 234-235, 239, 249, 253, 274, 275, 281, 283, 287, 295, 314, 341 ff., 362, 388, 389, 391, 392, 408, 409, 494, 498, 501, 503, 504, 505 see also Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907; Treaties

Oviedo Convention on Human Rights and Biomedicine, 86, 98-99, 104-105, 109, 113, 444, 446

cooperation in the protection of the marine environment, 382383, 384-387

Parliamentary Assembly, 98

hierarchy of international law sources, 170, 173, 216

Crimes against humanity/War crimes, 23, 31, 77, 78, 89, 175, 181-182, 273-288, 313, 314, 341, 497, 498, 505 eugenics, 108 international or regional criminal courts and tribunals, 178, 185, 191, 273, 275, 276, 280, 495, 499, 500

intentional destruction of cultural heritage, prohibition of, 503 jurisdictional immunity of foreign States, 165 ff. par in parem non habet jurisdictionem, 171 Diplomatic protection, 45, 48, 171, 190, 193, 227, 290 ff., 408 ff. see also International Law Commission

INDEX

Barcelona Traction case, 34-35 corporations, 34-36 ELSI case, 35 ships crew, 387, 410 Dispute settlement, 228, 267, 410 competing jurisdictions, 344, 385, 499, 500 continuous nationality, requirement of, 225 ff. Domestic jurisdiction, 239, 256, 263, 274, 279 Economic and Social Council of the United Nations, 14, 15, 19 Environment, international protection of, 41, 45, 46, 246, 301, 329, 330, 433, 501, 504 Agenda 21, 214 Convention on Biological Diversity, 113, 214, 385 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 214, 270 Convention on the Conservation of Migratory Species of Wild Animals, 214 European Commission of Human Rights, 318, 495 European Convention on Extradition, 367, 368, 371

511

European Convention on Human Rights, 91, 114, 170, 176, 356, 363, 368, 370, 371 death penalty, 312 deficiencies in national law and practice, 308 exhaustion of domestic remedies, 358 human dignity, protection, 98, 169, 180, 184, 187, 196 inhuman and degrading treatment, prohibition, 310, 311, 312, 313, 314 international treaties, relation to, 176 jurisdictional 364-366

scope,

308-317,

just satisfaction, non-pecuniary damages, 308, 313 length of legal proceedings, Italy, 316, 364-366 Protocol No. 1, 308, 356, 357 Protocol No. 11, 303 Protocol No. 14, 303-307 right of access to a court, 170, 311, 368 right to a fair trial, 311, 316, 320, 321, 365, 366, 368, 370 right to an effective remedy, 166, 187, 190, 370 right to individual application, 303- 307 right to liberty and security, 309, 372 right to life, 98, 110-112, 315

512

INDEX

European Convention on Human Rights (cont.)

Emesa Sugar N.V. v. The Netherlands case, 318

right to personal identity, 354-355

Ilașcu and Others v. Moldova and Russia case, 310-313

right to property, 311, 356, 357, 367 right to respect for private and family life, 348-353 European Convention on the Legal Status of Children Born Out of Wedlock, 354 European Convention on Trans-Border Cooperation of Territorial Communities and Authorities, 378 European Court of Human Rights, 170, 176, 181, 183, 368, 495 applications, filtering of, 303-307 Assanidze v. Georgia case, 308310 Banković case, 315 Baraona v. Portugal case, 365 Belverde Alberghiera v. Italy case, 356 Borgers v. Belgium case, 321

Issa and Others v. Turkey case, 313-314 J.J. v. The Netherlands case, 321 K.D.B. v. The Netherlands case, 321 König v. Germany case, 365 Kress v. France case, 322 K. v. Italy case, 316 L.C.B. v. UK case, 114-115 Lobo Machado v. Portugal case, 321 Loizidou v. Turkey case, 315 McElhinney v. Ireland case, 170, 178 Pellegrini v. Italy case, 316 positive obligations, 311, 312, 315 Sanches-Reisse case, 369

v.

Switzerland

Schoethen Meldrum v. The Netherlands case, 365

Boultif v. Switzerland case, 349

Van Orshoven v. Belgium case, 321

Broniowski v. Poland case, 307308

Vermuelen v. Belgium case, 321

Carbonara and Ventura v. Italy case, 356 Cordova v. Italy No. 1 and No. 2 cases, 213-214 Cyprus v. Turkey case, 315, 316 effects of judgments in domestic legal systems, 356-359

Vo case, 110-112 European Court of Justice (ECJ), 167168, 205, 302, 319, 373, 377, 495 IHT v. Ideal Standard case, 205 European Parliament

INDEX

biotechnology and human genetics, 85, 97, 102

513

Declaration on the Right to Development, 219 Uniting for Peace resolution, 10

European Union (EU)/European Community (EC), 8, 11, 302, 304, 322, 396, 397

General principles of law, 165, 187, 238-239, 248-249, 274, 357, 499

biotechnological inventions, 97

Acta jure imperii, 171

Charter of Fundamental Rights, 112-113, 119, 445

aut dedere aut iudicare, 363

Cotonou Agreement with African, Caribbean and Pacific (ACP) States, 328

stare decisis, 215, 233

rebus sic stantibus, 257 ff. uti possidetis, 260 ff.

death penalty, 312 Draft Treaty Establishing a Constitution for Europe, 322, 396

Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 125, 126, 134, 171

EC Treaty, 168, 357, 410, 435 European Group on Ethics in Science and New Technologies of the European Commission, 112

applicability, 127-131, 131-133, 140 collective punishment, 147-148

immigration, 438-440

duty to ensure respect, 154, 156158, 161

reservations to treaties, 50-52, 256

grave breaches, duty to prosecute or extradite, 158-159

Food Aid Convention, 449

human rights, relation to, 144145, 171 transfer of population, 140-144

General Assembly of the United Nations, 3, 7, 14, 100, 113, 118, 121, 125, 129, 131, 166, 174, 196, 229, 381, 385, 389, 395 see also Use of force/war cloning of human beings, 84, 392-393 Declaration on Friendly Relations, 18 Declaration on the Definition of Aggression, 18

Genocide, 6, 22, 107, 446 ff., 498 Convention on the Prevention and Punishment of the Crime of Genocide, 107-108 Global Fund to Fight AIDS, Tuberculosis and Malaria, 221 Hague Convention IV on land warfare, 401

514

INDEX

Hague Convention IX on naval bombardment, 401 Hague Rules on Aerial Warfare, 493 Humanitarian law, 21, 28, 44, 69, 273, 401, 402, 441, 493, 501 see also Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War; Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907

Human rights, 39, 40, 44, 45, 48, 130, 132, 140, 159, 165 ff., 278, 291, 297, 298, 305, 307, 315, 350, 389, 402 see also American Convention on Human Rights; European Convention on Human Rights; European Union (EU)/European Community (EC); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War; Humanitarian law; Self-determination, right to; UN Commission on Human Rights compensation, 182, 184-185, 187, 189-190

erga omnes obligations, 153-156

corporations, 26-32

Geneva Convention (III) relative to the Treatment of Prisoners of War, 54, 55, 57, 62, 63, 6465, 67-68, 69-71, 74, 75, 76, 77, 78, 81, 401-402

discrimination, based on race or nationality, 187, 345 ff.

Geneva Conventions, 54-55, 61, 71, 72, 74, 76, 78, 401, 402, 502

freedom of movement, 144 gross/serious violations, 41, 46, 73, 165 ff., 285, 446, 497, 498, 499 human genetics, 83-120

human rights, relation to, 145-147

indigenous peoples’ rights, 29

implementation, 80 Islamic concept of, 61-62, 78-79

inhuman and degrading treatment, 187, 341

Lieber Code, 149

minorities, 435, 436

military necessity, 133, 134, 135136, 149-153

non-discrimination, 104, 113

prisoners of war, 52-81

principle of equality before the law, 354, 372

Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I), 54, 125, 126, 131-132, 140, 171, 502 serious violations, 41, 46, 273, 278, 285, 497

persons with disabilities, 117-119

reproductive freedom, 109-110 reproductive technology, 83-120 right to an adequate standard of living, 144 right to education, 144 right to found a family, 108

INDEX

right to health, 194 ff. right to judicial protection, 192 right to life, 143 right to security, 143

515

immunities, ratione personae or personal, 281- 283, 284 immunity of Heads of State, 273288

right to work, 144

immunity of State agents, 279, 281, 287, 498

slavery, 187, 359 ff.

Pinochet case, 178

Slavery Convention, 359 ff. slavery-like practices, 360 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 359 treaties, extraterritorial application, 146 UK/US Voluntary Principles on Security and Human Rights, 28 UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 29, 207 UN sanctions, 11-12 use of force, 6 Immunity, jurisdictional immunity of foreign States, 46, 165 ff., 341-345 Attorney General of Israel v. Eichmann case, 281 Ferrini v. Repubblica Federale di Germania case, 46, 165 ff. immunities, ratione materiae or functional, 281- 283, 284, 287-288

Inter-american Rights, 42

Court

of

Human

International Committee of the Red Cross (ICRC), 74, 75, 76, 77, 80, 129, 402 International 43-44

community,

concept,

International Court of Justice, 6, 227, 261, 265-266, 271, 274, 275, 276, 279, 280, 281, 282, 287, 288, 410, 411 see also Diplomatic protection Aegean Sea Continental Shelf case, 266 Arrest Warrant of 11 April 2000 case, 275, 276, 280, 281, 282, 283, 287-288 Avena case, 42 Barcelona Traction case, 154, 227, 235-236 Construction of a Wall advisory opinion, 20, 121-161 East Timor (Portugal v. Australia) case, 428 Grisbadarna case, 267 LaGrand case, 42

516

INDEX

International Court of Justice (cont.)

Alekosovski case, 287

Lake Lanoux case, 239, 265

Furundzija case, 363

Military and Paramilitary Activities in and against Nicaragua case, 80, 157

Kupreskic case, 494, 504

North Sea Continental Shelf cases, 265

primacy over national courts, 274

Nuclear Weapons advisory opinion, 13, 127, 131, 154, 156 International Covenant on Civil and Political Rights, 12, 114, 118, 146, 216, 279, 363, 368, 370, 371 China, 93 International Covenant on Economic, Social and Cultural Rights, 12, 118, 146, 196-197, 199, 216 International Criminal Court (ICC), 14, 16, 108, 235, 499 Statute, 113, 131, 174, 185-186, 279, 281, 285, 495, 505 International criminal law, 496-497 International Criminal Tribunal for Rwanda (ICTR), 88, 89, 274

Kvocka case, 287 legal nature, 283, 286 Rules of Procedure and Evidence, 276 Statute, 174, 185-186, 279, 281 International Labour Organization (ILO), Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 206 International Law Commission (ILC), 173-174, 228, 283, 358, 381 Articles on State Responsibility, 12, 33, 39-51, 155, 158-159, 182, 189, 358 diplomatic protection, 387 ff. Draft Articles on Diplomatic Protection, 42-43, 48, 228 Draft Articles on the Consequences of Serious Breaches of Peremptory Norms Committed by States, 175

legal basis, 283, 286

reservations, 381

Rules of Procedure and Evidence, 278

Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, 283

Statute, 138, 174, 185, 279, 281 International Criminal Tribunal for the Former Yugoslavia (ICTY), 175, 183

responsibility of international organizations, 390

INDEX

517

International Maritime Organization, 13

Bilateral Investment Treaties (BITs), 23-24, 31, 36-37

International Monetary Fund (IMF), 206, 220, 222

International Centre for the Settlement of Investment Disputes (ICSID), 226 ff., 378, 379, 380

International organizations, 222, 252, 278, 279, 315, 429

Loewen case, 225 ff. Iran/US Claims Tribunal, 231

legal personality, 343 ff., 428 responsibility, 390 International Tribunal for the Law of the Sea, 23, 289 ff.

Italy asylum law, 388-390, 441 Cap Anamur case, 388

Agreement regarding the headquarters of the Tribunal, 289-290

Cermis case, 169, 192

“Camouco” case, 297

extradition proceedings, 367

Grand Prince case, 294

illegal immigration, 409, 438

Juno Trader case, 290-302

international missions, participation, 341-343

Jurisdiction, 291, 294 Land Reclamation by Singapore in and around the Straits of Johor case, 24-25, 300

entry quotas for immigrants, 438441

Legge Pinto, 364 ff. Marković case, 171

Monte Confurco case, 298

participation to the Multinational Force in Iraq, 397-401

Mox Plant case, 302

slavery, 359-363

M/V “Saiga” case, 290

treaty-making power of Regions, 373-379

provisional measures, 300 Rules, 292, 293, 294 Swordfish case, 302

Jurisdiction acts of war, 313-316

International watercourses, 265-266 Investments arbitrations, 25

corporations, 37-38 Jus cogens, 40, 41, 50, 72, 154, 155, 166-167, 169, 172-173, 175, 177, 180, 182 ff., 216, 260, 341, 363

518

INDEX

Law of the sea, 363, 384 enclosed or semi-enclosed seas, 383 nationality of a vessel, 296

Peace-enforcement, 7-8, 9 Peace-keeping, 7-8, 18, 21, 451 Multinational Force and Observers, 397-405

Lex specialis, 167 Municipal law, relation to international law, 352 European Convention on Human Rights, 351-352 priority of international law, 353 Non-governmental (NGOs), 15

Organizations

Non-Proliferation Security Initiative, 13

Permanent Court of International Justice, 261 Mavrommatis Palestine Concessions case, 410 Precautionary principle, 99 Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907, 125, 132, 144, 174 customary nature, 126-127 occupation, 126, 139

Non Proliferation Treaty, 12, 13 North Atlantic Treaty Organization (NATO), 9, 21, 171, 398 Convention among NATO States on the Status of their Forces, 192 Nuremberg Military Tribunal, 173174, 499, 505 Organization for Economic Co-operation and Development (OECD), Guidelines for Multinational Enterprises, 27, 206 Peace-building, 9-10

requisition, 136-138 seizure and destruction of property, 133-139 Responsibility, 269, 310, 429 see also International Law Commission attribution, 175, 312, 313-314, 315, 359, 390, 391-392 corporations, 32-33, 206 countermeasures, 12 erga omnes obligations, 40, 41, 160, 428 exhaustion of domestic remedies, 48-49 individual criminal responsibility, 132, 154, 158-159, 172, 175, 182, 497 ff.

INDEX

international crimes, 40, 41, 4950, 167, 172-173, 175, 177, 180, 182, 185-186, 190

519

Self-defence, 4, 7, 8, 9, 20 anticipatory self-defence, 5-6

reparation, 44-46, 50

Article 51 of UN Charter, 5

state of necessity, 144

pre-emption, 5

Secretary-General of the United Nations, 3, 27, 186, 188, 207, 249, 252, 263, 265, 278, 286, 382, 392, 393

Self-determination, right to, 141, 142, 143, 155, 259-261, 397, 428, 429

Access to medication in the context of pandemics such as HIV/AIDS Report, 194

Sovereign Military Order of Malta, 343 ff.

Human rights and bioethics Report, 83-84 In larger freedom Report, 17-18

Sovereignty, 165 ff., 237 ff., 284, 310, 398, 400, 402

International Commission of Inquiry on Darfur Report, 188

exercise of, 309, 311, 313, 314, 342, 428, 429

Israeli wall Report, 123, 124, 125

military occupation, 139

Memorandum on the Regime of the High Sea, 265

sovereign equality of States, 5, 175, 193, 274, 275, 281, 282

mission to Iran and Iraq in 1988, 73-78 Security Council of the United Nations, 6, 7, 8, 9, 12, 19, 77, 121, 125, 129, 186, 251, 278, 283, 503 ad hoc criminal tribunals, 273, 280, 288, 495, 499

Special Court for Sierra Leone, 273288 Brima Bazzy Kamara case, 277, 278 Charles Ghankay Taylor case, 273-288 jurisdiction, 284

Cambodian Extraordinary Chambers, 273

legal nature, 276 ff.

collective security, 33, 73-74

primacy over national courts, 279

Iraqi crisis, resolutions, 397-405

Rules of Procedure and Evidence, 275, 276, 280-281

Mixed Panels for serious crimes of East Timor and Kosovo, 273 reform, 393-397

Morris Kallon case, 277, 278

Sam Hinga Norman case, 277, 278

520

INDEX

Statehood, 429, 430 federal State, 251, 341, 343, 374 international personality, 184, 249, 341 ff., 427, 428, 429, 430 Palestine Liberation Organization (PLO) and Palestine National Authority (PNA), status of, 427 ff. recognition, 342-343 State succession, 44, 247 ff., Subjects of international law corporations, 23-38 individuals, 39-51 Terrorism, 178, 208, 400, 402, 404, 405, 450, 498 definition, 15-17 sanctions against individuals and entities, 15-16 Tokyo Military Tribunal, 499

national Human Rights Law and Serious Violations of International Humanitarian Law, 189 UN Committee on Economic, Social and Cultural Rights, 12, 118, 196 UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, 190 UN High Commissioner for Human Rights, 15 United Nations, 18, 75, 116, 153, 154, 155, 160, 166, 212, 217-218, 250252 279, 276, 286, 290, 397 Global Compact, 27-28, 207, 217 intervention in Afghanistan, 404 Millennium Declaration, 17, 219 post-conflict peace operations, 397-401, 451 reform, 3-22

Treaties, 180, 429, 501, 503 see also Human rights; Vienna Convention on the Law of Treaties

sanctions, 11-12 Sanctions Committees, 16 Trusteeship Council, 19

reservations, 73 supervening customary norms, 129-130 UN Commission on Human Rights, 14, 18-19, 84, 189-190 Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of Inter-

United Nations Commission on International Trade Law (UNCITRAL), 234 United Nations Compensation Commission (UNCC), 233 United Nations Convention Against Torture, 190

INDEX

521

United Nations Convention on Jurisdictional Immunities of States and their Property, 178

Universal Declaration of Human Rights, 27, 114, 118, 166, 169, 190, 197, 199, 207, 218, 279, 363, 389

United Nations Convention on the Law of the Sea (UNCLOS), 238, 266, 268, 290, 295, 296, 297, 363, 382 ff.

UN Sub-Commission on the Promotion and Protection of Human Rights, 207

dispute settlement, 157-158 jurisdiction, functional, 383 jurisdiction of the Annex VII tribunal, 300-302

Use of force/war, 6-9, 18, 21, 251, 298, 313, 493 ff., 501 ff. see also Human rights; Self-defence aggression, 9, 498

obligation to cooperate, 239-240, 264, 266, 383

General Assembly, role, 10

protection of natural resources, 214, 238

Iraq, intervention, 397-402

Protocol Concerning Specially Protected Areas and Biological Diversity, 386 rights of passage, 25 United Nations Convention on the Recovery Abroad of Maintenance, 316 United Nations Educational, Scientific and Cultural Organization (UNESCO), 116, 120, 384 International Bioethics Committee, 83, 100 International Declaration on Human Genetic Data, 83 Universal Declaration on the Human Genome and Human Rights, 100, 113-114, 119120

humanitarian intervention, 10, 22 regional organisations, 8-9 Vienna Convention on Consular Relations, 408, 409 immunities and privileges, 289, 408 Vienna Convention on Succession of States in Respect of Treaties, 249, 259 Vienna Convention on the Law of Treaties, 73, 210, 215-216, 260, 278, 375, 381 interpretation, 128, 130 World Bank, 206, 220, 222 Inspection Panels, 30 World Health Organization, 202-203, 212, 220

522

INDEX

World Summit on Sustainable Development, 385

208-212, 217, 219, 222, 323, 329

World Trade Organization (WTO), 202, 213, 216-217, 219-220, 323

European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries case, 326, 328 ff.

access to essential medicines/ Decision on the implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health, 194 ff. Agreement Establishing the WTO (WTO Agreement), 194, 202, 206, 209-210, 214-215, 222, 324, 327 Agreement on Subsidies and Countervailing Measures, 325 Agreement on Trade-Related Investment Measures (TRIMs), 327 Anti-dumping Agreement, 324, 326, 327 Bolar exception, 201 Canada – Exports of Wheat and Treatment of Imported Grain case, 326 Canada – Patent Protection of Pharmaceutical Products, 201 developing countries, 328 ff. dispute settlement, 23, 214-216, 323 ff., 496 Dispute Settlement Body (DSB), 200, 222, 323, 324, 325, 335, 336 Dispute Settlement Understanding (DSU), 202, 215 Doha Round, 194, 202, 204, 206,

European Communities – Measures Affecting Asbestos and Asbestos-Containing Products case, 214 Fifth Ministerial Conference, 323 General Agreement on Tariffs and Trade (GATT), 217, 324, 325, 326, 327, 329, 330, 331, 332 Intellectual property rights, 194 ff. Japan – Taxes on Alcoholic Beverages case, 215 Ramsey pricing, 205 Sixth Ministerial Conference, 323 TRIPs Agreement, 194 ff. United States – Corrosion-resistant Carbon Steel Flat Products from Japan case, 324 United States – Import Prohibition of Certain Shrimp and Shrimp Products case, 214 United States – Oil Country Tubular Goods from Argentina case, 327 United States – Softwood Lumber from Canada case, 325 United States – Standards for Reformulated and Conventional Gasoline case, 214 Uruguay Round, 200 Zeroing, practice of, 324, 326

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