The Italian Yearbook of International Law 2003 (Italian Yearbook of International Law)

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THE ITALIAN YEARBOOK OF INTERNATIONAL LAW

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW Volume 13

Research for this publication has been made possible by a grant from the Fondazione Monte dei Paschi di Siena

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW Volume XIII 2003

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 14446 3 © Copyright 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 “Istituto Suor Orsola Benincasa”, Napoli 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 Ms. Emmanuela Bertucci and Ms. Tanya Spisbah. 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].

CONTENTS LIST OF ABBREVIATIONS

XV

ARTICLES REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS Benedetto Conforti

3

GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF SOMALIA Abdulqawi A. Yusuf

11

FRAGMENTED SOVEREIGNTY? THE EUROPEAN UNION AND ITS MEMBER STATES IN THE INTERNATIONAL ARENA Enzo Cannizzaro

35

WAR IN AFGHANISTAN, SELF-DEFENCE AND QUESTIONS OF ATTRIBUTION OF THE SEPTEMBER 11 ATTACKS TO THE AFGHANTALIBAN REGIME Marco Frigessi di Rattalma THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION ON LEGALITY OF ARREST: CAN AN INTERNATIONAL CRIMINAL COURT ASSERT JURISDICTION OVER ILLEGALLY SEIZED OFFENDERS? Andrea Carcano

59

77

NOTES AND COMMENTS CULTURE AND TRADE? A EUROPEAN WAY “TOWARDS INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY” Rostam Josef Neuwirth

AN

THE UNESCO DECLARATION CONCERNING THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE: ONE STEP FORWARD AND TWO STEPS BACK Federico Lenzerini THE ESTABLISHMENT OF THE SECRETARIAT OF THE ANTARCTIC TREATY Patrizia Vigni

97

131

147

VIII

CONTENTS

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2003) Tullio Treves THE ACTIVITY OF THE INTERNATIONAL LAW COMMISSION DURING ITS 55TH SESSION Massimo Iovane THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2003) Federico Lenzerini and Massimiliano Montini REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2003 BY THE EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO INTERNATIONAL LAW Simona Granata

157

171

189

207

ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW Classiﬁcations Scheme

223

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

LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

225

III.

STATES AND OTHER INTERNATIONAL LAW SUBJECTS Immunity of foreign States from jurisdiction and prejudgement attachment - The issuance of bonds by a State on the international market constitutes a commercial activity not enjoying immunity from jurisdiction - Article 8 of the Bilateral Treaty on the Protection of Investments between Argentina and Italy, signed in Buenos Aires on 22 May 1990 - The request for a prejudgement attachment considered to be justiﬁed on the basis of Argentina’s economic crisis and debt default - Assets belonging to a foreign State may be seized only if they are not destined for the performance of that State’s public purposes Tribunale di Roma, 22 July 2002 (order) Mauri and Others v. the Republic of Argentina

225

Article 11 of the Lateran Treaty between Italy and the Holy See concluded in Rome on 29 February 1929 stating that the central bodies of the Catholic Church are exempted from any interference by the Italian State - Whether this Article precludes the exercise of Italian criminal jurisdiction for offences having effects on the Italian territory - Distinction between non interference and immunity from jurisdiction - The Vatican Radio may not be considered as a central institution taking part in the government of the Catholic Church in the exercise of its universal spiritual mission - Treaty provisions amounting to a

CONTENTS

XI.

IX

limitation to State sovereignty should be restrictively interpreted - Article 31 of the Vienna Convention on the Law of Treaties Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516 Re: Tucci, Borgomeo and Paciﬁci

227

HUMAN RIGHTS Article 14 (Personal Domicile) of the Italian Constitution - Right to respect for private life - Article 8 of the European Convention on Human Rights and Fundamental Freedoms - Article 17 of the International Covenant on Civil and Political Rights - Articles 7 and 52 of the Charter of Fundamental Rights of the European Union Corte Costituzionale, 24 April 2002, No. 135

231

Article 6 paragraph 2 of the Treaty on European Union - Preliminary ruling of the Court of Justice of the European Communities - Article 1 paragraph 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms - Direct applicability - Compatibility of land planning with the right of property Corte di Cassazione (Sez. I civile), 19 July 2002, No. 10542 Muscas and Others v. Comune di Cagliari

234

Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 - Right to life - Deprivation of life - Lawfulness of the use of force and ﬁrearms by law enforcement ofﬁcials - Absolute necessity - Article 53 Italian Criminal Code Corte di Cassazione (Sez. IV penale), 2 May 2003, No. 20031 Re: Fusi

237

Right of Property - “Occupation-expropriation” rule - Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms - Role of the case-law of the European Court of Human Rights Corte di Cassazione (Sezioni Unite civili), 14 April 2003, No. 5902 Stea-Schiralli v. Comune di Modugno

241

Article 6 paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms - Right to “reasonable time” in the length of proceedings - Just satisfaction - Establishment of the alleged non-pecuniary damage - Interpretation of the European Convention on Human Rights and Fundamental Freedoms - Effects of judgments of the European Court of Human Rights - Law No. 89 of 2001 (“Legge Pinto”) Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1338 Balsini v. Ministero della Giustizia Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1339 Lepore v. Ministero della Giustizia Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1340 Corbo v. Ministero della Giustizia

X

XII.

CONTENTS

Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1341 Lepore-Lepore v. Ministero della Giustizia

245

INTERNATIONAL CRIMINAL LAW

252

XIII. INTERNATIONAL RESPONSIBILITY XV.

252

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS Co-operation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) on enforcement of sentences - Recognition of the judgments of the ICTY - Whether the national authorities have the power to convert, by adopting the “exequatur” order, the sentence pronounced by the ICTY into a national sentence of a lesser term of imprisonment - Agreement between Italy and the United Nations of 6 February 1997 - Interpretation of an agreement authenticated in two languages - Interpretation of conventional rules in the light of legal rules of the State of the judge - Interpretation of conventional rules in the light of relevant rules contained in United Nations Security Council Resolution No. 827(1993) adopting the Statute of the ICTY Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377 Re: Jelisic

252

Execution of letters rogatory - Whether copies require ofﬁcial authentication for their admissibility as evidence - 1959 European Convention on Mutual Assistance in Criminal Matters - Relationship between treaty law and domestic law - Treaty between Italy and Switzerland concluded in Rome on 10 September 1998 which supplements the European Convention on Mutual Assistance in Criminal Matters and facilitates the application of the principles contained therein - Letters rogatory are governed by the law of the requested State according to a universal principle of international law - Interpretation of a treaty in the light of any subsequent practice in its application - Article 31, paragraph 3(b) of the Vienna Convention on the Law of Treaties - Schengen Agreements Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576 Re: Monnier Corte di Cassazione (Sez. I penale), 8 November 2002, No. 37774 Re: Strangio and Others

256

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW Regional competence to undertake international agreements - “Letter of intent” between the Veneto Region and Argentina of 31 March 1999 - Principle of “loyal cooperation” between State and Regions Corte Costituzionale, 30 January 2003, No. 13 Presidente del Consiglio dei Ministri v. Regione Veneto

259

CONTENTS

XI

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

III.

X.

XI.

LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 1. RESERVATIONS TO TREATIES

265

STATES AND OTHER INTERNATIONAL LAW SUBJECTS 1. SOVEREIGNTY OVER US AND NATO MILITARY BASES

266

TREATMENT OF ALIENS AND NATIONALITY 1. DIPLOMATIC PROTECTION 2. RIGHT OF ASYLUM

266 267

HUMAN RIGHTS 1. TORTURE AND OTHER CRUEL, INHUMAN AND/OR DEGRADING TREATMENT

270

XIII. INTERNATIONAL RESPONSIBILITY 1. INTERNATIONAL LIABILITY 2. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. SECURITY CO-OPERATION A. The “Total Information Awareness” Project and the Right to Privacy B. Fight against Terrorism and Right to Privacy 2. DEVELOPMENT CO-OPERATION A. Human Rights Violations and Aid Suspension: The Cases of Cuba and Vietnam 3. IMMIGRATION

XVII. INTERNATIONAL ORGANIZATIONS 1. UNITED NATIONS A. Justice and the Rule of Law: The Role of the United Nations B. Annual Report of the Security Council to the General Assembly C. Security Council Reform D. International Court of Justice Advisory Opinion on Israel’s “Separation Wall” 2. EUROPEAN UNION A. Human Rights Protection B. International Monitoring of Elections: The Case of Venezuela XX. WAR, NEUTRALITY, AND DISARMAMENT 1. THE IRAQI CRISIS A. Use of Italian Infrastructures B. Legal Justiﬁcation of the Use of Force

270 271

273 273 274 275 275 276

278 278 281 282 285 286 286 286

287 287 288

XII

CONTENTS

C. The Multinational Intervention in Iraq D. The Italian Participation in the Multinational Force E. Multilateral Participation in the Management of the Iraqi Crisis

288 289 291

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 2003

IV.

DIPLOMATIC AND CONSULAR RELATIONS

295

VI.

LAW OF THE SEA

296

VII.

ENVIRONMENT

298

X.

TREATMENT OF ALIENS AND NATIONALITY 1. IMMIGRATION AND EMIGRATION

298

XI.

HUMAN RIGHTS

298

XV.

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. SOCIAL AND HEALTH MATTERS 8. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 9. LEGAL AND JUDICIAL CO-OPERATION 10. CO-OPERATION AGAINST TERRORISM 11. MILITARY AND SECURITY MATTERS 12. FRIENDSHIP AND CO-OPERATION TREATIES 13. DIPLOMATIC CONFERENCES AND INTERNATIONAL MEETINGS 14. NEIGHBOURLY RELATIONS

299 299 299 301 302 304 305 306 308 309 309 313 314 314

XVII. INTERNATIONAL ORGANIZATIONS 1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS 2. EUROPEAN UNION 3. NATO 4. OTHER INTERNATIONAL AGENCIES

315 315 316 316

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

317

CONTENTS

XX. WAR, NEUTRALITY, AND DISARMAMENT

XIII

319

B) AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2003, THE ENTRY INTO FORCE OF WHICH WAS ANNOUNCED IN THE GAZZETTA UFFICIALE IN 2003 XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION 2. TRANSPORT, TRAFFIC, COMMUNICATION 3. SOCIAL AND HEALTH MATTERS 4. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 5. LEGAL AND JUDICIAL CO-OPERATION 6. CO-OPERATION AGAINST TERRORISM 7. NEIGHBOURLY RELATIONS

319 319 320 320 321 321 321

XVII. INTERNATIONAL ORGANIZATIONS 1. EUROPEAN UNION

321

XX. WAR, NEUTRALITY, AND DISARMAMENT

322

LEGISLATION (edited by Pia Acconci, with the exception of legislation on Diplomatic and Consular Relations, Air and Space Law, and Nationality edited by Chiara Battistini, legislation on Environment edited by Massimiliano Montini, legislation on Immigration and Emigration, Use of Force Short of War and Peace-Keeping, and War, Neutrality, and Disarmament edited by Gianluca Rubagotti) IV.

DIPLOMATIC AND CONSULAR RELATIONS

323

VII.

ENVIRONMENT

324

IX.

AIR AND SPACE LAW

326

X.

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

327 331

XI.

HUMAN RIGHTS

335

XV.

CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. FOREIGN TRADE 2. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES CONCERNING POLITICAL AND MILITARY CO-OPERATION

337 338

XIV

CONTENTS

3. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT 4. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES ESTABLISHED FOR THE PURPOSES OF CULTURAL CO-OPERATION

338 340

XVII. INTERNATIONAL ORGANIZATIONS 1. WORLD HEALTH ORGANIZATION 2. INTERNATIONAL MONETARY FUND

340 341

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

341

XX. WAR, NEUTRALITY, AND DISARMAMENT

344

BIBLIOGRAPHIES ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW 2003 (edited by Giulio Bartolini, Federico Lenzerini and Massimiliano Montini)

REVIEW OF BOOKS

347

375

MANUEL DÍEZ DE VELASCO, Instituciones de derecho internacional público (Principles of Public International Law), 14th ed., Madrid, Editorial Tecnos S.A., 2003 - JULIO D. GONZÁLEZ CAMPOS, LUIS I. SÁNCHEZ RODRÍGUEZ and PAZ ANDRÉS SÁENZ DE SANTA MARÍA, Curso de derecho internacional público (Course of Public International Law), 3rd ed., Madrid, Civitas Ediciones S.L., 2003 (Benedetto Conforti); MARIA ROSARIA MAURO, Gli accordi bilaterali sulla promozione e la protezione degli investimenti (Bilateral Agreements on the Promotion and Protection of Investments), Torino, Giappichelli, 2003 (Giorgio Sacerdoti); PIA ACCONCI, Il collegamento tra Stato e società in materia di investimenti stranieri (The Link between the State and Companies regarding Foreign Investments), Padova, Cedam, 2002 (Giorgio Sacerdoti).

BOOKS RECEIVED

383

INDEX

385

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.

XVI

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

LIST OF ABBREVIATIONS

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

LIST OF ABBREVIATIONS

UNTS Yale JIL YEEL YEL YIEL YIHL YILC/ACDI ZAÖRV

XVII

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

REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS BENEDETTO CONFORTI*

1. INTRODUCTION The European Court of Human Rights (the “Court”) has used very often the notion of positive obligation, i.e. the obligation of the State to protect a person against violations of human rights committed by individuals or other entities. Positive obligations may also be called obligations of prevention, if the terminology of the International Law Commission is adopted. In the words of the Commission, obligations of prevention “[…] require States to take all reasonable or necessary measures to prevent a given event […]”.1 In some cases the Court has inferred a positive obligation from articles of the European Convention on Human Rights (the “Convention”) that were exclusively couched in terms of a negative duty. This is the case, for instance, in relation to Article 3 – the prohibition of torture and inhuman or degrading treatment – or Article 8 – non-interference with private and family life. In some other cases, the State is expressly bound by the Convention either to abstain from itself infringing directly the human right or to prevent someone else’s infringement of the right. The best example of an express obligation of prevention is offered by Article 2, ﬁrst sentence of § 1, according to which “everyone’s right to life shall be protected by law [...]”. This essay is focused speciﬁcally on the case-law of the Court regarding Article 2, since it offers the most interesting examples of decisions in the matter of positive obligations.2 There is reference made to other articles of the Convention

* Of the Board of Editors; and Former Judge, European Court of Human Rights. This paper was presented at a Conference on Issues of State Responsibility Before International Judicial Institutions, organized by Professors M. Fitzmaurice and D. Sarooshi in London in 2003. The proceedings of this Conference are due to be published by Hart Publishing. We gratefully acknowledge the permission of Professor D. Sarooshi to publish this paper in this volume of the Yearbook. 1 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Commentary to Article 14, § 3, Ofﬁcial Records of the General Assembly, Fifty-Sixth Session, Supplement No.10 and Corrigendum (A/56/10 and Corr.1). See also, generally, The Report of the International Law Commission on the Work of its Fifty-Third Session which contains the Draft Articles on State Responsibility and the Resolution adopted by the General Assembly, A/RES/ 56/83 taking note of the articles. 2 Judgments and decisions on admissibility of the Court will be quoted by mentioning the date and the name of the parties only, since they can easily be found on the web-site of the Court available at http://www.echr.coe.int/Eng/Judgments.htm.

4

ARTICLES

where relevant. Moreover, the conclusions reached in relation to Article 2 could be applied, mutatis mutandis, to positive obligations pertaining to other parts of the “Convention”. The case-law of the previously existing European Commission of Human Rights (the “Commission”) will also be taken into account. The ultimate goal of this paper is to contribute to the theory of State responsibility for internationally wrongful acts, in particular as far as the role of the principle of causation is concerned.

2. THE CASE-LAW OF THE COURT The Court has deﬁned the positive obligation under Article 2 in the following terms: “The ﬁrst sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction”.3 “This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions”.4 “For a positive obligation to arise, it must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identiﬁed individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might been expected to avoid that risk”.5 The second among the above cited dicta is self-evident. If relevant criminal legislation does not exist or is even inadequate, an individual cannot be deterred from committing an act which amounts to a violation of Article 2. The same can be

3 See, among others, the following judgments: LCB v. UK, Judgment of 9 June 1998, § 36; Osman v. UK, Judgment of 26 October 1998, § 115; Kiliç v. Turkey, Judgment of 28 March 2000, § 62; Keenan v. UK, Judgment of 3 April 2001, § 88; Mastromatteo v. Italy, Judgment of 24 October 2002, § 67. See also the decision on admissibility in Bromiley v. UK, Decision of 23 November 1999. 4 Keenan case, ibid., § 89. 5 Ibid., § 89, quoting Osman v. UK, cit. supra note 3, § 116.

STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS

5

said of Article 3 and, as far as the protection of private and family life so requires, Article 8. As far as Article 2 is concerned, no evident cases exist wherein the lack or the inadequacy of the legislation has been taken into account. Perhaps the only case which can be quoted is Kiliç v. Turkey.6 Here the Court decided that the life of the applicant’s brother – a journalist working in the South-Eastern part of Turkey for a newspaper voicing Kurdish opinions and who was found shot dead on his way home from work – had not been properly protected. The Court observed in its decision that many defects, and in particular the lack of serious investigations when murders of alleged supporters of the PKK occurred in the South-Eastern part of Turkey (and they occurred very often), undermined the effectiveness of criminal law protection in this region.7 This part of the decision can, it is argued, be interpreted in the sense that the provisions of Turkish criminal law were unable to deter people from committing these kinds of murders in the South-Eastern region of the country.8 By contrast, a clear case of inadequacy of criminal legislation, leading to a ﬁnding of violation of Article 3, is A v. UK.9 Here the Court was asked to ﬁnd a violation of Article 3 because of the failure on the part of the State to protect a child from ill-treatment by his step-father. After having decided that the ill-treatment reached the level prohibited by Article 3 (the child had been severely beaten), the Court noted that under English law it is a defence to a charge of assault on a child on the part of his parents that the treatment in question amounted to “reasonable chastisement”. It also noted that, in the trial before the national court, the jury had acquitted the step-father and that even the Government “accepted that the English law currently fails to provide adequate protection to children and should be amended”. In conclusion, the Court decided that the positive obligation under Article 3 had been breached.10 Similarly, X and Y v. The Netherlands11 is a case involving breach of a positive obligation owed by the State, pursuant to Article 8, due to the lack of relevant criminal legislation. Miss Y, a handicapped 16 year old girl, had been allegedly raped, but was unable, due to her mental condition, to bring the complaint herself. Acting on her behalf, her father had ﬁled a complaint with the local police station in order to institute criminal proceedings. However, the proceedings had been discon-

6

Cit. supra note 3. Ibid., §§ 71-75. 8 As a second argument, the Court held that Turkey had failed to provide for individual and preventive measure of protection, notwithstanding the frequent request of protection by the victim (see §§ 65-68). This part of the decision ﬁts rather in the third dicta of the Court quoted in the text. 9 Judgment of 23 September 1998. 10 Ibid., §§ 9-24. 11 Judgment of 26 March 1965. 7

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tinued since according to the Netherlands Criminal Code in force at the time of the incident, the legal representative of the victim was not allowed to lodge a complaint if the victim was over the age of sixteen or placed under a guardianship. The Court held that respect for private life, in a case like the one above, can only be assured by criminal-law provisions, since it is only these kind of provisions that provide the “effective deterrence [which] is indispensable in this area”. As such, the Court concluded that the positive obligation of the State to protect the private life of the second applicant had been violated.12 According to the third of the above quoted dicta, a test of “foreseeability of the event” and a test of “reasonableness” of preventive measures are applied by the Court in order to ﬁnd a breach of Article 2. The State is responsible if the authorities “knew or ought to have known” the risk to the life of a person and they failed to take measures which, “judged reasonably”, might have prevented the occurrence of the lethal event. The Court has applied these two tests on a number of occasions. However, to the knowledge of the present author, only once has it reached the conclusion that Article 2 was violated because of the lack of measures necessary to avoid a foreseeable risk. This was already exempliﬁed by the above-mentioned Judgment in Kiliç v. Turkey, concerning the murder of a journalist in the South-Eastern part of Turkey. Additionally, the Court held that Turkey had not taken preventive and appropriate measures of protection, notwithstanding the frequent requests for protection by the victim. In the opinion of the Court, the event was predictable due to the situation in the SouthEastern region where security forces were accused of committing all kinds of illegal activities, including the elimination of alleged supporters of the PKK.13 No cases concerning other obligations of prevention, in particular obligations to prevent torture or inhuman or degrading treatments (Article 3) or interference in private or family life (Article 8) can be mentioned. Sometimes the Court – in addition to or – as a speciﬁcation of the test of “foreseeability” has used the test of causality. By applying Article 2, it has tried to ascertain whether a causal link between the event and the omission – i.e., between the death of a person or a severe life-threatening injury, and the omission of preventive measures on the part of the State – could be established. The case of L.C.B. v. UK14 is an example of this approach. In L.C.B. v. UK the applicant claimed that she had developed leukaemia, during her childhood, due both to her father’s exposure to radiation (he was a serviceman

12 Ibid., §§ 23-30. The Court was also asked to ﬁnd a violation of Article 3. In the opinion of the present author it was exactly a case of breach of the obligation to protect a person against inhuman or degrading treatment inﬂicted by another person, indeed. On the contrary, the Court examined the case under Article 8, and consequently held that it had not to examine the application under Article 3 (see § 34). 13 Cit. supra note 3, §§ 65-68. 14 Cit. supra note 3.

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stationed on Christmas Islands at the time of nuclear testing) and the failure of authorities in the UK to warn her parents of the possible risks for the health of their subsequently conceived children. The Court stated that “having examined the expert evidence submitted to it, the Court is not satisﬁed that it has been established that there is a casual link between the exposure of a father to radiation and leukaemia in a child subsequently conceived […]. The Court could not reasonably hold, therefore, that […] the UK authorities could or should, on the basis of this unsubstantiated link, have taken action in respect of the applicant”.15 Another clear reference to causality appears in the case-law of the abolished Commission. In the case of Tugar v. Italy, the Commission declared inadmissible the application of an Iraqi national who stepped on a mine while clearing a mineﬁeld in the Chowman Valley in Iraq after the ﬁrst Gulf war. The applicant – having suffered severe injuries and the amputation of a leg – contended that since Italy was the State that had permitted the sale of mines to Iraq without adopting any controls or effective arms transfer licensing system (the seller had also been found guilty of illegal arms trafﬁcking to Iraq) that it had failed to take preventive measures against the risk of an “indiscriminate” use of such arms. The Commission held: “In the present case [...] the applicant’s injury can not be seen as a direct consequence of the failure of the Italian authorities to legislate on arms transfers. There is no immediate relationship between the mere supply, even if not properly regulated, of weapons and the possible ‘indiscriminate’ use thereof in a third country, the latter’s action constituting the direct and decisive cause of the accident which the applicant suffered”.16 With some hesitation the case of Mastromatteo v. Italy17 can also be cited for present purposes. In this case the Italian authorities were accused by a father of having violated Article 2 in relation to the murder of his son by three criminals during a bank robbery. The criminals when leaving the bank encountered a car driven by the applicant’s son. They attempted to take control of the car, but it appeared that the applicant’s son tried to escape whereupon he was shot dead. At the time of these offences, two of the three criminals had been granted prison leave – as part of a “semi-custodial” regime – when serving sentences for armed robbery and other offences; and the third was not in prison at the material time although he had a number of convictions for armed robbery. According to the applicant, the authori15

Ibid., § 39. Decision of 18 October 1995, DR 83-A, p. 29. 17 Cit. supra note 3. 16

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ties (i.e. the judge granting the prison leave and the semi-custodial regime) should have foreseen that the lethal event would happen and that they had failed to take reasonably available measures to prevent it from occurring. The Court expressly applied the test of “foreseeability” and did not ﬁnd a violation in the case.18 Incidentally, however, it also pointed out that the tragic death of the applicant’s son had been “a result of the chance sequence of events which occurred in the present case”, a sequence which the authorities were unable to predict.19 In conclusion, it may be said that in their case-law the Court and the previously existing Commission have set out the elements of the concept of a positive obligation, or what can alternatively be called the obligation of prevention. However this elaboration has not been of much importance in practice, since a violation of the Convention has been declared in very few cases. The breach of an obligation of prevention is easy to ascertain if it is the result of the lack or inadequacy of legislation – that is, of legislative provisions deterring individuals from behaving in a way that is condemned by the Convention. By contrast, a ﬁnding of violation is difﬁcult to reach when the breach is, or should be, solely the result of the negligence of the authorities in protecting a person against the wrongful action of other persons. In such cases the Court is satisﬁed only if the “foreseeability” of the wrongful event and the “reasonableness” of the preventive measures can be proved. Moreover, it is necessary for a link of causality to exist between the behaviour of the authorities and the event. The role of causality has to be stressed in ascertaining the breach of a positive obligation, since, in the view of the present author, it is the most important and problematic element under consideration in this essay. A conclusion that can be drawn from the Strasbourg case-law is that no violation is found in cases where there is lack of a casual link between the behaviour of the State and the event. The same reasoning applies to cases where the event is not “the immediate consequence” of State behaviour, i.e. where the State omission is too remote in the chain of the various circumstances which led to the ﬁnal wrongful event. Of course, the remoteness (understood in this essay in the literal sense as something referring to what is far in time or space) can be ascertained only empirically, taking into account the concrete circumstances of each and every case. It is quite impossible, and even unnecessary in a review of the case-law of the Court, to enter into all the theoretical and philosophical discussions and the technicalities of the doctrine of causation in criminal and civil law, including the numerous views that have been expounded on the question whether an omission can be a cause.20 Couched in simple terms, in the opinion of the present author, the causation, as 18

Ibid., §§ 74-79. Ibid., § 76. 20 On the subject, see HONORÉ, “Causation and Remoteness of Damage”, in TUNC (ed.), International Encyclopaedia of Comparative Law, Tubingen, 1971, Vol. XI, Part 1, Ch. VII, §§ 13, 44. 19

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it appears in the case-law of the Court concerning the obligations of prevention, is strictly linked to the “foreseeability” of the wrongful event. It is an ex post test of “foreseeability” of the event: even if the event was predictable, there is still room, even after the wrongful event occurred, for verifying its place in the chain of events. It seems that, in these three cases reported in the preceding paragraphs, the event was per se predictable and the reason why the Court reached a ﬁnding of no violation was exactly the absolute lack of a causal link between the omission and the event.

3. THE CASE-LAW OF THE COURT AND THE THEORY OF STATE RESPONSIBILITY In this section some conclusions will be drawn regarding the theory of State responsibility for internationally wrongful acts from the above review of the caselaw of the Court. Looking at the work of the International Law Commission on the subject, it is worth noting that a reference, although very loose, to the causal link between the omission and the internationally wrongful event was contained in the commentary to Article 23 of the previous Draft Articles on State Responsibility, the Draft inspired by the late Italian scholar Roberto Ago.21 The entire Article 23 was expressly devoted to the breach of an obligation to prevent a given event and perhaps one of the reasons why it was there was exactly the necessity to stress that “a certain causal link – indirect, of course, not direct – must exist between the occurrence of the event and the conduct adopted in the matter by the organs of the State”.22 The rule of Article 23 has disappeared in the Articles that were inspired by the Special Rapporteur James Crawford,23 and with it vanished as well the reference to the causal link. A reference to causation can now be found in Article 31 and its commentary concerning the reparation, wherein the obligation is laid down to repair the damage “caused” by a wrongful act of the State. Clearly this is a different aspect of causation from the one dealt with now. The former aspect – an aspect which has been treated by international tribunals, including the Court,24 and deeply explored in legal doctrine25 – corresponds to the parallel aspect in the law of tort in 21

YILC, 1978, Vol. II, p. 91. Ibid., p. 83. 23 Cit. supra note 1. 24 For a review of the case-law of the Court on the subject, see KEMPEES, A Systematic Guide to the Case-Law of the ECHR, The Hague, 1996-2000, sub Article 50. Of course, the decisions relevant to causation are those allowing, or refusing to allow, pecuniary damages for material loss suffered as a consequence of a violation of the Convention. Normally the Court awards also a sum as compensation for damage of a non-pecuniary nature, wherein a problem of causal link does not arise. 25 Especially in the slightly outdated, but still very stimulating, book by BOLLECKER-STERN, Le préjudice dans la théorie de la responsabilité internationale, Paris, 1973, p. 179. As far as 22

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national legal orders. On the contrary, the aspect dealt with in this essay pertains to the structure of the internationally wrongful act itself, like the parallel aspect in national criminal law. In the view of this author the reason for the disappearance of the old Article 23 and of any reference to the causal link, as well as the disappearance of many rules already contained in the previous Draft, is that the present members of the Commission are of the opinion that such rules do not pertain to State responsibility (they were not secondary rules) but rather belong to the realm of primary rules.26 The present author confesses many difﬁculties in accepting the distinction between primary and secondary rules. Unfortunately, the elaboration of such a large subject exceeds the scope of this study.27 It is enough to stress that what has been said thus far in this essay, shows that the problem of the causal link – like the parallel problem in criminal law – is an element of the internationally wrongful act. In this regard it seems appropriate to quote another Italian scholar, the late professor Rolando Quadri, who opposed consistently the so-called (by Ago) “subjective element of the internationally wrongful act”, i.e. the attribution of the wrongful conduct to the State under international law.28 His contrasting view was that only the element of causation was pertinent to establish State responsibility for actions or omissions contrary to international law.29 No doubt, this is an extreme and exaggerated opinion. Perhaps the best conclusion is one in the middle, i.e. that the causal link can be taken into consideration as one of the conditions of the subjective element, the other one being, according to Ago, the fact that the action or the omission is committed by an organ of the State. In other words, it is not sufﬁcient – as it is said in the general remarks to Chapter II, Article 4, of the Articles on State Responsibility – that the act shall be considered an act of that State under international law when “[...] the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of that State, and whatever its character as an organ of the central government or a territorial unit of that State [...]”.30 It is also necessary that a certain link exists, as it was explained, between the conduct and the wrongful event.

the reparation for violations of the Convention is concerned, see MAS, “Right to Compensation under Article 50”, in MACDONALD, MATSCHER and PETZOLD (eds.), The European System for the Protection of Human Rights, Dordrecht, 1993, p. 777 ff., p. 784. 26 Cf. CRAWFORD, “Revising the Draft Articles on State Responsibility”, EJIL, 1999, p. 435 ff., p. 441. 27 Reference is made to observations submitted by the present author in the book on International Law and the Role of Domestic Legal Systems, (English version of the General Course on public international law delivered at the Hague Academy in 1988), Dordrecht, 1993, p. 171. 28 This subjective element is maintained tel quel in the new Draft of the ILC (cf. Article 2 (a)). 29 QUADRI, “Cours général de droit international public”, RCADI, 1964, III, pp. 237-483, p. 457. 30 Draft Articles on State Responsibility, cit. supra note 1.

GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF SOMALIA ABDULQAWI A. YUSUF*

1. INTRODUCTION: FAILURE OR COLLAPSE? Much has been written during the past decade about States that have suffered from various degrees of chaos and anarchy, or whose system of governance has been affected by widespread acts of violence or civil war. Some commentators have characterized such States as “failed States”,1 others have referred to them as “collapsed States”,2 while still others have used the traditional notions of internal conﬂict or non-international armed conﬂict.3 With respect to the situation that has prevailed in Somalia since 1991, this author’s preference is for the use of the notion of “government collapse”. This clear and uncluttered notion will be used to analyze the impact of the temporary interruption or absence of an effective central government on the identity and continuity of an established State. This preference is equally dictated by a number of other reasons. First, the use of expressions such as “Failed State” to describe the absence or ineffectiveness of government in a given State may be considered appropriate from the stand point of political science or political journalism. It can however hardly be justiﬁed in international law, for which “government” is but one of the essential elements of statehood, albeit a very important one. A State may disintegrate and break up into two or more separate States, or it may be occupied or annexed by another State. It may also voluntarily unite or merge with an existing State to form a single new State. But a State neither fails nor collapses, and may even continue in existence from the stand point of international law, as will be shown later in this article, during relatively long periods of chaos and anarchy or occupation by another State.

* Associate Member, Institut de droit international; General Editor, African Yearbook of International Law. 1 See for example HELMAN and RATNER, “Saving Failed States”, Foreign Policy, 1992-93, p. 3 ff. See also MUTHARIKA, “The Role of International Law in the Twenty-First Century: An African Perspective”, Fordham International Law Journal, 1996, p. 1706 ff. 2 See ZARTMANN (ed.), Collapsed States: The Disintegration and Restoration of Legitimate Authority, London, 1995; YANNIS, “State Collapse and the Prospects for Political Reconstruction and Democratic Governance in Somalia”, African Yearbook of International Law, 1997, pp. 2347. 3 See DAMROSCH (ed.), Enforcing Restraint: Collective Intervention in Internal Conﬂicts, New York, 1993.

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Secondly, the use of these expressions has often been associated with a loose labeling of certain States, mostly in Africa, as “failures” to justify suggestions that they be placed under international “conservatorship” or UN Trusteeship.4 It is true that in many African countries the State has simply failed (the word is used here in its common sense of falling short of success or achievement in something expected) to provide its people with an adequate sense of identity or to deliver the goods. Many African States have proven unable, since their independence in the 1960s, to provide basic social services or to ensure the physical security of their citizens.5 But this situation cannot be equated with institutional or government collapse, or an absence of government. It might at most qualify as a structural weakness, which if not corrected, might lead to such collapse or render the government ineffective. Thirdly, proposals for placing so-called failed States under UN Trusteeship or conservatorship have been criticized as throwback to colonialism prompting one author to claim that the primary contribution of this notion “has been to smooth the way for advocates of the return of European colonialism and the continuation of other dominance strategies over African peoples”.6 More important, in advancing such ideas these authors seem to have completely overlooked that the UN Charter explicitly provides that “the Trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality”,7 or to have underestimated the difﬁculty of amending such a provision. To summarize, these notions may be handy and attractive as political labels.8 but they are not certainly legal concepts that may help us analyze or better understand the phenomenon of government collapse or its implications for statehood in international law. It should however be noted that some of these catch-all terms such as “failed States”, “collapsed States”, and “rogue States” may often obscure complex realities in international relations which pose serious conceptual problems for contemporary international law. In the following pages we will ﬁrst examine the background to government collapse and its aftermath in Somalia. We will then explore in subsequent sections the consequences of this collapse for the identity and unity of the State, for its territorial integrity, for its international legal personality as well as for its continuity in international law.

4

HELMAN and RATNER, cit. supra note 1, pp. 12-18. YUSUF, “Reﬂections on the Fragility of State Institutions in Africa”, African Yearbook of International Law, 1994, pp. 3-8. 6 RICHARDSON, “Failed States, Self-Determination and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectation”, Temple International and Comparative Law Journal, 1996, p. 36 ff. 7 Article 78, UN Charter. 8 See YUSUF, “Somalia’s Warlords: Preying on a Failed State”, The International Herald Tribune, 21 January 2004, p. 6. 5

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2. BACKGROUND The Somali Republic emerged as an independent State on 1 July 1960 following a merger on the same date of the former Italian and British Somalilands.9 For the ﬁrst nine years after independence, the country enjoyed civilian rule and a vibrant parliamentary democracy with relatively peaceful political elections. It was also the ﬁrst African country in which a Head of State was peacefully voted out of ofﬁce when in 1967, the former Prime Minister Dr. Abdirashid Ali Shermarke was elected to replace Aden Abdulle Osman, the ﬁrst President of the new Republic. Following the assassination of President Shermarke by a policeman in October 1969, a group of army ofﬁcers led by General Mohamed Siyad Barre staged a coup and established a military dictatorship. General Siyad Barre’s authoritarian rule lasted for 21 years. However, by the time he was ousted by a motley group of guerilla armies in January 1991 there was hardly a government in the country. His iron-clad grip on power had long slipped and his authority had been limited for quite some time to the capital Mogadishu.10 The descent into chaos and civil war had been slow and gradual, but its origin might be traced to the defeat of Siyad Barre`s army in the Ogaden war with Ethiopia of 1977-78. In the aftermath of the war, political repression quickly escalated, summary executions of civilians and army ofﬁcers became widespread, and clan-based militias armed by the regime started to proliferate. More importantly, serious dissent appeared in the ranks of the army, the regime’s traditional power base, resulting in an attempted coup d’état by senior ofﬁcers in April 1978. The ensuing clamp down led to the formation in mid-1978 of the ﬁrst armed opposition group, known as the Somali Salvation Democratic Front (SSDF) with headquarters in Ethiopia which soon started to make incursions into Somali territory and to wage a guerrilla war against Siyad Barre’s government. As the political and economic conditions of the country deteriorated, and Siyad Barre’s repression affected more and more people in the country, other opposition groups came into being in the 1980s, such as the Somali National Movement (SNM), the United Somali Congress (USC) and the Somali Patriotic Movement (SPM), all of which were generously hosted and helped by the Ethiopian regime of Menghitsu Haile Mariam.11 By 1990, the increasing armed forays by the above-mentioned opposition groups into various provinces of the country, coupled with the creation in Mogadishu of a strong anti-Siyad Barre political alliance known as the “Manifesto Group”, led to a gradual erosion of the authority of the regime and to a slow-motion 9

See generally LAITIN and SAMATAR, Somalia: Nation in Search of a State, Boulder, CO,

1987. 10

“The Mayor of Mogadishu”, The Economist, 29 September 1990, p. 47. See generally, COMPAGNON, “The Somali Opposition Fronts: Some Comments and Questions”, Horn of Africa, 1990, pp. 29-54; see also SAMATAR, Somalia: A Nation in Turmoil, London, 1991. 11

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collapse of its main political prop - the armed forces. Following the inﬁltration of the armed guerrillas of the USC into the outskirts of Mogadishu, and sometimes into some of its neighborhoods, the occupation by the SNM of some key towns in the Northwestern provinces, and the take-over by the SPM of several villages in the South-West, a state of emergency was declared by Siyad Barre in a last-ditch effort to salvage his government. However, as the army crumbled, and abandoned most of its heavy weapons into the hands of the insurgents, Siyad Barre and his clan-based loyal body guards ﬂed Mogadishu on 26 January 1991 and took refuge in his native Gedo region near the Kenyan border. He subsequently died in exile in Nigeria on 2 January 1995. The ouster of the Siyad Barre regime did not bring to an end the Somali ordeal. It actually led to the eruption of a murderous civil war, which might best be described as a war on the civilian population, whose ﬁrst victims were the inhabitants of Mogadishu.12 Thousands were massacred by the USC militias as they took over the city and immediately went on a rampage of mass killings and murder of innocent civilians, because of clan afﬁliation, as well as the looting of public and private property. Banks, museums, State archives, government buildings and churches were equally laid to waste while electricity and water lines were dug out and sold.13 The subsequent split of this group into two factions respectively led by General Mohamed Farah Aidid (USC/SNA) and Mr. Ali Mahdi (USC/SSA) resulted in what the then Secretary-General of the UN described “as an all-out war for control of Mogadishu” that lasted for four months in 1991 “during which time an estimated 25,000 civilians were killed or wounded, as rival factions bombarded each other’s positions in heavily populated areas using tanks, artillery and ﬂeets of ‘technicals’ – pick-up trucks mounted with large-calibre machine-guns, artillery and anti-aircraft guns”.14 Fighting also erupted between the USC, particularly the Aidid-led faction (USC/SNA), and other armed groups that had taken control over various regions of the country, including remnants of the Siyad Barre army in the Gedo region and in Baidoa, as well as the SPM in the Kismayo area, and the SSDF in the Galkayo area. This generalized warfare, which was most often due either to the efforts by USC/SNA to extend the areas under its control to the south and north of Mogadishu, or to attempts by other groups, such as the remnants of Siyad Barre’s army to regain control of Mogadishu, resulted in widespread destruction, devastation, the killing of over 300,000 civilians, and the displacement of over a million others.

12

“In Somalia, Graves and Devastation”, The New York Times, 30 January 1991, p. 12. See CLARK, “Debacle in Somalia: Failure of the Collective Response”, in DAMROSCH (ed.), cit. supra note 3, p. 211 ff.; see also SINJELA, OUGUERGOUZ and YUSUF, “The UN and Internal Conﬂicts in Africa: A Documentary Survey”, African Yearbook of International Law, 1994, pp. 253-283. 14 See UN Department of public Information, The United Nations and Somalia (1992-1996), New York, 1996, p. 12, para. 13. 13

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Lawlessness and violence blanketed entire regions with the warlords and their militias looting, plundering, and destroying the crops of local farming populations in the southern agricultural regions causing widespread famine and starvation.15 Most of the anarchy, lawlessness and armed conﬂict involving warlords and their militias took place in Mogadishu, and in the central and southern regions of the country. The Northeastern regions controlled by the SSDF remained relatively calm during this period and later established self-government structures calling themselves the “Somali State of Puntland”. The Northwestern regions also, restored law and order under the control of the SNM, and gradually evolved their own governmental structures and declared themselves as the “Republic of Somaliland”. Unlike however the “Puntland State”, the authorities of the “Republic of Somaliland” declared secession from the rest of the country in May 1991, and continue to consider themselves as a separate entity although not recognized as such by any State or intergovernmental organization.

3. THE NON-EXISTENCE OF AN EFFECTIVE CENTRAL AUTHORITY (1991-2004) Since the ouster of the Siyad Barre regime in 1991, the Somali Republic has not had a central government with an organized administration and effective authority over the entire territory of the country. A couple of nominal governments, whose reach was limited to Mogadishu or to some parts of it, have claimed to represent the country during certain periods (in particular 1991-1992 and 2000-2003), but have never been able to exercise effective power. Throughout this period, different parts of the country have been governed by various types of local authorities, described by some commentators as “ranging from militias, to clan elders, to maﬁalike rackets, to fundamentalist mosques”.16 Essentially, there have been three types of authorities in various regions, cities and towns in the country: those elected or selected by the local population, those based on traditional clan-based governance structures, and those created and led by a warlord and his militias.17 The ﬁrst nominal government was established a few days after Siyad Barre ﬂed Mogadishu. It emerged as a result of an agreement between Siyad Barre’s last Prime Minister, Omar Arteh Galeb, and one of the leaders of the USC, Ali Mahdi. It was a self-appointed government whose control did not extend to the entire city of Mogadishu. It was also contested and later fought by all other insurgency movements including another wing of the USC itself led by General Aidid. It also failed to obtain recognition from the international community even after having been en15 See, for example, PERLEZ, “Somalia Self – Destructs and the World Looks on”, The New York Times, 29 December 1991, p. D4. 16 MENKHAUS and PENDERGAST, “Somalia, the Stateless”, Africa Report, May-June 1995, pp. 22-25. 17 For an analysis of these structures, see infra section 5.1.

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dorsed as a Provisional Government in a meeting attended by many Somali factions in neighbouring Djibouti in July 1991. This was mainly due to its lack of effective authority over any signiﬁcant portions of the territory of the State, including the capital. Its lack of recognition may best be illustrated by the outcome of a case that was brought before the UK courts in connection with a cargo of rice bought and paid for by the government of Siyad Barre before it was toppled. As a result of the ﬁghting in Mogadishu, the cargo could not be delivered and had to be sold with the proceeds (over US$ 2 million) paid into court in London. Instructed by Arteh from a hotel room in Jeddah, Saudi Arabia, English solicitors tried to obtain the release of the money. The British judge, however, held that there was no government of Somalia and therefore no authority that could claim the release of the fund. Judge Hobhouse stated inter alia that there was a difference between a constitutional government and an insurgency: “a loss of control by a constitutional government may not immediately deprive it of its status, whereas an insurgent regime will require to establish control before it can exist as a government”.18 He characterized the Ali Mahdi-Arteh regime as being devoid of constitutional legitimacy, and questioned the effectiveness of a Somali government that issued orders from a hotel room in Jeddah, Saudi Arabia. He therefore concluded that the interim government of Ali Mahdi-Arteh was not entitled to represent Somalia for the purpose of claiming money paid into court.19 The second nominal government, led by Abdikassim Salad Hassan, emerged as a result of the 12th national reconciliation conference held in Djibouti from March to August 2000. Mr. Salad Hassan was selected by a provisional parliament appointed by the participants at the conference and was asked to set up a Transitional National Government (TNG) to be based in Baidoa, and not Mogadishu, because of the control exercised on the latter by a number of feuding warlords. But, he decided to ignore the resolution of the conference and to establish his headquarters in Mogadishu. The warlords ignored him and his government and continued to go about their business in the capital and its neighboring regions ﬁghting, pillaging, destroying, murdering, kidnapping and carrying out their arms and drug trade through private ports and airports, while they ensured that the main port and the international airport of Mogadishu would remain closed. Nor was his government recognized or even acknowledged by any of the local administrations or governments controlling various parts of the country, the most important of which were during this period the “Somaliland government” in the Northwestern regions of the country and the “Puntland government” in the Northeastern regions. Not unlike the Ali Mahdi government, the nominal government led by Abdikassim Salad never succeeded to establish any judicial or administrative structures anywhere in the 18 Republic of Somalia v. Woodhouse, Drake & Carey (Suisse) SA [1992], Weekly Law Reports, Vol. 3, p. 744 ff. 19 For an analysis, see CRAWFORD, “Who is a Government? The Executive and the Courts”, Cambridge Law Journal, 1993, p. 4 ff.

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country; nor did it make any attempts at rehabilitating schools, hospitals or other public infrastructure. Although its writ did not run beyond the Mogadishu neighborhood, where its headquarters was located, its mere “existence” was welcomed by the United Nations and the Organization of African Unity (whose meetings were frequently attended by members of the government on behalf of Somalia) as a possible interlocutor.20 Its three-year term of ofﬁce came, however, to an end in August 2003 without any signiﬁcant accomplishments. In the period between these two nominal governments, attempts were made by the United Nations during the second phase of its operation in Somalia (UNOSOM II), established by Security Council Resolution 814(1993) of 26 March 1993, to resuscitate Somalia’s administrative and judicial systems, and to rebuild its political institutions.21 The efforts of the UN were however stymied by the actions of various warlords operating in Mogadishu, and in particular by the militias of the USC/SNA led by General Aidid. In a report to the Security Council, SecretaryGeneral Boutros Boutros-Ghali, stated that: “Ultimately, all the efforts being undertaken by the United Nations in Somalia are directed towards one central goal: to assist the people of Somalia to create and maintain order and new institutions for their own governance. The absence of a central government has aggravated the social, economic and political difﬁculties in the country. In fact, the non-existence of a government in Somalia is one of the main reasons for the now more robust role of the organization in the country”.22 The Permanent Representative of the United States also called UNOSOM II “an unprecedented enterprise aimed at nothing less than the restoration of an entire country as a proud, functioning and viable member of the community of nations”.23 Faced, however, with recalcitrant warlords unwilling to reconcile, and following the killing of Pakistani, Nepalese and US soldiers serving under UNOSOM II, the Security Council decided to wind down ﬁrst and then terminate on 31 March 1995 the UN operation in Somalia. According to the UN Secretary-General: “Much more would have been possible if the Somali leaders and factions had demonstrated a determination to end their armed conﬂict

20

For an analysis of the UN position, see infra section 5.2. For an account of these efforts, see OSINBAJO, “Legality in a Collapsed State: the Somali Experience”, ICLQ, 1996, pp. 910-923. 22 Further Report of the Secretary-General submitted in pursuance of paras. 18 and 19 of Resolution 794(1992), UN Doc. S/25354, para. 1. 23 Doc. S/PV.3188 cited in The United Nations and Somalia (1992-1996), cit. supra note 14, p. 44, para. 126. 21

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and forge political reconciliation. Much of the responsibility for the continuing insecurity and hardships experienced by Somalia’s people rests with the factions failure to lay down their arms”.24 Thus, the warlords and their militias did not only lay their country to waste, causing destruction, devastation and the death of hundreds of thousands of innocent civilians, but they also frustrated the efforts of the international community to come to the help of their people and to provide them with much-needed assistance. Following the withdrawal of UNOSOM II, General Aidid declared himself “interim President” in Mogadishu in June 1995, but was soon contested by other warlords which led to renewed ﬁghting in the capital. He also attempted to claim Somalia’s seat at the OAU summit meeting later that month, but the OAU rejected his claim and decided to keep Somalia’s seat open until a generally accepted government was established.25 Several other warlords have likewise anointed themselves as “interim presidents” but have never been recognized either internally or externally.

4. EXTINCTION OR SUSPENDED ANIMATION? In light of the Somali situation described above, the question arises whether the Somali State has ceased to exist due to the lack of effective authority over its entire territory and population. In other words, has the absence of a central government for such a long period (13 years at the time of writing) resulted in the death of the State? The existence of a government or an effective government is an essential criterion for statehood.26 The 1933 Montevideo Convention, which is the most widely cited text on the subject, lays down the following qualiﬁcations for statehood: “(a) a permanent population; (b) a deﬁned territory; (c) government; and (d) capacity to enter into relations with other States”.27 Although the fourth criterion regarding “capacity to enter into relations with other States” has been criticized for not being unique to States,28 the ﬁrst three qualiﬁcations are generally admitted as being central to the legal deﬁnition of a State. A distinction, however, needs to be made between a new entity which claims statehood at the international level and an established State which had already acquired such personality. Indeed, it may be argued that the Montevideo Convention 24

Ibid., p. 84. Ibid., p. 79. 26 See CRAWFORD, “The Criteria of Statehood in International Law”, BYIL, 1976-1977, p. 116 ff. 27 Convention on the Rights and Duties of States, League of Nations Treaty Series, 1936, Vol. 165, p. 19 ff. 28 “Capacity is not a criterion, but rather a consequence of Statehood”, CRAWFORD, cit. supra note 26, p. 19. 25

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is concerned with the qualiﬁcations a new entity would have to possess to claim statehood rather than how an existing State could lose that quality. Thus, a putative State lacking one of these basic qualiﬁcations may not meet the requirement of statehood. If such an entity did not, for example, have a government or a deﬁned territory, it would be hard pressed to claim to be a State.29 For an established State however the situation is much more complex. The issue here is the loss of Statehood rather than its acquisition. In other words, how long could a State preserve its Statehood, despite the lack of government? Marek, who thoroughly studied the subject of State extinction maintains that “Customary international law does not supply any deﬁnite criterion for determining when a State ceases to exist. Obviously enough no conventional solution of the problem has ever been undertaken. Nor are any pronouncements on the subject to be found in international judicial decisions”.30 The issue of extinction has however been extensively debated by publicists. Oppenheim, for example, gives a list of the instances in which this may occur.31 The lack of government is not included in the list. Nonetheless, it is observed elsewhere by the same author that once a State is established, “temporary interruption of the effectiveness of its government, as in a civil war or as a result of belligerent occupation, is not inconsistent with the continued existence of the State”.32 But, the question is: how temporary? Ten years? Twenty years or more? In the Sambiaggio case of 1903 to which Oppenheim refers in support of his argument on temporary interruption of government, the umpire stated that Venezuela had suffered internal disorders and revolutions within the past ﬁve years.33 A similar position was adopted by the Institute of International law, in its Resolution of 1936 on the extinction of States. It is stated in Article 5 of the Resolution that: “La reconnaissance de jure est irrévocable; elle ne cesse ses effets qu’en cas de disparition déﬁnitive de l’un des éléments essentiels dont la réunion se trouvait constatée au moment de la reconnaissance” (emphasis added). Indeed, on the proposal of Fernand De Visscher, the operative word “déﬁnitive” was added just before the resolution was adopted “pour la raison que cette restriction évite que l’article 5 ne s’applique à un Etat victime des troubles passagers”.34 29 According to Crawford “the requirement that a putative State have an effective government might be required as central to its claim to statehood”, ibid., p. 116. 30 MAREK, The Identity and Continuity of States in International Law, Genève, 1968, p. 7. 31 JENNINGS and WATTS (eds.), Oppenheim’s International Law, 9th ed., London, 1992, Vol. I, p. 206. 32 Ibid., p. 122. See also Crawford who refers to the occupation of Ethiopia, Austria, Czechoslovakia and Albania, in the period between 1936-1945, and notes that their legal personality was regarded, at least by the allied powers, as having been preserved despite the lack of effectiveness, CRAWFORD, cit. supra note 26, p. 174. Equally, MAREK: “The absence of effectiveness does not necessarily mean the extinction of a State”, cit. supra note 30, p. 8. 33 Sambiaggio case, Reports of International Arbitral Awards, Vol. 10, p. 500 ff, p. 524. 34 Annuaire de l’Institut de Droit International, 1936, Vol. II, p. 301.

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Momentary disturbances or disorders arising in the context of a civil war, where a government is still nominally in power, but is challenged by rebel forces controlling parts of national territory, is not deﬁnitely the same as a total lack of central government. The former situation had prevailed in Somalia in the late 1980s when Siyad Barre’s government effectively controlled only some portions of the State territory, while the rest of the country was either sporadically occupied by rebel forces or was practically cut off from the central government.35 This is the case of a government that is reduced to insigniﬁcance and is so weak as not to be able to exercise authority over its entire territory, but is still nominally in power and is internationally considered to represent the State. In such cases, although there may be a prolonged state of anarchy in some parts of the country, and lack of effectiveness in others, the fact that authority and power are not effectively exercised by a single government throughout the country does not lead to the extinction of the State or to what the Institute of International Law referred to as the “deﬁnite disappearance of one of the essential elements” of statehood.36 For traditional international law doctrine, the usual pattern of a civil war or a revolutionary situation would be an attack against an existing government, which after a long or short struggle would either repel the attackers and survive or be replaced by them. In either case, most authors expressed the view that a momentary lack of effectiveness or authority did not lead to extinction.37 Such a situation must however be distinguished from one where the central government completely disappears and is not immediately or for a relatively long period of time, as in the case of Somalia, replaced by another government. In this case, there is no single successor, but a patchwork of local governance structures, occasional nominal governments claiming to represent the State but with no effective authority, and large pockets of anarchy and lawlessness in important areas of the country. There is also a complete collapse of governmental structures to the extent that the exercise of sovereignty is either fractured and divided among various actors in different parts of the State or is totally lacking. Does this amount to a deﬁnite disappearance of government as an essential element of statehood? As stated by Marek, the issue of the identity and continuity of a State would not arise “under normal circumstances”, but under “a shock grave enough to cast a doubt on its survival”.38 This is of course the case of Somalia today. Yet, it would be difﬁcult to argue that there is a deﬁnite disappearance of one of the essential elements of statehood, and consequently a loss of statehood by Somalia. First, because anarchy and lawlessness may prevail in some parts of the country, particularly the capital 35

See “Mayor of Mogadishu”, The Economist, 29 September 1990, p. 47. Cit. supra note 34. 37 See, for example, WHEATON (DANA’s edition), Elements of International Law, Boston, 1886: “The temporary suspension of that obedience and of that authority, in consequence of a civil war, does not necessarily extinguish the being of the State”, para. 23. 38 MAREK, cit. supra note 30, p. 4. 36

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and the surrounding provinces, but governance structures exist in other parts of the country, and claims of authority either by nominal governments in Mogadishu or by warlords have not been lacking. Secondly, Somalia continues to be a Member (not in good standing, but still a member) of the United Nations, the African Union, the Arab League, the Organization of the Islamic Conference as well as other intergovernmental organizations. Thirdly, the international community, represented by the above-mentioned organizations, as well as by friendly nations and neighboring States, has been constantly trying to breath new life into the comatose Somali State and to keep it in suspended animation pending its effective revival. To this end, National Reconciliation Conferences are periodically convened to resuscitate central institutional structures, but the fact that the thirteenth edition of these conferences has now been under way in Nairobi for over eighteen months clearly demonstrates that the patient keeps relapsing into a state of coma. These factors which have so far acted against the pronouncement of the death of the Somali Republic, and continue to undergird its suspended animation are discussed below.

5. FACTORS UPHOLDING SUSPENDED ANIMATION 5.1. Local Governance Structures and Warlord Fiefdoms The political situation arising from the collapse of central government structures in Somalia was described in 1995 by two particularly well-informed foreign observers as follows: “It is chaotic, but not chaos. It is a society without a State, but not, as is so often reported, ‘anarchy’. Somalia today is a mosaic of ﬂuid, highly localized polities – some based on traditional authority, others reﬂecting hybrid arrangements – that are stepping in to ﬁll the vacuum created by the prolonged collapse of the state, performing many of the most essential functions of day-to-day governance”.39 The political landscape in Somalia has not changed much since then, and may be described as consisting of two main zones: a zone of local self-government and a zone of warlord ﬁefdoms and lawlessness. The areas with local self-governance structures are mainly in the northern part of the country and essentially consist of the self-declared States of Puntland, in the Northeast, and of Somaliland in the Northwest. They operate with separate constitutions and have developed private sector led local economies and trade relations with neighboring countries. They have their own police forces and judicial institutions as well as government departments and parliaments. Their similarities however end there. 39

MENKHAUS and PENDERGEST, cit. supra note 16, p. 22.

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Somaliland had declared secession from Somalia soon after the break-out of the civil war in 1992 and has been seeking international recognition for the past several years. Puntland considers itself an autonomous and self-governing Somali State and has been advocating the idea of a new Somali Republic with a federal structure in which it could continue to enjoy its self-government. Another major difference is that Somaliland has made signiﬁcant progress in organizing multiparty elections and in re-establishing State institutions at all levels of government; while Puntland has established governance structures with leaders selected through popular conferences. The authorities in Puntland and Somaliland strongly disagree also on the deﬁnition of their respective territories both of them claiming jurisdiction over certain areas along their common border. These divergences have not so far erupted into armed conﬂict, but have undermined the possibility of cooperation towards the creation of a new Somali State out of these self-governing areas which could gradually bring the other areas into its fold. Thus, although their existence symbolizes, to a certain extent, the continued exercise of sovereignty by Somalis over a large portion of their territory, albeit in a fractured manner, the “embryonic States” of Puntland and Somaliland could either serve as building blocks for a future federal Somali State or constitute – either one or both of them – the ﬁrst statelets to emerge from a fragmented Somali State. The ﬁnal outcome will depend not only on their own will but also on the evolution of the situation in the other Somali zone. That is the zone of warlord ﬁefdoms which has its epicenter in the capital Mogadishu where there are at least six warlords ﬁghting for control over sections of the city, its neigbourhoods, or in some cases, its buildings and streets of strategic importance. A similar situation prevails in the regions immediately to the North of Mogadishu as well as those to the South of it. In all these areas demands for the establishment of local governance structures have been denied by the warlords and their militias. Most of these warlords thrive on the proceeds of illegal trade as well as on extortions and kidnappings. They have not yet learned the complexities of self-governance or of taxation, and may therefore be best assimilated to “roving bandits”.40 According to Olson “Under anarchy, uncoordinated competitive theft by ‘roving bandits’ destroys the incentive to invest and produce, leaving little for either the population or the bandits. Both can be better off if a bandit sets himself up as a dictator – a ‘Stationary bandit’ who monopolizes, rationalizes theft in the form of taxes”.41 In the case of the Somali warlords, “the individual ﬁefdoms they have carved out are used as a base for the exploitation of conﬁscated properties, plantations, ports and airports, as well as for drug trafﬁcking, the issuance of ﬁshing licenses for foreign concerns and for arms trade”.42 Because of these 40 See OLSON, “Dictatorship, Democracy and Development”, American Political Science Review, 1993, pp. 567-576. 41 Ibid., p. 567. 42 See YUSUF, cit. supra note 4, p. 6.

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proﬁt-making, but illegal businesses, the warlords are opposed to the creation of effective provincial or central governments. “None of them would, of course, refuse if offered to head such a government, but none would accept a government led by another”.43 The above-described chaotic Somali landscape may not have an effective central government exercising sovereignty over the entire territory of the State, but is not completely devoid of authority ready to claim the right to exercise such sovereignty, or to exercise it effectively, particularly in the case of the self-proclaimed states of Puntland and Somaliland, on a parcel of the Somali territory. Of course, in the case of the warlord ﬁefdoms, there is more lawlessness than established authority, and whatever authority is exercised by the warlords is for the beneﬁt of their racketeering and other organized illegal activities. Nonetheless, the sporadic claims to “political leadership” by certain warlords and their continued control of important areas of the country has led the international community to acknowledge them as actors to be reckoned with, but presumably also to be held accountable for their involvement in violations of humanitarian and human rights law and in crimes against humanity. Consequently, the warlords continue to play a signiﬁcant role in the attempts by the international community, and particularly by the neighboring countries of East Africa and the United Nations, to reconcile Somali factions and to resuscitate the moribund Somali State.44

5.2. Continued Membership in International Organizations The main factor that has militated, throughout this period, against the death of the Somali State for lack of a central government has been its maintenance as a member of the United Nations and of the Organization of African Unity (now the African Union). The UN and the OAU have not only continued to recognize Somalia as a Member State, but have repeatedly emphasized their respect for its unity, sovereignty and territorial integrity in order to fend off any outside pretext to occupy part of its territory or any internal attempts at secession.45 They have also continuously striven to revive the comatose Somali State either through direct intervention to ensure peace and security and rebuild State institutions (as was done by the UN in 1991-1994) or through the encouragement and support offered to neighboring States to organize national reconciliation conferences.

43

Ibid. See infra section 5.3. 45 See, for example, Resolution 1519(2003) adopted by the Security Council on 16 December 2003 whereby it reafﬁrms “the importance of the sovereignty, territorial integrity, political independence and unity of Somalia, consistent with the purposes and principles of the Charter of the United Nations” and reiterates its insistence that “all States, in particular those of the region, should not interfere in the internal affairs of Somalia”. 44

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The resolutions of the UN Security Council and the decisions of the OAU have played a decisive role in keeping the Somali State in suspended animation so as to give an opportunity to the people of Somalia to get their act together and to exercise their sovereignty through governmental institutions of their own choice.46 This opportunity has yet to be seized by the Somali population. Meanwhile, Somalia continues to maintain a Permanent Mission to the United Nations and to many of its specialized agencies. For most of the period under review, Somalia’s seat at these institutions has remained unoccupied either due to the lack of proper credentials or to the voluntary abstention of Somali delegates from active participation in the work of their organs. Somalia’s Permanent delegation to the UN in New York, headed by the Chargé d‘Affaires, Mrs. Fatoun Hassan throughout the 1990s, decided, to avoid competing claims of representation at the General Assembly or the Security Council, to notify the SecretaryGeneral that Somalia would not be represented in those organs until a national representative government came to ofﬁce. As reported by Shraga: “Représentant pour la dernière fois la Somalie à l’Assemblée générale, le chargé d’affaires somalien informa le Secrétaire générale que, du fait des circonstances politiques et de l’absence de toute autorité gouvernementale représentative, aucune délégation ofﬁcielle ne représenterait la Somalie à la XLVIIe session. Aucun pouvoir n’ayant été présente à cette session ni aux suivantes, le siège de la Somalie à l’Assemblée est resté vacant depuis”.47 Nevertheless, Somalia continued to enjoy such residual rights of membership as having its name-plate maintained in the General Assembly, its permanent mission listed in the UN “blue book” with full diplomatic status, its ﬂag ﬂying at UN headquarters and at the headquarters of UN agencies, and its Chargé d’Affaires having the right to request the circulation of documents to other Member States.48 The OAU has also continuously re-afﬁrmed its commitment to and support for “the unity and territorial integrity of Somalia”.49 It has repeatedly rejected attempts by warlords, or representatives of armed factions or self-declared governments to be recognized as the legitimate representatives of Somalia. The Charter of the new-

46 “The Security Council had devoted a great deal of energy to the crisis, adopting some 20 resolutions, committing billions of dollars and establishing a major peacekeeping force”, Statement by of Jean-David Levitte, Permanent Representative of France to the UN Security Council, UN Press Release, SC/7178, 19 October 2001. 47 See SHRAGA, “La qualité de membre non-représenté: le cas du siège vacant”, AFDI, 1999, p. 649 ff., p. 653. It should however be noted that in 2001 the UN Secretary-General received the credentials of a TNG-appointed Permanent Representative to the United Nations (see infra note 52 and accompanying text). 48 See letter of Mrs. Fatoun Hassan, Chargé d’Affaires of the permanent Mission of Somalia to the UN, to the Security Council. See Security Council Docs. S/23957 of 19 May 1992, S/ 26412 of 7 September 1993, and S/26530 of 4 October 1993. 49 See for example Decision of the Assembly of Heads of State and Government, AHG/ Dec.146(XXXVI) adopted at its Thirty-Sixth Session, Lomé, Togo, July 2000.

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ly-created African Union, which was also adopted at the Lomé Summit,50 provides, as one of the basic objectives of the Union, to “defend the sovereignty, territorial integrity and independence of its Member States”. The fact that Somalia remained a Member of the OAU, and later joined the AU, therefore meant that the continental organization was unwilling to entertain the secessionist aspirations of “Somaliland” or the claims of “Puntland” leaders to represent a self-administering and stable part of Somalia. For the OAU, the unity and territorial integrity of Somalia had to be preserved until such time as the Somali people succeeded, with the help of neighbouring African countries, particularly the IGAD (Intergovernmental Authority for Development), to resolve their problems. Thus, the Somali seat at OAU meetings had remained vacant through most of the period under review. It was only after the convening of the 12th National Reconciliation Conference by the President of Djibouti in May 2000 that the OAU decided to “support the Somali National Conference for Peace meeting in Arta, Djibouti, and the Somali institutions that will emanate from this Conference”.51 The UN General Assembly, taking its cue from the African Organization, similarly decided to admit Mr. Abdikassim Salad, who was designated by the Conference as President of a Transitional National Government (TNG), and his Prime Minister, Mr. Ali Khalif Galaydh, to its Millenium Summit in September 2000. It was out of frustration at the lack of a central government in Somalia, rather than an explicit political endorsement of the TNG, that both intergovernmental organizations embraced the outcome of the Arta process. The Security Council resolution on the TNG implies indeed a conditional recognition since it calls upon it “to continue, in the spirit of constructive dialogue, the process of engaging all groups in the country, including the northeastern and northwestern areas, with a view to preparing for the installation of permanent governance arrangements through the democratic process”.52 The Security Council also urged the “Transitional National Government, political and traditional leaders and factions in Somalia to make every effort to complete, without preconditions, the peace and reconciliation process through dialogue and involvement of all parties in a spirit of mutual accommodation and tolerance”. It clearly transpires from the position adopted by the Security Council that the TNG was neither considered as a fully representative government nor as the only and sole actor in the Somali political scene and that the international community saw a strong need for it to engage in dialogue with other actors in order to bring about peace and permanent governance structures in the country.53

50

For the text, see African Yearbook of International Law, 2000, pp. 479-502. See OAU Decision, AHQ/Dec. 146(XXXVI), July 2000. 52 See Statement by the President of the Security Council, in Security Council Doc. S/PRST/ 2001/30 of 31 October 2001. 53 Ibid. See also statements made by the UK representative during the debate in the Security Council where he declared that “He was encouraged by the idea that the Transitional Government was a transition to a permanent government” and by the US delegate who said that “All must 51

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5.3. Efforts by the International Community to Resuscitate the Somali State The absence of an effective central government in Somalia has confronted the international community with an unusually chaotic situation characterized by widespread anarchy and lawlessness, on the one hand, and by a patchwork of warlord ﬁefdoms and self-administering provinces, on the other. Endless efforts have therefore been deployed by neighboring States, the United Nations and regional organizations, particularly the OAU, to put it again together as a functioning state. The methods used range from the national reconciliation conferences organized by neighboring States, in particular Djibouti, Ethiopia, Egypt and Kenya, the thirteenth edition of which has been under way in Nairobi Kenya since October 2002, to the UN intervention of 1992-1995 which ended in failure and in the consequent disbanding of the peace-keeping operation, known as UNOSOM II.54 The main objective of these efforts has been to prevent the disintegration of the Somali State and to put an end to the state of violence and lawlessness that has claimed hundreds of thousands of innocent civilian lives and led to the displacement of millions of others; in other words, to resuscitate an effective Somali government that could guarantee the security of its citizens, ensure the unity and territorial integrity of the State, and serve as an interlocutor with other members of the international community. None of these goals have so far been achieved. Nevertheless, the continuous involvement of the international community in Somalia has served as a life-support system for the comatose Somali State. It has enabled it to maintain its identity and continuity. The question is of course for how much longer? In Resolution 814(1993), establishing UNOSOM II, the UN Security Council, acting under Chapter VII, requested the Secretary-General “to provide humanitarian and other assistance to the people of Somalia in rehabilitating their political institutions and economy and promoting political settlement and national reconciliation”. It called upon him more speciﬁcally to provide: “(c) Assistance to help the people of Somalia to promote and advance political reconciliation, through broad participation by all sectors of Somali society, and the re-establishment of national and regional institutions and civil administration in the entire country; (d) Assistance in the re-establishment of Somali Police, as appropriate at the local, regional or national level, to assist in the restoration

do what they could to improve those conditions, but only the people of Somalia could reclaim their country from chaos and create political legitimacy. No single group had yet achieved that legitimacy, and it was not for the United State, the Security Council or any outside powers to determine it”. Security Council, Press Release, SC/7178, 19 October 2001, pp. 8-9. 54 See, generally, The United Nations and Somalia (1992-1996), cit. supra note 14.

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and maintenance of peace, stability and law and order, including in the investigation and facilitating the prosecution of serious violations of international humanitarian law”.55 Following the adoption of this resolution, and the Addis Abeba Agreement concluded by Somali faction leaders on 27 March 1993, whereby they decided to seek the assistance of UNOSOM, aid agencies and donor countries in rebuilding Somalia’s political and other institutions destroyed by the conﬂict, the United Nations effectively engaged in the resuscitation of police, judiciary, and prisons institutions in Mogadishu and in the establishment of regional and district councils in some of the other areas of Somalia.56 This experiment in nation-building by the United Nations came to an abrupt and unsuccessful end with the withdrawal of UNOSOM II on 3 March 1995. According to the UN Secretary-General: “The withdrawal of UNOSOM II marked the end of a major phase of the efforts of the international community to facilitate the search for peace and reconciliation and to deliver humanitarian assistance”.57 In the aftermath of the UN withdrawal and the consequent deterioration of the security situation in the country, the OAU and the neighboring member States of IGAD (the Intergovernmental Authority for Development), of which Somalia is still a member, redoubled their efforts aimed at bringing about the re-establishment of a central government in Somalia through the convening of a series of national reconciliation conferences. The results of these conferences, which in certain instances reached agreements on the establishment of provisional or transitional national authorities and agreed on a speciﬁc framework for their implementation, have been repeatedly undermined by the reluctance of warlords to accept the rule of law and to forego their vested interests in the control of their respective ﬁefdoms and the proﬁts derived from their illegal business activities. A recent author has described the obstacles faced by these peace-making efforts as follows: “There is the seemingly limitless supply of arms available – both the heavy weaponry left over from the Siyad Barre period, and the light arms and ammunition that continue to ﬂood in unchecked. There are the powerful vested interests in the absence of law – warlords and militia leaders, the young men who ﬁnd living by the gun more proﬁtable and more fun than herding camels, or who have no other employment; maﬁa-like gangs who run protection rackets. Another set 55

For the full text of Resolution 814(1993) of 26 March 1993, ibid. For an account of UNOSOM’s institution building in Somalia under the above Security Council mandate, see OSINBAJO, cit. supra note 21. 57 BOUTROS-GHALI, “Introduction to the United Nations and Somalia”, in The United Nations and Somalia (1992-1996), cit. supra note 14, p. 77. 56

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of people who, while they need peace, have reason to fear what a rule of law might bring, is those who have taken over property – whether real estate in Mogadishu, pasture lands or plantations. Those who have proﬁted do not want the process reversed”.58 Although the UN Security Council has been acting under Chapter VII of the Charter since 1992 with respect to the situation in Somalia, which it determined to be a threat to international peace and security, and despite all the above-described efforts by the OAU and neighboring countries, an effective means has not yet been found by the international community, nor by the people of Somalia, to remove these well-known obstacles standing in the way of resuscitating the Somali State and bringing about peace and stability in the country. This could be due to the lack of effective action or sanctions against the warlords, who, instead of being held responsible for the crimes committed against their people, are allowed to play a key role in reconciliation conferences and to stymie all efforts aimed at the reconstitution of the Somali State.59 It could also be viewed as a conﬁrmation of the conclusion drawn by Boutros Boutros-Ghali from the UN experience in Somalia: “The Charter of the United Nations provides for the admission to the international community of a country which gains the attributes of a sovereign State, for instance, through independence or decolonization. It does not, however, provide for any mechanisms through which the international community can respond when a sovereign State loses one of the attributes of Statehood, such as its government. Further reﬂection by the international community is required on this issue”.60

6. ANARCHY, FRAGMENTATION AND SUSPENDED ANIMATION: SOME LEGAL IMPLICATIONS The concept of suspended animation is not new in international law. It was strongly criticized in 1934 by Thomas Baty, who referred to it as “the doctrine of suspended animation”.61 According to Baty, the doctrine of suspended animation

58 LULLING, “Come Back Somalia? Questioning a Collapsed State”, Third World Quarterly, 1997, p. 287 ff., p. 298. 59 For a recent account of the illegal activities of warlords and their militias, see Report of the Panel of Experts on Somalia Pursuant to Security Council Resolution 1474(2003), Security Council Doc. S/2003/1035 of 4 November 2003. 60 See BOUTROS-GHALI, cit. supra note 57, p. 87. 61 BATY, “Can An Anarchy Be a State?”, AJIL, 1934, pp. 444-455.

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“contradicts two fundamental propositions of the law of nations. It places foreign nations in the necessity of seeing their intercourse with a given territory cut off, and their rights and interests imperiled, because it refuses to allow them either to vindicate those rights for themselves, or to concert with an existing government their vindication against rebels. It places native populations in the impossibility of carrying on a normal and healthy state of life, simply because of unsubstantial claims which they and their neighbors are unwilling formally to give up. It therefore contradicts the liberty of foreign nations to require that a deﬁnite territory shall have a deﬁnite government with whom they can deal, and it contradicts the liberty of populations to establish themselves as a new state in order to enjoy the rights and privileges of statehood”.62 The world has radically changed since 1934, and many of the facts and assumptions underlying Thomas Baty’s analysis may no longer be valid. There is the United Nations, and above all there is the UN Charter, which has revolutionized international law, and which enshrines such fundamental principles as sovereign equality, non-use of force in international relations, non-intervention, collective security, enforcement action with respect to threats to and breaches of peace, and establishes certain common ends and values for all nations. These developments may not have yet resulted in a concrete mechanism to deal with the loss of one of the attributes of statehood, as underlined by Boutros-Ghali,63 but they have resulted in the introduction of a rule of law in relations among member States of the UN and a certain stability in international legal relations, in general. Thus, Bady’s main objection to suspended animation, which is repeatedly asserted in his article, that “it cannot be accepted as law that other states should be bound to stand by and see their interests ruined, with no existing government with which to negotiate, and which they can hold responsible”64 appears outdated in the Charter era. Today, as demonstrated by the analysis of the Somali case, suspended animation is used by the United Nations itself, and by regional arrangements such as the OAU, as a legal ﬁction to safeguard the sovereignty and territorial integrity of a member State that has temporarily lost its central government while collective assistance or enforcement action is undertaken to restore its institutions, and to enable it to perform again its international obligations and exercise its rights. This is not completely unheard of in the annals of international law. For Cansacchi, for example, “dans certaines circonstances une ﬁction juridique de continuité étatique est reconnue, rétroactivement, par des Etats tiers en faveur d’un Etat qui pendant une période de temps ne possédait plus une or62

Ibid., p. 454. See text accompanying note 60 above. 64 See BATY, cit. supra note 61, pp. 451, 452 and 455. 63

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ganisation politique unitaire”.65 Similarly, Raestad observes that “les Etats tiers plusieurs fois reconnaissent comme existant un Etat qui en fait s’est éteint depuis longtemps à la suite de l’anarchie ou de la debellatio”.66 What are the legal implications of the application of the doctrine of suspended animation in the case of Somalia? It implies, ﬁrst of all, in our view, that anarchy and fragmentation have not led to the demise of the Somali State, or at least have not yet resulted in the loss of its international legal personality. They have, however, substantially compromised its enjoyment of some of the attributes of such legal personality, such as the capacity to enter into relations with other States or to conclude international treaties. Thus, as pointed out above, Somalia continues to maintain permanent missions to the UN and to some other organizations, as well as embassies in a number of countries,67 while a few other States68 have kept open their embassies in Mogadishu through most of this period. This means that Somalia still remains a member of these organizations, although not an active member, and that its properties and embassies are respected, and safeguarded, by many of the States with which it entertained diplomatic relations before the government collapse. It does not however have the capacity to establish new diplomatic representations nor to become a member of new intergovernmental organizations.69 Secondly, the implicit adoption by the international community of the doctrine of suspended animation with respect to the situation in Somalia, and its insistence on Somalia’s continued existence as a State, has enabled the country to preserve its unity and territorial integrity, keep in check separatist tendencies and fend off overt interference in its internal affairs by other States. The Northwestern regions of Somalia, which now call themselves “Somaliland”, have, for example, been appealing to the international community, and particularly to neighboring countries, for recognition as a separate State, since they declared secession in 1992, but their claim has so far been rejected by all members of the United Nations and of the African Union.70 Both organizations continue to reafﬁrm the importance of the sovereignty, territorial integrity, political independence and unity of Somalia and their

65 According to CANSACCHI: “La ﬁction juridique c’est un procédé de droit par lequel on présuppose une certaine situation comme existante, tandis que, dans la réalité des choses, elle s’était produite différemment; cela pour réaliser des effets juridiques et politiques qui découlent de la situation ﬁctive et qui ne pourraient pas découler de la situation réelle”. See CANSACCHI, “Identité et continuité des sujets internationaux”, RCADI, 1970, II, p. 1 ff., p. 40. 66 See RAESTAD, “La cessation des Etats d’après le droit des gens”, Revue de droit international et de législation comparée, 1939, p. 441 ff. 67 For example, China, India, Saudi Arabia, Egypt, Zambia, Italy, France and Pakistan. 68 Egypt, Libya and Sudan. 69 A notable exception to this situation took place recently, when the TNG ratiﬁed the Constitutive Act of the African Union, making Somalia a founding member of the successor organization to the OAU. 70 Somaliland Government, Somaliland: Demand for International Recognition, Hargeisa, 2001.

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determination to respect it. The UN Security Council has also reiterated on several occasions “its insistence that all States, in particular those of the region, should not interfere in the internal affairs of Somalia”, adding that “such interference only further destabilizes Somalia, contributes to a climate of fear and impacts adversely on human rights, and could jeopardize the sovereignty, territorial integrity, political independence and unity of Somalia”.71 Thirdly, suspended animation implies that, as soon as a fully representative Somali government is established, Somalia’s assets that had been frozen by foreign States as well as its properties abroad will have be returned to it, since it continues to be the same State. In the same vein, a new effective Somali authority will be required to honor the debts and other obligations kept in abeyance throughout the period of suspended animation. Thus, unless the current state of anarchy and fractured sovereignty degenerates into a break-up of the Somali State into two or more Somali-inhabited mini-States recognized by the international community, the issue of succession does not arise. Fourthly, in view of the absence of an effective government and the total collapse of the judiciary, crimes against humanity or war crimes committed by the warlords and their militias throughout the period of suspended animation may be prosecuted and punished by third States under the principle of universal jurisdiction or by an ad hoc tribunal established by the UN Security Council. To summarize, it may be said that the 1991 government collapse and the consequent situation of anarchy and fragmentation have not as yet resulted in the death of the Somali State. Despite an unusually long period of lack of an effective central authority, Somalia may still be considered to be in suspended animation, thus ensuring for the time being its identity and continuity as a State. It is however doubtful whether the current situation can be sustained much longer for suspended animation can only be a markedly temporary condition in the life of a State.

7. CONCLUDING REMARK: WHICH WAY FORWARD? The Somali State continues to be torn apart by internal forces of secession, warlordism, anarchy, and lawlessness. Secession and fragmentation pose the gravest dangers to its identity and continuity as the State that has hitherto been known as Somalia, while warlordism and lawlessness constitute the main obstacle to peace, stability and the restoration of central authority. The embryonic States of “Puntland” and “Somaliland”, established respectively in the self-governing areas of Northeastern and Northwestern Somalia, present both a challenge and opportunity to the future of the country. They constitute a challenge mainly because of the secession declared by “Somaliland”, which, if

71

See, for example, Resolution 1519(2003), Doc. S/Res/1519(2003) of 16 December 2003.

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successful, could not only be imitated by “Puntland”(which is not much far behind in the establishment of autonomous institutions); but could also lead to the perpetuation of the warlord ﬁefdoms in the central and southern areas, or to the latter’s fragmentation into other mini-States as well. Conversely, the existence of these entities could be viewed as an opportunity for the reconstitution of Somalia as a federal State. As such, they could either be a model for other areas to follow or serve as the building blocks for a federal structure. This would not only ensure the long-term stability of a resuscitated Somali State, but would constitute an effective remedy to the democratic deﬁcit that contributed to the collapse of the centralized State institutions of the past. It would also represent an effective exercise of the right to self-determination not only at the State level, but also at the sub-State level,72 thus conﬁrming legitimacy to the new institutions. It is not however clear how Mogadishu and the other regions affected by anarchy and lawlessness could be parties to such a solution unless the problem of the warlords is effectively dealt with. The warlords have no apparent stake in peace and stability, or in the reconstitution of the Somali State. Their interest lies in the continued absence of an effective central or regional authority, since it allows them to maintain control over ports and airports in strategic areas of the country, and to use them for illegal arms trafﬁcking, drug trade as well as the export of products of expropriated plantations and other properties. They are also reluctant to transform their military domination to civilian administration, being adept at attacking, repressing and destroying rather than at governing or creating public institutions.73 To remove the obstacle represented by the warlords and their militias, the role of the international community, and particularly of neighboring countries, will be primordial. Sanctions, isolation and criminal prosecution against the warlords would contribute signiﬁcantly to the search for peace in Somalia. The creation of an international commission of enquiry or the establishment of an ad hoc criminal tribunal on the crimes committed by them, the severance of all air trafﬁc and shipping links with the ports and airports under their control, the freezing of their assets abroad, and the imposition of a travel ban are some of the possible measures that might bring to an end to the activities of the warlords and remove their negative impact on the process of reconciliation.74 Coupled with a political settlement based on federal structures, this could result in a positive outcome to the Somali crisis. The alternative to the above could either be further fragmentation and lawlessness perpetrated by a growing number of warlords that might eventually lead to 72 For the desirability of the exercise of self-determination at the sub-State level in Africa, see YUSUF, cit. supra note 5. 73 To use OLSON’s words, they have not yet learned how to transform themselves from “roving bandits” to “stationary bandits”: OLSON, cit. supra note 40. 74 See Report of the Panel of Experts, cit. supra note 59, for similar recommendations particularly with regard to ports and airports.

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the disappearance of the Somali State, or the adoption by the UN Security Council of enforcement action under Chapter VII placing Somalia under full international administrative authority. The latter would be similar to the action recently taken with respect to East Timor or Kosovo and would result in the temporary suspension of the sovereignty of the country.75 This might not be a desirable outcome for the Somali people, but in the absence of a better solution it might at least serve to save a lot of Somali lives and to rescue many more from the suffering and misery imposed on them by home-grown oppressors. This solution may also be grafted onto the outcome of the long-running IGAD-led process whereby a new nominal government or governmental authorities selected at the National Reconciliation Conference in Nairobi would receive support from the UN Security Council or from the African Union, or from both, in a new peace-enforcement operation throughout the country.

75 For analysis of recent UN experiences in assuming full administrative authority and their legal implications, see YANNIS, “The Concept of Suspended Sovereignty in International Law and its Implications in International Politics”, EJIL, 2002, pp. 1037-1052.

FRAGMENTED SOVEREIGNTY? THE EUROPEAN UNION AND ITS MEMBER STATES IN THE INTERNATIONAL ARENA ENZO CANNIZZARO*

1. INTRODUCTORY REMARKS The conception of the European Union (EU) as a new international law actor which possesses and exercises its own rights and duties autonomously is widely accepted in legal literature.1 However, the establishment of the EU as an international law actor has certainly not extinguished the legal personality of its Member States (MS). These continue to possess rights and duties individually at the international level, though the scope of their action appears to be signiﬁcantly curtailed. Thus, in correspondence to the competence assigned to the EU, quite an unusual situation seems to have arisen in the international community: instead of States as fullyﬂedged legal actors, possessing the panoply of international rights and duties, we have now a plurality of actors sharing competences and powers. This event, the fragmentation of the overall capacity of the Member States of the European Union, and the distribution of powers and prerogatives among a plurality of subjects, is quite unprecedented in international law. It is an event which profoundly challenges the structure and process of the international legal order and entails an adjustment of its basic legal categories. A line of research aimed at more precisely identifying how the EU and its MS behave in international legal relations, in themselves and in the relations with each other, appears relevant from both a practical and a theoretical perspective. Practically, the sharing of competences between the EU and its MS is at the heart of serious legal problems on the international plane. The existence of international activities carried out by a plurality of subjects that share powers and competences produces overlaps and interferences and affects the very idea of unity and coherence in the conduct of foreign relations. An analysis of the interrelations in the behaviour of the EU and its MS is necessary in order to seize the consequences of the co-existence of a plurality of legal persons endowed with partial competence.

*

Professor of International Law, University of Macerata. Within the limited scope of the present study, no assumption is made as to the international personality of the EU and to any relations it may have with that of the EC. The acronym EU will be (quite a-technically) used in order to refer to the Union, including the European Community. As the cases examined will concern almost exclusively legal positions possessed by the latter, the vexed issue of the international personality of the EU, as distinguished from that of the EC, can be left unprejudged. 1

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This analysis can reveal how international law is reacting to the sharing of competences, and which changes are occurring to its conceptual structure in order to cope with this unique scenario. This analysis seems promising also from a theoretical perspective. The fragmentation of the unitary capacity of the State, and the rise, in its place, of a plurality of actors endowed with partial capacity, ostensibly calls into question the notion of sovereignty: a notion that has constituted, and still constitutes today, a fundamental paradigm of international law. Thus, to inquire how the EU and its MS behave in international society may contribute to a closer observation of the evolution of the notion of sovereignty: a notion about which much speculation has been made and yet which remains mysterious in its very content.

2. A NORMATIVE NOTION OF SOVEREIGNTY In order to introduce the analysis, a short examination of the theoretical foundation of the doctrine of sovereignty seems useful. According to this model, a sovereign State is an entity possessing plenitude of powers within its territory. It is entitled to establish and maintain its own lines of conduct in international relations and is only limited by obligations arising under international law.2 This conception has reigned almost unchallenged for centuries. True, the notion of sovereignty has undergone a series of vicissitudes in the history of political and legal thought. In particular, in the transition from the absolutist State to the more modern forms of constitutional State, with its corollaries of the distribution of powers and competences among different organs and levels of government, the idea of sovereignty has at times been overtly contested, in favour of the emergence of new notions, allowing a certain pluralism in the exercise of political power. However, it is worth noting that the doctrinal dispute about the concept of sovereignty in a system of political pluralism has regarded almost exclusively the notion of internal sovereignty.3 In external relations the notion of sovereignty has continued to be regarded as the expression of the unity and full capacity of the State as a politically organised entity. It has been almost univocally held that sovereignty of the State in international relations is necessarily a unitary notion: sovereignty can be acquired, transferred or extinguished in its entirety, but never

2 For a complete account of the various meanings of the term sovereignty, see VERDROSS and SIMMA, Universelles Völkerrecht, 4th ed., Berlin, 1994, p. 25. 3 See OETER, “Souveränität und Demokratie als Probleme in der ‘Verfassungsentwicklung’ der Europäischen Union”, ZAÖRV, 1995, p. 659 ff.; DE WITTE, “Sovereignty and European Integration: The Weight of Legal Tradition”, Maastricht Journal of European and Comparative Law, 1995, p. 145 ff.

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divided.4 The distribution of the powers and prerogatives of the State among a plurality of entities endowed with international personality must have appeared, in the minds of political and legal theorists, a heresy. In international law, the notion of sovereignty seems to express plenitude and comprehensiveness in the exercise of political power. In the classic textbooks of international law, and in some leading cases, sovereignty is deﬁned by reference to intuitive notions, such as independence, plenitude of power and exclusivity in discharging the governmental authority of a territorial community.5 In other words, sovereignty has constantly represented an attribute of statehood:6 an entity is sovereign when it is empowered to participate on an equal footing with other nations in the course of international affairs. These, and similar deﬁnitions, refer not only to legal, but also to political elements. However, it is worth attempting to extract from them a normative notion of sovereignty. Stripped of its symbolic and political meanings, sovereignty constitutes the potentially unlimited capacity of an entity, which may acquire the whole panoply of rights and duties under international law. In other words, sovereignty is an expression that simply denotes fully-ﬂedged entities, which can use, at their will, all the powers and prerogatives deriving from international law.7 4 See WILDHABER, “Sovereignty and International Law”, in MACDONALD and JOHNSTON (eds.), The Structure and Process of International Law, Dordrecht/Boston/Lancaster, 1986, p. 425 ff.; STEINBERGER, “Sovereignty”, Encyclopaedia of Public International Law, 2000, Vol. IV, p. 500 ff. 5 See the famous dictum of the sole Arbitrator Huber in the Island of Palmas case, Netherlands v. United States, 1928, Report of International Arbitral Awards, Vol. 2, p. 829 ff.: “Sovereignty in the relations between States signiﬁes independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State” (p. 838). In the legal doctrine of the nineteenth century the existence of “half sovereign” entities was generally admitted, intending by that term the existence of entities possessing full sovereignty in their internal relations, but depending on other States for what concerns international relations. See for example DIENA, Diritto internazionale, Napoli, 1908, Vol. I, p. 73, who makes a distinction between “Stati sovrani, che possono adempiere liberamente e con massimo d’intensità le funzioni che sono proprie dello Stato ed esercitare integralmente i diritti a questo inerenti, non solo nei rapporti interni, ma anche nei rapporti internazionali”, e “Stati semisovrani, che, pur avendo in misura più o meno estesa una determinata indipendenza nei rapporti interni, si trovano in condizioni di subordinazione ad un altro Stato per ciò che riguarda le loro relazioni d’ordine esteriore”. 6 See the celebrated individual opinion of Judge Anzilotti in the Austria-Germany Customs Regime case, PCIJ Series A/B, No. 41, p. 57: “Independence […] is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty”. This was synthetically expressed by STEINBERGER, cit. supra note 4, p. 507: “The sovereign State thus became the normal subject of international law”. 7 See the classical deﬁnition by OPPENHEIM and LAUTHERPACHT, International Law. A Treatise, 7th ed., London/New York/Toronto, 1948, p. 113: “Full sovereign States are perfect, not-full sovereign States are imperfect, International Persons, for not-full sovereign States are only in some respects subjects of International Law”. According to CRAWFORD, “The Criteria for

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This deﬁnition is tautological and merely descriptive if applied to a unitary State. It simply denotes as sovereign any entity that possesses all the attributes of sovereignty. Though basic, this deﬁnition appears fraught with consequences when applied in a legal environment characterised by the sharing of competences. The transfer of competences to the EU has in fact created a plurality of actors on the international plane, each possessing powers and prerogatives, but none possessing the plenitude of powers traditionally referred to with the notion of sovereignty.

3. THE THEORY OF LEGAL PERSONALITY OF INTERNATIONAL ORGANISATIONS This situation is quite unprecedented. Little guidance, if any, can be expected from cases regarding the legal personality of international organisations. Although international organisations can be endowed with international powers and prerogatives, and can consequently be considered as endowed with legal personality, their existence has by no means been perceived as a threat to the sovereignty of their MS.8 There are at least two reasons for this. First, unlike States, which are fullyﬂedged actors in international relations, the scope of the legal personality of international organisations is limited. Most international organisations act primarily as a legal framework within which activities of their member States are co-ordinated. Certainly they do not possess the plethora of powers which are put at the disposal of States. Secondly, and perhaps more importantly, the attribution to international organisations of legal personality is commonly not considered to have curtailed the legal capacity of their member States.9 Also in consideration of the powers transferred to them, the capacity of international organisations to interfere with the international position of their MS is quite limited, quantitatively and qualitatively. International organisations are generally regarded as a new category of legal persons, whose establishment leaves untouched the legal capacity of their MS. While most authors are readily willing to admit that the establishment of international organisations has drastically changed the international legal environment, and has established a new Statehood in International Law”, BYIL, 1976-1977, p. 92 ff., p. 108: “In principle States have plenary competence to perform acts, make treaties and so on, in the international sphere: this is one meaning of the term ‘sovereign’ as applied to States”. 8 See SCHERMERS and BLOKKER, International Institutional Law, The Hague/London/ Boston, 1995. 9 See CRAWFORD, cit. supra note 7, p. 122, who mentions the membership of international organisations among the restrictions which “are not regarded as derogating from formal independence, although if extended far enough, […] may derogate from actual independence”. On the effect of the transfer of powers to supranational organisations on the legal capacity of the MS, see BLECKMANN, “Art. 2(1)”, in SIMMA (ed.), The Charter of the United Nations. A Commentary, New York, 1995, p. 77 ff.

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category of subjects, they are much less disposed to admit that the international capacity of States, full actors in international law, has been curtailed correspondingly. This conceptual framework emerges from the advisory opinion of the International Court of Justice in the Reparation for Injuries case,10 one of the few instances in which the scope of legal personality of international organisations has been examined, on its own and in its relation with that of States. In this case the Court was requested to ascertain whether the UN possesses the right to bring an international claim with a view of obtaining reparation in respect of the damage caused to an agent of the organisation in the performance of its duties. The Court made a distinction between the right to claim reparation for damage caused to the organisation as such, and the right to claim reparation for the damage caused to the individual, which involves two different subjects: the UN and the State of the individual’s nationality. According to the reasoning of the opinion, the power to bring an international claim, in both situations, was possessed by the organisation “by necessary implication as being essential to the performance of its duties”. Furthermore, having noted the existence of potentially conﬂicting rights, namely the State’s right of diplomatic protection, and the organisation’s right of functional protection, the Court called upon the parties concerned to ﬁnd a co-ordinated solution.11 Thus, although embryonic, the Court’s line of reasoning acknowledged the fact that the establishment of international institutions endowed with legal personality may entail interference with the international position of States. The relevance of this opinion for our purposes is perceptibly diminished by the fact that the Court did not go so far as to deﬁne the scope of the legal personality of international organisations in its relation with that of their MS. The reason might be that the question of determining which entity has a right to bring a claim for injuries suffered by an individual in the service of an entity other than its national State does not regard speciﬁcally the relation between international organisations and member States. This question may arise when an individual in the service of an international organisation has the nationality of a non-member State, or even when an individual in the service of a State has the nationality of another State. Be that as it may, the opinion has undisputedly contributed to building the conceptual background underlying the doctrine of legal personality of international organisations. In the Court’s view, which largely coincides with the view prevail10 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports, 1949, p. 174 ff. 11 It is stated in the Opinion: “Competition between the State’s right of diplomatic protection and the Organisation’s rights of functional protection might arise. […] In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organisation to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not ﬁnd solutions inspired by goodwill and common sense, and, as between the Organisation and its Members, it draws attention to their duty to render ‘every assistance’ provided by Article 2, paragraph 5, of the Charter”, ibid., p. 185.

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ing in legal literature, the attribution of legal personality to international organisations has by no means deprived their MS of their powers and prerogatives. States remain the only fully-ﬂedged legal persons, and the establishment of international organisations does nothing more than add a new category of legal persons to the existing ones. It is worth noting a further point in the Court’s line of reasoning, illustrative of its conception of the legal personality of international organisations. Throughout the logical process of deduction of the powers and prerogatives inherently possessed by the United Nations, the Court seems to conceive of the organisation’s legal personality as strictly distinct from that of its member States. These powers serve the purposes for which the UN was established and can be used not only independently of the MS, but also, if necessary, against them. The Court thus seems to conceive of the relations between international organisations and member States as analogous to the relationship between corporations and individual shareholders under domestic law: it is one of mutual exclusivity, in regard to the purposes respectively pursued, as well as to the powers available to them.12 In summary, two elements emerge as characteristics of the legal personality of international organisations: i) the ﬁrst is the fact that international organisations constitute a special category of subjects possessing only limited capacity as necessary for discharging their functions, but whose existence does not affect the sovereignty of States, conceived as fully-ﬂedged legal persons; and ii) the second is the fact that international organisations, when possessing legal personality, are viewed as distinct legal persons, endowed with the competence necessary for the fulﬁlment of their own purposes, and exercising them autonomously, distinct from their member States. It is exactly this conception of legal personality, as having the capacity of a certain entity to exercise its own international rights and duties in full autonomy for the fulﬁlment of its own purposes, that is at stake in the process of European integration.

4. TRANSFER OF POWERS TO SUPRANATIONAL ORGANISATIONS AND THE MODEL OF DIVIDED SOVEREIGNTY What changes, and even radically, the terms of the question is the establishment of supranational organisations – like the European Union – entrusted with some powers that are intimately connected with the exercise of governmental authority of their Member States. The fact that these organisations discharge functions gen-

12 “[The Organisation] occupies a position in certain respects in detachment from its Members, and […] is under a duty to remind them, if need be, of certain obligations”, ibid., p. 179.

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erally entrusted to States, on the basis of their own decision-making procedures, makes them State-like entities rather than mere international organisations. If seen against an historical background, the relevance of this event, the dissolution of the unitary nature of States as international legal persons and the fragmentation of powers in international relations among a plurality of entities endowed only with a partial capacity, can hardly be underestimated. It is likely to cause a profound impact on the evolution of international law and to call for the updating of traditional conceptual categories such as those of legal personality and sovereignty.13 It then prompts questions that are of relevance in considering the legal nature of the EU as an actor in international relations. Is it really plausible to think that the transfer of sovereign powers and prerogatives to supranational organisations has left untouched the legal capacity of their Member States? Could we simply think of the EU and its MS as distinct legal persons, exercising their own powers and prerogatives in isolation from each other? Can sovereignty be split among a plurality of entities sharing competences and powers?

13 This point assumes that international rules impose obligations and confer rights upon subjects who effectively possess the power to implement them. I can refer to my study, “The Scope of the EU Foreign Power”, in CANNIZZARO (ed.), The European Union as an Actor in International Relations, Dordrecht/Boston/London, 2002, p. 397 ff. The consequence of this line of reasoning is that, in correspondence to the transfer of normative powers to the EU, a loss of international capacity has occurred, at least in those ﬁelds in which the competence of the EU is exercised effectively and overtly. I am well aware that, among international lawyers, a different view is prevailing, according to which the transfer of competence to the EU has not produced a loss of international capacity for the MS. The transfer of normative powers to the EU is seen as an internal event, unsuitable for unfolding consequences on the international status of the MS. This view is based on the traditional conception of sovereignty, construed as the capacity of a certain entity to control ultimately the course of events on a given territory. Within this conceptual perspective, it is assumed that the assignment of normative powers to an entity, such as the EU, which does not dispose of enforcement powers, is not an event capable of exerting inﬂuence on the international capacity of the MS. In spite of the transfer of competence, MS have still retained the capacity to keep conduct in compliance with international obligations, eventually at the cost of disregarding EU law inconsistent therewith. In this perspective, the capacity of the MS to control the enforcement of EU law, and, consequently, to comply with, or to breach, international law inconsistent therewith, would constitute the proper test for identifying the sovereign entity. Yet this view does not appear entirely persuasive. It is intimately linked to the doctrine of sovereignty as exclusive territorial control. Whereas this conception can describe satisfactorily the relations between sovereign entities, it appears unsuitable to make sense of the relations, more complex by far, between States and supranational organisations. Certainly the EU does not dispose of exclusive territorial control. However, in a normative perspective, which we are now exploring, it is highly controversial that this is the proper test for identifying sovereign entities. Entities, such as the EU, whose norms are effectively implemented throughout the territory of its MS, and which avails itself of MS’ organs in order to secure compliance with its norms, without, or, in certain cases, even against their will, can be reasonably deemed to exercise sovereign powers. Thus, unless a repatriation of powers effectively occurs, and up to that moment, it can be plausibly argued that the MS have lost the capacity to exercise those international rights and duties which require the use of the transferred powers.

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A positive answer to the latter question can be framed in the simplest model conceivable in order to describe the relations between the EU and its MS on the international plane: the model of divided sovereignty. According to this model, each entity possesses on the international plane a share of powers and prerogatives corresponding to its internal competence, and can freely use them for the achievement of its aims. The model has a certain attractiveness in that it basically regards each entity, the EU and its MS, as partial sovereign entities within their sphere of competences, thus preserving the autonomy in the decision-making process of each. Interference by either entity in the conduct of the foreign-relations power of the other is thus precluded. Theoretically this model represents a coherent development of the notion of international legal personality as the capacity of a certain entity to maintain its own course of action, albeit in limited ﬁelds. If an entity has only limited capacity, the sovereign powers with which it is endowed make it only a partially sovereign subject. The model of divided sovereignty presupposes that international legal positions can be split between individual entities and assigned to them in correspondence to the line separating their competence on the internal plane. However, this conception is very simplistic. It would be an error to expect that the partition of competences on the internal plane has brought about a corresponding partition of powers on the international plane. The case that an entity’s capacity possessed under international law corresponds to its internal competence appears, on various grounds, as an exception rather than the rule. First, the process of competence-sharing on the internal plane is structurally different from the process of attribution of rights and obligations on the international plane. The relationship between internal competence and capacity in international relations is certainly not univocal. In some cases, the relationship is one of correspondence, in the sense that international rules confer rights and impose obligations upon the competent entity, either upon the EU or upon its MS. In other cases, this relationship is more complex, either because the exercise of international rights and duties requires actions which fall, albeit partly, within the competence of both entities, or because international law bestows rights and duties upon an entity which does not have the competence necessary for complying therewith. The richness and variety of the different classes of relationships between internal competences and international position calls for a closer analysis. Second, and perhaps more interestingly, the possession of a certain share of rights and duties by a certain entity is not in itself an element that univocally determines its capacity to control an entire course of action in international relations. The handling of complex legal situations may require a multiplicity of actions that fall, according to various patterns, within the sphere of the powers of both entities. Whilst the model of divided sovereignty can satisfactorily apply to those situations which can be handled by one entity using its own individual powers, its application to more complex legal situations produces shortcomings that are not easily overcome.

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A third objection derives from observing how international legal situations are frequently interconnected, so that the exercise by one entity of rights and duties falling within its competence can produce legal effects in the sphere of the rights and interests of the other. All these reasons point to the inadequacy of the approach described above. The idea that each entity individually exercises its share of international rights and duties, according to a model of divided sovereignty, produces shortcomings and inconsistencies. It seems incapable of plainly describing the comprehensive web of relations between the EU and its Member States. The splitting up of sovereign powers among a plurality of entities does not produce a plurality of partially sovereign entities. While each entity, individually considered, certainly possesses a means of action related to its competence, neither can be deemed to possess the capacity to exercise, in isolation, its international legal powers. Some form of coordination is required.

5. CO-ORDINATING THE INTERNATIONAL POWERS OF THE EU WITH THOSE OF THE MEMBER STATES: A REAPPRAISAL The considerations contained in the previous paragraph point to the difﬁculty of conceiving of a unitary theoretical model in which the multifarious relations between the EU and the MS in the international arena can be conveniently framed. The fact is that there is no unitary model able to capture the variety of relations between internal competences and external legal powers. The interrelations between the EU and the MS depend on a number of factors: on the sharing of competence on the internal plane, but also on the structure of international legal relations. Moreover, as the logic of the internal distribution of competence only approximately matches the legal dynamics on the international plane, these two factors combine in a variety of ways. Co-ordination must therefore be set up on a case-by-case basis, and continuously adjusted in order to cope with the circumstances of the case. Thus, it seems useful at this stage to consider the relations between the EU and the MS in practice on the international plane. A major obstacle in this inquiry comes from the scarcity and inconsistency of trends in practice. By looking at some leading cases, we are merely endeavouring to glean some general guidelines for the study of the interrelation between the international behaviour of the EU and its MS.

5.1. The Combined Individual Exercise of Parallel Legal Positions First, rules of international law which confer rights or impose obligations both on the EU and its MS ought to be considered. Norms of this type can normally be split into a bundle of parallel rights and obligations that are possessed by each entity, in relation to the powers and competences with which each has been respec-

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tively endowed. This situation presents an interesting relational scheme, in which each entity’s exercise of competence constitutes a part of the more comprehensive process of implementation of the same international norm. In situations of this type there is generally no reason for deviating from the principle of individual exercise. Each entity is entitled to use its powers for exercising its own international rights and performing its own obligations under international law. This does not, generally speaking, raise any difﬁculty in situations in which each entity is individually considered. Thus, for example, both the EU and each of its MS are addressed by international law rules concerning the treatment of aliens and are required to exercise their respective competences in compliance therewith. Both the EU and its MS are entitled to exercise rights and powers individually concerning State succession in relation to agreements respectively concluded. Both are bound by rules on environmental protection, on territorial application of the law, and so on. Certainly, a uniformity of behaviour in the individual action of the EU and its MS would be desirable. One might reasonably presume that the rules of State succession in regard to treaties are uniformly applied by the EU and by its MS.14 However, one could hardly assert a legal need for uniformity. Their distinct legal personalities prevent third parties, in their relations with one type of entity, from relying on the practice followed by the other.15 A need for uniformity nevertheless arises when the exercise of rights and performing of duties under international law requires conduct which falls simultaneously within the competence of both entities. In such a case, the necessary conduct on the international plane is simply obtained by adding the exercise of competences respectively possessed by each entity. A good example of this comes from the individual, but co-ordinated, response to the enactment of the Helms-Burton Act by the United States in 1996. The Joint Action 96/668/CE of 22 November 199616 expressly qualiﬁed the US conduct in question as internationally unlawful and set out the legal framework in which the EC and its MS responded, individually, with measures falling within the competence of each.17 This pattern has been maintained

14 See KUYPER, “The Community and State Succession in Respect of Treaties”, in CURTIN and HEUKELS (eds.), Institutional Dynamics of European Integration, Dordercht/Boston/London, 1994, p. 619 ff. 15 See LOWE, “Can the European Community Bind the Member States on Questions of Customary International Law?”, in KOSKENNIEMI (ed.), International Law Aspects of the European Union, The Hague/Boston/London, 1998, p. 149 ff. 16 OJ EC No. L 309 of 29 November 1996. The Joint Action was based on Articles J.3, now Article 13, and K.3, now Article 31, of the EU Treaty. 17 For the response of the EC, see Regulation (EC) 2271/96 of 29 November 1996, OJ EC No. L 309 of 29 November 1996. Interestingly enough, this act replicates the assessment of the unlawfulness of the United States conduct, with strict reference to the ﬁeld of competence of the EC. Although at ﬁrst glance this two-step procedure bears traces of resemblance with the procedure established under Article 301 of the EC Treaty, it would be improper to draw an

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along the course of the dispute with the United States, in which each entity has taken part individually, albeit expressing concerted views with the other. The scheme examined so far presupposes the possibility of splitting rights and duties into a bundle of parallel legal positions respectively possessed by each entity in correspondence to the competences shared on the internal plane. More complex legal situations require, however, more sophisticated behavioural schemes. In the following subsections attention will be drawn to three different situations. The ﬁrst regards situations composed of a plurality of individual legal positions dependent on each other, and possessed either by the EU or by its MS (subsection 5.2). The second concerns legal positions collectively possessed, whose exercise implies a joint exercise of competence by both entities (subsection 5.3). The third pertains to international legal positions that intersect the partition of competences between the individual entities (subsection 5.4).

5.2. Consecutive Exercise of Individual Powers This mode of co-ordination applies to complex legal situations, composed of a plurality of rights and obligations, each pertaining individually to either the EU or its MS, but inter-dependent one with another. Thus, each entity, albeit in principle exercising its own rights or obligations individually, is, by virtue of the partition of competences, bound to act in a legal framework entirely set up by the other. Situations of this type evidence the inadequacy of a system of shared competences that deals with the complexities of international relations. In such a system, powers are shared statically, simply by assigning certain rights to one entity. However, the life of international relations only rarely presents a non-contextualised exercise of powers. Not infrequently must they be exercised in the wider context of situations that consist of a plurality of legal positions that unfold dynamically, so that the exercise of each power ﬁnds its legal basis in the preceding one, and sets a legal basis for the subsequent one. These situations do not generally raise any problem when handled by subjects possessing full capacity. A difﬁculty arises when competences and powers are shared among a plurality of entities, which fall short, individually, of the powers necessary for dealing with the situation comprehensively. In order to recast a full

analogy between them. In fact, Regulation 2271/96 was based on Articles 73 C, 113 and 235 (now Articles 57, 133 and 308) of the EC Treaty. Albeit mentioning Joint Action 96/668, it expressly attributes to it a co-ordinating role only. This is acknowledged by Joint Action 96/668, which reads in its Preamble: “This Joint Action and the Regulation 2271/96 constitute together an integrated system involving the Community and the Member States each in accordance with its own powers”. This can be read as a conﬁrmation that the EC has the power to use its competence not only for the aims speciﬁcally assigned to it, but also in order to secure rights that it possesses under international law (see infra).

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capacity, a co-ordinated exercise of the powers possessed by individual entities is necessary. Single entities are thus required to contribute, according to their respective legal capacities, to the management of the situation. Situations of this type can be conspicuously found in the law of the sea, where the competences of the EU and of its MS are so entangled that not infrequently each entity exercises its own powers in a legal framework that is set up by the other.18 For example, the MS have the power to determine the breadth of zones of the sea where the EU is competent to adopt rules for the protection and exploitation of living resources. Thus the scope of EU regulations is deﬁned by the MS, acting under their own international obligations.19 Although each entity is theoretically under distinct international legal obligations, their legal positions are strictly interrelated, and the lawfulness of the conduct of the one may represent a pre-condition for the lawfulness of the conduct of the other. This effect can be closely observed in the Estai case, concerning the lawfulness of boarding and seizure measures in relation to a Spanish ﬁshing vessel by Canada in the high seas. The case arose in the context of a more general dispute, between the EU and Canada, with regard to the establishment and enforcement of the regime of ﬁshing quotas under the North Atlantic Fishing Organisation (NAFO). Concerned with what it considered to be overﬁshing activities by Spanish and Portuguese vessels in the NAFO Area, Canada passed legislation in 1995 providing for a unilateral regime of quotas and for enforcement measures against ﬁshing vessels for straddling stocks in an area beyond its 200-mile jurisdictional zone. Having infringed the Canadian regulatory measures, the Spanish ﬁshing vessel Estai was boarded and seized in March 1995. Spain ﬁled an application with the International Court of Justice.20 Following diplomatic exchanges, the dispute between the EU and Canada on the lawfulness of the quota regime was ﬁnally settled by a bilateral agreement, concluded on 20 April 1995. The analysis of the dispute proves that it embodies two distinct issues. The ﬁrst concerns the lawfulness of the conservation and management measures adopted by Canada. The second concerns the lawfulness of the enforcement measures taken against the ﬁshing vessel Estai. Thus, the lawfulness of Canada’s conduct depends on two sets of international rules: those concerning the legal regime of the maritime zone in which the conduct was carried out, and those concerning the modalities of the use of force. 18 See, for example, Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of ships using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control), OJ EC No. L 157 of 7 July 1995. 19 See, for example, the answer of the Commission to the written question P-149/01, OJ EC No. C 235 of 21 August 2001. 20 The claim was subsequently dismissed for lack of jurisdiction. See Fisheries case (Spain v. Canada), Judgment of 4 December 1998, ICJ Reports, 1998, p. 432 ff.

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The response involves several measures. A joint action was undertaken by the EU and its MS, aimed at reafﬁrming the principle of the freedom of the high seas. Spain responded individually to the boarding and seizure measures taken against its vessel and ﬁled an application with the International Court of Justice.21 Finally the EU and Canada, following an intense round of negotiations with a view to resolving their long and complex dispute on ﬁshing quotas, concluded an agreement providing for a new system of conserving and managing ﬁshing stocks under NAFO provisions. Following the conclusion of the agreement, Spain and Portugal were removed from the list of countries whose ships were subject to enforcement measures under the Canadian Coastal Fisheries Protection Act.22 Be that as it may, it is apparent that the Spanish claim relied entirely on EU legal claims.23 It is worth recalling that, among the arguments submitted by Canada to the International Court, in support of its request to discontinue proceedings, was the fact that the Spanish claim was superseded by the conclusion of the 1995 agreement. In the view expressed by Canada, the dispute with Spain was dependent on the persistence of a legal dispute with the EU such that the settlement of the latter would have erased the former.24 21 The Spanish Memorial contains an interesting statement concerning the respective competences of the EC and its MS on the external plane: “Les compétences externes […] aux mains des institutions communautaires et (qui) donc ne peuvent plus être exercées par les Etats membres sont essentiellement de deux sortes: la conclusion des traités en matière de pêche en mer et la participation en tant que membre des organisations internationales de pêche. Mais la Communauté Européenne n’exerce pas la protection diplomatique au bénéﬁce des navires des Etats membres. Cette faculté est rigoureusement réservée aux Etats membres […] en matière de protection diplomatique, le règles générales du droit international ne son pas affectées par l’impact du droit communautaire […]”, Memorial, ICJ Pleadings, 1998, para. 21. 22 The agreement is reproduced as an Annex to the Canadian Counter-Memorial. 23 Spanish Memorial, cit. supra note 21, para. 21. 24 The distinction between the legal positions possessed respectively by Spain and by the EC was carefully pointed out by Remiro Brotóns, speaking on behalf of Spain in his pleading before the ICJ, see ICJ Pleadings, supra note 21, p. 442. The existence of legal positions which are dependent on each other raises the problem of the attribution of responsibility for unlawful conduct. Assuming that the EU is directly responsible for conduct carried out by MS organs in discharging tasks assigned to them under EU law, a distinction ought to be made between responsibility arising out of a breach of international rules which concern the exercise of competences by the EU, and, respectively, of international rules which concern the enforcing activity of MS organs. It is reasonable to consider that the responsibility must be attributed to the EU in the ﬁrst case; and to the MS concerned, in the second. In fact, MS organs that enforce EU law are under distinct obligations: an obligation to carry out conduct necessary for securing compliance with EU measures; and an obligation to choose, among the various possible means, those which are in accordance with international law. Thus, a breach of international law ﬂowing from conduct made compulsory under EU law, ought to be attributed to the EU; a breach of international law which derives from conduct which is not imposed on the State’s organs under EU law must be attributed to that State; see GAJA, “How Does the European Community’s International Responsibility Relate to Its Exclusive Competence?”, in Scritti in onore di Gaetano Arangio-Ruiz, Napoli, 2004, p. 747 ff.

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5.3. Joint Exercise of Powers on the International Plane The legal positions affecting both entities’ sphere of competences, which cannot be fragmented into a bundle of rights and obligations individually incumbent on either, are by nature possessed by a composite actor: the EU and its MS. The existence of situations of this type implies a collective exercise of rights and obligations.25 In the ﬁeld of the law of the sea we can also ﬁnd examples of this type. As is well known, the EU possesses exclusive competence for protection and exploitation of living resources, while the MS are exclusively competent over other forms of exploitation of the sea. Although each entity is entitled to individually exercise its powers connected with its respective legal position, there is a need for a collective exercise of power in situations where the competences of both the EU and its MS are simultaneously affected. A typical case is the conduct of a third State that has occupied a part of the high seas, thus affecting both the right of the EU to freely regulate ﬁshing activities in this area and the right of the MS to use it for other purposes. If each entity were entitled to individually assert its own rights, the conceptually unitary regime of the zone would be fragmented into a series of sub-regimes, having a distinct discipline, in consequence of a diverging exercise of competences by the EU and by each of its MS. In the Estai case, for example, the EU and the MS collectively claimed that Canada should respect the principle of freedom of the high seas. Canada’s conduct, as outlined above, was an attempt to modify the legal regime of the high seas, under which both the EU and its MS exercise their respective competences. Interestingly, a note verbale, jointly issued by the EC and its MS, stated in general terms: “the EC and its MS […] consider, in accordance with Article 189 of the United Nations Convention, that no State may validly purport to subject any part of the high seas to its sovereignty […]”.26 It is thus reasonable to assume that, where the exercise of rights and duties on the international plane intersects the line dividing the competences of the EU and those of the MS, and it is not possible to separate them into parallel, individually

25 The joint possession of rights and obligations does not automatically ﬂow from the fact that an international rule imposes rights and obligations upon both entities. It is necessary that these rights and obligations cannot be individually exercised, either because each entity falls short of the powers necessary or because an individual exercise would produce a side-effect in the legal sphere of the other entity. 26 Note verbale of 10 June 1994 (reproduced in an Annex to the Spanish Memorial). See also the Note verbale jointly issued on 10 March 1995, which reads: “the arrest of a vessel in international waters by a State other than the State of which the vessel is ﬂying the ﬂag and under whose jurisdiction it falls, is an illegal act under both the NAFO Convention and customary international law […] This serious breach of international law goes far beyond the question of ﬁsheries conservation […]”.

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possessed legal positions, the legal position is collectively possessed and must therefore be collectively exercised.27 Analogous considerations can lead to the stipulation of mixed agreements. Mixity is mandatory when neither the EU nor its MS, individually considered, have the capacity to acquire all the rights and obligations contained in a certain agreement. It is only the combination of their competences that gives them the international capacity to become a party thereto. However, the conclusion of mixed agreements does not by itself necessarily entail that rights and obligations have to be exercised jointly. The fact that each entity only undertakes obligations falling within its own ﬁelds of competence may be made expressly clear to third parties, or be deduced from the competences respectively possessed.28 Irrespective of the legal nature of mixed agreements, their implementation rarely requires action to be taken jointly by the EU and its MS. An individual exercise of powers, by each entity with respect to its own share of rights and obligations, would, in fact, presuppose a compartmentalisation of the provisions of the agreement and their regrouping in a plurality of self-contained sub-instruments between, on the one hand, the EU or each MS respectively and, on the other, third parties. This would require re-creating, in each sub-instrument, the symmetry of the legal positions between the parties, which was originally established in the mixed agreement.29 This condition is however difﬁcult to be fulﬁlled, legally and practically. Unless there is clear evidence to the contrary, and beyond the individual commitments of each entity to carry out obligations falling within its sphere of competence, the legal regime of the agreement is a unitary one, and can hardly be split into distinct sub-regimes. This is quite obvious for the exercise of powers expressly aimed at affecting the legal force of the entire agreement, such as, for example, a declaration to suspend or terminate the agreement as a whole.30 This is equally obvious for powers, 27 It may be worth noting that the EU considers itself addressed by the whole body of international customary rules on the protection of fundamental human rights, irrespective of any reference to the competence possessed on the internal plane. This assumption has been based on the inseparable character of these rules, whose rights and obligations cannot be split according to the ﬁeld of respective competence. 28 Thus, the legal nature of mixed agreements is not univocal. While some may be viewed as a unitary agreement concluded by the Euro-group, others can be more appropriately de-composed in a bundle of bilateral relations incumbent respectively with the EU or with each of its MS. See on these aspects, ROSAS, “Mixed Union – Mixed Agreements”, in KOSKENNIEMI (ed.), cit. supra note 15, p. 125 ff. 29 According to GAJA, “The European Community’s Rights and Obligations under Mixed Agreements”, in O’KEEFFE and SCHERMERS (eds.), Mixed Agreements, Deventer, 1983, p. 133 ff., p. 138: “The test for deciding whether the Community’s participation is independent from that of the Member States appears to be the separability of the part of the agreement which imposes obligations and gives rights to the Community from the other parts of the same agreement”. 30 See the Decision 91/586/ECSC, EEC, of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 11 November 1991 suspending

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such as the power to invalidate a mixed agreement on the grounds that it allegedly conﬂicts with jus cogens; even if this refers to speciﬁc provisions, it invalidates the entire agreement. A careful inquiry into the rules of the law of treaties results in widening the set of powers which require a joint exercise. Certain powers, although expressly directed to producing effects only with respect to speciﬁc provisions falling within the competence of the acting entity may have a spill-over effect and affect provisions falling within the competence of the other.31 The rules on reservations and objections thereto constitute an example of this effect. Although they produce effects only in bilateral relations, between the party who makes a reservation and the party who accepts it or who objects to it, the legal regime of reservations does not appear to be easily reconcilable with a shared partnership.32

the application of the Agreements between the European Community, its Member States and the Socialist Federal Republic of Yugoslavia, OJ EC No. L 315 of 15 November 1991, and the Decision 91/587/ECSC of the Representatives of the Governments of the Member States, meeting within the Council of 11 November 1991 denouncing the Agreement between the Member States of the European Coal and Steel Community and the Socialist Federal Republic of Yugoslavia, ibid., p. 47. The EU and its MS have assigned to the Council, acting on majority voting, the power to ascertain the breach of essential obligations contained in the partnership agreement concluded between the EU and its MS with the ACP Countries on 23 June 2000, in particular of the obligations to respect fundamental human rights and principles of democracy, and to respond to the breach by suspending or terminating the agreement. See the Internal agreement between the representatives of the Governments of the States, meeting within the Council, on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement, OJ No. L 317 of 15 December 2000. This procedure has been applied in a number of occasions. See for example Council Decision 2001/131/EC of 29 January 2001 concluding the consultation procedure with Haiti under Article 96 of the ACP-EC Partnership Agreement, OJ No. L 48 of 17 February 2001; Council Decision 2002/131/EC of 21 January 2002 amending Decision 2001/131/EC concluding the consultation procedure with Haiti under Article 96 of the ACP-EC Partnership Agreement, OJ No. L 47 of 19 February 2002; Council Decision 2002/ 274/EC of 25 March 2002 concluding consultations with Liberia under Articles 96 and 97 of the ACP-EC Partnership Agreement, OJ No. L 96 of 13 April 2002; Council Decision 2002/148/EC of 18 February 2002 concluding consultations with Zimbabwe under Article 96 of the ACP-EC Partnership Agreement, OJ No. L 50 of 21 February 2002. An analogous procedure was in force under the IV Lomé Convention; see Council Decision 1999/214/EC of 11 March 1999 on the procedure for implementing Article 366a of the fourth ACP-EC Convention, OJ No. L 75 of 20 March 1999. 31 It seems safe to assume that, under the inadimplenti non est adimplendum rule, a certain interchangeability of the provisions contained in a mixed agreement is unavoidable. A third State, for example, would be entitled, unless there is a clear indication to the contrary, to suspend a certain provision falling within the competence of one entity in response to the breach of an obligation caused by the other. See GAJA, cit. supra note 29, p. 138. 32 See SPILIOPOULOU ÅKERMARK, “Reservation Issues in the Mixed Agreements of the European Community”, Finnish Yearbook of International Law, 1999, p. 351 ff.

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This may be observed in a number of situations. A reservation individually made by one entity, with respect to a provision falling within its own competence, entitles each contracting party to object to it, and thus to preclude the entire agreement from entering into force between the objecting party and the reserving party. However, the combined effect of an EU or a MS reservation and an objection thereto with regard to the legal position of the other entity is unclear. It is certainly unreasonable to consider that such entity’s legal position remains unscathed and that it would acquire its own share of rights and obligations under the agreement as if no objection existed. On the other hand, it is equally inappropriate to assume that the objection may also have an effect on the legal position of the entity that has not made the reservation, either by precluding the entry into force of the agreement between it and the objecting party, or by considering it to be saddled with the whole burden of rights and obligations deriving from the agreement. In mixed agreements, the membership of each entity, the EU and the MS, can be viewed as an essential pre-condition for the membership of the other. Even more complicated situations may occur. Such situations further point to the shortcomings of the unilateral use of the powers to make reservations or to object to reservations with regard to mixed agreements. Diverging reservations, or objections, to the same provision made by the EU and by its MS may bring about the existence of different patterns of obligations that are inconsistent with each other. Reservations, or objections thereto, made individually by one entity to a provision which produces obligations incumbent upon both may make it difﬁcult or impossible for the other entity to comply with it, and so on.33 The examples brieﬂy outlined above prove that powers concerning reservations and objections to mixed agreements cannot realistically be entrusted to the individual competence of either entity. The fact is that the legal regime of reservations presupposes a conception of international agreements as a unitary body of norms, which is unlikely to be split into a bundle of independent legal relations according to the competences possessed by sub-entities of composite parties. All in all, the whole regime of reservations hardly seems compatible with a partition of competences between sub-entities of a composite actor, unless they act jointly. Not surprisingly, trends in practice support the view that powers related to reservations and objections thereto are collectively possessed and ought to be collectively handled. In a series of cases, the EU has enacted decisions in order to ensure uniform action on the part of the EU and its MS in the making of reservations or

33 See, for example, the interpretative Declaration No. 3 made by the EU and by its MS to the Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory ﬁsh stocks, OJ EC No. L 189 of 3 July 1998: “The European Community and its Member States understand that the term ‘States whose nationals ﬁsh on the high seas’ shall not provide any new grounds for jurisdiction based on the nationality of persons involved in ﬁshing on the high seas other than on the principle of ﬂag State jurisdiction”.

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interpretative declarations, or in objecting to reservations.34 A need for co-ordinating the use of powers related to the regime of reservations with mixed agreements also emerges from an internal document of the Legal Service of the Commission, even if it does not go so far as to suggest that the structure of international legal relations deriving from the regime of reservations imposes a joint exercise of the powers connected therewith.35 The cases above highlight the asymmetry between internal competence and international capacity of the EU and its MS as individual international actors. Such asymmetry may be remedied, to a certain extent, by considering the EU and its MS as a unitary legal person, acting through the joint action of its sub-entities. This theoretical scheme has a potentially wide ﬁeld of application, and is likely to apply to a rich variety of cases in which one single entity, individually considered, is not able to handle a certain legal situation, either because its action would produce effects in the sphere of rights and duties possessed by the other, or because its exercise requires a corresponding exercise of competence by the other.

34 See the Proposal for a Council Decision on objection to be made on behalf of the European Atomic Energy Community to a reservation formulated by the Islamic Republic of Pakistan at the time of its accession to the Convention on the Physical Protection of Nuclear Material, COM(2001) 583 ﬁnal. The reservation would have the effect of sensibly altering the obligation of Pakistan in matters falling within the competence of both the Euratom and the MS. The proposal envisages that “the EU Member States and Euratom, as parties to the Convention, should object to Pakistan’s reservation as being incompatible with the object and purpose of the Convention and that each Party would make the objection individually. In this context, in order to give the objections the desired legal effect, it is important that they are submitted by 20 October 2001 at the latest to the States”. See also the Council Decision 98/414/EC of 8 June 1998 on the ratiﬁcation by the European Community of the Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory ﬁsh stocks, OJ EC No. L 189 of 3 July 1998. The decision considered that “it is […] necessary for the Community and its Member States simultaneously to become Contracting Parties in order to carry out together the obligations laid down in the Agreement and exercise together the rights it confers in cases of shared competence in order to guarantee uniform application of the Agreement in the context of the common ﬁsheries policy”, and stated that “the instrument of ratiﬁcation shall be deposited simultaneously with the instruments of ratiﬁcation of all the Member States. At the same time the Member States shall conﬁrm the declarations made by the Community on ratiﬁcation of the Agreement”. The declarations are reproduced in an Annex to the decision. It is worth noting that among the declarations, some concern obligations that neatly fall within the sphere of exclusive competence of the MS. For an example of individual reservations to mixed agreements see the Council Decision 1999/575/EC of 23 March 1998 concerning the conclusion by the Community of the European Convention for the protection of vertebrate animals used for experimental and other scientiﬁc purposes, OJ EC No. L 222 of 10 August 1998. 35 Reservations and objections to reservations with regard to mixed agreements, SEC(1998) 2249 of 23 December 1998. The document focuses on the difﬁculties arising from the individual handling of the powers concerning the making of reservations and objections thereto, and calls on the EU and the MS to keep a strict co-ordination.

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5.4. Individual Exercise of International Powers Intersecting the Internal Partition of Competence Finally, one has to consider the case of the exercise of powers intersecting the respective ﬁelds of internal competences. The intersection between international powers and internal competences may give rise to two types of effects. It may happen that a certain entity possesses individually the internal competence but not the international capacity to adopt a certain measure, or, conversely, that it possesses individually the international capacity but does not have the internal competence to act internally. In both cases, an exercise of power on the international plane across the line dividing the internal competence is necessary. This is a result of the different dynamics between the process of competence sharing on the internal and the international planes. While the partition of competences between the MS and the EU is mainly based on subject-matters, powers in international relations depend on their quality as international law subjects. The scope of the international personality tends to correspond with the scope of the internal competence, but the coincidence is not complete. In consequence thereof, a certain asymmetry in the legal position of the EU and its MS is to be observed. Without exhaustively dealing with this still relatively unexplored topic, for the purposes of the present work it is useful to give some examples in which, in order to overcome this asymmetry, powers of either entity are used across the ﬁelds of their respectively possessed competences. Intersections between internal competence and international power may frequently occur in the ﬁeld of instrumental powers conferred by international law on its subjects for securing the respect of their rights. Among these, the use of trade measures as countermeasures has widely attracted the attention of legal literature. By virtue of its quality as an international law subject, each entity, the EU and the MS, is entitled to adopt individual measures of self-protection against the unlawful conduct of third States. However, the partition of competences has curtailed the means of protection of either entity, and each is deprived of the possibility of adopting measures which fall within the competence of the other. Thus, neither entity, individually considered, has at its disposal the whole set of means normally used as a means of self-protection. This result is particularly disappointing for the MS. Having transferred commercial policy to the exclusive competence of the EU, they would be prevented from adopting commercial sanctions, which constitute a powerful means of pressure widely used in international relations. A cross-cutting use of competences on the international plane, that allows either entity to use its competences for protecting the international position of the other, is the only way for recasting the plenitude of powers which the other international law subjects possess. This emerges from the practice of economic countermeasures. The EU has adopted response measures towards the unlawful conduct of third States even in

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cases in which it could not be properly considered as injured under international law.36 As further examples of intersection between international capacity and internal competence, the cases of representation on the international scene ought to be considered. Sometimes the capacity of one entity, mainly the MS, has been used on the international plane in order to overcome the lack of capacity of the other. Thus, the MS have been authorised by the EU to become parties to treaties on behalf of the EU in ﬁelds falling within EU competence when the EU could not become a party to the treaty.37 In order to avoid misconceptions as to their respectively possessed competences, the EU requested that the MS, when acting on behalf of the EU, declare their status as agents of the Union. Whereas the legal effect of such declarations is not entirely clear, they seem at least to have created third-party awareness as to the incompetence of the MS to act on their own.38

36 This conclusion seems to have been recognised also within the internal legal order of the EU. Article 301 of the EC Treaty establishes a two-step procedure for using Community competence for sanctioning purposes. Ambiguous as the wording of the provision undoubtedly is, it can reasonably be assumed that it refers to the possibility of using Community competence as a means of protection of the international legal position of the MS. As the EC already possesses the capacity to use its competence for protecting its own rights under international law, a different interpretation would lead to the conclusion that Article 301 would curtail the scope of EC foreign power, by interposing the necessity of a CFSP measure to a lawful exercise of Community competence. I have dealt with this issue more extensively in my essay “The Scope of the EU Foreign Power”, cit. supra note 13. 37 This procedure has been upheld by the Court of Justice in Opinion 2/91, ECR, 1993, p. I-1061 ff. Thereafter it has been used on a number of occasions. See among the most recent, the proposal for a Council Decision authorizing the Member States to sign in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention, COM(2001) 680 ﬁnal); the proposal for a Council Decision authorizing the Member States to sign and ratify in the interest of the European Community the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (the Bunker Convention, COM(2001) 675 ﬁnal); the proposal for a Council Decision authorizing the Member States to ratify in the interest of the European Community the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (the HNS Convention, COM(2001) 674 ﬁnal). In the same vein, when the competence has been transferred to the EU by its MS after the conclusion of agreements to which these are parties, and the EU itself has not the capacity to become a party, it can exercise its competence by means of its MS, acting on its behalf. The question arises, for example, in regard to the participation of the EU to the IMF, to which now twelve MS are parties although they, having transferred their competence to the EU, do not ﬁll the substantive conditions. See LOUIS, “Les relations extérieures de l’Union économique et monétaire”, in CANNIZZARO (ed.), cit. supra note 13, p. 77 ff. 38 See for example, Article 2 of the Proposal for a Council Decision authorizing the Member States to sign in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention), COM(2001) 680 ﬁnal.

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The cases mentioned above are testimony to the existence of a practice allowing the EU and its MS to act internationally, outside the scope of their respective competences, on behalf of the other entity. These situations have been considered as exceptional cases of dissociation between international capacity and internal competence.39 Consequently, the exercise of powers on the international plane has by no means necessitated a realignment of the entities’ respective, internally possessed competences.

6. CONCLUDING REMARKS: TOWARDS A SYSTEM OF MIXED SOVEREIGNTY? It is certainly not easy to compose the cases examined in the previous paragraphs into a coherent and comprehensive legal theory. Trends are not well settled, and the borderline between the different situations is uncertain and fuzzy. Nevertheless, an attempt may be made to draw from the above analysis some general guidelines as to the relationship between the EU and the MS as actors on the international plane. Certainly, the existence of composite entities, such as the EU and the MS, each possessing distinct legal personality but sharing powers and competences, challenges the Hobbesian conception of the State as a personiﬁed entity, unitarily possessing and exercising its legal powers and prerogatives, a model on which international law has for centuries relied.40 On the other hand, at the end of the analysis, one must frankly admit that there is no alternative conceptual model capable of capturing the richness and variety of the ways in which the EU and the MS co-ordinate their legal position in international relations. They act as distinct and independent legal persons, as distinct but interrelated legal persons, or as one composite actor, according to the different situations in which their competences are respectively affected. The various situations can be regrouped within three basic behavioural models. The EU and the MS act as distinct and independent actors, according to a model of divided sovereignty, in situations which fall plainly within the subjective sphere of each entity. They act as distinct but complementary legal actors when the individu-

39 Among the cases of passive representation, the collective responsibility attributed to the MS under the European Convention on Human Rights for activities undertaken by the EU cannot be grouped. See European Court of Human Rights, Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, Decision of 10 March 2004. This situation would be better framed in the case-law of the organs of control of the Convention, that have ruled out the possibility that MS decline their responsibility under the Convention in consequence of the transfer of powers to the EU. 40 See WEILER, “The External Legal Relations of a Non-Unitary Actor: Mixity and the Federal Principle”, in O’KEEFFE and SCHERMERS (eds.), cit. supra note 29, p. 35 ff.

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al exercise of rights and obligations is conceived as a means to overcome functional deﬁciencies deriving from the partition of competences. They act as sub-entities of a composite actor in order to handle legal positions that are possessed collectively. The lesson that can be drawn from this analysis is twofold. At ﬁrst glance, one is tempted to conclude that the partition of competences has completely fragmented the comprehensiveness of powers traditionally associated with sovereignty. Thus, instead of States possessing the full plethora of international prerogatives, we have a plurality of actors sharing competences and powers; correspondingly, instead of using legal concepts evoking comprehensiveness and plenitude of powers, such as the concept of sovereignty, we should use concepts that are more appropriate to a pluralistic legal environment, such as the concept of competence. In the ﬁeld of external relations this process seems to replicate the process of distribution of powers that took place within the legal order of States once the idea of sovereignty as a concentration of powers in the hands of the sovereign had ceased to exist. This line of reasoning appears to challenge the conception of sovereignty as implying unity and comprehensiveness in the conduct of foreign-relations power. Not unlike what happened with the power of internal representation, the power of external representation seems to have split into a polyarchy of decisionmaking powers. Certainly, the experience of the European integration shows that the conduct of foreign affairs does not necessarily require a system of unitary representation. Rather, the idea is gradually gaining ground that the external relations power, no less than other governmental powers, can be split among a plurality of independent actors, and can be based on institutional pluralism and on the partition of competences. This remark, however, only partially tallies with the results of our analysis. We have seen that the idea of sovereignty as a legal category, conceived as the possession of the full panoply of rights and duties put at the disposal of States, has not completely disappeared. The fragmentation of powers has not brought about a corresponding disappearance of sovereignty. This concept is still revealing its usefulness. However, it cannot be referred to the State, conceived in its personiﬁed unity, as the monopolistic bearer of sovereign powers. Rather, it must be referred to a composite international actor, composed of a plurality of sub-units, each endowed with international personality, and individually possessing certain powers and prerogatives, which can be interchangeably used in a functionally co-ordinated framework, on behalf of, and for the beneﬁt of, the entire unit. The combined use of individual powers distributed to the single sub-units can thus replace the completeness and comprehensiveness of sovereignty. It is useful to dwell brieﬂy on this concept. The study of international practice has proved that each sub-unit, the MS and the EU, can be satisfactorily described as a sovereign entity when acting in situations that are fully dealt with by the powers and competence individually possessed by them. On the other hand, they must co-ordinate their actions, according to different schemes of behaviour, when dealing with situations that cannot be fully handled

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within their respective powers; situations that, in other words, affect the sphere of competence of both, the MS and the EU. Moreover, in the international arena the interconnection in the external conduct taken by the EU and by its MS has met no objections, and seems to have been largely accepted as an inevitable complication in the relations between these entities. It does not seem unreasonable to assume that the EU and its MS, although in principle acting as distinct legal persons within their respective ﬁelds of competence, tend to act as organs of a more comprehensive entity in situations in which the rights and obligations respectively possessed by each entity on the international plane are interconnected. This conclusion has the effect of qualifying the assumption that the concept of sovereignty has ceased its function. Whilst the use of this concept must probably be stripped of many theoretical features that have marked its existence from the beginning, its usefulness in legal discourse has not disappeared. Thus, not only may sovereign powers be distributed among a plurality of organs and levels of government without touching upon the very concept of sovereignty; sovereign powers may also be distributed among a plurality of units possessing their own legal personality. Co-ordination in the international conduct of these entities, in the forms seen above, or in other forms that will develop in future practice, recasts the comprehensiveness of sovereignty and thus prevents the process of partition of competences from bringing about a corresponding process of fragmentation of sovereignty. The plenitude and comprehensiveness formerly secured by the unitary nature of a State as a legal person is now recast in the co-ordinated action of a plurality of legal persons sharing powers and competences. It appears appropriate to speak of mixed sovereignty, intending by this the circumstance where there is no unitary manifestation of sovereignty; rather sovereignty consists of a plethora of powers that are possessed and exercised individually, jointly or co-ordinately, according to the structure of the legal relations at stake.

WAR IN AFGHANISTAN, SELF-DEFENCE AND QUESTIONS OF ATTRIBUTION OF THE SEPTEMBER 11 ATTACKS TO THE AFGHAN-TALIBAN REGIME MARCO FRIGESSI DI RATTALMA*

1. THE REFERENCES TO SELF-DEFENCE IN RESOLUTIONS AND STATEMENTS REGARDING THE US-LED WAR IN AFGHANISTAN This paper examines whether the war waged by the United States of America and other supporting States in the coalition as of 6 October 2001 against Afghanistan may be considered self-defence. This re-construction is necessary given the fact that self-defence was invoked by various States as justiﬁcation for the war waged by the forces of the coalition. References to individual and collective self-defence are to be found in a number of Security Council resolutions. The Preamble to Resolution 1368(2001) of 12 September 2001, in particular, states that the Council “Recogniz[es] the inherent right of individual or collective self-defence in accordance with the Charter”. In the Preamble to Resolution 1373(2001) of 28 September 2001 the Council “Reafﬁrm[s] the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in Resolution 1368(2001)”. The United States of America referred to self-defence in the Joint Resolution approved by the House and Senate of 18 September 2001, which states the September 11 attacks “render it both necessary and appropriate that the United States exercise its right to self-defence”.1 An equally unequivocal reference to self-defence can be found in the letter dated 7 October 2001 to the President of the Security Council from the US permanent representative to the Security Council. The letter states: “[i]n accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence”.2 Member States of the European Union,3 as well as Central and Eastern Euro*

Professor of International Law, University of Brescia. ILM, 2001, p. 1282. On the Joint Resolution cf. ABRAMOWITZ, “The President, the Congress and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism”, Harvard ILJ, 2002, p. 71 ff. 2 UN Doc. S/2001/946, ILM, 2001, p. 1281. 3 The French Foreign Minister Védrine, for example, afﬁrmed “Pursuant to that resolution, and in exercise of its right of self-defence, the United States has undertaken an armed response against Osama Bin Laden and the Al-Qaida network and against the Taliban system that supports them”, Security Council, 4413th Meeting, 12 November 2001, UN Doc. S/PV.4413, p. 6 f. 1

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pean States,4 together with developing countries,5 all invoked self-defence in their addresses to the Security Council. Norway afﬁrmed that Resolution 1368(2001) made it clear that the attacks constituted a threat to international peace and security, and triggered the right to self-defence.6 Self-defence was also cited by the 19 member States of the North Atlantic Treaty Organisation when they invoked Article 5 of their founding treaty, which reads: “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area”.7 Self-defence was also invoked by the members of the Organisation of American States (OAS) in supporting “the measures […] applied by the United States of America and other States in the exercise of their inherent right of individual and collective self-defence”.8

2. ANALYSIS OF THE CONDITIONS FOR THE APPLICABILITY OF SELF-DEFENCE: THE MATERIAL FACT OF AN “ARMED ATTACK” We must ask whether the hijacking of airliners that were subsequently crashed into the Twin Towers and the Pentagon, leading to the collapse of the Towers and the partial destruction of the Pentagon, together with the destruction of another air4

Security Council, 4414th Meeting, 13 November 2001, UN Doc. S/PV.4414, p. 2. Malaysia for example declared: “The use of military force is a legitimate course of action as an act of self-defence”, UN Doc. S/PV.4414, p. 23 f. 6 UN Doc. S/PV.4413, cit. supra note 3, p. 10. 7 See Statement by the North Atlantic Council of 12 September 2001, at http://www.nato.int/ docu/pr/2001/p01-124e.htm. It has been suggested by CERONE, “Acts of War and State Responsibility in ‘Muddy Waters’: The Non-state Actor Dilemma”, ASIL Insights, Terrorist Attacks on the World Trade Center and the Pentagon, at http://www.ASIL.org/insights.htm, that “Clearly Nato has determined that the US has been subjected to an armed attack sufﬁcient to give rise to the right of self-defence under international law as recognized in the UN Charter”. 8 Cf. Resolution RC.24/Res.1/01, OEA/Ser.F/II.24, CS/TIAR/RES.1/01, 16 October 2001. See also MONTALVO, “Inter-American Regional Security Against Terrorism: A Shield and a Sword”, ASIL Insights, Terrorist Attacks on the World Trade Center and the Pentagon, cit. supra note 7. 5

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liner which crashed in Pennsylvania, may be considered an “armed attack” against the United States of America under Article 51 of the Charter.9 The answer is undoubtedly yes, although it is worth underlining the unique and surprising nature of the means and methods used to launch the attack. It should be remembered that this act was carried out by Al-Qaida, which has unanimously been deﬁned as a terrorist group, the use of unconventional warfare and techniques being a trait of terrorism. It appears that the instruments behind the chain of events which eventually led to thousands of deaths and devastating destruction were some penknives used by the kamikaze terrorists to hijack the airliners in order to crash them into their chosen targets. In any case the weapon – which places the event within the context of an “armed attack” – consisted of civilian jets used as explosive bombs and ﬂown by the terrorists into their chosen targets.10 It should also be pointed out that armed force was used against the territorial sovereignty of the United States of America, and this is undoubtedly the fact that Article 51 refers to when it speaks of “an armed attack against a member of the United Nations”. The notion of an “armed attack” is commonly believed to imply the use of armed force of a certain proportion and gravity.11 Clearly, the results of the September 11 attacks were of such magnitude as to leave no doubt in this regard. In short there can be no doubt as to the material fact of an armed attack.

3. ANALYSIS OF THE IMPUTABILITY OF THE ARMED ATTACK TO AFGHANISTAN: THE SYMBIOTIC RELATIONSHIP BETWEEN OSAMA BIN LADEN AND THE TALIBAN REGIME Even if Article 51 of the UN Charter is silent on this matter, many have argued that a further prerequisite for self-defence is that an armed attack be attributable to a State. This is because Article 51 establishes an exception to the prohibition of the use of force enshrined in Article 2, paragraph 4, which is directed expressly against “members” (States).12 More concretely, the question of the imputation of the armed

9 I consider here the “material proﬁle” of the notion of “armed attack”. Instead the question of the attribution of the attack to the Afghan regime against which, together with Bin Laden’s followers, armed force has been used can only be contemplated if the answer to the ﬁrst question whether the attacks of 11 September 2001 can be considered an armed attack under Article 51 is positive. 10 CONDORELLI, “Les attentats du 11 septembre et leurs suites: où va le droit international?”, RGDIP, 2001, p. 829 ff., p. 845. 11 See LAMBERTI ZANARDI, La legittima difesa nel diritto internazionale, Milano, 1972, p. 229. 12 Ibid., p. 230.

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attack to a State is inevitably important in view of the fact that the use of armed force in self-defence is generally exercised against an individual State or at the very least within the territory of a State. Since the use of force is legitimate only if it is justiﬁed by the goal of self-defence against attack by another State it is necessary to be able to attribute the attack to the speciﬁc State in question. As the US permanent representative to the Security Council noted, the United States began a war on 6 October 2001 essentially against the “Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan”.13 Subsequent accounts have shown that the war was also waged against the AfghanTaliban army and against Bin Laden’s militia. To judge whether the use of armed force in Afghanistan and against Afghanistan was lawful we must ﬁrst establish whether the terrorist attacks are attributable to the Afghan-Taliban regime. To do this we must reconstruct in as much detail as possible the events and facts as they occurred historically. First of all, the attacks of 11 September 2001 were attributed by various States, primarily the United States and the United Kingdom, to the terrorist organisation Al-Qaida.14 This organisation is present in numerous States and may be described as a multinational of terror. The war waged by the United States of America was directed against Al-Qaida members and installations speciﬁcally located in Afghanistan insofar as this State has for many years been the home and the operational base of this group’s senior members and its leader Osama Bin Laden in particular. Well before the September 11 attacks the UN Security Council had made known and condemned the very close contacts between Osama Bin Laden and the Taliban regime. The Council had also repeatedly pointed out the presence of terrorist training camps in Afghanistan and ordered the ruling Taliban regime to close them down. In Resolution 1333(2000) of 19 December 2000, the Council called on the Taliban under Chapter VII to

13

Cit. supra note 2. On 2 October 2001, as can be deduced from NATO Secretary Robertson’s statement, the Atlantic Council determined that the United States of America had proved, through the investigations of the State Department and the Defence Ministry that the terrorists who perpetrated the 11 September attacks belonged to Al-Qaida. The statement reads: “The facts are clear and compelling. The information presented points conclusively to an Al-Qaida role in the 11 September attacks. We know that the individuals who carried out these attacks were part of the world-wide terrorist network of Al-Qaida, headed by Osama Bin Laden and his key lieutenants and protected by the Taliban”: cf. ILM, 2001, p. 1268. The UK Government’s document entitled Prime Minister’s statement to Parliament on the September 11 attacks (4 October 2001), at http: //www.pm.gov.uk/output/Page 1606.asp, afﬁrms: “First, it was Osama Bin Laden and Al-Qaida, the terrorist network which he heads, that planned and carried out the atrocities on 11 September; second, that Osama Bin Laden and Al-Qaida were able to commit these atrocities because of their close alliance with the Taliban regime in Afghanistan which allows them to operate with impunity in pursuing their terrorist activity”. 14

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“cease the provision of sanctuary and training for international terrorists and their organizations, take appropriate effective measures to ensure that the territory under its control is not used for terrorist installations and camps, or for the preparation or organization of terrorist acts against other States or their citizens, and cooperate with international efforts to bring indicted terrorists to justice”. Similar orders were to be found in Resolution 1267(1999) of 15 October 1999 (para. 1) and in Resolution 1214(1998) of 8 December 1998 (para. 13). The failure to comply with these orders was deﬁned as a threat to the peace by the Security Council.15 In addition, the Security Council had, on several occasions, ordered the Taliban to hand over Osama Bin Laden, who had also been alleged by the United States to be responsible for the attacks of 7 August 1998 against the US embassies in Kenya and Tanzania.16 The Security Council had speciﬁcally declared that the failure to hand over Bin Laden was a threat to the peace under Article 39 of the UN Charter.17 We must therefore bear in mind that the Security Council – the most important organ for international security – considered the conduct of the Taliban regime in its failure to close the terrorist camps and to hand over Osama Bin Laden such as to justify the adoption of measures under Chapter VII of the UN Charter, including the use of armed force. The close links between Bin Laden’s group and the Taliban highlighted by the Security Council were conﬁrmed by various sources. In the mentioned UK Government’s document entitled “Prime Minister’s statement to Parliament” (4 October 2001) we ﬁnd conﬁrmation that: “The closeness of Bin Laden’s relationship with the Taliban is also plain. He provides the Taliban with troops, arms and money to ﬁght 15 The Preamble to Resolution 1333(2000) of 19 December 2000 states: “[T]he failure of the Taliban authorities to respond to the demands in para. 13 of Resolution 1214(1998) and in para. 2 of Resolution 1267(1999) constitutes a threat to international peace and security”, while the second Resolution “demands also that the Taliban stop providing sanctuary and training for international terrorists and their organizations and that all Afghan factions cooperate with efforts to bring indicted terrorists to justice” (para. 14). 16 Cf. the eighth statement of the Preamble to Security Council Resolution 1267(1999). The allegations also concerned the conspiracy to kill US citizens abroad. The United States had ofﬁcially requested that the Taliban hand over Osama Bin Laden (S/1999/1021). 17 The Preamble to Resolution 1333(2000) reads: “[T]he failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214(1998) and in paragraph 2 of Resolution 1267(1999) constitutes a threat to international peace and security”, while the second resolution “demands that the Taliban turn over Osama Bin Laden without further delay to appropriate authorities in a country where he has been indicted, or to appropriate authorities in a country where he will be returned to such a country, or to appropriate authorities in a country where he will be arrested and effectively brought to justice”.

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the Northern Alliance. He is closely involved with the Taliban’s military training, planning and operations. He has representatives in the Taliban’s military command structure. Forces under the control of Usama Bin Laden have fought alongside the Taliban in the civil war in Afghanistan. The Taliban regime, for its part, has provided Bin Laden with a safe haven within which to operate, and allowed him to establish terrorist training camps. They jointly exploit the Afghan drugs trade. In return for active Al-Qaida support the Taliban allow Al-Qaida to operate freely, including planning, training and preparing for terrorist activity. In addition they provide security for the stockpiles of drugs”. In a related document by the UK Government entitled “Responsibility for the terrorist atrocities in the United States, 11 September 2001 – an updated account”18, we also read: “Usama Bin Laden and the Taliban have a close alliance on which both depend for their continued existence. They also share the same religious values and vision” (para. 11) and that: “A former government ofﬁcial in Afghanistan has described the Taliban and Usama as ‘two sides of the same coin. Usama cannot exist in Afghanistan without the Taliban and the Taliban cannot exist without Usama’” (para. 19). Moreover, according to the Russian Foreign Minister, Serghei Ivanov, Osama Bin Laden and the Taliban “are almost one and the same”. Intelligence indicates that Osama was appointed inspector general of the Taliban armed forces.19 Other sources conﬁrmed that there was a very close relationship between the Taliban led by Mullah Omar, on the one hand, and Bin Laden and his followers on the other. CIA chief Tenet stated that “[t]he Taliban and Bin Laden have a symbiotic relationship. Bin Laden gets safe haven and in return he gives the Taliban help in ﬁghting its civil war”.20 In his book “Taliban. Militant Islam, Oil and Fundamentalism in Central Asia”, Ahmed Rashid, who is considered the most important scholar to have published on the Taliban regime, provides various clues which shed light on this close relationship. From Rashid, we learn that: “Bin Laden endeared himself further to the leadership by sending several hundred Arab-Afghans to participate in the 1997 and 1998 Taliban offensives in the north. These Wahabbi ﬁghters helped the Taliban carry out the massacres of the Shia Hazaras in the north. Several hundred Arab-Afghans, based in the Rishkor army garrison outside Kabul, fought on the Kabul front against Masud. Increasingly, 18

See http://www.pm.gov.uk/output/Page 3682.asp. See ANSA, 26 September 2001, 03738. ZCZC0136/SXB. 20 Statement by DCI Tenet to the Senate Select Committee on Intelligence (SSCI) on the “Worldwide Threat 2001: National Security in a Changing World” (7 February 2001) at http: //www.cia.gov/cia/public_affairs/speeches/2001/UNCLASWWT_02072001.htlm. 19

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Bin Laden’s world view appeared to dominate the thinking of senior Taliban leaders […] After the Africa bombings the Taliban became increasingly vociferous against the Americans, the UN, the Saudis and Muslim regimes around the world. Their statements increasingly reﬂected the language of deﬁance Bin Laden had adopted and which was not an original Taliban trait”.21 The book also notes that: “The nineteen suicide attackers […] belonged to the Al-Qaida organization, which is based in Taliban-ruled Afghanistan and led by Osama Bin Laden […] Yet Al-Qaida could not have spent the years of planning and organization that went into the attacks without a safe sanctuary where everything it needed was available – training, funding, communications, and inspiration. The long years of Western neglect have allowed the Taliban to turn Afghanistan into just such a sanctuary for extremist groups from more than two dozens countries. Al-Qaida, with its 2,500-3,000 ﬁghters in Afghanistan drawn from at least 13 Arab countries and its global network spread over 34 countries, is only the tip of a very large iceberg […] Afghanistan has become the hub of a worldwide terrorist network”.22 Moreover, Islamic fundamentalists, indicted with terrorism, have conﬁrmed that Al-Qaida was part of the Taliban regime.23 In the face of this evidence the statements by the Taliban designed to depict Bin Laden as a mere “guest” of the regime appear puzzling at the very least. As the UN Secretary-General’s personal representative and head of the special mission for Afghanistan, F. Vendrell, noted, for the Taliban “Mr. Bin Laden was a guest, that had become a resident of Afghanistan prior to the Taliban taking control, and that no longer had communication with his followers”.24

4. THE ROLE OF OSAMA BIN LADEN IN THE AFGHAN-TALIBAN GOVERNMENT After reconstructing the facts, I now propose to answer the question regarding the imputation of the armed attack to the Taliban regime. I also wish to state at this 21 RASHID, Taliban. Militant Islam, Oil and Fundamentalism in Central Asia, London, 2000, p. 139 f. 22 Ibid., p. vii f. 23 See El País, 20 October 2001, p. 16. 24 Press brieﬁng by Secretary-General’s personal representative and head of special mission to Afghanistan, 25 February 2000 (www.un.org/News/brieﬁngs/docs/2000).

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point, as we shall see, that I believe that the armed attack can be attributed to the Taliban regime by applying the ordinary notion of “armed attack” and therefore without revising or expanding the notion, as others have proposed and for the most part feared. Let me premise that, from a strictly formal point of view, we do not know whether a law or provision belonging to the rather impenetrable legal system of the Afghan-Taliban State attributed speciﬁc powers and duties to Bin Laden (and/or to other Al-Qaida leaders), which would enable us to deﬁne him formally as a State organ. Even if this were not the case, it would not prevent us from considering Bin Laden and his collaborators as organs of the Afghan State. An authoritative legal interpretation on the subject of State responsibility has emphasised that “[o]n sait que l’organisation effective d’un Etat peut fort bien ne pas correspondre, dans une mesure plus ou moins importante, à ce qui est prévu par les lois de cet Etat”.25 Article 4, paragraph 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, which the International Law Commission adopted at its 53rd session (2001),26 appears to conform to this interpretation when it states: “An organ includes any person or entity which has that status in accordance with the internal law of the State” and later clariﬁes in the commentary to this article that “[i]n some systems the status and functions of various entities are determined not only by law but also by practice, and reference exclusively to internal law would be misleading”.27 In terms of “practice”, and therefore in historical, political and factual terms, Afghanistan seems dominated by a regime, by a system of power in which both the Taliban element and the Al-Qaida element led by Bin Laden appear to come together and fuse inextricably. These elements appear to form a single governmental authority, a single “State”. It appears that the reconstruction and the facts described above can lead us to determine that Bin Laden and the other senior members of Al-Qaida in Afghanistan were part of “the government machinery, the authority or set of authorities which hold the summa potestas (sovereignty) in each community, the group of people that exercise political power”28 alongside the Supreme Taliban leaders and, moreover, to all effects, held high ranks. Historically and politically we can observe a sort of total symbiosis between one group and the other.

25 CONDORELLI, “L’imputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances”, RCADI, 1984, VI, p. 1 ff., p. 55. 26 Report of the International Law Commission on the Work of its Fifty-Third Session (2001), at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm. 27 Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its Fifty-Third Session (2001), para. 11, at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm. 28 GIULIANO, SCOVAZZI and TREVES, Diritto internazionale. Parte generale, Milano, 1991, p. 80 (I translate).

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The case at issue therefore differs markedly from those examined in the two leading cases of the International Court of Justice on the subject of State responsibility; namely the decision of 24 May 1980 in the case of the United States Diplomatic and Consular Staff in Tehran29 and the decision of 27 June 1986 in the case of the Military and Paramilitary Activities in and against Nicaragua.30 In these cases one of the discussion points was whether the Islamic militants or the Contras, respectively, could trigger the responsibility of Iran or the United States by virtue of being organs or de facto agents acting on the instructions, or under the direction or control of the State – as envisaged by Article 8 of the 2001 Draft Articles. In the present case, however, we have a group of people who participate in the Government of a State in top ranking positions, albeit – as far as we know – without formal attribution of the corresponding status of senior organs. This is therefore not a case to be assessed in light of Article 8 of the 2001 Draft Articles, but rather, as I have said, of Article 4, paragraph 2 of the same Draft Articles. On this point it is worth emphasising that the new version of the Draft Articles on State Responsibility appears to be more suitable than the preceding one, which dates back to 1996,31 to providing a comprehensive legal framework as regards State responsibility for internationally wrongful acts given the varied, ﬂuid and, in many respects unforeseeable, nature of State organisation. “Applying” to the present case the 1996 Draft Articles, we would incur a serious difﬁculty, since Article 5 of that Draft stated that: “For the purposes of the present articles, conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law […]”. The provision could be read as excluding from being considered an organ of the State any person or entity that would be considered as such in light of the practice of a given State but not in light of the law of that State. On the other hand, it is unlikely that assistance could be found in establishing the Afghan fact at issue in Article 8(a) of the 1996 Draft Articles. This article provided for the ﬁgure of a de facto agent of the State; in other words “he who acts in actual fact on behalf of the State”. At any rate, this last provision deals with the conduct of a person or an entity acting on behalf of and thus under the overall control of a State or more tellingly, as expressly stated in the new Article 8 of the 2001 Draft Articles “on the instructions of, or under the direction or control of, that State in carrying out the conduct”. The latter article cannot be used to deal with a fact such as the one being examined, in which the conduct is caused by organs which are de facto at the summit of the State hierarchy and which, rather than receiving instructions, impart them and,

29

ICJ Reports, 1980, p. 35 ff. ICJ Reports, 1986, p. 13 ff. 31 Cit. supra note 26. 30

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rather than acting under the direction and control of the State, direct and control the State.32 The new version of the Draft Articles appropriately allows for attribution to a State also of conduct by the highest State organs that de facto govern a given territorial unit. We have said that Osama Bin Laden and the other senior Al-Qaida leaders were amongst the highest organs of the Afghan-Taliban State. In addition, it is generally believed that Osama Bin Laden and the abovementioned senior leaders planned the September 11 terrorist attacks, which were subsequently executed by terrorists belonging to Al-Qaida. It therefore seems that the fact at issue may be linked to the deﬁnition contained in letter f) of UN General Assembly Resolution 3314(XXIX) of 14 December 1974, whereby “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above” constitutes an act of aggression. Moreover this speciﬁc form of aggression constitutes a fact justifying the use of force in self-defence. The International Court of Justice has clariﬁed that the sending of armed bands as deﬁned above constitutes (or may amount to) an armed attack under Article 51 of the Charter. In the event of such an act, recourse to self-defence by an attacked State is permissible against the State which sent the armed band. In its decision of 27 June 1986 in the case of the Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice ruled that the notion of “armed attack” under Article 51 includes the sending of armed bands to the territory of another State when such an operation, in terms of its scale and effects, would have been deﬁned as an “armed attack” had it been carried out by regular armed forces.33

32 Reference is made to GAJA, “In What Sense Was There an ‘Armed Attack’?”, Discussion Forum-The Attack on the World Trade Center: Legal Responses, at http://www.ejil.org/forumWTC/ny-gaja.html, who was the ﬁrst scholar to interpret the present case by linking the Al-Qaida leaders operating in Afghanistan to the Taliban State. I also agree with Gaja that reference cannot be made in this case to Articles 9 and 10 of the ILC Draft Articles. Article 9, which attributes to a State the conduct of a group of persons which exercised de facto “elements of governmental authority” in the absence of ofﬁcial authorities and in circumstances that justiﬁed the exercise of said authority, cannot apply as it is clear that terrorist activities are not “elements of governmental authority” as provided for by Art. 9. Article 10, entitled “Conduct of an insurrectional or other movement”, is not relevant here, ﬁrst of all because in the case at issue there was no insurrection and, moreover, because Al-Qaida did not oppose the Taliban regime, but was in fact, as we have seen, a part of it. In contrast MURPHY, “Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the UN Charter”, Harvard ILJ, 2002, p. 41 ff., starts from the same premise of the close links between Al-Qaida and the Taliban, but ends up, surprisingly, attributing responsibility for the attacks on the Taliban on the basis of Article 9 of the ILC Draft Articles. 33 Cit. supra note 30, para. 195.

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Applying the above decision to the case in question, it can be stated that the United States lawfully used armed force in self-defence against the Afghan-Taliban regime, i.e. against that composite reality in which the Taliban element and the AlQaida element fused together. Osama Bin Laden, one of the most senior leaders of this regime, sent a terrorist group, or “armed band” in the words of Resolution 3314 of 1974, which then carried out the terrorist acts of 11 September 2001. Given their scale and effects these acts would certainly have been deﬁned as an “armed attack” had they been carried out by regular armed forces.34

5. CRITICISM OF THE THESIS SUPPORTING THE EXISTENCE IN THIS SPECIFIC CASE OF MERE “INDIRECT AGGRESSION” (SUPPORT TO ARMED BANDS) All that has been said so far leads me to disagree with those who evaluate the present facts as an indirect armed aggression, i.e. support given by a State to armed bands operating against another State rather than, as I have proposed, as the sending of armed bands.35 We have seen that among the various forms of aggression, UN General Assembly Resolution 3314(XXIX) of 14 December 1974 envisages the “sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above”. The above deﬁnition ends with the words “or its substantial involvement therein”. We have also seen that the International Court of Justice considered the notion of “armed attack” under Article 51 to include the sending of armed bands to the territory of another State when such an operation, in terms of its scale and its effects, would have been classiﬁed as an armed attack had it been carried out by regular armed forces.

34 As this paper was going to press, a number of studies were published in support of this thesis. REISMAN, “In Defense of World Public Order”, AJIL, 2001, p. 833 ff., p. 834, notes that “the enemy has chosen to inﬁltrate or conceal itself in apparently neutral countries from which it can conduct a dirty war, targeting and revelling in massive civilian destruction”. SLAUGHTER and BURKE-WHITE, “An International Constitutional Moment”, Harvard ILJ, 2002, p. 1 ff., p. 20, observe that “The question thus concerns the speciﬁc relationship between Taliban ofﬁcials and Al-Qaida members. Are they distinguishable? Or are they activities so intertwined at an individual level that they are impossible to separate?”. BROTÓNS is even more explicit in “Terrorismo, mantenimento de la paz y nuevo orden”, Revista española de derecho internacional, 2001, p. 125 ff. 35 On the concept of indirect armed aggression, see THOMAS-THOMAS-SALAS, The International Law of Indirect Aggression and Subversion, Dallas, 1966; LAMBERTI ZANARDI, cit. supra note 11, p. 248 f.; SCISO, “Legittima difesa ed aggressione indiretta secondo la Corte internazionale di giustizia”, RDI, 1987, p. 627 ff.

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Here I must add that the Court again explained in its judgment of 27 June 1986 in the case of the Military and Paramilitary Activities in and against Nicaragua that the notion of “armed attack” under Article 51 does not include support by a State to rebels in the form of the provision of weapons or logistical assistance or other support.36 It follows that, while constituting a breach of the prohibition to interfere in the internal affairs of another State, thereby legitimising the use of countermeasures, the State which has been the victim of indirect armed aggression cannot act in selfdefence and use armed force against a State which provides said support to a group of rebels or terrorists. A number of scholars consider the present facts as falling under the notion of indirect armed aggression, in other words as support or assistance by a State to armed bands operating against another State. Some in particular believe that, following the tragic events of 11 September 2001, the resolutions of the Security Council have broadened the notion of armed attack as the prerequisite to the use of force in self-defence to include the conduct of a State consisting of “harbouring” or “aiding and abetting” international terrorism.37 In other words, in the view of these scholars, we are witnessing the inclusion of indirect armed aggression under the notion of “armed attack”. Although this thesis is of undoubted interest as it offers a number of points for reﬂection, it cannot be shared, as I shall show below. It does, however, have the merit ﬁrstly of pointing to an undeniable trend. Various States, particularly the United States of America, strongly support the idea that the conduct of a State harbouring terrorist groups – not to mention ﬁnancing, helping or otherwise protecting them – that commit grave acts of terrorism against another State should trigger the latter State’s right to act in self-defence against the former State. So, after declaring that the attacks of September 11 “render it both necessary and appropriate that the United States exercise its rights to self-defence”, the Joint Resolution of the US Congress of 18 September 2001 further afﬁrms that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboured such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.38 This idea is certainly not new, and it has been defended with particular vigour by Israel in the Security Council as justiﬁcation for its use of force against terrorist 36 Cit. supra note 30, para. 195. Cf. CORTEN and DUBUISSON, “Opération ‘liberté immuable’: une extension abusive du concept de légitime défense”, RGDIP, 2002, p. 51 ff., p. 56. 37 See especially CASSESE, “Terrorism is Also Disrupting Some Crucial Legal Categories of International Law”, in Discussion Forum-The Attack on the World Trade Center: Legal Responses, cit. supra note 32, p. 5. See also CORTEN and DUBUISSON, cit. supra note 36, p. 54 ff. 38 Cit. supra note 1, emphasis added.

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groups located in Arab States which carried out terrorist attacks against Israel by moving from the territory of those States.39 Moreover, it should not be forgotten that other States have argued in other contexts that indirect armed aggression may be considered an armed attack under Article 51 and therefore legitimise an armed response against a State which perpetrates such aggression.40 The decision of the International Court of Justice of 27 June 1986 was highly criticised by Judge Schwebel in his dissenting opinion due to the fact that, in his view, the afﬁrmation that the sending of armed bands but not the support to such bands was to be considered an armed attack legitimising the use of military force in self-defence – especially in the case of substantial and specialist support – was too drastic and “aprioristic”.41 39 On 1 October 1985, Israeli military aircrafts carried out strikes on the PLO’s headquarters in Tunis. Israel claimed that the bombing was justiﬁed due to the fact that Tunisia harboured terrorists who had perpetrated terrorist attacks in Israel. The Israeli representative to the Council stated that: “A country cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations, and that is precisely what happened here. Tunisia knew very well what was going on in this extraterritorial base, the planning that took place there, the missions that were launched from it, and the purposes of those missions: repeated armed attacks against my country and against innocent civilians around the world. Tunisia, then, actually provided a base for murderous activity against another State and, in fact, the nationals of many States who are the objects and victims of this terrorist organization. The protection of sovereignty cannot be claimed by any Government when it makes available such facilities, especially against the State that must protect itself”, 4 October 1985, UN Doc. S/PV.2615, p. 86 f. For various references to the Israeli position on this matter, cf. CASSESE, “Article 51”, in COT and PELLET, La Charte des Nations Unies, 2nd ed., Paris, 1991, pp. 777-784. It should be noted that Israel’s argument has undoubtedly been supported by such scholars as BROWNLIE, The Rule of Law in International Affairs, The Hague, 1998, p. 205, who observes that “[a]nother permutation of facts concerns the situation in which a State tolerates the presence of armed bands which launch armed attacks against a neighbouring State. There can be little doubt that action by way of self-defence is justiﬁed in such cases but the response must be proportionate”. 40 Cf. LAMBERTI ZANARDI, cit. supra note 11, pp. 248-261, who, in analysing particularly the work of the Special Committee on the Question of Deﬁning Aggression, notes (p. 254, note 172) that some (mostly Western) States “expressed their doubts or dissent” on the idea proposed by others whereby a State that is a victim of terrorist acts carried out by irregular bands supported by another State could never invoke self-defence against the latter. 41 Dissenting Opinion of Judge Schwebel, para. 171: “Moreover, let us assume, arguendo, that the Court is correct in holding that provision of weapons or logistical support to rebels of themselves may not be tantamount to armed attack (an assumption which I do not share, not least because the term ‘logistic support’ is so open-ended, including, as it may, the transport, quartering and provisioning of armies). It does not follow that a State’s involvement in the sending of armed bands is not to be construed as tantamount to armed attack when, cumulatively, it is so substantial as to embrace not only the provision of weapons and logistical support, but also participation in the re-organization of the rebellion; provision of command-and-control facilities on its territory for the overthrow of the Government of its neighbour by that rebellion; provision of sanctuary for the foreign insurgent military and political leadership, during which periods it is free to pursue its plans and operations for overthrow of the neighbouring Government; provision of training facilities for those armed bands on its territory and the facilitation of passage of the foreign insurgent to third countries for training”.

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On the other hand there is no denying that a larger number of States have opposed this position within the Security Council42 and in other contexts.43 The resolutions adopted by the Security Council after September 11 undoubtedly clarify that terrorist attacks of such proportions constitute a “threat to the peace” under Article 39 of the Charter in that they legitimise the Security Council to take all actions envisaged by Chapter VII, and also constitute “armed attacks” under Article 51 and therefore legitimise the use of force in self-defence against a State which committed such attacks, or participated therein. They do not, however, contain sufﬁciently clear elements to conclude that these resolutions were intended to afﬁrm that even a State’s mere “toleration” in its territory of terrorist groups that have carried out attacks against another State constitutes conduct falling under the notion of “armed attack” and as such justifying recourse to self-defence against the acquiescent State.44 According to these resolutions, such acquiescence is without doubt a threat to the peace and legitimises actions on the part of the Council under Chapter VII but does not appear to constitute an “armed attack” justifying the use of force in self-defence. I am aware that the resolutions mentioned above, which are in some respects ambiguous, may lend themselves to being interpreted differently. In my view, how42 UN Doc. S/PV.2615, cit. supra note 39, p. 86 f. Referring again to the abovementioned Israeli bombing of the PLO’s headquarters in Tunis the Security Council rejected the Israeli position and voted Resolution 573(1985) with the USA abstaining. The resolution condemned “vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in ﬂagrant violation of the Charter of the United Nations, international law and norms of conduct” and deﬁned the raid a “threat to peace and security in the Mediterranean region”. For further references to declarations by States against the Israeli position, see CASSESE, cit. supra note 39, pp. 780-784. 43 Cf. LAMBERTI ZANARDI, cit. supra note 11, p. 255, in his conclusions on the review of opinions expressed by various States to the Special Committee on the Question of Deﬁning Aggression states “we can deduce an orientation to exclude indirect armed aggression from the notion of armed attack under Article 51”. 44 See especially Resolutions 1368(2001) and 1373(2001). These clearly call on States to refrain from various wrongful acts including “organising, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts” (Preamble to Resolution 1373 of 2001) pursuant to Resolution 2625(XXV) of the UN General Assembly of 24 October 1970. This occurred in the context of resolutions striving mainly to establish in very general terms how to combat all forms of international terrorism, which were deﬁned as a threat to the peace and to international security (Preamble to Resolutions 1368 and 1373). It follows that all conduct listed above legitimises the Council to adopt all means under Chapter VII, including the authorisation of the use of armed force. The reference to self-defence, although present – as we have seen supra in the main text, section 1 – in the preamble to these resolutions, is to be considered as referring to the speciﬁc situation being examined by the Council, i.e. the attacks of 11 September and the USA’s possible response against the Afghan-Taliban regime. It is worth noting that some of the forms of State conduct listed above – such as “organizing terrorist acts” or “participating in terrorist acts” – amount to “armed attack” and as such legitimise the use of force against them. See also CORTEN and DUBUISSON, cit. supra note 36, p. 56.

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ever, any interpretation that does not ﬁt, as we have just seen, the position adopted so far by the majority of States would require a clearer and more unequivocal practice. That said, there is no reason to exclude as a possible development the fact that the political inﬂuence of such devastating events as the attacks of September 11 which – it is worth underlining – constitute a turning-point in the history of humanity, may lead a large number of States to accept the second orientation whereby the very fact of harbouring terrorist groups which commit grave attacks against a State legitimises the use of force in self-defence against the harbouring State.45 However it seems to me a little premature to conclude that there has been such a development and we must wait a little longer to leave the practice to settle in order to evaluate it more accurately. In any case, it seems that the orientation at issue disregards the historical fact of the complete, profound and evident symbiosis between the Taliban regime and Osama Bin Laden’s terrorist group. If we accept this state of affairs and if we do not contest the fact that it was Bin Laden who sent the terrorists to carry out the attacks against the United States, then the attacks are clearly imputable to Afghanistan. In other words this is a case of State terrorism. We can therefore conclude that the terrorist State was a legitimate target of American armed response without having to expand or broaden the notion of “armed attack”.46

6. THE RECOGNITION BY THE SECURITY COUNCIL OF THE ENTITLEMENT IN THE SPECIFIC CASE TO SELF-DEFENCE Let me now turn to analyse the time factor of the self-defence action, which is inextricably intertwined with the role of the Security Council’s function of maintaining peace and international security. Some scholars have contested the legality of the American action in this respect. They have argued that the US-led war which began on 2 October 2001 was unlawful in that it was a response to an aggression – the September 11 attacks – which was complete and over. Therefore the armed response was in breach of

45

Cf. CASSESE, cit. supra note 37. The historical fact of the complete symbiosis between the Taliban regime and Al-Qaida and its legal consequences is not accounted for by CORTEN and DUBUISSON, cit. supra note 36, p. 68 f. The authors reject as the most unlikely the hypothesis that the Taliban controlled Al-Qaida, and mention the hypothesis that Al-Qaida controlled the Taliban and ﬁnally the hypothesis that “aucun des deux groupes ne contrôlait véritablement l’autre”. With regard to these hypotheses the authors merely observe “le régime des Taliban ne pourrait en aucun cas se voir attribuer un quelconque acte d’une organisation qu’il ne contrôle pas, qu’il s’agisse ou non des attentats du 11 septembre”. In point of fact this reasoning is too mechanical and disregards the fact that Al-Qaida and the Taliban belonged to the same sovereign power centre, i.e. the Afghan-Taliban State. 46

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the prohibition of reprisals pursuant to Article 2, paragraph 4 of the UN Charter. It was also claimed that the American action could not be legitimised by the goal of preventing further attacks since Article 51 of the Charter does not envisage anticipatory self-defence. Hence, only the Security Council had the authority in such circumstances to decide on an armed response against Afghanistan.47 It is not possible here to dwell on the complex interpretation of the problems underlying this hypothesis, especially those regarding the admissibility of pre-emptive self-defence.48 In any case, even if we accept the validity of the premise on which the above hypothesis is based, we must also examine the speciﬁc circumstances of the case at issue. Not only did the Security Council, as we have seen, recognise ex ante that there existed the prerequisites for the use of force in self- defence49 in this speciﬁc case, but it also fully endorsed ex post the armed response of the USA and its allies. In the Preamble to Resolutions 1378(2001) of 14 November 2001, 1586 (2001) of 20 December 2001 and 1390(2002) of 28 January 2002, we read that the Security Council “support[s] international efforts to root out terrorism, in keeping with the Charter of the United Nations”. These declarations are to be found in the resolutions adopted after 2 October 2001, the date that the United States and its allies initiated the armed response, and must therefore be referred precisely to this use. It may be argued that these are only indications. However, this does not alter the truth of the reasoning. Given the fact that the Security Council substantially legitimised – ex ante and ex post – the US war in Afghanistan we can but recognise in general the legality of the action itself.50 There is nothing to stop others contesting the opportunity of the

47 See in particular VILLANI, “Riﬂessioni sul ruolo dell’Onu per il mantenimento della pace e la lotta al terrorismo nella crisi afgana”, Volontari e terzo mondo, 2001, p. 9 ff., p. 13. 48 See BOWETT, Self-Defence in International Law, Manchester, 1958, pp. 187-192; MC DOUGAL and FELICIANO, Law and Minimum Public Order, New Haven, 1961, pp. 232-241; STONE, Aggression and World Order, Berkeley, 1958, p. 44; AGO, “Addendum to Eight Report on State Responsibility”, YILC, 1980, Vol. II, p. 64 ff.; KELSEN, The Law of the United Nations, New York, 1950, p. 797 f.; ARANGIO-RUIZ, “Difesa legittima (diritto internazionale)”, Nss. DI, Torino, 1960, Vol. VI, p. 631 ff.; WEHBERG, “L’interdiction du recours à la force. Le principe et les problèmes qui se posent”, RCADI, 1951, I, p. 1 ff., p. 81; D’AMATO, “Israel’s Air Strike upon the Iraqi Nuclear Reactor”, AJIL, 1983, p. 584 ff.; WRIGHT, “The Cuban Quarantine”, AJIL, 1963, p. 546 ff.; DINSTEIN, War, Aggression and Self-Defence, 3rd ed., Cambridge, 2001, pp. 182-191; O’CONNELL, “The Myth of Pre-emptive Self-defence”, ASIL Presidential Task Force on Terrorism, August 2002, available at http://www.asil.org/taskforce/index.htm; “Agora: Future Implications of the Iraqi Conﬂict”, AJIL, 2003, p. 553 ff.; “Agora (Continued): Future Implications of the Iraqi Conﬂict”, AJIL, 2003, p. 803 ff. 49 See supra note 1. See also BYERS, “Terrorism, the Use of Force and International Law after 11 September”, ICLQ, 2002, p. 401 ff. 50 Similarly SICILIANOS, “L’autorisation par le Conseil de sécurité de recourir à la force: une tentative d’évaluation”, RGDIP, 2002, p. 5 ff., p. 47, notes that “[…] la référence à la légitime défense constitue provisoirement une couverture juridique (et politique) certaine de l’opération

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action in political or military terms.51 But it is more difﬁcult to contest its legality since the body which is clearly authorised to decide thereon at an international level legitimised its use in this particular case.52

‘Inﬁnite Justice’”. Likewise SCOVAZZI, “Una fase di crisi nel sistema di mantenimento della pace delle Nazioni Unite”, Affari esteri, 2002, p. 372 ff., p. 401. 51 Cf. CHARNEY, “The Use of Force Against Terrorism and International Law”, AJIL, 2001, p. 835 ff., p. 838, stating that “[i]nvolvement of the Security Council in the use of force in response to the September 11 attacks would have avoided further undermining the beneﬁts the United Nations system can provide to all”. 52 See VILLANI, cit. supra note 47, p. 16 f.

THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION ON LEGALITY OF ARREST: CAN AN INTERNATIONAL CRIMINAL COURT ASSERT JURISDICTION OVER ILLEGALLY SEIZED OFFENDERS? ANDREA CARCANO*

1. INTRODUCTION The issue of the jurisdiction by a court over illegally seized offenders is a topic often debated among international lawyers. According to Francis Mann, kidnapping is an international wrong, and the application of the principle ex iniuria ius non oritur requires that jurisdiction over a kidnapped accused should not be exercised.1 In the same vein, Michael Sharf has recently suggested that “an international criminal tribunal would have to dismiss a case where the defendant has been abducted in violation of international law”.2 By contrast, Ian Brownlie has argued that “while international responsibility may arise as a consequence of the illegal seizure of offenders, the violation of the law does not affect the validity of the subsequent exercise of jurisdiction over them”.3 Because the issue remains highly controversial, it is clearly relevant to explore how an international criminal court such as the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has approached it. On one hand, the ICTY is charged with the responsibility for prosecuting individuals accused of serious violations of humanitarian law; on the other, as a tribunal established by the United Nations (“UN”), it is expected to enforce the principles of international law and guarantee full respect for the human rights of each accused. Normally, these two obligations are readily reconciled in accordance with the requirements of fair trial, but in determining jurisdiction over illegally seized offenders their reconciliation becomes more difﬁcult. One obligation seems to support setting aside jurisdiction; the other, exercising it. Can these two obligations be reconciled? If not, should the ICTY simply decline jurisdiction whenever an accused is illegally apprehended? Would such an approach amount to the de facto acquittal of individuals accused of crimes of concern to the international community such as genocide, crimes against * Associate Legal Ofﬁcer at the ICTY (Chambers). The opinions expressed in this article are those of the author and should not be attributed to the institution with which he is associated. 1 MANN, “Reﬂections on the Prosecution of Persons Abducted in Breach of International Law”, in DINSTEIN (ed.), International Law at a Time of Perplexity, The Hague, 1989, p. 407 ff. 2 SCHARF, “The Tools for Enforcing International Criminal Justice in the New Millennium”, De Paul Law Review, 2000, p. 968. 3 BROWNLIE, Principles of Public International Law, 6th ed., Oxford, 2003, p. 314.

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humanity and war crimes, which would be against the raison d’être of the ICTY? Or, should the ICTY assert its jurisdiction over the accused regardless of the manner in which they are seized? Would this amount to condoning, or even encouraging, illegal conducts in contradiction of the ICTY’s status and identity as a UN tribunal? This article will discuss how the Appeals Chamber of the ICTY has addressed these general issues in its recent decision entitled “Decision on Interlocutory Appeal Concerning Legality of Arrest” in the Nikoliü case.4 In this decision, which is probably the most comprehensive rendered so far by an international court on this topic, the Appeals Chamber dismissed an interlocutory appeal lodged by Dragan Nikoliü (“Nikoliü”), a military commander of a detention camp,5 challenging the ICTY’s jurisdiction on the ground that his arrest followed from an unlawful act of kidnapping. The Appeals Chamber considered whether the ICTY had jurisdiction over Nikoliü notwithstanding the apparent violation of State sovereignty and human rights involved in his capture and answered in the afﬁrmative. This article will also brieﬂy consider the main legal ﬁndings of the Trial Chamber’s decision6 in order to provide the basis for the issues addressed in the appeal, and will explore some of the Trial Chamber’s ﬁndings, which, although largely reﬁned in the Appeals Chamber’s reasoning, are interesting from an international law perspective. Finally, as the issue at hand may arise again before the ICTY, or one of the other international criminal courts, a brief analysis of the impact that the Appeals Chamber’s decision may have as precedent on the development of international criminal law will be offered.

2. THE BACKGROUND AND THE TRIAL CHAMBER ’S DECISION After being taken away by unknown individuals from his house in the State of Serbia and Montenegro,7 Nikoliü was arrested by the NATO Stabilisation Force (“SFOR”) at its headquarters in Bosnia and Herzegovina on or about 20 April 2000, and then brought to the ICTY, where he had his initial appearance on 28 April 4 Prosecutor v. Dragan Nikoliü, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest of 5 July 2003 (“Nikoliü decision”). 5 On 4 September 2003, Dragan Nikoliü pleaded guilty to crimes against humanity. On 18 December 2003, he was sentenced to 23 years of imprisonment. Against the length of this sentence, Nikoliü has lodged and appeal, which at the time of completion of this note (November 2004) is still pending before the Appeals Chamber. 6 Prosecutor v. Dragan Nikoliü, Case No. IT-94-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal of 9 October 2002. 7 As the name of the Federal Republic of Yugoslavia (FRY) has been ofﬁcially changed on 4 February 2003 and now is Serbia and Montenegro, this article will only refer to Serbia and Montenegro.

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2000.8 On 17 May 2001, counsel for Nikoliü (“Defence”) ﬁled a motion before the Trial Chamber to which the case had been assigned (Trial Chamber II), challenging his arrest on the ground that it followed from an unlawful act of kidnapping. On 29 October 2001, the Defence ﬁled a second motion to the same effect, but set out more precisely the issues involved. During the interim, the pre-trial Judge (Judge Hunt), in an attempt to simplify and expedite the procedure, recommended that the parties reach agreement on the facts in the case and narrow the issues in dispute.9 The parties accordingly agreed10 that: (i) Nikoliü had been forcibly and against his will taken from Serbia and Montenegro where he was living and transported into the territory of Bosnia and Herzegovina; (ii) Nikoliü’s apprehension and transportation were carried out by unknown individuals having (to his knowledge) no connection with SFOR or the ICTY’s Ofﬁce of the Prosecutor (“OTP”); (iii) in his interview with the OTP, Nikoliü asserted that he had been handcuffed and put into the trunk of a car, after which those unknonwn individuals handed him over to SFOR; (iv) Nikoliü was arrested and detained in Bosnia and Herzegovina by SFOR; and (v) that, as reported by a particular news agency, certain individuals had been tried and sentenced in Serbia and Montenegro for acts related to Nikoliü’s apprehension.11 With the parties in agreement about the main facts in the case, the Trial Chamber ruled on the Defence motions on 9 October 2002 addressing the legal issues arising from those facts. First, as to the Defence’s argument that there was a linkage between SFOR and Nikoliü’s kidnappers, since SFOR knew of the unlawful conduct and ratiﬁed it by arresting Nikoliü, the Trial Chamber found that such linkage had not, from a legal point of view, been established. Using, as a reference, the test set out in Article 11 of the ILC Draft Articles on State Responsibility (“Draft Articles”)12 for the attribution of the conduct of private individuals to a State, the Trial Chamber held that Nikoliü’s kidnapping cannot be imputed to SFOR because the latter had neither expressly approved nor adopted it and that, as suggested by the Prosecution, SFOR was simply a passive beneﬁciary of the conduct in question. Therefore, while ﬁnding that Nikoliü had been abducted from Serbia and Montenegro by unknown individuals and transferred to Bosnia and Herzegovina, the Trial Chamber concluded that “neither SFOR nor the Prosecution 8 9

Cit. supra note 6, paras. 3 and 15. Prosecutor v. Dragan Nikoliü, Case No. IT-94-PT, Direction of the pre-trial Judge of 6 July

2001. 10

Cit. supra note 6, paras. 17-22. Regrettably, as it would have shed light on the real reasons for the kidnapping and the linkage between the kidnappers and SFOR, the parties never provided the Trial Chamber with a copy of the judgment of the Serbian court convicting these individuals. Perhaps the Trial Chamber should have issued (proprio motu) an order seeking the cooperation of Serbia and Montenegro to obtain a copy of that judgment, which is, presumably, a public document. 12 Draft Articles on State Responsibility for Internationally Wrongful Acts, adopted by the ILC at its Fifty-Third Session in 2001 (UN GAOR, 56th Session, Supp. No. 10 (A/56/10), chp. IV.E.2). 11

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were involved in these acts” and that once Nikoliü had “come into contact with SFOR”, SFOR was obliged to arrest, detain and transfer him to the Hague”.13 Secondly, contrary to what had been asserted by the Defence, the Trial Chamber found that there was no violation of Serbia and Montenegro’s sovereignty. According to the Trial Chamber, the ICTY stands in a vertical relationship with respect to States because it constitutes an “enforcement measure” of the Security Council under Chapter VII of the UN Charter, and, therefore, “in this vertical context, sovereignty by deﬁnition cannot play the same role”.14 Thus, when seeking to capture a fugitive in order to enforce an ICTY arrest warrant, the ICTY and SFOR agents would be authorised to enter the territory of a State regardless of the latter’s consent. Thirdly, with respect to the complaint that Nikoliü’s human rights had been violated, the Trial Chamber noted that the issue was one of concern as Nikoliü appeared to have been the victim of some violence. The Trial Chamber, in accordance with the dictum of the ICTR Appeals Chamber in Barayagwiza15 stated that, regardless of what entity it was that committed human rights violations, the ICTY should decline jurisdiction in cases of very serious mistreatment of the accused.16 With regard to the case before it, however, the Trial Chamber limited itself to ﬁnd (without explanation) that the facts as agreed upon by the parties did not reveal that the mistreatment suffered by Nikoliü was of such a serious nature as to warrant the dismissal of the Indictment.17 For this, and the other reasons described above, including the agreed facts, the Trial Chamber concluded that there did not exist a “legal impediment to the Tribunal’s exercise of jurisdiction over the Accused”.18 On 7 November 2002, Nikoliü ﬁled a notice of appeal against the Trial Chamber’s decision pursuant to Rule 108 or Rule 72.19 The Appeals Chamber dismissed it (Judge Shahabuddeen dissenting), explaining that Rule 108 governs only the ﬁling of notices of appeal from judgment on the merits and not interlocutory appeals, and that Rule 72 gives a right to lodge an interlocutory appeal against jurisdiction only in instances challenging an indictment on the ground

13

Cit. supra note 6, para. 116. Ibid., para. 100. 15 Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision of 3 November 1999, para. 74. 16 For a comprehensive analysis of the Trial Chamber’s approach on this point see SLUITER, “International Criminal Proceedings and the Protection of Human Rights”, New England Law Review, 2003, p. 935 ff., pp. 944-947. 17 Cit. supra note 6, para. 114. 18 Ibid. 19 Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Notice of Appeal from the Judgement, pursuant to Rule 108 of the Rules of Evidence and Procedure, of Trial Chamber II dated the 9th day of October 2002 concerning the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal of 7 November 2002. 14

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that the indictment is not concerned with individuals, crimes, periods, or places covered by the corresponding Articles (Articles 1 to 7) of the ICTY Statute but not where the challenge concerns only the legality of the arrest.20 The Appeals Chamber suggested, however, that the appeal should have been lodged under Rule 73. This rule provides for a right of interlocutory appeal to the Appeals Chamber if the relevant Trial Chamber certiﬁes that the issue before it is one that “would signiﬁcantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial” and for which “an immediate resolution by the Appeals Chamber may materially advance the proceedings”.21 Accordingly, the Defence sought22 and obtained certiﬁcation from the Trial Chamber under Rule 73,23 and ﬁnally, on 27 January 2003, lodged its appeal challenging jurisdiction pursuant to Rule 73.24

3. THE APPEALS CHAMBER ’S DECISION On appeal, the Defence sought the dismissal of the Indictment against Nikoliü and the immediate return of Nikoliü to Serbia and Montenegro. It submitted that the Trial Chamber erred by not attributing the conduct of Nikoliü’s kidnappers to SFOR and, by extension, to the OTP, as SFOR was aware of the unlawful and violent abduction and therefore, by taking him into custody, SFOR had colluded with the kidnappers, condoning their crime. The Defence claimed that, contrary to the Trial Chamber’s ﬁndings, SFOR had breached Serbia and Montenegro’s sovereignty and that the kidnapping was an egregious violation of Nikoliü’s human rights and requested that the Appeals Chamber redress these violations by setting aside the Tribunal’s jurisdiction to hear the case.25 In rebutting these submissions, the Prosecution mainly relied on the conclusions reached by the Trial Chamber. It also submitted that SFOR’s conduct (or that of individuals acting on its behalf)

20 Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Decision on Notice of Appeal of 9 January 2003, p. 2. 21 Rule 73(B) of the ICTY Rules reads: “Decisions on all motions are without interlocutory appeal save with certiﬁcation by the Trial Chamber, which may grant such certiﬁcation if the decision involves an issue that would signiﬁcantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings”. 22 Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Motion for Certiﬁcation and Relief under the Provisions of Rules 73 and 127 of the Rules of 14 January 2003. 23 Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Decision to Grant Certiﬁcation to Appeal the Trial Chamber’s “Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal” of 17 January 2003. 24 Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR73, Appellant’s Brief on Appeal Against a Decision of the Trial Chamber Dated 9th October 2002 of 27 January 2003. 25 Ibid., pp. 3-7.

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could not be attributed to the OTP, as there is no agency relationship between the OTP and SFOR, notwithstanding their close cooperation.26 The Appeals Chamber began its analysis of the case by clarifying and prioritizing the issues before it. It noted that, since the Defence was claiming that the setting aside of jurisdiction is the appropriate remedy to redress violations of State sovereignty and/or human rights, it had to ﬁrst determine whether (and under which circumstances) jurisdiction should be set aside in such a case and, second, whether the conduct of Nikoliü’s kidnappers could be attributed to SFOR and by extension to the OTP. In the Appeals Chamber’s view, only if there was a clear rule providing for the setting aside of jurisdiction in cases of violation of State sovereignty or of an accused’s human rights, would it be necessary to examine whether the facts of the case fall under that rule27 and whether the conduct of private individuals could be attributed to the entity in question or not. It then proceeded to examine whether such a rule existed in customary international law.

3.1. Jurisdiction in Cases of Violation of State Sovereignty As to whether a violation of a State’s sovereignty justiﬁes jurisdiction being set aside, the Appeals Chamber noted ﬁrst that it was a novel issue with little guidance to be found in the Statute or the Rules of the ICTY, or in the case law of the international tribunals. It remarked that Article 29 of the ICTY Statute, while placing upon all States of the international community a duty to cooperate with the ICTY’s orders and requests for assistance (including those concerned with the arrest of suspects), does not indicate what remedies are available in cases of non-compliance by the State whose assistance is sought. The ICTY Statute, indeed, does not specify whether the kind of cooperation required of States by the Security Council involves allowing SFOR (or individuals acting on its behalf or in its interests) to enter the territory of a State to apprehend a fugitive as if SFOR were an enforcement agency, without ﬁrst alerting the State in question and obtaining some sort of explicit or tacit authorisation, or, at the very least, a post facto approval. By adopting this cautious interpretation, the Appeals Chamber seems to have rejected the Trial Chamber’s view that the ICTY’s agents, or SFOR would have been entitled to undertake enforcement operations to apprehend a fugitive because the ICTY itself is an “enforcement measure” under Chapter VII of the UN Charter and stands in a vertical relationship with respect to States. Indeed, while, as a matter of policy, the search for international fugitives suspected of very serious crimes should be facilitated by States as much as possible, and the doctrine of universal 26 Prosecutor v. Dragan Nikoliü, Case No. IT-94-2-AR73, Prosecution Response to “Appellant’s Brief on Appeal Against a Decision of the Trial Chamber Dated 09 October 2002” of 3 February 2003. 27 Cit. supra note 6, para. 18.

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jurisdiction and the special status of the ICTY as a Security Council body may lend some support to the Trial Chamber’s view, this doctrine is not spelled out clearly in the Dayton Peace Agreement, the ICTY Statute, or the related Security Council resolutions, nor is it expressed in customary international law. As the Appeals Chamber is not a legislative body, it could not establish such a doctrine. Had it done so, it would probably have been criticised (except by the OTP) for going well beyond the limits of its judicial function. In the absence of clear guidance from the lex specialis (ICTY Statute and Rules) and its own case law, the Appeals Chamber turned to the practice of States to assess whether a rule of customary law could be said to exist. It ﬁrst examined some cases in which jurisdiction had not been set aside, despite an apparent violation of State sovereignty. It started with the Argoud case. In this case, the French Cour de Cassation (Criminal Chamber) considered that it retained jurisdiction over the accused, a French citizen, arrested by French agents in German territory without the consent of the German authorities because it would be for the State (Germany) whose sovereignty has allegedly been breached to complain about the violation of its sovereignty and demand reparation at the international level (which Germany never formally did).28 The Appeals Chamber discussed next the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) in the Stocke case. In this case, the German Constitutional Court rejected the appeal of the accused Stocke, a German national residing in France, who claimed that he had been deceptively brought to German territory, ﬁnding that, according to international practice, courts of law would generally decline jurisdiction in cases of kidnapping only if another State had protested against the kidnapping and sought the return of the accused; it noted that this had not happened in this case.29 Lastly, the Appeals Chamber recalled the controversial decision of the US Supreme Court in United States v. Alvarez-Machain. It took notice of the fact that in that case, the US Supreme Court asserted its jurisdiction over the accused even though the latter, a Mexican citizen, may have been abducted in violation of gen-

28 In Re Argoud, Court of Cassation, Judgment of 4 June 1964, ILR, Vol. 45, p. 97. The Cour de Sûreté, the lower court, had actually noted that the State concerned (Germany) had not lodged any formal complaint and that ultimately, the issue was dealt with through diplomatic means. 29 See respectively Decision of 17 July 1985, Az: 2 BvR 1190/84, Bundesverfassungsgericht (Federal Constitutional Court), para. 1(c) and Judgment of 2 August 1984, Az: 4 StR 120/83, Bundesgerichtshof (Federal Court of Justice), para. 2(b). The Bundesgerichtshof had found that the jurisdiction of German courts would only have been put into question had the French Republic requested reparation for an alleged violation of the French-German extradition treaty. The case was then brought to the European Commission of Human Rights (“Commission”): see Stocke v. Federal Republic of Germany, Decision of 9 July 1987. The Commission declared it admissible and, in turn, referred it to the European Court of Human Rights (“ECHR”). The latter dismissed it without passing on, however, the issue here discussed. See Stocke v. Germany, Judgement of 18 February 1991, para. 54.

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eral international law, and notwithstanding that Mexico had requested the return of the accused.30 Next, the Appeals Chamber dealt with those cases in which jurisdiction had not been exercised because of a complaint by the State in which the abduction occurred or due to the irregularities of the arrest. It recalled that Jacob-Salomon, an ex-German citizen, abducted from Swiss territory to face trial in Germany on a charge of treason, was released by the German authorities following a strong protest by the Swiss Government seeking his return.31 It referred to the more recent State v. Ebrahim case, in which the Supreme Court of South Africa released an accused on the ground that he had been kidnapped from Swaziland by the security services.32 It also mentioned the Bennet case, in which the House of Lords granted the appeal of a New Zealand citizen, who, after being arrested in South Africa, was deceptively brought to the United Kingdom under the pretext of being deported to New Zealand, on the ground that the method employed by the police disregarded existing extradition procedures and constituted, therefore, an abuse of process.33 Lastly, the Appeals Chamber discussed the Eichmann and Barbie cases, which are concerned with the same kinds of crime as those falling within the ICTY’s jurisdiction. With regard to Eichmann, it observed that the Supreme Court of Israel had asserted its jurisdiction over the accused notwithstanding the breach of Argentina’s sovereignty involved in this abduction from its territory by Israeli secret agents. It recalled that the Supreme Court of Israel34 had justiﬁed the kidnapping of the accused on the grounds that he was “a fugitive from justice” charged with crimes “of an international character […] condemned publicly by the civilized world”;35 that Argentina had “condoned the violation of her sovereignty and ha[d] waived her claims, including that for the return of the appellant”; and that “any violation therefore of international law that may have been involved in this incident ha[d] thus been removed”.36 With respect to Barbie, the Appeals Chamber recalled that the French Cour de Cassation (Criminal Chamber) asserted its jurisdiction over the accused despite the claim that he was a victim of a disguised extradition, on

30 United States v. Alvarez-Machain, 1992, 504 US 655. See also United States v. Matta-Ballesteros, 1997, 71 F.3d 754, and United States v. Noriega, 1997, 11th Cir., 117 F.3d 1206. 31 See PREUSS, “Settlement of the Jacob Kidnapping Case (Switzerland-Germany)”, AJIL, 1936, p. 123 ff., and ID., “Kidnapping of Fugitives from Justice on Foreign Territory”, AJIL, 1935, pp. 502-507. 32 State v. Ebrahim, Supreme Court (Appellate Division), Opinion of 16 February 1991, ILM, 1992, pp. 890-899. 33 Re Bennet, House of Lords, Judgment of 24 June 1993, All England Law Reports, 1993, pp. 138-139. See also LOWE, “Circumventing Extradition Procedures is an Abuse of Process”, Cambridge Law Journal, 1993, pp. 371-373. 34 FAWCETT, “The Eichmann Case”, BYIL, 1962, pp. 181-215. 35 People of Israel v. Eichmann, Supreme Court of Israel, Judgment of 29 May 1962, ILR, 1968, p. 5 ff., p. 306. 36 Ibid.

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the basis, inter alia, of the special nature of the crimes allegedly committed by the accused, namely, crimes against humanity.37 On the basis of this case law, the Appeals Chamber determined that two principles found support in State practice. First, that the special character and, arguably the seriousness, of universally condemned crimes such as genocide, crimes against humanity and war crimes, authorises the exercise of jurisdiction over illegally seized persons accused of such crimes. Second, that, absent a complaint by the State whose sovereignty has been breached or in the event of a diplomatic resolution of the breach, a court of law would not need to decline jurisdiction because the initial iniuria has been cured. Thus, according to the Appeals Chamber, under customary international law, a court of law could assert its jurisdiction over an illegally apprehended offender if he is accused of universally condemned offences, and the State in whose territory the abduction occurred, has not lodged a complaint. The Appeals Chamber did not indicate, as it was not necessary for it to do so, whether jurisdiction could still be asserted in the absence of these elements namely in cases of less serious crimes, or in the presence of a complaint by a State over a breach of its sovereignty. It would have been somewhat pointless however, for the Appeals Chamber to have conducted such a detailed analysis of State practice and to have made the above ﬁndings, had it believed that jurisdiction could be asserted in all circumstances. Furthermore, it is arguable that the Appeals Chamber, by stressing the particular nature of the crimes which the kidnapped accused had been charged with, and the necessity of having the consent (explicit or implicit or post facto) of the State in whose territory the seizure had occurred, thereby implicitly rejected that the US Supreme Court ruling in Alvarez-Machain was a reﬂection of customary law. In that decision, the criteria highlighted by the Appeals Chamber for the exercise of jurisdiction had not been fulﬁlled; it is possible that the decision was nevertheless referred to by the Appeals Chamber as illustrating the US approach to the issue in order to distinguish it from that adopted by other States. In any event, the decision of the Appeals Chamber indirectly conﬁrmed the view expressed in the doctrine that, in international law, “enforcement jurisdiction may not be exercised in the territory of any other State without the consent of that State”.38 In explaining why it adhered to this emergent principle of customary international law, the Appeals Chamber held that universally condemned offences are “a matter of concern to the international community as a whole”, and that “there is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achieve37 Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie, Court of Cassation (Criminal Chamber), Judgment of 6 October 1983, ILR, 1988, p. 124 ff., pp. 130-131. See also CONFORTI, International Law and the Role of Domestic Legal Systems, Leiden, 1993, p. 157. 38 LOWE, “Jurisdiction”, in EVANS (ed.), International Law, Oxford, 2003, p. 345 ff., p. 351.

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ment of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries torn apart by international or internecine conﬂicts”.39 It balanced this expectation with the principle of State sovereignty in holding that the damage caused to international justice by not apprehending fugitives is comparatively higher than the damage (if any) to the sovereignty of a State caused by a limited intrusion into its territory, particularly when such an intrusion occurs after the State has defaulted on its obligations with respect to the International Tribunal. The Appeals Chamber concluded that jurisdiction should not be set aside when the breach of a State’s sovereignty is brought about solely by the need to arrest international fugitives. It clariﬁed that this interpretation was all the more justiﬁed by the fact that, in the present case, the State whose sovereignty had been allegedly breached had not lodged a complaint and could thus be considered to have acquiesced in the Tribunal’s exercise of jurisdiction. This clariﬁcation appears particularly signiﬁcant. It is not certain that the ICTY would always have jurisdiction in cases of violation of State sovereignty. For instance, were Serbia and Montenegro to sue SFOR’s Members before the International Court of Justice (“ICJ”) and claim successfully that its sovereignty had been breached and obtain the restitution in integrum, the ICJ could order the ICTY to send the accused back to his State of origin. Although that State would be obliged, in turn, to give the accused back to the ICTY because of its obligation to cooperate under Article 29 of the ICTY Statute and the primacy that the ICTY enjoys over national courts, it would be difﬁcult for the ICTY to assert its jurisdiction after a clear ﬁnding by the ICJ that international law had been breached. The Appeals Chamber concluded that jurisdiction need not be set aside in this case, because the accused was charged with universally condemned offences and no complaint had been lodged by the State from which the accused was abducted. Therefore, the issue of whether the conduct of Nikoliü’s kidnappers could be attributed to SFOR, and, by extension, to the OTP became a moot point.

3.2. Jurisdiction in Cases of Human Rights Violations In the second part of its decision, the Appeals Chamber discussed whether human rights violations merit jurisdiction being set aside. It supported the Trial Chamber’s view that, in cases involving very serious mistreatment, cruel or degrading treatment, or torture of the accused, jurisdiction may not be exercised. In support of this view, it quoted the Toscanino case, in which the US Court of Appeal held that “we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the Government’s deliberate, unnecessary and unreasonable invasion of the ac-

39

Cit. supra note 4, para. 25.

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cused’s constitutional rights”.40 It also recalled the dictum of the ICTR Appeals Chamber in Barayagwiza, in which the Chamber stated that a court “may decline to exercise jurisdiction in cases where to exercise jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”.41 Following this approach, the Appeals Chamber found that in cases of egregious human rights violations “[i]t would be inappropriate for a court of law to try the victims of these abuses”.42 It added, perhaps in order to clarify why in a UN court, which is expected to condemn all human rights violations, only egregious violations committed against an accused would warrant the setting aside of jurisdiction, that a “correct balance must […] be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.43 The Appeals Chamber concluded that the factual context of Nikoliü’s arrest (as agreed upon by the parties) was not of such seriousness as to warrant the setting aside of jurisdiction, even if the conduct of the unknown individuals were to be attributed to SFOR. While the principle developed by the Appeals Chamber whereby jurisdiction will be set aside only in cases of egregious human rights violations seems reasonable and well grounded in national and international practice, its practical application remains far from easy, as there is no clear-cut deﬁnition of “egregious” human rights violations; thus it is difﬁcult to distinguish them from the “non-egregious”. As the Appeals Chamber rightly stressed in its decision, the extent of the human rights violations necessary for the setting aside of jurisdiction depends on the various circumstances of each case and cannot be made in abstracto. Some guidance may be drawn from international practice, particularly the jurisprudence of the various human rights bodies (e.g. the European Court of Human Rights and the UN Human Rights Committee). Ultimately, however, the assessment of the gravity of the human rights violations will be made by the judges called to rule on it according to their perception of the facts. This assessment will in turn also be inﬂuenced by the ability of counsel to present the facts of the case in a way favourable to their client. In this regard, the strategy of the agreed facts (though recommended but not imposed by the pre-trial Judge), which was employed by the Defence in this case, does not seem particularly useful to inﬂuence the Judges’ perception of the facts in the case in a manner favourable to the accused. The Prosecution can only agree in order to avoid the dismissal of the case with those versions of the facts that, in one way or another, would reduce the seriousness of the facts and limit its involvement. But an agreement of that kind would be of little help to the accused, because 40

1974, 2nd Cir. 500 F.2d 267, p. 275. Cit. supra note 15, para. 74. 42 Cit. supra note 4, para. 30. 43 Ibid. 41

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it would limit the possibility of the judges to take a strong position in favour of the accused and set aside jurisdiction. Lastly, while the Appeals Chamber has clearly stated that it will not tolerate egregious human rights violations in the process of arresting individuals, it did not discuss whether there should also be a remedy for lesser violations. This is understandable because the issue had become moot and, in any case, there was no apparent linkage between SFOR and the kidnappers so that the latter’s actions remained acts of private individuals with no relevance at the international level. Nevertheless, the International Tribunal, in order to avoid the impression that it condones them, should also have ways to remedy non-egregious human rights violations. Such a system may provide, for instance, for the granting of monetary compensation or a reduction of the sentence when a Chamber ﬁnds that the accused has been a victim of human rights violations. For instance, Article 85 of the Statute of the International Criminal Court (“ICC”) provides that: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. A similar provision, with the addition of an indication as to the form of compensation should and could be adopted by the ICTY.

4. THE IMPACT OF THE NIKOLIû DECISION ON INTERNATIONAL CRIMINAL LAW Having described and commented upon the main aspects of the Nikoliü decision, it remains to be examined whether this decision, which is arguably well balanced and sufﬁciently protective of the accused’s human rights, could inﬂuence future cases so as to contribute positively to the development of international criminal law. This inﬂuence would depend ﬁrst on whether the international and national criminal courts perceive the decision as reﬂecting a rule of customary international law; and secondly, on the legal strength or persuasive force of the decision within the mechanism of international criminal justice. The latter point, not often addressed in the relevant literature, requires further explanation. The mechanism of international criminal justice includes several recently established international criminal courts. They are: the ICTY, the ICTR, the ICC, the Special Court for Sierra Leone (“Sierra Leone Court”), and the East Timor Panels. The deﬁning aspect of this mechanism is that it constitutes a process of adjudication and progressive self-institutionalisation, by which the goal of an international justice for international crimes is brought about.44 This mechanism, it should be clariﬁed, is not a system, at least when compared with national legal systems, because of its rudimentary and fragmented nature and the lack of an international legislature coordinating it and harmonising its development as a

44 See the deﬁnition of “Mechanism” in The New Oxford Dictionary of English, Oxford, 1998, pp. 1148-1149.

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whole. The above mentioned courts share, however, common characteristics in that they are international judicial bodies, are charged with the prosecution of the same kinds of crime (i.e. genocide, crimes against humanity and war crimes), are established under international law and apply, inter alia, principles of international criminal law. National courts, although formally not part of this mechanism, act as part of it to the extent that they foster the goal of prosecuting crimes of international concern. Although one cannot expect the same level of coordination that one would ﬁnd in a domestic legal system, certain aspects of the mechanism of international criminal justice facilitate the circulation of decisions and the interplay and mutual inﬂuence among the courts participating in it. These interactions will most certainly increase when, in the years to come, all the courts composing it will be fully operational. On the basis of these features (which include both legal provisions and practical factors), judicial decisions (including the Nikoliü decision), even if not formally a source of law, may inﬂuence the development of international criminal law. Some examples and explanations of how this can happen follow. For example, at the ICTY, absent any speciﬁc provision in the Statute, the Appeals Chamber has ruled on the legal effect of its decisions. In its judgment in the Aleksovski case,45 the ICTY Appeals Chamber determined that its decisions were binding on itself and on the Trial Chambers. It held that “the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice”,46 and that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”.47 The Appeals Chamber clariﬁed that the Trial Chambers were bound to follow its rulings because of its status as a higher court, the need to ensure certainty and predictability in the application of the law, and the right of the accused to have like cases treated alike.48 In this context it should also be recalled that although the Aleksovski Appeals Chamber did not address this issue, the decisions of the ICTY Appeals Chamber also affect the ICTR Appeals Chamber and vice-versa. This happens not only because of the similarities in the applicable law between the two tribunals, but also because the judges composing the ICTR and ICTY Appeals Chambers are the same and, thus, as a matter of consistency, they tend to adopt the same approaches.49 That, in turn, inﬂuences the jurisprudence of the ICTR Trial Chambers through the process of appellate review.

45

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgment of 24 March 2000. Ibid., para. 107. 47 Ibid., para. 113. 48 Ibid. 49 As an example of the inﬂuence of the ICTY Appeals Chamber’s jurisprudence on the ICTR Appeals Chamber, see, for instance, Musema v. Prosecutor, Case No. ICTR-96-13-A, Judgment of 16 November 2001, paras. 18-20, 36, 46, 68, 354, 361, 369, 381 and 387. 46

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Furthermore, Article 20 of the Statute of the Sierra Leone Court provides that the judges of the Appeals Chamber, when afﬁrming, revising or reversing the Trial Chambers’ decisions, “shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda”.50 Although the word “guided” in Article 20 allows for some ﬂexibility, the use of the verb “shall” in the same article makes it mandatory for the Appeals Chamber of the Sierra Leone Court to consider the ICTY and ICTR Appeals Chambers’ jurisprudence. As a result, the Sierra Leone Court judges appear bound to take the ICTY and ICTR Appeals Chambers’ jurisprudence into account when deciding similar cases, and, whenever they choose not to follow a given precedent, which deals with the same legal issues, they may be required, in order to show their compliance with their obligations under the Statute, to give reasons for deciding not to follow it. In addition to such instances of the regulated uses of previous decisions, and other instances where the principle embedded in a judicial decision may be regarded as reﬂective of a rule of customary international law, judicial decisions (including the Nikoliü decision) operate, to a greater or lesser degree, with persuasive force. This rests on several reasons. First, the ratio decidendi of a decision may appear cogent and comprehensive or explanatory of a given point of law to other courts called to address the same or similar issues. Secondly, a decision may have been rendered by an appellate body, which enjoys greater authority being at the highest of the hierarchy within a court. Thirdly, the judges composing a given chamber (Trial Chamber or Appeals Chamber) may be well respected authorities on the area of law dealt with in the decision. Fourthly, the parties may rely on such precedents in their pleadings and thereby inﬂuence the courts before which they appear. Fifthly, courts may rely on previous decisions to strengthen their decisions in order to avoid the negative impression that they simply create law as they go and to ensure coherence, certainty and predictability in the law which, particularly in criminal law, are paramount. Finally and importantly, certain decisions may be followed particularly in matters of human rights because courts may consider that they are under the obligation to decide like cases alike.51 As an example of how a judicial decision may operate with persuasive force, one may consider how the Nikoliü decision could be followed by an ICC Chamber, arguably the Pre-Trial Chamber or if an appeal is raised, by the ICC Appeals Chamber. According to Article 55(1)(b) and (d) of the ICC Statute, a person subject to an investigation under the ICC Statute “shall not be subject to arbitrary arrest or detention” and “shall not be subjected to any form of coercion, duress or threat, to torture or any other form of cruel, inhuman or degrading treatment or punishment”. Even 50 Article 20(3) of the Statute of the Special Court of Sierra Leone reads: “The Judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda. In the interpretation and application of the laws of Sierra Leone, they shall be guided by the decisions of the Supreme Court of Sierra Leone”. 51 CROSS and HARRIS, Precedent in English Law, Oxford, 1991, p. 3.

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though State parties to the ICC have the task of executing requests for arrest and surrender in accordance with their national law,52 an accused could, arguably, ﬁle a motion under Article 55(1)(b) or (d) claiming that his rights have been violated by the ofﬁcials of the State party arresting him (inside or outside the territory of the State party). In ruling on such a claim, the ICC Pre-Trial Chamber called to rule on it could take into account the Nikoliü decision, as an example of how to remedy egregious human rights violations. For, while Article 85 of the Statute provides a remedy for unlawful arrest in that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”, there is nothing in the Statute indicating how to remedy human rights violations as egregious as those envisaged in Article 55(1)(b). In these circumstances, counsel for the accused would probably emphasise the remedy of setting aside jurisdiction advocated in the Nikoliü decision. The Pre-Trial Chamber requested to rule on a motion lodged pursuant to Article 55 may also consider that it is under the obligation to treat like cases alike and it would be unfair for an accused before the ICC to receive less protection than in another international criminal forum such as the ICTY. Likewise, national courts, when called to decide cases involving crimes of international concern or raising certain aspects of international criminal law, may be inﬂuenced by the content of international decisions. Again, even if not seen as entirely reﬂective of customary international law, national courts may ﬁnd in international decisions a viable example of how to confront issues of international criminal law pending before them.53 For the foregoing reasons, there is a strong possibility that the Nikoliü decision, as a decision rendered by the Appeals Chamber of an international criminal court, will circulate widely within the mechanism of international criminal justice and have an impact on the development of international criminal law. This may happen not only because the Nikoliü decision may be regarded as reﬂective of customary law, but also because of its legal strength as a judicial decision and its persuasive force.

5. CONCLUSIONS In light of the foregoing analysis, the Nikoliü decision is notable, in particular, for the following reasons.

52 YOUNG, “Surrendering the Accused to the International Criminal Court”, BYIL, 2001, p. 317 ff., p. 348. 53 To see an example of how an international decision may inﬂuence a national court, see how a ﬁrst instance court and an appeals court have taken into account the jurisprudence of the ICTY, in interpreting the doctrine of command responsibility set out in the American Torture Victim Protection Act of 1991 (TVPA) in William Ford v. JS Garcia, United States Court of Appeal, 11th Cir., Judgment of 30 April 2002, and the Separate Opinion of Judge Barkett, available at http://www.law.emory.edu/11circuit/apr2002/01-10357.opn.html.

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First, the Nikoliü decision offers, arguably for the ﬁrst time in international criminal law, a relatively comprehensive test for determining when the ICTY has jurisdiction over accused persons (apparently) illegally seized. According to the Appeals Chamber, the ICTY is authorised to assert its jurisdiction over an illegally seized accused if: (i) the State where the seizure occurs has expressly consented to or has acquiesced in the Tribunal’s exercise of jurisdiction by not lodging a complaint; and (ii) the human rights violations suffered by the accused are not egregious. In cases of egregious human rights violations, jurisdiction should be declined. This test relies on emerging principles of customary international law, adapted to the context of an international criminal tribunal. In this process of adaptation, the Appeals Chamber has balanced seemingly conﬂicting principles, namely: the inviolability of State sovereignty; the need to ensure the prosecution of those accused of crimes of international concern; and the respect of their human rights. The above-mentioned resulting test appears to have reconciled them. A ﬁnding that the ICTY has jurisdiction regardless of the way in which an accused is brought under its jurisdiction would have failed to respect the human rights of the accused and could have been used as a cover for very serious illegalities not worthy of a United Nations court. Likewise, a ﬁnding that the ICTY has to set aside jurisdiction in every instance of the infringement of an accused’s rights would also have been problematic. First, not all human rights violations entail the same remedy because they are not of the same seriousness, and, secondly, such an approach would have frustrated the expectations of the international community for the apprehension and prosecution of international fugitives. Secondly, the Nikoliü decision, despite upholding the exercise of jurisdiction in the circumstances of the case, does not seem to condone illegality in arrest. The Appeals Chamber stressed the importance of the consent (albeit ex post facto) of the State in which the accused was seized and pointed out that it felt authorised to exercise jurisdiction because the State involved had acquiesced. The Appeals Chamber has taken a strong position in favour of the human rights of the accused by stating that, regardless of the seriousness of the crimes attributed to him or her, jurisdiction must be declined in cases of an egregious violation of the human rights of the accused. However, although the Appeals Chamber did not have to decide on the point, it remains necessary for the ICTY, in order to avoid the impression of condoning non-egregious human rights violations, to establish a mechanism to remedy them as well. This would be realised through the adoption in the Rules of Procedure and Evidence, if not in the Statute, of a new provision allowing for some form of compensation in cases of arbitrary arrest. Article 85 of the ICC Statute may be a basis for this. Compensation may take the form of a reduction of the sentence in cases of conviction or, in cases of acquittal, of a monetary grant.54

54 Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Appeals Chamber, Decision (Prosecutor’s Request for Review or Reconsideration) of 31 March 2000, para. 74.

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Finally, the Nikoliü decision is likely to have a signiﬁcant impact on the international criminal justice mechanism and may thus contribute to a certain uniformity of approach among these courts. This will be not only because the decision may be regarded as reﬂective of customary law, but because of its legal strength as a judicial decision emanating from the senior Chamber of the ICTY and its persuasive force. It will then be of particular importance, not only for all Chambers of that institution, but also for the Appeals Chambers of the Special Court, and indeed for other international and national criminal courts.

NOTES AND COMMENTS

CULTURE AND TRADE? A EUROPEAN WAY “TOWARDS AN INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY” ROSTAM JOSEF NEUWIRTH*

1. INTRODUCTION In a Communication to the Council and the European Parliament, entitled Towards an international instrument on cultural diversity, the Commission has formally restated the importance of the global debate on cultural diversity and herewith joined the calls for the adoption of a standard-setting instrument on cultural diversity.1 These calls, as the Commission’s document mentions, consist until now of various statements or reports prepared by the G8 (Okinawa, 2000), the Council of Europe (Declaration on cultural diversity, December 2000), the United Nations Educational, Scientiﬁc and Cultural Organisation (Universal Declaration and Action Plan on Cultural Diversity, November 2001), the United Nations and the International Telecommunication Union (ITU) through the World Summit on the Information Society (WSIS). In a footnote, further references to other contributions made by various national and international bodies to this debate such as the Organisation Internationale de la Francophonie (OIF) and the International Network on Cultural Policy (INCP), the International Network for Cultural Diversity (INCD) and, at last, the Sectoral Advisory Group on International Trade (SAGIT) can be found. The INCD and the SAGIT have already prepared and published draft instruments which provide a useful basis for future debates and subsequent negotiations for an international instrument on cultural diversity.2 By joining this debate, the Commission has raised considerable expectations with regard to possible answers for the current difﬁcult situation provoked by the apparently concurrent global objectives of the globalisation of the economy, and respect and support for cultural diversity. From this perspective, the shining halo that surrounds the Commission’s Communication is somewhat dimmed by its lack *

Ph.D Researcher at the European University Institute (Florence). Communication from the Commission to the Council and the European Parliament, Towards an international instrument on cultural diversity, COM(2003) 520 ﬁnal of 27 August 2003 (hereinafter “Communication”). 2 See International Network for Cultural Diversity (INCD), Draft Convention on Cultural Diversity, available at http://www.incd.net/draft.html (see also the ﬁnal draft version, the socalled Proposed Convention on Cultural Diversity, available at http://www.incd.net/docs/ CCDJan2003Final.pdf), and The Cultural Industries Sectoral Advisory Group on International Trade (SAGIT), An International Agreement on Cultural Diversity – A Model for Discussion, September 2002 (hereinafter “SAGIT Report”), available at http://www.dfait-maeci.gc.ca/tnanac/documents/sagit_eg.pdf. 1

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of ambition and the limited scope of the arguments that it presents. This somewhat critical evaluation is based on three basic points. The ﬁrst is to be found in the relative neglect of the so-called global “culture and trade” debate, or, in other words, attempts to overcome the prevalent, i.e. dichotomous, perception of cultural policies, on the one hand, and trade policies, on the other. This perception and the clear-cut separation that resulted therefrom has become increasingly obsolete in light of twentieth-century technological innovations of various kinds, introduced at breakneck speed and which have contributed to the emergence of the unique character of certain cultural goods and services, commonly referred to as the “cultural industries”.3 Furthermore, the nexus between culture and trade raises important questions concerning Community competences. A second point is that the Communication, to the detriment of coherence in EU policy making, does not seem to take into due account either its own historical evolution from the Treaty Establishing the European Coal and Steel Community and the Rome Treaty to a Draft Treaty Establishing a Constitution for Europe, or the recent actions and initiatives taken at European level, notably a report on cultural industries and a Resolution on Television without Frontiers, both adopted by the European Parliament. Consequently, as a third, and ﬁnal, point, the Communication inevitably seems too modest in the conclusions it advocates for the drawing-up of a standard-setting instrument on cultural diversity.4 Hence, the three points for a critique concern the complex relationship of the concept of cultural diversity vis-à-vis the domains of human rights, democratic governance, trade and sustainable development. However, before these points for a critique are presented, I will shortly summarise the main points made in the Commission’s Communication.

2. COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT: TOWARDS AN INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY 2.1. The Communication’s Content Revisited As mentioned at the beginning, the Communication ﬁrst outlines the context of the attempt to establish an international standard-setting instrument on cultural diversity by referring to several initiatives of some selected international and regional organisations, both public and private, involved in the international debate on cultural diversity. Based on these references, the Communication restates the international debate on cultural diversity as follows: 3 See, e.g., UNESCO, Culture, Trade and Globalization: Questions and Answers, Paris, 2000; see also PAUL, “Cultural Resistance to Global Governance”, Michigan Journal of International Law, 2000, p. 22 ff. 4 See Communication, cit. supra note 1, pp. 9-10.

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“Such progressive afﬁrmation of cultural diversity at international level is a contributing answer to growing concerns of civil society and governments regarding the preservation of cultural diversity (as a common heritage of humankind, in a similar manner to biodiversity) as well as the promotion of living cultures and creative capacity. In both dimensions, cultural diversity tends to integrate global strategies of sustainable development. Public authorities are increasingly sensitive to the need to develop intercultural dialogue, with a view to foster peace, security and stability at global level”.5 In the following, the Communication promotes UNESCO among the organisations referred to, not only as the leading authority in the ﬁeld of cultural diversity, but also as the most prominent aspirant for the role of host institution to such an instrument. In their choice, the drafters of the Communication seem to follow a certain logic, which derives from the universal vocation of UNESCO, as laid down in its constitutional mandate to: “[C]ontribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are afﬁrmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations”.6 Second, the Communication outlines the parameters for a Community involvement in the preservation and promotion of cultural diversity, which, according to the Commission, are “among the founding principles of the European model”.7 To underline these principles, the Communication quotes Article 151 of the Treaty Establishing the European Communities (TEC) and Article 22 of the Charter of Fundamental Rights of the European Union as well as their mention in the recent Draft Treaty Establishing a Constitution for Europe.8 However, although the statement about cultural diversity being a founding principle of the European model may well be true in general, the quoted references are highly misleading. This is because Article 151 was introduced for the ﬁrst time into the Community’s treaty

5

Ibid., p. 2. Article 1(1) of the Constitution of the United Nations Educational, Scientiﬁc and Cultural Organisation, adopted in London on 16 November 1945, UNTS, Vol. 4, p. 275 ff. 7 See the Communication, cit. supra note 1, p. 3. 8 Treaty Establishing the European Community, OJ EC No. C 325 of 24 December 2002; see also Part II, Article II-22 (“Cultural, religious and linguistic diversity”) and Part III, Article III-181 (“Culture”) of the Draft Treaty Establishing a Constitution for Europe, OJ EC No. C 169 of 18 July 2003. 6

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structure as Article 128 with the 1992 Maastricht Treaty and Article 22 of the Charter proclaimed in Nice on only 7 December 2000, by the European Parliament, the Council and the Commission.9 Before the entry into force of the Maastricht Treaty, the Community had – at least in strictly legal terms, apart from the exception for “national treasures possessing artistic, historic, or archaeological value” in Article 36 (now Article 30) TEC – made no explicit legal reference to culture or cultural diversity. The Communication’s formulation must therefore be read as meaning the afﬁrmation of various long-standing aspirations, efforts and practices in the process of European integration.10 Based on the provisions in Article 151 TEC, the text of the Communication distinguishes an internal and an external dimension of cultural cooperation. From an internal perspective, it reads, Article 151 has permitted the development of cultural actions, such as the Culture 2000 Programme, but also guaranteed that cultural considerations be taken into account in other areas of Community action, such as, for instance, industrial policy in the case of the MEDIA PLUS Programme, and the free movement of services within the internal market in the case of the Television without Frontiers Directive. With regard to the external dimension, it quotes the obligation of the Community and the Member States to foster co-operation with third countries and the competent international organisations in the sphere of culture (Article 151(3)). Paragraph 3 mentions as an example the Council of Europe, whose regional vocation seems to limit its role in the context of an international instrument on cultural diversity.11 It would thus be useful to ﬁnd more speciﬁc guidance as to what “competent international organisations” means. A similar wording is found in Article V of the WTO Agreement, which calls on the General Council to “make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO”. In times of increasing mutual interdependence and growing complexity characterising the governance of global affairs, the line between the different competences conferred upon the various international agencies is becoming more difﬁcult to draw. In the ﬁeld of the Community’s external actions, the Communication mentions the cooperation with the African, Caribbean and Paciﬁc States (ACP) in the framework of the successor agreement to the Lomé Conventions, the so-called Cotonou Agreement.12 The Cotonou Agreement, it should be added, mentions in Article 27 that: 9 Solemn Proclamation of the European Parliament, the Commission and the Council of 7 December 2000, OJ EC No. C 346 of 4 December 2000. 10 For an account of these practices, see, e.g., DUMOULIN, “Europe de la culture, culture européenne”, Journal of European Integration History, 1999, p. 7 ff. 11 But see note 61. 12 Partnership Agreement between the Members of the African, Caribbean and Paciﬁc Group of States of the One Part, and the European Community and its Member States, of the Other Part, signed in Cotonou on 23 June 2000, OJ EC No. L 317 of 15 December 2000, pp. 3-286 (and Final Act, pp. 287-353).

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“Cooperation in the area of culture shall aim at: (a) integrating the cultural dimension at all levels of development cooperation; (b) recognising, preserving and promoting cultural values and identities to enable inter-cultural dialogue; (c) recognising, preserving and promoting the value of cultural heritage; supporting the development of capacity in this sector; and (d) developing cultural industries and enhancing market access opportunities for cultural goods and services”. Especially lit. d) of Article 27 highlights the economic aspects of cultural cooperation as they are inherent in the cultural industries. The Communication also refers to the cultural component in the cooperation between the EU and the Mediterranean as initiated in 1995 by the Barcelona Declaration. The Barcelona Declaration also combines various economic and cultural dimensions, such as the role of the mass media in the dialogue and understanding of their respective cultures and the progressive establishment of a free trade area.13 To this end, the EU has committed itself to actively promoting such interaction, in particular through the ongoing MED-Media programme. Moreover, the Communication refers to the ﬁeld of information society where it mentions the “eEurope initiative” and its importance for the promotion of cultural diversity through the use of information and communication technologies.14 Following this short presentation of the actions taken by the EU, the Communication stresses the importance of coherence between internal and external EU policies. It is unfortunate that, in this respect, the text appears rather fragmented and confusing. First, it states the signiﬁcance of EU policy coherence by reference to multilateral agreements, such as those administered by the WTO and the World Intellectual Property Organisation (WIPO). With regard to WIPO, it stresses that such international instrument should “neither interfere nor prejudice with on-going discussions notably within the WIPO Intergovernmental Committee on Genetic Resouces, Traditional Knowledge and Folkore/Traditional Cultural Expressions”.15 However, one can only speculate about the hidden meaning behind the words “interfere” or “prejudice” when they are raised in the context of policy coher13

Barcelona Declaration, adopted at the Euro-Mediterranean Conference – 27-28 November

1995. 14 Communication, cit. supra note 1, p. 3; see also Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, eEurope 2005: An information society for all – An Action Plan to be presented in view of the Sevilla European Council, 21-22 June 2002, COM(2002) 263 ﬁnal of 28 May 2002, p. 8, stating that “In summary, broadband enabled communication, in combination with convergence, will bring social as well as economic beneﬁts. It will contribute to e-inclusion, cohesion and cultural diversity”. 15 Communication, cit. supra note 1, p. 4.

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ence. Moreover, doubts are reinforced in the next paragraph, which recalls the EU General Affairs Council’s conclusions of 1999, which are still valid in the ongoing negotiations and read as follows: “During the forthcoming WTO negotiations, the Union will ensure, as in the Uruguay Round, that the Community and its Member States maintain the possibility to preserve and develop their capacity to deﬁne and implement their cultural and audio-visual policies for the purpose of their cultural diversity”. In this statement the clear overlap between the speciﬁc objectives of the UNESCO Universal Declaration on Cultural Diversity surface, namely, the development of viable local cultural industries and the improvement of the distribution of cultural works at the global level, and the competences of the WTO. As a consequence, the last sentence of the concluding quote of the part of the Communication on the Community involvement constitutes the wrong signal, when it states that, in their informal meeting in Thessaloniki in May 2003, Culture Ministers remarked that “The basic international forum for cultural policies cannot be the WTO”.16 That is to say that, while it is deﬁnitely legitimate and even logical for Ministers of Culture to stress that the WTO cannot be the forum for the formulation of cultural policies, due to its specialisation on the ﬁeld of international trade and commerce, it is also clear that, deriving from the Council conclusions cited above, in the pursuit of the objectives laid down in cultural policies and, particularly, in their implementation, there is a much greater implication for the powers attributed to, and perhaps also a need for the expertise of, the WTO. An interesting precedent of such overlap between cultural and commercial policies, and more coherent policy-making through inter-agency cooperation, is provided by the history of the adoption of the 1950 Agreement on the Importation of Educational, Scientiﬁc and Cultural Materials (“Florence Agreement”).17 The Florence Agreement, aimed at facilitating the international circulation of educational, scientiﬁc, and cultural materials, was prepared by the UNESCO Secretariat and, before its ﬁnal adoption, was submitted to a meeting of the contracting parties of the GATT for revision.18 Therefore there is not only a need for the expertise of the WTO in the ﬁeld of trade, but also, at the same time, there exists a real danger that the objectives laid down in cultural policies become impaired and nulliﬁed by changes to the international trading regime under the auspices of the WTO. In this context, it must be added that the Communication also disregards many questions

16 Ibid.; for useful background information on the meeting, see the webpage of the Greek Presidency, “Informal Council of EU Ministers of Culture and Audiovisual: Summary of the Discussion by the Presidency”, 24-25 May 2003, at http://www.eu2003.gr/en/articles/2003/5/ 26/2897. 17 Agreement on the Importation of Educational, Scientiﬁc and Cultural Materials, with Annexes A, B, C, D and E and Protocol annexed, 1950, UNTS, Vol. 131, p. 25 ff. 18 See UNESCO, A Guide to the Operation of the Agreement on the Importation of Educational, Scientiﬁc and Cultural Material, 4th ed., Paris, 1969, p. 5.

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related to Community competences concerning the growing sensitivity towards cultural goods and services as well as cultural diversity in the negotiation of international trade agreements, ﬁrst introduced in the provisions of the Common Commercial Policy (CCP) by the Treaty of Nice and further complemented in the Draft Treaty Establishing a Constitution for Europe.19 In the third part, the Communication discusses the possible added value of a new instrument on cultural diversity on the international plane. Its main reference document is a study by UNESCO, discussing the various technical and legal aspects relating to the desirability of a standard-setting instrument on cultural diversity.20 For the cleavage between culture and trade, the document recalls that: “[Finally], cultural policies, which are the true driving forces in cultural diversity, should foster the production and dissemination of diversiﬁed cultural goods and services”. Relying on the Universal Declaration on Cultural Diversity, the study also highlights the desire to transcend the opposite interests of advocates of cultural goods and services and of champions of human rights through the lens of their complementarity.21 In substantive terms, the study isolates four main options for a possible application of an international standard-setting instrument. These four options are: (1) A new comprehensive instrument on cultural rights, relying by and large on existing legal documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966); (2) An instrument on the status of the artist, aimed at regulating internationally the professional status of creators and artists, which, so far, is only insufﬁciently achieved. The various aspects of labour rights of artists and creators, such as their social beneﬁts, tax status, or conditions for remuneration, could be dealt with by UNESCO, possibly in cooperation with the International Labour Organisation (ILO); (3) A new Protocol to the Florence Agreement, which would extend the application of the existing agreement to cultural and perhaps even educational and scientiﬁc services. It is interesting to note that under this option a formal link to the WTO dispute settlement system is proposed as a remedy in case of international disputes arising from the application of this agreement and the new protocol. How-

19 See Article 133(6) of the Treaty Establishing the European Community, cit. supra note 8, and especially Article II-217(4) of the Draft Treaty Establishing a Constitution for Europe, cit. supra note 8. 20 UNESCO, Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standard-Setting Instrument on Cultural Diversity, Executive Board, 166th Session, UNESCO Doc. AX 166 EX/28 of 12 March 2003. 21 See also Communication, cit. supra note 1, p. 5, interpreting the UNESCO study as identifying “a gap in international law, which an instrument could ﬁll, which is cultural diversity in the context of globalisation [...]”.

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ever, this normative solution seems to be dismissed largely on grounds that it would be too restrictive on cultural diversity; (4) The protection of the diversity of cultural contents and artistic expressions reﬂected in cultural industries is presented as a means to confront the threats of globalisation. Under this option, the instrument would be aimed at guaranteeing protection for cultural diversity by taking into account different aspects of cultural activity. It enlists not only the promotion of a dynamic interaction among the different cultural contents and artistic expressions and between them and other closely related domains, such as multilingualism, development of local contents, participation in cultural life, and access to multiple source cultures mainly through the media, but also individual rights of creators and artists as well as the free circulation of individuals, goods, services and knowledge while preserving stable areas of identity and creativity.22 Among the four options, the Communication emphasises the preference expressed by the UNESCO Secretariat for option No. 4. This preference is comprehensible, since it may be considered the most comprehensive, or even the panacea to most of the current problems related to cultural diversity on the international level. Its inclusive character, comprising the most important aspects of the three other options, makes it an attractive goal to pursue. Unfortunately, it is also the most ill-deﬁned option, since it remains silent about the substantive and formal setting in which such an instrument would be placed. Nonetheless, it draws some of the most important contours for a future instrument on cultural diversity. In the fourth part, the Communication sets forth the guiding principles for a future instrument. The ﬁrst and most important statement concerns the precise legal character of the instrument. The Commission rightly considers it necessary to adopt a legally binding instrument as opposed to other “soft” forms of international law. Second, the instrument “should be based on and fully respect human rights”, including cultural rights, as developed both in the Universal Declaration of Human Rights and the Universal Declaration on Cultural Diversity.23 Third, it is deemed useful for the purposes of this note to reproduce in full the Communication’s relevant passage with regard to the principal objectives and conditions. These objectives and conditions shall: “– Promote cultural diversity; – Contribute to the dialogue between cultures and to mutual understanding and respect; – Develop international cultural co-operation, aimed at boosting the exchanges of cultural goods and services, including those in provenance of developing countries. In this respect, regular meetings be22 UNESCO, Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standard-Setting Instrument on Cultural Diversity, cit. supra note 20, pp. 5-7. 23 Communication, cit. supra note 1, p. 6.

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tween professionals of Parties should take place in order to contribute to the deﬁnition and elaboration of instruments and frameworks of co-operation at international level (regional and/or bilateral). The cultural dimension of co-operation actions will be promoted, including the need through education to foster mutual knowledge of cultural identities as a condition for the intercultural dialogue; – Favour the development of cultural policies and instruments at national, regional and international level; – Provide a focal point and a forum for Members to discuss and debate cultural policies, increase knowledge in this respect and exchange best practices; – Provide technical assistance and expertise to the Members, with a view to the development of cultural policies adapted to each speciﬁc situation; – Establish an institutional framework to monitor the state of cultural diversity in the world, e.g. an international observatory or monitoring mechanism of cultural diversity and cultural exchanges, and engage in the elaboration and deﬁnition of indicators and international standards in the ﬁeld of cultural diversity. Such structure could for example prepare a yearly ‘state of cultural diversity’ report, on the basis of each Party’s report”.24 Without going into any further details, it can be said that the broad requirements that such an instrument should fulﬁl with regard to cultural diversity are mentioned therein. Nonetheless, as regards the promotion of cultural diversity, mentioned in Indent 1, the goal of the preservation of cultural diversity should be added.25 In the context of culture, the link between the past and the present as a necessary precondition for the shaping of the future is – like in environmental matters – a crucial element for the goals linked to cultural diversity.26 For the sake of interpretive consistency, the argument of a dialogue between cultures and the enhancement of mutual understanding and respect, as laid down in Indent 2 and placed in opposition to the hardly desirable consequences that the theory of a “clash of civilizations”27 entails, should therefore be complemented by a reference to in24

Ibid., pp. 6-7. Further down in the text, the Communication states: “The preservation and promotion of cultural diversity is a fundamental principle that must be reﬂected in international law and policy”, pp. 7 and 10. 26 Cf. BROWN WEISS, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, New York, 1989, writing inter alia that “Future generations need to inherit a diverse cultural resource base”, p. 257. 27 See HUNTINGTON, “The Clash of Civilisations”, Foreign Affairs, 1993, p. 22 ff.; but see, e.g., HAVEL, “Transcending the Clash of Cultures: Democracy’s Forgotten Dimension”, Journal of Democracy, 1995, p. 3 ff., and SAN SUU KYI, “Transcending the Clash of Cultures: Freedom, 25

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ternational peace and security. Indent 3 derives its importance from the mention of cultural goods and services, hereby referring to the economic dimension of cultural diversity and pointing to an eventual involvement, whether desired or not, of the WTO. Unfortunately, in the last but one paragraph, this acknowledgment is diminished or even weakened by the statement that: “Furthermore, such an instrument would not affect and be without prejudice to the international legal framework applicable to exchanges of cultural goods and services – in particular as regards their trade and intellectual property aspects”.28 The phrase “would not affect and be without prejudice” could also be interpreted as meaning that – as a consequence – such an instrument be without any value for the international legal framework and only add to the embarras de richesse of international treaties and instruments. However, I will come back to this problem below. Perhaps inspired by the debate engendered by the EU White Paper on Governance,29 Indents 4, 5 and 6 can be read as trying to introduce elements of (multilevel) governance into the debate by favouring the development of cultural policies at various levels and creating a forum for discussion and debate linked in a network for the exchange of knowledge and best practices. Included in this broader spectrum of cooperation is the provision of technical assistance and expertise. The last principle concerns the establishment of an international observatory or monitoring mechanism of cultural diversity. This proposal must also be welcomed, but with regard to the monitoring of the “state of cultural diversity” in the world, many open questions remain.30 Following these deliberations on the main objectives and conditions, the Communication recalls in its conclusions the desirability of an international instrument on cultural diversity, requiring a common response from the EC and its Member States. Based on the many references to various problems and aspects of cultural diversity, the Commission follows, by and large, the reasoning of the Culture Ministers, according to which an international instrument in UNESCO may provide the appropriate legal answer at the international level. The Communication therefore stresses the importance for the EC to play an active role in the forthcoming UNESCO General Conference and its aftermath. For these purpose, based on the aforementioned deliberations, the initial elements for a declaration on behalf of the EC and its Member States with a view to the presentation of a common position on the issue related to the drawing-up of a standard-setting in-

Development and Human Worth”, ibid., p. 11 ff., as well as SAID, “The Clash of Ignorance”, The Nation, 22 October 2001. 28 Communication, cit. supra note 1, p. 7. 29 Commission of the European Communities, European Governance – A White Paper, COM(2001) 428 ﬁnal of 25 July 2001. 30 One such problem is found in the insufﬁcient availability of commensurable statistical data; see also the comments infra note 86.

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strument on cultural diversity are outlined for the forthcoming UNESCO General Conference.31

2.2. A Short Critique At its 32nd session, held in October 2003, the UNESCO General Conference not only adopted the Convention for the Safeguarding of the Intangible Cultural Heritage but also decided that cultural diversity should be the subject of a convention under the (provisional) title “Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions”.32 Therefore, it is likely that the arguments presented in the Communication will be transposed into a common position and eventually a negotiating mandate. In the light of the evolution of the matter, the Communication must be generally welcomed as a basis for discussion and further debate on the issue of cultural diversity. However, in substance it lacks several important elements, which will be brieﬂy summarised here. First, concerning the context of the debate, it was stated that the Communication does not sufﬁciently take into account the culture and trade debate, or, in particular, the parallel WTO negotiations round (Doha Round). The WTO negotiations, which were originally scheduled to end in 2004, have recently encountered serious difﬁculties during the Fifth Ministerial Meeting in Cancún.33 This was because the two events, the debate for an international standard-setting instrument and the negotiations for a successful conclusion of the Doha Round, are more closely related than one might initially think. Cultural diversity also plays a privileged role in the complex relation between international trade and international peace and security.34 In fact, cultural diversity in its broadest sense may prove to be the “missing link” in the economic theory of comparative advantage as the basis for derivative attempts to enhance welfare effects through the removal of trade barriers.35 The considera-

31

Communication, cit. supra note 1, pp. 9-10. UNESCO, Report of Commission IV, UNESCO General Conference, 32nd Session, Paris, 2003, UNESCO Doc. 32 C/74 of 16 October 2003, pp. 13-26 and p. 27, writing that the General Conference “Decides that the question of cultural diversity as regards the protection of the diversity of cultural contents and artistic expressions shall be the subject of an international convention”. 33 See the Ministerial Statement of 14 September 2003 at http://www.wto.org; see also “Cancun’s charming outcome – Breakdown in Cancun”, The Economist, 20 September 2003. 34 See, e.g., BAUDIN, Free Trade and Peace, Paris, 1939. 35 See also International Telecommunication Union (ITU), The World Summit on the Information Society (WSIS) Draft Plan of Action, Doc. WSIS/PC-3/DT/5 (Rev. 1)-E of 14 November 2003, para. 24, writing that “Cultural and linguistic diversity, while stimulating respect for cultural identity, traditions and religions, is essential to the development of an Information Society based on the dialogue among cultures and regional and international co-operation. It is an important factor for sustainable development”. 32

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tion of this link is of outstanding importance, given the Communication’s attempt to connect the issue of cultural diversity to the one of sustainable development.36 Similar attempts underlie its reference document, the Universal Declaration on Cultural Diversity, when it states in Article 3 (“Cultural diversity as a factor in development”) that: “Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence”.37 In the present context is seems more appropriate to also think of it in terms of economic growth, which provides the engine for development. In connection with Article 8, it is also interesting to note the description of the cultural industries in a recent edition of the ACP-EU Courier, which reads: “Phénomène social aux caractéristiques très diverses et aux multiples ramiﬁcations, les industries culturelles doivent être étudiées à travers les divers sous-secteurs qui les composent. Au ﬁl du temps, une prise de conscience de plus en plus forte des enjeux liés aux ‘industries culturelles’ a abouti à l’idée que culture et développement sont intimement liés”.38 Complementing the role of the cultural industries for development, Article 9 emphasises the role of cultural policies as catalysts of creativity as follows: “While ensuring the free circulation of ideas and works, cultural policies must create conditions conducive to the production and dissemination of diversiﬁed cultural goods and services through cultural industries that have the means to assert themselves at the local and global level. It is for each State, with due regard to its international obligations, to deﬁne its cultural policy and to implement it through the means it considers ﬁt, whether by operational support or appropriate regulations”. All these quotes raise, explicitly or implicitly, important questions concerning issues that clearly touch upon, or even fall within, the competences of the WTO. 36

Communication, cit. supra note 1, p. 2. Cf. G8, Okinawa Charter on Global Information Society (Okinawa, 23 July 2000), paras. 39 and 41, declaring that “[C]ultural diversity is a source of social and economic dynamism which has the potential to enrich human life in the 21st century, as it inspires creativity and stimulates innovation” and that “[E]xperience shows that diversity can arouse interest, engender initiative and be a positive factor in communities seeking to improve their economies, particularly when assisted by the extraordinary means of the IT society”. 38 See, e.g., PAGNIET, “Industries de la culture et développement”, Le courrier: Afrique, Caraibes, Paciﬁque, Communauté européenne, 2002, No. 194, p. 42 ff. 37

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Regarding the Community involvement, the Communication is fairly disappointing. Although, it generally recognises that several rules and instruments exist at the Community level which fall within the scope of a possible future international instrument on cultural diversity, it does not give any examples of these or at least mentions only a few precedents. Indeed, the Community experience has contributed some useful answers to many open questions in the gray area of dual economic and cultural considerations that are awaiting a solution at the international level. An illustrative list of such examples include contributions, mainly of the ECJ, to the non-discrimination (or national treatment) principle and quantitative restrictions and measures having an equivalent effect,39 the difﬁcult, but often crucial, goods/service distinction, for instance, in the case of broadcasting,40 the treatment of speciﬁc categories of goods and services of dual, economic and cultural character (e.g. books and newspapers),41 the role of state aid (e.g. in the AV and cinema sector),42 the regulation of content (e.g. the TWF Directive),43 as well as the problem of media concentration,44 to mention but a few aspects of interest here.

39 See, e.g., the Sunday Trading Case (Case 145/88, Torfaen Borough Council v. B & Q plc., ECR, 1989, p. 3851 ff.), the German Beer Case (Case 178/84, Commission v. Germany, ECR, 1987, p. 1227 ff.), the Cassis de Dijon judgment (Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, ECR, 1979, p. 649 ff.). 40 See, e.g., Case 155/73, Sacchi, ECR, 1974, p. 409 ff. and Case 148/91, Verenigung Veronica Omroep Organistatie v. Commissariaat voor de Media, ECR, 1993, p. 487 ff. 41 See, e.g., Joined Cases 43/83 and 63/82, Vereniging ter Bevordering van het Vlaamse Boekwezen, VBVB, and Vereniging ter Bevordering van den Belangen des Boekhandels, VBBB v. Commission, ECR, 1984, p. I-19 ff.; Case 229/83, Association des Centres distributeurs Édouard Leclerc and Others v. SARL “Au blé vert” and Others, ECR, 1985, p. I-1 ff.; Case 360/92, Publishers Ass’n v. Commission, ECR, 1995, p. I-23 ff.; Case 39/96, Koninklijke Vereniging ter bevordering van den belangen des Boekhandels v. Free Record Shop, ECR, 1996, p. I-2303 ff. and Case C-9/99, Echirolles Distribution SA v. Association du Dauphiné, Association des Libraires de Bandes Dessinées, Patrick Corbet and Union des Libraires de France, ECR, 2000, p. I-8207 ff.; Case 269/83, Commission of the European Communities v. French Republic, ECR, 1984, p. 843 ff. and Case 18/84, Commission of the European Communities v. French Republic, ECR, 1985, p. 1339 ff. 42 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain legal aspects relating to cinematographic and other audiovisual works, COM(2001) 534, OJ EC No. C 43 of 16 February 2002, and European Parliament resolution on the Commission communication on certain legal aspects relating to cinematographic and other audiovisual works, COM(2001) 534, C5-0078/ 2002 – 2002/2035(COS); see also Case T-46/97, SIC – Sociedade Independente de Comunicação SA v. Commission of the European Communities, ECR, 2000, p. II-2125 ff. and Case T-95/96, Gestevisión Telecinco SA v. Commission of the European Communities, ECR, 1998, p. II-3407 ff. 43 See, e.g., the Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation – Towards and Information Society Approach, COM(97) 623 of 3 December 1997. 44 Case T-221/95, Endemol Entertainment Holding BV v. Commission of the European Communities, ECR, 1999, p. II-1299 ff. and Case T-251/00, Lagardère SCA & Canal + SA v. Commission of the European Communities, ECR, 2002, p. II-4825 ff.

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The Communication’s greatest deﬁciency in this respect is thus the total absence of the domain of competition law, which is of particular relevance for cultural diversity, as expressed in terms of media pluralism and current threats caused by an increasing multinational concentration in the media sector.45 In the context of this deﬁciency, however, it must be acknowledged that competition law is not explicitly mentioned in the constitutional mandate of UNESCO. The absence of various experiences directly or indirectly linked to the objectives pursued under the issue of cultural diversity helps to explain why the Communication does not add very much of value to a future new instrument on cultural diversity. In particular, it seems to follow the 4th option formulated by UNESCO, which is the most comprehensive in terms of goals but which equally lacks clarity in terms of the means for their implementation. The same criticism must therefore apply to the guiding principles, which are as a whole complete, but again lack realistic and creative responses for problems regarding their substantive and institutional implementation. Therefore, at this stage, it also seems premature to conclude that UNESCO may prove to be the appropriate legal answer at the international level. These ﬂaws inherent in the Communication will now be mirrored against, ﬁrst, the broader “culture and trade debate”, then against other recent documents at the European level and, ﬁnally, against various existing proposals and options for the implementation of an international instrument on cultural diversity.

3. CULTURAL DIVERSITY IN LIGHT OF THE GLOBAL “CULTURE AND TRADE” DEBATE The past century has, on the one hand, faced a constant growth in international legal instruments governing the realm of international trade.46 At the same time, the number of legal documents preserving and promoting the issue of “culture” at the international level has also increased.47 With a few exceptions, both realms have continued their expansion based on the legal principle of expressio unius est exclusio alterius48 (the choice of one part of an alternative excludes the 45 But see European Parliament resolution on media concentration, 20 November 2002, P5_TA(2002)055 4, and European Parliament resolution on the risks of violation, in the EU and especially in Italy, of freedom of expression and information, 22 April 2004, P5_TAPROV(2004)0373. 46 See, e.g., REICH, “Institutions for International Economic Integration: From Diplomacy to Law: The Juridicization of International Trade Relations”, Journal of International Law and Business, 1996, p. 775 ff., and DEMARET, “The Metamorphoses of the GATT: From the Havana Charter to the World Trade Organization”, Columbia JTL, 1995, p. 123 ff. 47 See, e.g., the reference to instruments listed in Appendix 4 in UNESCO, Desirability of Drawing up an International Standard-Setting Instrument on Cultural Diversity, UNESCO General Conference, 32nd Session, Paris, 2003, UNESCO Doc. 32 C/52 (18 July 2003). 48 See MOSLER, “General Principles of Law”, Encyclopaedia of Public International Law, 1984, Vol. 7, p. 89 ff., mainly at pp. 92-93.

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other).49 Only gradually has a change in perception occurred, as is expressed for the realm of international trade by Bruce Jamieson: “Trade is not an end in itself, but the means to a broader objective – a better society. The signiﬁcance of cultural works is also social and political as well as economic. The pursuit of national cultural objectives is just as important as foreign and trade policy objectives. Cultural goods and services are not like other forms of merchandise. Cultural diversity is preferable to homogeneity. Governments have an important role to play in promoting and preserving cultural diversity”.50 From the perspective of culture, the same shift can be identiﬁed in a recent UNESCO publication, which states that: “The issue of ‘culture and trade’ has now acquired prime strategic signiﬁcance. Cultural goods and services convey and construct cultural values, produce and reproduce cultural identity and contribute to social cohesion; at the same time they constitute a key free factor of production in the new knowledge economy. This makes negotiations in the cultural ﬁeld extremely controversial and difﬁcult”.51 Thus, in the overall trade linkage debate,52 culture and trade have achieved a primordial signiﬁcance. As one of the main common reference points for both realms, the concept of “cultural diversity” seems to have crystallised. Another important concept, however, which transcends the traditional and exclusive approach to culture and trade, is to be found in the concept of “cultural industries”. The dual economic and cultural character of the sectors that the cultural industries comprise has been subject to a century of various kinds of research.53 In their characteristic trait of technology-prone products, especially in the new technological possibilities of producing, reproducing and disseminating cultural

49

One exception is found in the so-called “Florence Agreement”, see supra note 18. JAMIESON, “Trade Liberalization: Culture, Identity and Social Cohesion”, Trade Policy Research, 2001, p. 73 ff. 51 UNESCO, Culture, Trade and Globalization: Questions and Answers, cit. supra note 3, p. 9. 52 See, e.g., TRACHTMAN, “Institutional Linkage: Transcending ‘Trade and…’”, AJIL, 2002, p. 77 ff. 53 A well-known early study is the article by Walter Benjamin; see BENJAMIN, “Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit”, in TIEDEMANN and SCHWEPPENHÄUSER (eds.), Walter Benjamin – Gesammelte Schriften, 2nd ed., Frankfurt, 1978, Vol. I, p. 436 ff.; see also GARNHAM, Capitalism and Communication: Global Culture and the Economics of Information, London, 1990; THROSBY, Economics and Culture, Cambridge, 2001, and STEINERT, Culture Industry, Cambridge, 2003. 50

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content through the cultural industries, they have contributed to forming a mutual approach between the previously separate spheres of culture and trade. This approach originated in the beginning of the 20th century, through the gradual marriage between cultural and economic aspects in the cultural industries, contradicting the longstanding traditional perception of the need for a clear-cut separation of cultural from “ordinary” commercial products. In legal terms, this traditional perception is exempliﬁed in the Institutiones of the Roman jurist Gaius (130-180 BCE), who qualiﬁed a category of things including some cultural objects which cannot be the object of exchange, or of any legal commercial transaction (res extra commercium or res quarum commercium non est).54 A similar approach prevailed at the time of the drafting of the 1948 General Agreement on Tariffs and Trade (GATT), where the particular exception of Article IV GATT, dedicated to screen quotas for cinematograph works, was justiﬁed by the argument that ﬁlms have a closer regulatory connection to domestic cultural policies rather than to economics and trade.55 Nonetheless, it can be argued that the limited exception for cinematograph works in the context of the GATT provides a ﬁrst legal contact point for cultural and commercial considerations. Even before the time of drafting of the GATT, however, numerous people challenged this traditional view. For instance, André Malraux’s concluding statement in L’esquisse d’une psychologie du cinéma is well known.56 Other statements that highlight the economic aspects of the culture industry can be traced back as early as to the year 1926 in the United States of America, when the motion picture was described as “the latest form of silent salesman”, referring to experiences with the impact of unconscious “trade propaganda”, namely the effects that ﬁlms have on the sales on other goods – an effect that was summed up in the slogan “trade follows the ﬁlm”.57 Nonetheless, the economic effect of culture is not unilinear, so that it simply helps to boost the sales of various goods and services in external trade. The economic aspect of culture also unfolds in the opposite direction, shifting from the interest of the producer to that of the consumer. The International Covenant on Economic, Social and Cultural Rights, for instance, recognises the “right of

54 See POSTE, Gaii Institutionum Iuris Civilis Commentarii Quatuor or Elements of Roman Law by Gaius, Oxford, 1871, p. 130 ff., and KASER, Römisches Privatrecht, 15th ed., München, 1989, pp. 90-91. 55 JACKSON, World Trade and the Law of GATT, Indianapolis, 1969, p. 293. 56 MALRAUX, L’esquisse d’une psychologie du cinéma, Paris, 1939, concluding that “par ailleurs, le cinéma est une industrie”. 57 See KLEIN, “What Are Motion Pictures Doing for Industry”, Annals of the American Academy of Political and Social Sciences, 1926, p. 79 ff.; see also TICHENOR, “Motion Pictures as Trade Getters”, ibid., p. 84 ff., and MAYER, “American Motion Pictures in World Trade”, Annals of the American Academy of Political and Social Sciences, 1947, p. 31 ff., p. 34, quoting Elmer Davis, writing that “[T]here has never been a more effective salesman for American products in foreign countries than the American motion picture”.

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everyone to take part in cultural life”.58 As the title of the Covenant suggests, there is a clear link between economic (social) and cultural aspects. In this sense, the exercise of the right of everyone to take part in cultural life clearly has economic repercussions, when it comes, for example, to the purchase of a cinema ticket, a television set, a CD, a DVD, or a book. In light of these developments, the WTO Panel’s statement in the Canada – Periodicals case that “cultural identity was not at issue” when dealing with a Canadian regime for newspapers and magazines is surprising on account of its reactionary nature.59 Such approach is regrettable since cultural identity is not only of cultural but equally of economic relevance. The relevance becomes obvious in the right of access to culture which extends to the issue of cultural diversity. The basis for this link is provided by Article 5 (“Cultural rights as an enabling environment for cultural diversity”) in connection with Article 6 (“Towards access for all to cultural diversity”) of the UNESCO Universal Declaration on Cultural Diversity which stipulates that: “While ensuring the free ﬂow of ideas by word and image care should be exercised that all cultures can express themselves and make themselves known. Freedom of expression, media pluralism, multilingualism, equal access to art and to scientiﬁc and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity”.60 Moreover, in Article 8 (“Cultural goods and services: commodities of a unique kind”), the Declaration pays tribute to the speciﬁcity of cultural goods and services as “vectors of identity, values and meaning”. Similarly, the Council of Europe has dedicated some space in its version of a Declaration on Cultural Diversity to the dual cultural and economic challenge in the context of cultural diversity, notably by: “Recognising that the development of new information technologies, globalisation and evolving multilateral trade policies have an impact on cultural diversity; and, more speciﬁcally, that:

58 See Article 15 of the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200 (XXI), UN GAOR, 21st Session, Suppl. No. 16, p. 49, UN Doc. A/6316, 1966, entered into force on 3 January 1976. 59 Canada – Certain Measures Concerning Periodicals (Complaint by the United States), Doc. WT/DS31/R of 14 March 1997, para. 5.45. 60 UNESCO Universal Declaration on Cultural Diversity, adopted by the 31st Session of the UNESCO General Conference, Paris, 2 November 2001.

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Cultural and audiovisual policies, which promote and respect cultural diversity, are a necessary complement to trade policies; Cultural diversity has an essential economic role to play in the development of the knowledge economy. Strong cultural industries which encourage linguistic diversity and artistic expression, when reﬂecting genuine diversity, have a positive impact on pluralism, innovation, competitiveness and employment; Culturally diverse forms of production and practices should not be limited but enhanced by technological developments Wide distribution of diverse cultural products and services, and exchange of cultural practices in general, can stimulate creativity, enhance access to and widen the provision of such products and services; Public service broadcasting plays an important role for the safeguarding of cultural diversity; Education, training of professionals and users of new services, and reinforcement of cultural and audiovisual production are notable factors in the promotion of cultural diversity”.61 Last but not least, it is important to mention the new UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, adopted in October 2003 which is currently in the process of ratiﬁcation.62 The Convention is the ﬁrst legally binding instrument for the safeguarding of intangible cultural heritage, which it deﬁnes as follows: “The ‘intangible cultural heritage’ means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage”.63 By developing inventories of intangible cultural heritage, the Convention will not only contribute positively to the preservation of cultural diversity but will also assume a gap-ﬁlling role for an area hitherto insufﬁciently recognised by various instruments in the ﬁeld of intellectual property rights. In particular, the gap-ﬁlling role extends to, what has been termed “commodiﬁcation of intangible cultural property”, namely, the “conversion of intangible cultural property into items of economic worth that can be traded for commercial gain”.64 This touches upon, and critically

61 Council of Europe Declaration on Cultural Diversity, adopted by the Committee of Ministers at the 733rd Meeting on 7 December 2000, paras. 2.1-2.6. 62 Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, Doc. MISC/2003/CLT/CH/14. 63 Article 2(1) of the Convention for the Safeguarding of the Intangible Cultural Heritage, cit. supra note 62. 64 See PATERSON and KARJALA, “Looking Beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples”, Cardozo Journal of International and Comparative Law, 2003, p. 633 ff.

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challenges, the formal distinction between an idea and its expression, of which only the latter is granted copyright protection.65 In turn, however, and not without signiﬁcance for a convention on cultural diversity, the cited convention raises further important questions about the mutual relations between the competences of WIPO, the WTO (as the administrator of the TRIPS Agreement), and UNESCO. These few selective examples of references to the various links between cultural and economic aspects in connection with cultural diversity seem to justify broader policy considerations. This justiﬁcation applies, ﬁrst of all, to the Commission of the European Communities, whose agenda gradually evolved from a mainly economic to a broader, and hopefully more coherent, set of tasks under the “new” Constitution. Therefore, instead of adding one more instrument to the sphere of culture, serious efforts ought to be made to enhance the functioning of the international legal order as a whole. This goal can be achieved through a better coherence in policy making and the bridging of the gap between culture and trade.

4. “COHERENCE” IN EUROPEAN POLICY MAKING When I speak of “coherence” in EU policy making in the present context, I refer not only to the Commission’s explicit goal to “reinforce attempts to ensure policy coherence and identify long-term objectives” as outlined in the White Paper on Governance, but more speciﬁcally to the culture/trade dichotomy that is rooted deeply in European thinking.66 This dichotomous thinking, as expressed in the principle expressio unius est exclusio alterius, is paraphrased in the competing efforts to base European integration on either culture and education or trade and commerce. This age-old schizophrenia is laid down metaphorically in the words – wrongly attributed to Jean Monnet – “Et si c’était a refaire, je recommencerais par la culture”.67 Instead, these words must be read as pointing to a deeper truth, namely, that any integration project, if it wants to succeed, must be based on simultaneous cultural and commercial efforts in the spirit of their complementarity. What is needed is thus not a schizophrenic mind, but, instead, more of an institutionalised process within the framework of which apparently contradictory interests or objectives can be transformed into mutual gain for all the actors involved. In the context of cultural diversity as a founding principle of the history of European integration,68 this valuable insight was expressed in the words of Stefan

65

Cf. Article 9(2) of the TRIPS Agreement. See Commission of the European Communities, European Governance – A White Paper, COM(2001) 428 ﬁnal of 25 July 2001, p. 6. 67 See DUMOULIN, cit. supra note 10, p. 16. 68 See KAEGI, “Discordia Concors: Vom Mythos Basels und von der Europa-idee Jacob Burckhardts”, in SIEBER (ed.), Discordia Concors – Festgabe für Edgar Bonjour zu seinem siebzigsten Geburtstag am 21. August 1968, Basel, 1968, Vol. 1, p. 131 ff., mainly pp. 132-152. 66

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Zweig in 1920 when commenting on Romain Rolland’s Jean Christophe, as follows: “Par une fatalité necessaire, nous ne connaissons, au début de l’existence – et beaucoup, leur vie durant –, notre propre pays que du dedans, et l’étranger, que du dehors; c’est seulement lorsque nous connaissons aussi notre pays de l’extérieur, et l’étranger de l’intérieur, dans les coeurs de ces enfants, qu’il nous est possible de voir avec des yeux d’Européen, qu’il nous est possible de considérer les différents peuples comme des unités indispensables, vivant côte a côte et se complemetant mutuellement”.69 About 30 years later, the Treaty Establishing the Coal and Steel Community was obviously inspired by this language, when it states in its Preamble that: “Resolved to substitute for age-old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conﬂicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared”. In fact, the intentions laid down in the Preamble were later complemented by the Treaty Establishing the European Economic Community, which stated its determination to “lay the foundations of an ever closer union among the peoples of Europe”. In this context, regret must be expressed that the Convention on the European Constitution has by and large disregarded in its proposed Preamble the extreme importance and historical value of the respective Preambles for the continuous evolution of European integration. Instead, the historical and cultural heritage of the different Preambles, drafted not without poetic style, seems to have been summed up and substituted by, or rather sacriﬁced for, a more “advertorial” motto called “united in diversity”.70 Additionally, the new Constitution has, by way of Article 59, introduced the possibility of a voluntary withdrawal from the Union, which deprives the EU – in stark contrast to the growing awareness about Europe’s absolutely unchangeable common geography – of the necessary stable framework for the forging of a truly shared destiny and at the same time an indispensable element for the factual recognition of the cultural diversity of its various component parts.

69 ZWEIG, Romain Rolland, Paris, 2000, p. 218 (ﬁrst published as ZWEIG, Romain Rolland: Der Mann und das Werk, Frankfurt, 1921). 70 Preamble, Article 3 and Article IV-1, Draft Treaty Establishing a Constitution for Europe, cit. supra note 8.

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From this short comparative survey, covering the early origins to the latest developments in European integration, it derives that in fact there exists not only a desire to perceive apparently contradictory concepts as complementary, but even – as was shown above – a real necessity, rooted in the changes in our immediate environment, as, for instance, the technological innovations in the cultural industry prove. Hence, in return from this short excursus to the present issue of an international standard-setting instrument on cultural diversity, it is interesting to see to what extent the Commission’s Communication is considerate of its immediate policy environment and respects, in particular, the institutional balance in terms of the work done by one of its sister institutions, the European Parliament.

4.1. European Parliament Resolution on the Revision of the TWF Directive For an evaluation of the coherence enshrined in the Commission’s Communication, a ﬁrst important reference document is found in a recent European Parliament Resolution on the Revision of the Television without Frontiers Directive (TWF).71 The TWF Directive, which is currently undergoing a revision, is of major importance for the issue of cultural diversity, because it underscores the necessity of coherence between the external and internal dimension of Community action, as mentioned in the Communication.72 Externally, it recalls vivid reactions on the international plane during the Uruguay Round, threatening its successful implementation.73 Internally, its related problems provide an interesting analogy to the difﬁculties that can be expected to occur in implementing the goals pursued by an international instrument on cultural diversity at the global level. As a ﬁrst important element, the Resolution recalls the economic raison d’être of the TWF Directive, which is rooted in the free movement of services and, in particular, in the creation of a European market for television broadcasting services.74 71 European Parliament Resolution on Television without Frontiers, P5_TA-PROV(2003)0381 (4 September 2003) (hereinafter “Resolution TWF”); see also the “Television without Frontiers” Directive (89/552/EEC) amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ EC No. L 202 of 30 July 1997. 72 Communication, cit. supra note 1, p. 4. 73 See, e.g., FILIPEK, “‘Culture Quotas’: The Trade Controversy over the European Community’s Broadcasting Directive”, Stanford Journal of International Law, 1992, p. 323 ff., and CHAO, “GATT’s Cultural Exemption of Audiovisual Trade: The United States May Have Lost the Battle but not the War”, University of Pennsylvania Journal of International Economic Law, 1996, p. 1127 ff., and O’CONNELL, “Television Without Frontiers: The European Union’s Continuing Struggle for Cultural Survival”, Western Reserve Journal of International Law, 1996, p. 501 ff. 74 Resolution TWF, cit. supra note 71, Point A; see generally SCHWARTZ, “Broadcasting and the EEC Treaty”, EL Rev., 1986, p. 7 ff.

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Shortly afterwards, it mentions the fundamental importance of the audiovisual sector for “democracy, diversity of opinion, pluralism and cultural diversity” while equally contributing to “technological innovation, economic growth, the creation of jobs and the functioning of the single market”.75 The strong interdependence between cultural and economic factors, as a result of a constant convergence between the various sectors, is repeatedly invoked in the following, especially in the context of the e-Commerce Directive, the Directive concerning copyright related to satellite broadcasting and cable retransmission as well as in the broader context of the objectives set out in the Lisbon European Council Conclusions.76 The latter restates the economic aspect of the “right of access to cultural life”77 and the value that the cultural (or content) industries add to cultural diversity as follows: “Businesses and citizens must have access to an inexpensive, worldclass communications infrastructure and a wide range of services. Every citizen must be equipped with the skills needed to live and work in this new information society. Different means of access must prevent info-exclusion. The combat against illiteracy must be reinforced. Special attention must be given to disabled people. Information technologies can be used to renew urban and regional development and promote environmentally sound technologies. Content industries create added value by exploiting and networking European cultural diversity. Real efforts must be made by public administrations at all levels to exploit new technologies to make information as accessible as possible”.78 The Resolution also refers to the special role that public service broadcasting plays in the formation of public opinion and the dissemination of cultural diversity as well as the provision of market access on an equal footing.79 In this respect, it is adequate to recall the speciﬁc character of the cultural industries, which – due to their cultural content and particular “public good” character – may not be left 75

Resolution TWF, cit. supra note 71, Point D. Ibid., paras. 4 and 11; see also Indent 63 of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ EC No. L 178 of 17 July 2000, and see Council Directive 1993/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, recalling in Indent 3 that “broadcasts transmitted across frontiers within the Community, in particular by satellite and cable, are one of the most important ways of pursuing these Community objectives, which are at the same time political, economic, social, cultural and legal”. 77 See Article 15 of the International Covenant on Economic, Social and Cultural Rights, cit. supra note 58. 78 Presidency Conclusions, Lisbon European Council, 23-24 March 2000, para. 9. 79 Resolution TWF, cit. supra note 71, Point H. 76

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entirely to the play of free market forces.80 As threats to the values attached to cultural diversity, the Resolution mentions certain technological developments which result in so-called “gatekeeper” positions and the possibility of encryption, and last but not least, a growing media concentration of ownership and control in television broadcasting,81 which are all capable of halting the free ﬂow of information and threatening media pluralism as a conditio sine qua non of cultural diversity.82 Further useful suggestions contained in the Resolution in light of cultural diversity are the necessity to preserve the integrity of broadcast works, especially through a clear-cut separation of advertising and programmes, which may be undermined by recent technological innovations such as split-screen advertising or product placement. As a last important aspect of cultural diversity, the Resolution also addresses the controversial issue of quotas reserved for “European works” and, perhaps to a lesser extent, “independent producers”.83 In this context, it is necessary to recall one of the Communication’s main principles for an international instrument on cultural diversity, which is the one underscoring the need to boost the exchanges of cultural goods and services, including those coming from developing countries. In the long-term, a better mutual understanding can only be achieved, and hence a “clash of ignorance” avoided, by creative efforts leading to a more balanced offer of cultural goods and services from all over the world, and not only of at least 50% European origin and close to another 50% of American origin.

4.2. European Parliament Resolution on Cultural Industries The European Parliament has also paid tribute to the cultural industries in a single resolution.84 The Resolution on Cultural Industries is based on a Report of the 80 For an economic critique of media products, see, e.g., BAKER, “Giving the Audience What It Wants”, Ohio State Law Journal, 1997, p. 311 ff., and ID., “An Economic Critique of Free Trade in Media Products”, North Carolina Law Review, 2000, p. 1357 ff., as well as SUNSTEIN, “Television and the Public Interest”, California Law Review, 2000, p. 499 ff., stating inter alia that “[t]he economic ideal of ‘consumer sovereignty’ is ill-suited to the communications market. It follows that, at least in the near term, the changes introduced by the emerging communications system do not justify abandoning the idea that broadcasters should be required to promote public interest goals”. 81 See also European Parliament Resolution on Media Concentration, P5_TA(2002)0554. 82 Resolution TWF, cit. supra note 71, Points J and L; see also LLORENS-MALUQUER, “European Responses to Bottlenecks in Digital Pay-TV: Impacts on Pluralism and Competition Policy”, Cardozo Arts and Entertainment Law Journal, 1998, p. 557 ff. 83 For a critical evaluation of content regulation in Canada, see, e.g., ACHESON and MAULE, The Culture of Protection and the Protection of Culture – A Canadian Perspective in 1998, Ottawa, 1998, p. 1, and ACHESON, MAULE and FILLEUL, “Folly of Quotas on Films and Television Programmes”, The World Economy, 1989, p. 515 ff. 84 European Parliament Resolution on Cultural Industries, P5_TA-PROV(2003)0382 (4 September 2003).

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same name drafted by the rapporteur Myrsini Zorba on behalf of the European Parliament Committee on Culture, Youth, Education, the Media and Sport, which must be especially welcomed as a positive initiative.85 A ﬁrst positive element is that with the use of the concept “cultural industries” the EU is led to contribute to the elaboration of a common vocabulary, or an interpretative concept, helping to avoid misunderstandings and to prepare the ground for consensus in a future international debate on the broader culture and trade problems.86 It may be added here that in the context of NAFTA, an exception exists for the “cultural industries” between Canada and the United States,87 but other regions in the world are using a similar vocabulary to address these global problems.88 As one element, the Report: “[U]rges the Commission to bring EUROSTAT cultural industries statistics in line with international standards, and to search for additional and systematic information on the use or consumption of cultural products, by enhancing responsibilities of the European Audiovisual Observatory and other specialised bodies”.89 The conformity with international standards and other kinds of information on the use of cultural products are among the foundations for an institution that can successfully monitor the state of cultural diversity, as claimed in the Commission’s Communication. The second positive element of the Report is – based on the choice of the concept of cultural industries – the dual, but balanced, economic and cultural approach 85 European Parliament, Committee on Culture, Youth, Education, the Media and Sport, Report on Cultural Industries, A5-0276/2003 Final (14 July 2003); see also Working Document on Cultural Industries (12 March 2003) and Working Document 2 (Part I and II) on Final Report on the Questionnaire on Cultural Industries (11 April 2003). 86 The problem of an economic evaluation of the elastic concept of culture is aggravated by the insufﬁcient availability of or the availability of insufﬁciently commensurable statistical data about speciﬁc markets of cultural goods and services. This difﬁculty is most acute in the sphere of the cultural industries and partly due to private enterprise and the absence of state-controlled levy of data, and partly due to deﬁnitional problems; see, e.g., GARNHAM, “The Economics of the US Motion Picture Industry”, in INGLIS (ed.), Capitalism and Communication: Global Culture and the Economics of Information, London, 1990, p. 169 ff., pp. 170-171; TOWSE, Creativity, Incentive and Reward: An Economic Analysis of Copyright and Culture in the Information Age, Cheltenham, 2001, pp. 30-33, and THROSBY, cit. supra note 53, p. 114. 87 Cf. Article 2107 of the North American Free Trade Agreement between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, ILM, 1993, p. 605 ff. (note that Article 2107 was carried over almost in an identical wording from Article 2012 of Canada-United States Free Trade Agreement (CUSFTA), done at Ottawa on 22 December 1987 and on 2 January 1988, and done at Washington, DC and Palm Springs, 23 December 1987 and 2 January 1988, ILM, 1988, p. 281 ff.). 88 See, e.g., GALPERIN, “Cultural Industries Policy in Regional Trade Agreements: The Cases of NAFTA, the European Union and MERCOSUR”, Media, Culture & Society, 1999, p. 627 ff. 89 Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, p. 11, pt. 14.

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to the issue. This becomes obvious in the methodology applied in the approach to the issue, which included a questionnaire sent out to some 200 international organisations, European cultural or trade federations, culture-related associations as well as national organisations, universities and individual experts and consultants.90 Moreover, the document obviously relies on a wide array of documents as legible in the Preamble of the Report. References in the Preamble include various documents by the Council and the Commission and the inclusion of the Opinion given by the EP Committee on Industry, External Trade, Research and Energy.91 Consequently, the wide consultation process and the inter-institutional sensitivity have led to an extremely well-balanced approach to the issue of cultural industries and have rendered the report worthy of the cultural industries’ underlying dynamic semantic and practical meaning stemming from its oxymoronic character. These qualities emerge, for instance, in the considerations that “Europe’s cultural industries reﬂect its national diversity and this represent an added value to European identity” and that they are works of artistic creation having “unique properties due to their dual cultural and economic aspects” which not only reserve them a primary role in expressing European identities but also make necessary for them a speciﬁc treatment as opposed to the play of free market forces.92 To cut a long story short, the Report gives a remarkable listing of the issues that are at stake and can be considered as highly useful in the wider international debate on cultural diversity.

4.3. European Parliament Resolution on Preserving and Promoting Cultural Diversity Most recently, the European Parliament has summarised the most important aspects of the EU debate on issues related to cultural diversity in a resolution, adopted on the basis of a report by Christa Prets.93 Based on a comprehensive list 90

Working Document on Cultural Industries, cit. supra note 85, p. 2. Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, pp. 5-6 and 19-21, quoting inter alia the resolution of the Council of January 1997 on horizontal aspects of culture, OJ EC No. C 36 of 5 February 1997, Communication of the Commission of 11 December 2002 on industrial policy in an enlarged Europe, the Resolution of the Council of 19 December 2002 implementing the work plan on European co-operation in the ﬁeld of culture: European added value and mobility of persons and circulation of works in the cultural sector, COM(2002) 714 of 11 December 2002, a Commission Working Staff Paper on “Cultural, the Cultural Industries and Employment”, SEC(1998) 837 of 14 May 1998 and the EP Resolution of 12 March 2003 on the General Agreement on Trade in Services (GATS) within in the WTO, including cultural diversity, P5_TA-PROV(2003)0087 (12 March 2003). 92 Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, p. 6. 93 European Parliament resolution on preserving and promoting cultural diversity: the role of the European regions and international organisations such as UNESCO and the Council of Europe, P5_TA-PROV(2004)0022 (14 January 2004) and European Parliament, Committee on Culture, Youth, Education, the Media and Sport, Report on preserving and promoting cultural 91

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of relevant reference documents, the report refers to the wide range of problems involved in the wider culture and trade debate at the European and international level. The report stresses the idea that “cultures are constantly subject to a changing and moving process and that this dynamism is an impulse for human progress”. Based on this conceptual clariﬁcation, the report systematically exposes the complexity of the causal relationships between cultural and economic forces across a great variety of ﬁelds and issues, including, for instance, human and, especially, cultural rights, intercultural dialogue, cultural identity, sustainable development, and media pluralism. With respect to the project for an international instrument on cultural diversity, perhaps the most important consideration is that: “Obligations stemming from agreements reached within multilateral organisations complement those resulting from agreements reached within the WTO framework”.94 Although the report fails to specify the precise ramiﬁcations of this consideration, it must, nonetheless, be understood as an essential element in future action in the process of a draft convention on cultural diversity.

4.4. Resumé on the Current State of the Debate From this short overview of recent documents produced by the European institutions, especially the European Parliament, we can see that the EU is in a good position to provide a dense web of experiences on the issue of cultural diversity, in particular as regards their mixed cultural and economic aspects. From this it derives that – at this early stage in the drafting process for an international standard-setting instrument on cultural diversity – a broader view, taking into account as many aspects as possible, seems not only natural but even empirically necessary. This broader view implies the discussion and careful weighing against each other of the advantages and disadvantages of a limited number of options for the implementation of the goals attached to cultural diversity, to which we can now turn.

5. VARIOUS OPTIONS FOR AN INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY 5.1. Considering the Context and Adjusting the Options Given the complexity of the issue due to the diverse interests and aspects that are at stake, the approach to the adoption of an international standard-setting instrument on cultural diversity must be sensitive to the wider political context. The diversity: the role of the European regions and international organisations such as UNESCO and the Council of Europe, A5-0477/2003 (15 December 2003). 94 Ibid., pts. J and I.

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wider context of such an instrument has been described in another feasibility study for an instrument on cultural diversity as follows: “The short-term objective of the new instrument would be to ensure that the diversity of cultural expression is preserved and promoted in the face of the challenge posed by globalization, given that the achievement of this objective is essential to preserving and promoting the diversity of cultures and thus cultural diversity itself [...] [T]his goal should be highlighted in the new instrument by underscoring how closely it is linked to other societal objectives, such as democratic expression, social cohesion and economic development, without, however, turning the instrument into a text on democratic governance or economic development per se”.95 In this quote, the necessity to take a holistic approach, looking at the wider political and legal environment, or perhaps the international legal order as a whole, surfaces. Such holistic approach is advocated by the extremely elastic and inclusive meaning of the concept of culture itself.96 As a second element of culture, the dynamic nature of the concept must be mentioned which consists in the permanent strive for improvement. This element surfaces in an even older deﬁnition, given in a dictionary of 1793, which reads: “Culture: the improvement [ennoblement] or reﬁning of the total mental and bodily forces of a person or a people; so that the world includes not only the enlightening or improving of understanding through liberation from prejudices, but also polishing, namely [increased] improvement and reﬁnement, of customs and manners”.97 The inclusive character and the strive for improvement inherent in the concept of culture can therefore be taken as the starting point for a standard-setting instrument on cultural diversity at the international level. Along the gap between the respective realms of culture and trade, there exists a cleavage of jurisdiction in the international legal order, which, in institutional terms, can be presented in a simpliﬁed manner as separating the UN system, or at least 95 See BERNIER and RUIZ FABRI, Evaluation of the Legal Feasibility of an International Instrument Governing Cultural Diversity, Groupe de travail franco-québécois sur la diversité culturelle, 2002, pp. 26-27. 96 The comprehensive nature of “culture” emerges, for example, in an early attempt to deﬁne the concept provided by E.B. Tylor who wrote in 1871 that “Culture, or civilisation, [...] is that complex whole which includes knowledge, belief, art, law, morals, custom, and any other capabilities and habits acquired by man as a member of society”, cited in KROEBER and KLUCKHOHN, Culture – A Critical Review of Concepts and Deﬁnitions, New York, 1952, p. 81. 97 Ibid., p. 38.

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some of its specialised agencies, from the World Trade Organization.98 Nonetheless, the increasing complexity of regulatory challenges and the growing mutual interdependence shows that no action can be taken in one realm without having some effects in the other. This simple rule of causality must be kept in mind when analysing the options for the substantive rules and the formal, institutional setting of an instrument on cultural diversity.

5.2. Outlining the Options In line with the objectives and conditions that must be met, as outlined in the various documents referred to above, three main, but nonetheless simpliﬁed, options for the adoption of an instrument on cultural diversity can be identiﬁed. The ﬁrst option is that such an agreement be adopted under the auspices of the WTO, second under a specialised international agency, such as UNESCO, or under an entirely new, still to be established, international agency or organisation. As a third and ﬁnal option, a scenario of inter-agency delegation or sharing of powers can be imagined. Such an approach could be realised through a general instrument on cultural diversity administered by UNESCO, complementing the existing human rights body, and a more speciﬁc text, dealing with the cultural industries, adopted under the aegis of the WTO. This last option, however, depends largely on the perception of the international legal order as a whole and the respective competences or powers attributed to its component parts. In connection with these options, it is understood that the choice for the proper forum depends largely on the envisaged regulatory scope of such an agreement. Or, in other words, the substantive rules determine the institutional framework and vice versa. From the perspective of the instrument’s potential substantive, i.e. regulatory, content, it seems that current and future problems press for the adoption of an instrument aimed at ﬁlling the lacunae or else remove the potential conﬂicts that currently prevail between the acquis of international human rights law, on the one hand, and that of international economic law, on the other. This seems to be the message contained in the INCD Draft99 and SAGIT Report,100 as well as even, al98 For a good visualisation of the UN system and its current relation to the WTO, see the Organisation Chart of the UN System, at http://www.un.org/aboutun/chart.html. 99 In an earlier version, the INCD Draft notes that “[t]here are two key problems that have emerged in the WTO context concerning cultural goods and services. The ﬁrst concerns the failure of WTO dispute bodies, in the cases that have involved cultural goods and services, to acknowledge that forms of artistic and cultural expression are more than commercial goods, products, or services even where they compete in the market place. The second has to do with uncertainty about when a particular form or artistic and cultural expression will be considered a good, service or both. We note that the demarcation line, if any, between cultural goods and services, is still an open question for the WTO”, available at http://www.mca.org.au/r18910.htm, para. 14. 100 The SAGIT Report states that “there is also the related question of the relationship of the

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though in more modest ways, in the UNESCO Universal Declaration on Cultural Diversity and its Action Plan.101 Together with broader principles linked to cultural diversity, the main focus of the instrument is therefore on the so-called “gray area” between economic and cultural forces, as they merge in the concept of the cultural industries. In institutional terms, the substantive regulatory challenge intrinsic in the dual economic and cultural character of the cultural industries is mirrored in attempts to interlock the respective competences of UNESCO with those of the WTO. In this sense, the Preamble of the INCD Draft states: “Recognizing the need for effective and appropriate means for preventing and settling disputes concerning measures adopted in accordance with the provisions of this Convention; Desiring to establish a mutually supportive relationship with the World Trade Organization (WTO), and the World Intellectual Property Organization (WIPO) (as well as other relevant international organizations the United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO) will be added as well, if it is not the host organisation of the Convention)”.102 Based on the previous analysis, the SAGIT Report notes that the “ﬁrst and most obvious option to consider was an instrument negotiated in the ﬁrst instance within the WTO itself”, but later it dismisses the argument due to a possible danger of overloading the multilateral trading system with responsibilities which go beyond its constitutional mandate.103 At this stage, however, no clear preference should be formulated, although the principal options can be ﬂeshed out in a short overview. Several recommendations have been made in various forms that would render the WTO more sensitive towards cultural issues in general and cultural diversity in particular. Possible legal solutions could take the form of an exception,104 an Annex,105 a waiver,106 an understanding, an amendment of Article IV obligations and commitments of a new instrument with other international obligations, particularly existing and future rights and obligations under international trade agreements”, cit. supra note 2, p. 3. 101 See especially Articles 3, 8, and 10-11 of the UNESCO Declaration and Points 12, 16, 17, and 20 of the Action Plan, cit. supra note 14. 102 INCD Draft Convention on Cultural Diversity, cit. supra note 2, Preamble, Indents 13 and 14. 103 See SAGIT Report, cit. supra note 2, p. 8. 104 See, e.g., HAHN, “Eine kulturelle Bereichsausnahme im Recht der WTO?”, ZAÖRV, 1996, p. 315 ff. 105 See Communication from Switzerland (GATS 2000: Audio-visual services), S/CSS/W/74 (4 May 2001), para. 19. 106 See, e.g., CARMODY, “When ‘Cultural Identity Was not at Issue’: Thinking About Canada – Certain Measures Concerning Periodicals”, Law and Policy in International Business, 1999, p. 231 ff.

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GATT,107 or else an entirely new agreement, such as the TRIPS Agreement, under the auspices of the WTO. Other possible solutions include an enabling clause following the example of the 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries,108 which authorises contracting parties to accord differential and more favourable treatment to developing countries on a discriminatory basis, or else a so-called “cultural integration clause” like the one found in Article 151(4) TEC, that would oblige the WTO, and especially its DSB, to take the issue of cultural diversity into account in other areas administered under the auspices of the WTO Agreement. The ﬁnal legal technique would ultimately depend on the concept and scope chosen for the various cultural concerns. The clear advantage of the WTO as the forum for addressing the issue of cultural diversity is the obvious marriage of cultural with economic concerns that is still widely absent in the international legal order. Moreover, since the creation of the WTO, the DSB has shown some growing sensitivity for so-called non-trade issues based on a more coherent interpretation of international treaties other than those administered by the WTO by invoking the Vienna Convention on the Law of Treaties.109 Notwithstanding this progress, the expertise of the WTO for cultural issues naturally remains limited by its constitutional mandate. This inconvenience would argue in favor of a limitation of the scope of such endeavour to the goods and services comprised in the cultural industries.110 For the consideration of a broader scope of cultural diversity, it is precisely the constitutional mandate of UNESCO that would argue for its administration of a standard-setting instrument on cultural diversity.111 On the other hand, the danger implicit in its mandate is that it widely excludes the economic implications and particularly the lack of “teeth” due to the absence of an efﬁcient and rigid dispute

107 See, e.g., NEUWIRTH, “The Cultural Industries and the Legacy of Article IV GATT: Rethinking the Relation of Culture and Trade in Light of the New WTO Round” (Paper presented at the Conference on Cultural Trafﬁc: Policy, Culture, and the New Technologies in the European Union and Canada, Carleton University, 22-23 November 2002), available online at http: //www.carleton.ca/ces/papers/november02/Neuwirth.pdf. 108 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, GATT Doc. L/4903 (28 November 1979), GATT, 26th Supp. BISD, 1980, p. 203. 109 See, e.g., United States – Section 110(5) of the US Copyright Act, Panel Report, Doc. WT/DS160/R of 15 June 2000, mainly at paras. 6.43-6.69, 6.92, 6.166, and 6.200; for the broader trend, see SEROIN, “L’application des regles d’interprétation de la Convention de Vienne sur les droit des traités dans le cadre de l’ALÉ, de l’ALÉNA, du GATT et de l’OMC”, Revue juridique Thémis, 2000, p. 227 ff. 110 For a useful deﬁnition of the cultural industries, see Article 2107 of the NAFTA, cit. supra note 87. 111 But see the EU-Position on the Reform and Development of UNESCO (15 December 1999), available online at http://www.unesco.org/webworld/taskforce21/-documents/eu_reform_en.shtml, criticising inter alia UNESCO’s proliferation of programme activities and, as a result, the loss of its unique proﬁle.

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resolution body, such as the DSB of the WTO. This point is the strongest argument in favour of the creation of an entirely new agency or body in charge of the monitoring, preservation and promotion of cultural diversity. This is precisely what the SAGIT Report suggests, namely, the creation of a Cultural Dispute Resolution Body, which would provide the ﬁrst dispute settlement mechanism in cases that involve the issue of cultural diversity.112 Nevertheless, it could be asked why the wheel needs to be reinvented when such a body could also be established within UNESCO, thereby limiting the danger of a further fragmentation of the international legal order. Moreover, even as a new and independent institution it would still lack the efﬁciency of the WTO DSB based on its economic incentives (i.e. the threat of retaliatory measures) to comply with its rulings. Another danger linked to the constitutional mandate of UNESCO is found in the volatile and elastic meaning the adjective “cultural” adds to any noun. For instance, Yvonne Donders has found for the concept of “a right to cultural identity” that: “It appeared that the right to cultural identity in international law was only possible in a document which is not legally binding (the UNESCO Declaration) or has a limited scope (the Framework Convention). The concept of cultural identity is considered too vague, and the implications of the right are unclear and unpredictable”.113 Per analogiam to cultural identity, a similar fate can therefore be expected for the issue of cultural diversity. These threats of a dubious legal utility and practicability are real whence the correct statement of the desirability of a legally-binding instrument for cultural diversity. As the third and ﬁnal option, a form of inter-agency cooperation or interinstitutional comity could be envisaged. Under such an option one could consider, for example, the possibility of a “preliminary ruling” by a UNESCO panel of experts on cultural diversity each time that measures addressing a set of cultural concerns that ought to be speciﬁed are at stake. It would be also possible to combine elements of the three principal options, such as the creation of a new and independent Centre on Cultural Diversity along the lines of the International Trade Commission (ITC). Such a centre could be afﬁliated with the WTO and UNESCO through agreement and would not only provide technical assistance for the preservation and promotion of cultural diversity but also closely monitor the developments in this ﬁeld and offer its expertise in case of conﬂict or litigation. At this stage, serious thought should also be given to the principle of interinstitutional comity, following the rationale underlying the subsidiarity principle, namely, that competence must 112

SAGIT Report, cit. supra note 2, p. 8. See DONDERS, “The Development of the Right to Cultural Identity in Human Rights Law”, in DONDERS, HENRARD, MEIJKNECHT and TEMPELMAN (eds.), Law and Cultural Diversity, Utrecht, 1999, p. 65 ff., p. 92 f. 113

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be attributed in accordance with the expertise of each international organisation. For cultural diversity this could mean that its human rights aspect, such as the right of access to cultural life, are administered by the competent UN body (i.e. UN Commission on Human Rights), while UNESCO is entrusted with the development of issues related to cultural diversity, such as cultural identity, linguistic diversity, and intangible cultural property. The various aspects of cultural diversity linked to the professional status of artists and creators could be dealt with under the International Labour Organisation. In a ﬁnal step, the World Trade Organisation would be charged with the regulation and adjudication of the issues related to the goods and services included in the concept of the cultural industries. Nonetheless, it is clear that such a model presupposes a relatively strong and well-functioning global institutional framework guaranteeing a high level of effective and coherent interinstitutional cooperation as well as a common administrative culture based on reciprocal participation.

6. CONCLUSION: SUGGESTIONS FOR A EUROPEAN ANSWER At this preliminary stage in the drafting of an international standard-setting instrument on cultural diversity, it must be repeated here that the recent Communication of the Commission marks an important step in the international debate on cultural diversity. Indeed, the experience behind the evolution of the European Union, as shown by reference to a few selected and mostly recent documents drafted by its institutions, seems to have much to offer when presented in a neutral, i.e. globally acceptable, way. In turn, the international debate on cultural diversity provides useful insights and incentives for the organisation of the EU’s internal affairs. In sum, in a global environment, external and internal affairs must be considered to be entangled in a constructive dialectical process of mutual enrichment. From the concept of cultural diversity, it derives further that numerous possibilities exist for the achievement of the objectives linked to an international standard-setting instrument on cultural diversity. The main purpose in this note is to point out a few of the main options while especially following the underlying meaning attached to “culture”, i.e. the holistic strive for reﬁnement. From this it derives that each choice needs to be evaluated carefully for possible consequences within the broader context. It cannot be excluded, or rather it remains to be hoped, that more ambitious projects, such as a long anticipated reform of the UN system as the framework for the international legal order, will emerge from the current debate. Based on its own experience, the European contribution to the current efforts towards such instrument needs to be based on much broader considerations. These considerations must, ﬁrst and foremost, recognise that in order to succeed with noble aspirations they need to materialise in one way or the other. For culture, one way of materialising proceeds through the economics of various goods and services, whence the need for a recognition of the wider culture and trade de-

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bate highlighting the dual economic and cultural aspects attached to the concept of cultural diversity. Second, the contribution must carefully consider the wider context for such an instrument. In times of increasing complexity, relinquishing a new dynamic of causality, solutions must be sought through the perspective of complementarity as opposed to a clear-cut separation or even opposition. Today, based on the drastic changes in our perceptive tools, the awareness that no policy, or any measure, taken in one ﬁeld remains without effects for all residual ﬁelds is expected to be recognised. It is in its inclusive character that the EU’s strength lies. Seen from this angle, the Communication’s contribution to the international debate on cultural diversity is far too modest. Various important aspects linked to cultural diversity, such as the broader nexus between culture and trade, but also, more speciﬁcally, the work of single Directorates and other institutions, such as the realm of competition law, have not been taken into sufﬁcient consideration. Last but not least, as an expression of this assertion, as the guardian of the treaties, the Commission must in all its actions recall its origins in the past when addressing the future. Most unfortunately not enshrined in, or carried over to, the recent Preamble of the future Constitution, the Preamble of the Treaty Establishing the European Coal and Steel Community still recalls that its signatories, the founding fathers, were “Considering that world peace can only be safeguarded by creative efforts commensurate with the dangers that threaten it”.114 More than half a century later, the same reasoning extends mutatis mutandis to the preservation and promotion of cultural diversity.

114 Indent 1 of the Preamble of the Treaty Establishing the European Coal and Steel Community, Paris, 18 April 1951.

THE UNESCO DECLARATION CONCERNING THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE: ONE STEP FORWARD AND TWO STEPS BACK FEDERICO LENZERINI*

1. INTRODUCTION On 17 October 2003 the UNESCO General Conference adopted by consensus the Declaration Concerning the Intentional Destruction of Cultural Heritage.1 Such adoption came at the end of a process which began in the immediate aftermath of the wanton destruction of the Afghan Buddhas of Bamyan perpetrated by the Taliban regime in March 2001.2 Following this event, a study on the international legal implications of such destruction was commissioned by the UNESCO Director-General. A ﬁrst draft of such study was completed in the beginning of 2002; it was then updated and completed in September of the same year.3 In December 2002 an ad hoc meeting of experts was organized by UNESCO, and hosted in Brussels by the Belgian Government.4 The Brussels meeting resulted in a preliminary draft Declaration which was submitted to UNESCO.5 With some * Ph.D., international law; researcher, University of Siena. The writer participated as a member of the Italian delegation at the ﬁrst of the two intergovernmental meetings of negotiations which led to the adoption of the Declaration (on 26 September 2003). Unfortunately he did not have the opportunity to join the last meeting (which took place in October 2003 during the 32nd Session of the General Conference), when the major changes to the original Draft occurred. 1 The full text of the Declaration is available on the UNESCO Web site, at http:// www.unesco.org. 2 This event is recalled in the second sentence of the Preamble of the Declaration. On its international legal implications see FRANCIONI and LENZERINI, “The Destruction of the Buddhas of Bamyan and International Law”, EJIL, 2003, p. 619 ff. 3 See FRANCIONI and LENZERINI, “The Destruction of the Buddhas of Bamyan and International Law”, A study commissioned by UNESCO to Professor Francioni, Department of Public Law, University of Siena, Italy, 2002, on ﬁle with the author (part of this study was later published in the European Journal of International Law; see supra note 2). 4 See Meeting of Experts on the Draft Declaration Concerning the Intentional Destruction of Cultural Heritage, Brussels, Belgium, 9-13 December 2002, UNESCO Doc. 32 C/25 of 17 July 2003, Annex II. Professor Wojciech Kowalski (Poland), Professor Erik Franckx (Belgium), Professor Jiri Toman (Switzerland/the Czech Republic) and Professor Francesco Francioni (Italy) were among the experts who participated at the meeting. 5 See id., paras. 8 ff. It is to be noted that the text included in this document encompasses the modiﬁcations made by the UNESCO Secretariat after the Brussels meeting (see infra in this section and section 3), and it thus does not exactly reﬂect the draft as prepared by the Brussels experts.

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formal revision, aimed at softening the normative character of its text, the draft Declaration was then subject to negotiations, which required the setting up of an ad hoc group composed of State representatives. This group produced a “compromise text” which was ﬁnally submitted to the General Conference in October 2003. Before analyzing the text of the Declaration, it may be useful to brieﬂy examine the general background of international law and practice in the context of which the Declaration is to be situated.

2. THE LEGAL BACKGROUND Traditionally, the international legal movement for the protection of cultural heritage has evolved through two parallel but separate contexts, which relate, respectively, to peacetime and armed conﬂicts. For this reason, it appears opportune to analyse these two contexts separately, and then to concentrate on the interactions which exist between them.

2.1. Prohibition of Intentional Destruction of Cultural Heritage in Peacetime There are several manifestations of international practice which demonstrate the existence of an obligation of customary international law that is binding on all governmental entities6 which maintain control over a given territory, requiring them to refrain from performing acts of wilful destruction on cultural heritage of outstanding value located in such a territory during peacetime.7 Even in 1935, the Roerich Pact, a regional treaty concluded between the USA and other American States, proclaimed the principle that museums, monuments, and scientiﬁc and cultural institutions are to be protected as part of “common heritage of all people”.8 This principle has been incessantly reafﬁrmed by UNESCO since the early 1950s, in several pertinent recommendations9 and international binding legal instruments.

6 International practice in the ﬁeld of State responsibility clearly demonstrates that the recognition of a governmental entity as internationally responsible is mainly based on the substantive element of effective territorial sovereignty, and not on the formal recognition of statehood by the other members of the international community or in the context of international organizations; see FRANCIONI and LENZERINI, cit. supra note 2, p. 629 f. 7 See, in this sense, ibid., p. 630 ff. 8 See Treaty on the Protection of Artistic and Scientiﬁc Institutions and Historic Monuments, Washington, 15 April 1935, available at http://www.icrc.org/ihl.nsf. 9 For a detailed examination of the relevant part of these recommendations, see FRANCIONI, “Principi e criteri ispiratori per la protezione internazionale del patrimonio culturale”, in FRANCIONI, DEL VECCHIO and DE CATERINI (eds.), Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio comune della cultura, Milano, 2000, p. 14 f.; the author of this article rightly notes that the relevance of these recommendations, for the

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These include the Preamble of the 1954 Hague Convention on the protection of cultural property in the event of armed conﬂicts10 and, more speciﬁcally, the 1972 World Heritage Convention, whose Preamble proclaims the existence of a universal interest in the protection of cultural heritage: “[T]he existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong […] [P]arts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole […] [I]t is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value”.11 In addition, even the UNESCO Convention on the Protection of the Underwater Cultural Heritage recognizes that such heritage (which is part of the World’s cultural heritage) is “an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage”.12

formation of a customary norm in the ﬁeld, is given by their reiteration and by the fact that they are adopted by the UNESCO General Conference, which represents almost all members of the international community. Among the relevant recommendations, see the 1956 UNESCO Recommendation on International Principles Applicable to Archeological Excavations, available at http://www.unesco.org/culture/laws/archeological/html_eng/page1.shtml, in particular the fourth sentence of the Preamble; 1972 UNESCO Recommendation concerning the Protection, at National Level, of The Cultural and Natural Heritage, available in the UNESCO Web site, at http://www.unesco.org/culture/laws/national/html_eng/page1.shtml, whose Preamble states that “every country in whose territory there are components of the cultural […] heritage has an obligation to safeguard this part of mankind’s heritage and to ensure that it is handed down to future generations” and that “knowledge and protection of the cultural […] heritage in the various countries of the world are conducive to mutual understanding among the peoples”. See also Article 1 of the UNESCO Universal Declaration on Cultural Diversity, 2 November 2001, available at http://www.unesco.org/confgen/press_rel/021101_clt_diversity.shtml. 10 The text of the Convention and of its 1954 and 1999 Protocols is available in the UNESCO Web site, at http://www.unesco.org. In particular, the Preamble of the Convention states that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”, and that “the preservation of the cultural heritage is of great importance for all peoples of the world and […] it is important that this heritage should receive international protection”. 11 See 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, available at http://www.unesco.org/whc/world_he.htm, sixth, seventh and eighth sentences of the Preamble. 12 See the second sentence of the Preamble. The full text of the Convention is available at http://www.unesco.org/culture/laws/underwater/html_eng/convention.shtml.

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The reiterative character of the practice referred to above, in conjunction with the authoritative nature of UNESCO recommendations (which represent almost the totality of nations) and the high rate of ratiﬁcation to the World Heritage Convention,13 provides clear “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it”.14 Thus, it proves the existence in the international community of a general opinio juris on the binding character of the prohibition of acts of deliberate destruction of cultural heritage of major value for humanity.15 This conclusion is reinforced by the unanimous and unequivocal condemnation expressed by the entire international community with regard to the wanton destruction of the giant Afghan Buddhas of Bamyan perpetrated by the Taliban regime in March 2001.16 In May of the same year, focusing on the religious character of many cultural sites (such as the Buddhas of Bamyan), the UN General Assembly, after having condemned “all acts of threats of violence, destruction, damage or endangerment, directed against religious sites as such, that continue to

13 The 1972 World Heritage Convention has been ratiﬁed by 177 States (updated 28 November 2003); see http://www.unesco.org/whc/nwhc/pages/doc/main.htm. 14 See International Court of Justice, North Sea Continental Shelf Cases, Judgement of 20 February 1969, ICJ Reports, 1969, p. 44, para. 77. 15 See, in this sense, FRANCIONI and LENZERINI, cit. supra note 2, p. 636. The authors add that “[t]his conclusion is reinforced by the fact that protection of cultural heritage as a matter of public interest, and not only as part of private property rights, is recognized in most of the mature domestic legal systems of the world. No civilized State, in the sense of Article 38(c) of the Statute of the International Court of Justice, recognizes the right of the private owner of an important work of art to destroy it as part of the exercise of a supposedly unlimited right of private property. Catalogue and inventory of national treasures are generally intended to limit such private rights in view of safeguarding the public interest to the conservation and transmission of the cultural patrimony to future generations”; this practice reﬂects the global perception of the objective intrinsic value of cultural heritage, which transcends any kind of “private” power, both individual property or national sovereignty, in view of the need to safeguard the collective interest to its preservation. Contra, see O’KEEFE, “World Cultural Heritage: Obligations to the International Community as a Whole?”, ICLQ, 2004, p. 189 ff., p. 208. See also the view expressed by WANGKEO, “Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime”, Yale JIL, 2003, p. 183 ff.; according to this author, relevant practice “indicate[s] that it would be lawful to destroy relics if doing so would help the state meet basic survival needs or improve people’s way of life […]. In contrast, […] it would not be lawful to destroy or negatively affect cultural heritage for iconoclastic reasons” (p. 273). Although at ﬁrst sight this position may appear quite peculiar, it could be interpreted as implying the fact that the destruction of a cultural asset may be considered lawful when (and only when) a preventive assessment of the value of the good to be destroyed and the degree of improvement that would be attained with regard to another fundamental value by means of the destruction (i.e. enhancement of living conditions and/or enjoyment of human rights) demonstrates that the latter supersedes the former; such an interpretation seems to be conﬁrmed by the fact that, at the very end of the same article, the author states that “there should be a presumption against destroying relics […] and […] the needs of living people should always come ﬁrst” (ibid., p. 274). There is no doubt that, in principle, this latter sentence should inform the implementation of any international legal provision. 16 See, more comprehensively, FRANCIONI and LENZERINI, cit. supra note 2, p. 621.

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occur in the world”,17 called “upon all States to exert their utmost efforts to ensure that religious sites are fully respected and protected in conformity with international standards and in accordance with their national legislation and to adopt adequate measures aimed at preventing such acts or threats of violence […]”.18 Similar statements of condemnation were pronounced by, inter alia, UNESCO, ICOMOS, other international organizations and many individual States.19

2.2. Prohibition of Intentional Destruction of Cultural Heritage in the Event of Armed Conﬂicts Another customary principle which relates to the prohibition of acts of destruction against cultural heritage operates during armed conﬂicts. The existence of this principle can be based on a constant and unambiguous practice developed in the context of international law, and it is thus generally accepted by scholars.20 This practice is almost one century old, since its ﬁrst relevant example can be traced back to 1907, when the Hague Conventions on land warfare and on naval bombardment afﬁrmed the principle that historic monuments and buildings dedicated to art and science ought to be spared of military violence.21 It has been constantly restated since 1945, when the Nuremberg Military Tribunal stated that, given the transposi-

17

See “Protection of religious sites”, GA Res. 55/254 of 31 May 2001, para. 1. Id., para. 2. 19 See FRANCIONI and LENZERINI, cit. supra note 2, p. 636. 20 See NAHLIK, “La protection internationale des biens culturels en cas de conﬂit armé”, RCADI, Vol. 120, I, 1967, p. 65 ff., pp. 89 and 145; FRIGO, La protezione dei beni culturali nel diritto internazionale, Milano, 1986, p. 62 ff.; FRANCIONI, “Patrimonio comune dell’umanità, sovranità e conﬂitti armati”, Studi Senesi, 1992, p. 7 ff., p. 13 ff.; MEYER, “The 1954 Hague Cultural Property Convention and Its Emergence into Customary International Law”, Boston University International Law Journal, 1993, p. 349 ff., p. 362; MOSE, “The Destruction of Churches and Mosques in Bosnia-Herzegovina: Seeking a Rights-Based Approach to the Protection of Religious Cultural Property”, Buffalo Journal of International Law, 1996, p. 180 ff., p. 184 f.; KASTENBERG, “The Legal Regime for Protecting Cultural Property During Armed Conflict”, Air Force Law Review, 1997, p. 277 ff.; LIPPMAN, “Art and Ideology in the Third Reich: The Protection of Cultural Property and Humanitarian Law of War”, Dickinson Journal of International Law, 1998, p. 1 ff., p. 97; CARDUCCI, “L’obligation de restitution des biens culturels et des objects d’art en cas de conﬂit armé: droit coutumier et droit coventionel avant et après la Convention de La Haye de 1954”, RGDIP, 2000, p. 289 ff.; FRANCIONI and LENZERINI, cit. supra note 2, p. 636 ff.; GIOIA, “The Development of International Law relating to the Protection of Cultural Property in the Event of Armed Conﬂict: The Second Protocol to the 1954 Hague Convention”, IYIL, 2001, p. 25 ff., p. 26. 21 See respectively Articles 27 and 56 of the Regulations annexed to the Hague Convention IV (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) and Article 5 of the Convention (IX) concerning Bombardment by Naval Forces in Time of War, both available at http://www.icrc.org/ihl.nsf. 18

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tion, by 1939, of the main principles proclaimed by the 1907 Hague conventions into customary international law, the pillage of public and private property had been recognized as a crime prior to the entry into force of the Charter of London (the Statute of the Tribunal). Consequently, those who were prosecuted for those kinds of acts, even if committed before the entry into force of the Charter, could not invoke the principle of the prohibition of retroactive punishment.22 With the same premise in mind, an identical conclusion would be reached with regard to the deliberate destruction of cultural heritage (as included in the concept of public or private property), since both pillage and destruction are acts of dominion over an object which presupposes the exercise of the same degree of power over the object itself. In the second half of the Twentieth Century, the principle in point was ﬁrst reafﬁrmed by the 1954 Convention on the protection of cultural property in the event of armed conﬂicts,23 which speciﬁcally deals with the prohibition of acts of destruction perpetrated in wartime against cultural heritage, and, afterward, by the 1977 Protocols to the 1949 Geneva Conventions on humanitarian law.24 In more recent times, the same concept has been reiterated by Article 20(e)(iv) of the 1996 International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind, which includes among war crimes all acts of “seizure of, destruction of or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science”,25 followed by the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), whose Article 3(d) includes the acts of “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” among the violations of the law or customs of war.26 According to the Tribunal, the act of destruction or wilful dam-

22 See United States v. Carl Krauch, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. 7, 1952, p. 1081 ff., p. 1131; United States v. Alfried Krupp et al., Trials of War Criminals Before the Nuremburg Military Tribunals Under Control Council Law No. 10, Vol. 9, 1950, p. 1327 ff., p. 1340. See, more comprehensively, LIPPMAN, cit. supra note 20, p. 49 f. 23 See supra note 10. 24 See Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conﬂicts (Protocol I), UNTS, Vol. 1125, p. 5, whose Article 53 states that “[w]ithout prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conﬂict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals”. See also, with an almost identical content (except that for the reference to reprisals), Article 16 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts (Protocol II), UNTS, Vol. 1125, p. 609. 25 The text of the Draft Code is available at http://www.un.org/law/ilc/texts/dcode.htm. 26 The text of the Statute is available at http://www.un.org/icty/basic/statut/statute.htm.

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age to institutions dedicated to religion “has […] already been criminalized under customary international law”.27 The Tribunal also held that the criminal character of deliberate acts of destruction of cultural heritage (of religious character) during armed conﬂicts may be founded not only on Article 3(d) of the Statute (and on the corresponding customary provision), but even in Article 5(h) (which deals with the concept of “crimes against humanity”, that it is also the object, in equivalent terms, of customary provisions), in the sense that the conduct in point, “when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of ‘crimes against humanity’, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects”.28 Furthermore, in a case regarding the shelling of the old town of Dubrovnik perpetrated by the Yugoslav Forces (JNA) on 6 December 1991, the Tribunal held that “the crime of destruction or wilful damage done to institutions dedicated to religion, charity, education, and the arts and sciences, and to historic monuments and works of art and science […] represents a violation of values especially protected by the international community”,29 adding that “[t]he shelling attack on the Old Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of humankind”,30 and that, “since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town”.31 Finally, a prohibition of deliberate acts of destruction against cultural heritage in wartime is included in the Statute of the International Criminal Court, whose Articles 8(b)(ix) and 8(c)(iv), concerning, respectively, international and non-international armed conﬂicts, deﬁne as war crimes any intentional attack directed, inter 27 See Prosecutor v. Dario Kordic and Mario Cerkez, Judgment of 26 February 2001, available at http://www.un.org/icty, para. 206. 28 Id., para. 207. Generally on the practice of the ICTY in the ﬁeld of protection of cultural heritage see ABTAHI, “The Protection of Cultural Property in Time of Armed Conﬂict: The Practice of the International Criminal Tribunal for the Former Yugoslavia”, Harvard Human Rights Law Journal, 2001, p. 1 ff. 29 See Prosecutor v. Miodrag Jokiü, Judgment of 18 March 2004, available at http:// www.un.org/icty, para. 46 (emphasis added). 30 Id., para. 51 (emphasis added). The Tribunal also added that “the Old Town was a ‘living city’ […] and the existence of its population was intimately intertwined with its ancient heritage. Residential buildings within the city also formed part of the World Cultural Heritage site, and were thus protected” (ibid.). 31 Id., para. 53. The Old Town of Dubrovnik is inscribed in the UNESCO World Heritage List since 1979 (see http://whc.unesco.org/sites/95.htm); the Tribunal took into consideration this special status for deﬁning and evaluating the gravity of the crime committed by the defendant (ibid., para. 67).

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alia, against buildings dedicated to religious, educational, artistic or humanitarian purposes, or historical monuments.32 A possible objection could be raised with regard to the scope of applicability of the customary principle which prohibits the deliberate destruction of cultural heritage in wartime, in the sense that one could argue that such applicability should be limited only to international armed conﬂicts, and its scope could not be extended to non-international wars. This objection, however, clearly appears poorly founded to anyone who takes into account the most recent developments in the ﬁeld of humanitarian law. As a matter of law, the main principles of humanitarian law (including the prohibition of deliberate destruction of cultural heritage) that were originally applicable only in the event of an international armed conﬂict, have now extended their scope also to internal wars. This is demonstrated by the 1999 Second Protocol to the 1954 Hague Convention33 as well as by the Statutes of the ICTY,34 the International Criminal Tribunal for Rwanda (ICTR),35 the International Criminal Court,36 and the Special Court for Sierra Leone.37 With regard particularly to the subject matter of the present article, the coincidence between international and non-international armed conﬂicts has also been pointed out by the ICTY in the leading Tadic case: “The emergence of international rules governing internal strife has occurred at two different levels: at the level of customary law and at that of treaty law. Two bodies of rules have thus crystallised, which are by no means conﬂicting or inconsistent, but instead mutually support and supplement each other. Indeed, the interplay between these two sets of rules is such that some treaty rules have gradually become part of customary law. This holds true for common Article 3 of the 1949 Geneva Conventions […] but also applies to Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conﬂict of 14 May 1954 […]”.38 32

For the text of the Statute, see ILM, 1998, p. 999 ff. See Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conﬂict, cit. supra note 10, particularly Article 22(1). 34 See supra note 26. 35 See Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, 8 November 1994, available at http://www.ictr.org. 36 See supra note 32. 37 See Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002, available at http://www.icrc.org/ihl.nsf. 38 See Prosecutor v. Dusko Tadic (Appeals Chamber, 2 October 1995), ILM, 1996, p. 32, para. 98. Article 19 of the 1954 Hague Convention (see supra note 10) extends the protection provided for by the Convention itself with regard to cultural property to the case “of an armed 33

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2.3. The Interactions between the Prohibition of Destruction of Cultural Heritage in Peacetime and in the Event of Armed Conﬂicts As it emerges from the two previous subsections, acts of intentional destruction of cultural heritage like those perpetrated by the Taliban regime against the giant Buddhas of Bamyan (to refer to the most infamous example of deliberate devastation of cultural assets that has occurred in recent times) may fall into the classiﬁcation of customary prohibition of wanton destruction of cultural assets both if committed in the event of armed conﬂict or in peacetime.39 This conclusion is strengthened by the interrelation existing between these two customary provisions, since the existence of a customary norm which prohibits the commission of acts of destruction of cultural assets in wartime reinforces the strength of the corresponding principle applicable in times of peace. In fact, if the perpetration of an act of destruction is prohibited during an armed conﬂict, when destruction is inherent to the management of war operations, a fortiori it should be especially prohibited in times of peace, when it could not even be justiﬁed by the possible defence according to which, theoretically, a necessity could arguably exist to inﬂict on the enemy a moral mortiﬁcation intrinsic to the global military strategy pursued by a warring faction. In times of peace, for obvious reasons, the degree of respect for the rule of law is higher than in wartime, and it would be nonsensical to maintain that intentional acts of damage to cultural assets are allowed in times of peace and become prohibited as soon as a war occurs. The most important objection to this logical argument resides in the identity of the holder of the title of sovereignty over the destroyed cultural asset, in the sense that, while in times of war the unlawful character of the destruction would rest in the fact that the act is committed against an asset belonging to a sovereign State different from the acting one, in times of peace it would be lawful because it is carried out by the territorial State against a property which is located in its territory, and is thus subject to its exclusive sovereign power. Nevertheless, this argument is inconsistent with at least two principles: ﬁrstly, it is not compatible with the recognized universal value of cultural heritage, which transcends any kind of “private” power, both individual property or national sovereignty, in view of the need to safeguard the collective interest to its preservation. Secondly, the fact that the customary prohibition of deliberate destruction of cultural assets in wartime also extends to internal armed conﬂicts deﬁnitely demonstrates that a State may not dispose of its own cultural heritage in such an extensive way so as to have the legal title of annihilating the heritage itself. Indeed, even the conﬂict not of an international character occurring within the territory of one of the High Contracting Parties […]”. 39 In the case of the Buddhas of Bamyan both situations existed, since at the relevant time Afghanistan was upset by a civil war between the Taliban regime and the armed factions led by the former President Rabbani. See FRANCIONI and LENZERINI, cit. supra note 2, p. 621 ff. Contra, see O’KEEFE, cit. supra note 15, p. 195.

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case of a legitimate government which, in the event of an internal conﬂict occurring in its territory, destroys a cultural asset belonging (from a social or anthropological point of view) to its enemy faction, must be considered as included in the above prohibition, since relevant international law does not allow any distinction among the possible acts of destruction of cultural objects during non-international armed conﬂicts, nor contemplates any possible interference with the scope of such principle that may be produced by the factual characteristics inherent to a given situation (except in the case that the relevant cultural assets are used for military purposes).

3. THE NEGOTIATIONS LEADING TO THE DECLARATION After the Brussels meeting of the group of experts of December 2002, the successive negotiations leading to the adoption of the UNESCO Declaration on intentional destruction of cultural heritage followed an unusual procedure, since the Draft Declaration was never discussed by the Plenary Conference, but only by a strictly limited group of Member States. A ﬁrst informal intergovernmental meeting took place in Paris on 26 September 2003. The draft text that was submitted to the few delegations involved in this meeting signiﬁcantly diverged from the one elaborated by the Brussels experts, as the word “shall”, previously included in a number of provisions relating to the duties of member States, had been replaced with the term “should” by the UNESCO Secretariat. The meeting did not produce any concrete outcome, since the State-oriented position supported by the majority was strongly opposed by some participants (namely Belgium, Italy and Hungary), that were oriented towards the adoption of a text emphasizing the relevance of cultural heritage as a value belonging to humanity as a whole as well as, at the same time, attributing signiﬁcance to local communities which reﬂect their identity in their own cultural heritage. The second round of negotiations, also involving a limited number of UNESCO members, took place in October 2003, during the work of the General Conference. At that stage the State-oriented vision of certain members prevailed, and some major changes to the text originally drafted by the Brussels experts were made. The Draft text was submitted for the ﬁrst time to the Plenary Conference on the day scheduled for the adoption of the Declaration, with no time left for further discussion. The Draft was thus adopted as it was. This course of action raises serious doubts as to whether the content of the Declaration actually reﬂects the feeling of the international community concerning its subject matter.

4. THE DECLARATION: A CRITICAL APPRAISAL As it emerges from the evolution which led to the adoption of the Declaration, it had originally been conceived as a ﬁrm and unconditioned condemnation of any

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act of deliberate destruction of cultural heritage, emphasizing the fact that such acts constitute an intolerable offence to the international community as a whole. To use a euphemism, the Declaration expresses this principle quite softly, simply pointing out that “[t]he international community recognizes the importance of the protection of cultural heritage” (Article I). In addition, it is quite clear that, from a legal point of view, the main purpose which should have been pursued by the Declaration was to condemn the acts of destruction of cultural heritage perpetrated in the territory of the acting State, pursuant to the idea according to which such heritage constitutes a value transcending its territorial location and belonging to the humanity as a whole. As a matter of law, there was no need to create a legal instrument condemning such kinds of acts when performed in the territory of another country; it is well known that this course of action was already prohibited by international law, since it constitutes an intolerable violation of the sovereignty of the territorial State. Article III(1) of the Declaration points out that “States should take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located”.40 Although this latter sentence actually includes the acts of destruction perpetrated by a State in its own territory, this principle was not explicitly mentioned in the provision nor was it expressed with due emphasis, strongly impairing the effective signiﬁcance of the whole Declaration. In addition, the provision in point, as well as the near totality of the other provisions included in the Declaration, is further weakened by the use of the term “should”. Such term is totally unnecessary in a declaration of principles, since by its soft-law nature this kind of instrument is not capable of creating international obligations of binding character, and the frequency of its use in the Declaration on the intentional destruction of cultural heritage clearly demonstrates that the main preoccupation of most of the negotiators was to preserve their domestic interests rather than to produce an instrument having the effective scope of safeguarding a value belonging to the international community as a whole. Despite the constant use of the conditional “should”, Article III also requires States, to “adopt the appropriate legislative, administrative, educational and technical measures, within the framework of their economic resources, to protect cultural heritage” and to “revise them periodically with a view to adapting them to the evolution of national and international cultural heritage protection standards”. In addition, States are also called to “endeavour, by all appropriate means, to ensure respect for cultural heritage in society, particularly through educational, awareness-raising and information programmes”, and to endorse the reinforcement of the legal regime of protection of cultural heritage both at the international and national level.41 Also, Article V reiterates the rule, crystallized in general international law, 40

Emphasis added. Article III(4) states that “States should: (a) become parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conﬂict and its two 1954 and 1999 Protocols and the Additional Protocols I and II to the four 1949 Geneva Conventions, if they 41

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concerning the obligation of safeguarding cultural heritage in the event of armed conﬂict, stating that “States should take all appropriate measures to conduct their activities in such a manner as to” respect such obligation, consistently with relevant international law. Articles VI and VII, which respectively deal with State responsibility and individual criminal responsibility, are undoubtedly the most signiﬁcant provisions of the Declaration. According to the ﬁrst one, “[a] State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity, whether or not inscribed on a list maintained by UNESCO or another international organization, bears the responsibility for such destruction, to the extent provided for by international law”. Article VII requires States (using, of course, the conditional “should”) to “establish jurisdiction over, and provide effective criminal sanctions against, those persons” responsible for acts of intentional destruction of cultural heritage. Unfortunately, the signiﬁcance of these provisions is seriously impaired by the fact that both were eventually deprived of a sentence, included in the original Draft, according to which they would have applied also when the acts of destruction regarded “such cultural heritage which is of special interest for the community directly affected by such destruction”;42 the deletion of this sentence represents a serious regression of the UNESCO policy in the ﬁeld of cultural diversity, whose signiﬁcance43 is based, inter alia, on the fact that international importance of cultural heritage may not only be linked to its possible outstanding universal value, but also on its particular relevance for the people that created and maintained it. In addition, Article VII was also deprived of the reference to the application of the principle of universal jurisdiction with regard to the perpetrators of acts of deliberate destruction of cultural heritage, which was originally included in the draft text elaborated by the Brussels experts.44 have not yet done so; (b) promote the elaboration and the adoption of legal instruments providing a higher standard of protection of cultural heritage; and (c) promote a coordinated application of existing and future instruments relevant to the protection of cultural heritage”. 42 See UNESCO Doc. 32 C/25 of 3 October 2003, on ﬁle with the author. 43 See the 2001 UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9. 44 Article VII, as elaborated by the Brussels experts, was divided into two parts, and stated as follows: “1. UNESCO Member States should take all necessary steps, in accordance with international law, to establish jurisdiction over, and provide effective penal sanctions for those persons who commit or order to be committed acts of intentional destruction of cultural heritage of great importance for humanity, including such cultural heritage which is of special interest for the community directly affected by such destruction. 2. For the purposes of a more comprehensive protection, each UNESCO Member State is encouraged

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The last three articles relate, respectively, to the necessity of promoting cooperation between States for the protection of cultural heritage (Article VIII), to the consistency of the Declaration with the principles on human rights and international humanitarian law (Article IX),45 and to the opportunity of ensuring “the widest possible dissemination of this Declaration to the general public and to target groups, inter alia, by organizing public awareness-raising campaigns” (Article X). After its adoption, the content of the Declaration was criticized by a number of States; their observations were put on the records of the General Conference. Italy, for example, supported by Hungary, expressed its regret “that the consensual text agreed upon was not sufﬁciently advanced”46 and “wished that UNESCO would engage in a more binding legal text on the intentional destruction of cultural heritage in the near future, particularly on account of the fact that the scope of most of its provisions was weakened during the ﬁnal steps of its preparation”.47 In addition, Belgium, Hungary and Italy expressed “their regrets about the deletion of the reference to the cultural heritage ‘of special interest for the community affected by its destruction’ under articles VI and, in particular, VII of the text, thus weakening the weight of the Declaration”.48

5. CONCLUSION No doubt the UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage represents a step forward in the context of the international protection of cultural heritage, by the very fact of its own adoption and existence. Also, the idea underlying the Declaration constitutes a welcome progress in the framework of international law. At the same time, nevertheless, its content shies away from the required progress in international law that inspired the Declaration (in a word, from its own rationale). In certain ways it may even be seen as a regression if compared with the recent evolution of the matter in international practice, since it does not adequately acknowledge the most relevant outcomes achieved by the to take all necessary steps, in accordance with international law, to establish jurisdiction over, and provide effective penal sanctions for those persons who are found present on the territory of this State, regardless of their nationality and the place where such act occurred, who commit or order to be committed acts referred to in Paragraph 1 of this Article”. See supra note 5. 45 Article IX states that, “[i]n applying this Declaration, States recognize the need to respect international rules related to the criminalization of gross violations of human rights and international humanitarian law, in particular, when intentional destruction of cultural heritage is linked to those violations”. During the meeting of 26 September 2003, a couple of delegates proposed to use the term “should” even with regard to this provision; the strong opposition of Italy prevented the Declaration from stating that States “should” respect human rights and humanitarian law. 46 The text of the Italian statement condensed the oral intervention made by the Italian delegate Professor Francioni at the Conference. The text is on ﬁle with the author. 47 Id. (emphasis added). 48 Id.

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development of such practice, ultimately represented by the unanimous condemnation by the whole international community of the deliberate destruction of the Buddhas of Bamyan as well as by the growing relevance attained by the protection of cultural heritage in the context of international criminal law. This development demonstrates that the process started at the beginning of the Twentieth Century, which has progressively increased the level of protection of cultural heritage in the framework of the international legal order, has today reached its completion, leading to a signiﬁcant evolution of the matter in the context of customary law. In particular, the general perception of the universal signiﬁcance of cultural heritage as a value belonging to the international community as a whole (and, as such, transcending national interests) has developed. Thus, the signiﬁcance of cultural heritage is at present perceived not only as a value for the very identity of the people which created it, but also as one of the building blocks in the construction of the international concept of cultural diversity, which has come to be recognized as “the common heritage of humanity and should be recognized and afﬁrmed for the beneﬁt of present and future generations”.49 The management by a State of a cultural asset of signiﬁcant value which is located in its territory has thus emerged from the area of domestic jurisdiction and has been raised to the level of “common concern of mankind”,50 founded in the concept of erga omnes obligations, which safeguard the interests of the international community as a whole.51 As a consequence, an obligation exists in contemporary international law binding States to ensure, both in peacetime and in the event of armed conﬂict, the preservation of cultural assets of relevant value for their intrinsic historic, social, anthropological, aesthetic and, in a word, cultural signiﬁcance. States that commit deliberate acts of destruction

49 See UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9, Article 1. On the value of cultural diversity in contemporary international law, see LENZERINI, “Riﬂessioni sul valore della diversità culturale nel diritto internazionale”, CI, 2001, p. 671 ff. 50 The concept of “common concern of mankind” is especially used in the ﬁeld of environmental protection, particularly by the Convention on climate change (United Nations Framework Convention on Climate Change, 1992, available at http://unfccc.int/resource/conv/conv.html, Preamble) and by the Biodiversity Convention (see Convention on Biological Diversity, 1992, available at http://www.biodiv.org, Preamble). See BASLAR, The Concept of the Common Heritage of Mankind in International Law, The Hague, 1998; with reference to cultural heritage see FRANCIONI, cit. supra note 20, p. 7 ff. 51 The principle of erga omnes obligations was proclaimed by the International Court of Justice in the Barcelona Traction, Light and Power Co. case (ICJ Reports, 1970, p. 3), which stated that “an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the ﬁeld of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination” (para. 33-34).

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or damage against their own cultural heritage violate customary international law, which prohibits such acts both in the event of armed conﬂict and in times of peace, and are thus internationally responsible (before any other State and the relevant international organizations) for having breached a common value belonging to the international community as a whole. When faced with this remarkable progress, the UNESCO Declaration appears to be a rather slight document and it even falls short of reﬂecting current practice, construing all the relevant State obligations as feeble duties and omitting to include references to principles of extreme importance (e.g., the reference to cultural heritage having special relevance for the community specially affected by its destruction). In light of this, even if we concede that the Declaration, for its own existence, has delivered modest progress, we cannot ignore the fact that UNESCO has lost a precious occasion for using the momentum created by the destruction of the Buddhas of Bamyan in order to bring about a signiﬁcant improvement in the framework of the international protection of cultural heritage.

THE ESTABLISHMENT OF THE SECRETARIAT OF THE ANTARCTIC TREATY PATRIZIA VIGNI*

On 16 June 2003, the XXVI Antarctic Treaty Consultative Meeting (ATCM), held in Madrid, established the Secretariat of the Antarctic Treaty (hereafter the Secretariat). This can be considered the most important achievement of the Antarctic Treaty System (ATS) since the adoption of the Madrid Protocol on Environmental Protection in 1991.1 The establishment of the Secretariat is another manifestation of the ability of the ATS to develop progressively from a basic treaty framework to a complex quasi-institutional regime.2 The need for an organ to support the Antarctic Treaty Consultative Parties (ATCPs) in the organisation of the ATCMs and to provide a permanent link between the Parties in the intersessional periods had been stressed by some ATCPs since the beginning of the 1980s. In order to understand better how the XXVI ATCM managed to establish the Secretariat, it is useful to begin with a brief account of the negotiating history.3 The formal negotiations for the creation of such an organ started at the XVII ATCM, held in Venice in 1992, under the chairmanship of Professor Francesco Francioni, professor of international law at the University of Siena and member of the Italian Delegation. This meeting established a working group, which was aimed at instituting the Secretariat and that was able to present a draft document two years later. This document was annexed to the Final Report of the XVIII ATCM, held in Kyoto in 1994, and established some articles concerning the legal capacity, functions and ﬁnancial scheme of the Secretariat.4 However, due to the opposition of some Parties (in particular, the United Kingdom) with regard to the possibility of establishing the permanent seat of the Secretariat in Buenos Aires, the negotiations were interrupted until the XXIV ATCM, held in St Petersburg in 2001, when the *

Researcher, University of Siena. Adopted in Madrid on 4 October 1991, ILM, 1991, p. 1455 ff. 2 For an overview of the new trends of the ATS toward a form of partial institutionalisation, see FRANCIONI, “A Decade of Development in Antarctic International Law”, in FRANCIONI and SCOVAZZI (eds.), International Law for Antarctica, 2nd ed., The Hague, 1996, p. 1 ff., and GAUTIER, “Institutional Developments in the Antarctic Treaty System”, ibid., pp. 31-47. 3 For an overall analysis of the negotiations relating to the establishment of the Antarctic Treaty Secretariat, see SCOTT, “Institutional Developments within the Antarctic Treaty System”, ICLQ, 2003, pp. 473-487. 4 A further elaboration of the possibility of establishing a secretariat of the Antarctic Treaty results in a doctrinal work of Professor Francioni. See FRANCIONI, “Establishment of an Antarctic Treaty Secretariat: Pending Legal Issues”, in VIDAS (ed.), Implementing the Environmental Protection Regime for the Antarctic, Dordrecht, 2000, p. 125 ff., pp. 132-140. 1

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British Delegation (the most long-lasting objector) announced that its government intended to join consensus.5 Once the seat of the Secretariat was agreed, it was necessary to address the difﬁcult questions regarding the status, functions and ﬁnancing of the Secretariat. The interest of the ATCPs in the creation of the Secretariat is patently shown by the fact that, after the St Petersburg meeting, intense negotiations immediately started in order to achieve this goal within a short time period.6 An informal meeting was organized by Argentina in June 2002 in Buenos Aires. Italy continued to play an active role and Professor Francesco Francioni was appointed as the Chairman of the meeting. The Consultative Parties highlighted the essential issues concerning the Secretariat: 1) the constitutive instruments; 2) the legal personality and/or capacity of the Secretariat; 3) its functions; 4) the ﬁnancing mechanism; and 5) the privileges and immunities that had to be ensured to the Secretariat’s staff in the host country by a headquarters agreement (HQA). With regard to the issue of the form of the constitutive instruments, the ATCPs took into consideration quite a large range of possible acts.7 Some Parties thought that it was necessary to adopt a speciﬁc protocol since the creation of the Secretariat implied the establishment of a new international entity. Against this view, other Parties pointed out that the aim of the Antarctic Treaty was not to establish an international organisation for Antarctica. Thus, the Secretariat would never have been an international entity. Evidently, the choice of the constitutive instrument of the Secretariat was strongly related to the issue of the legal personality or capacity of the Secretariat and the legal status of the ATS itself. Although the recognition of the international personality of the Secretariat could provide it more power and independence, it was evident that the ATCPs did not intend to recognise the full international legal capacity of the Secretariat.8 This conclusion can also be inferred from the types of functions that the Parties proposed to attribute to the Secretariat. Such 5 In St Petersburg, the XXIV ATCM adopted Decision 1(2001) which conﬁrmed that the Secretariat would have its seat in Buenos Aires and stressed the urgent need to pursue the development of modalities and agreements for its establishment, in US Department of State, The Handbook of the Antarctic Treaty System (hereafter Antarctic Handbook), 9th ed., Washington DC, 2002, p. 133. 6 One of the most important occasions, where the issue of the establishment of the Antarctic Treaty Secretariat was discussed, was the international conference, held at Wilton Park (UK) in November 2001 and entitled “40 Years On: The Antarctic Treaty System in the 21st Century”. This conference was organised by the Fridtjof Nansen Institute of Oslo and the Polar Regions Section of the UK Foreign and Commonwealth Ofﬁce for the fortieth anniversary of the entry into force of the Antarctic Treaty. Some important papers were presented to disseminate information about the ATS. See FRANCIONI, “The Antarctic Treaty Secretariat: What Will Be Its Role and Responsibilities?”. The papers of the Wilton Park’s conference have not been published. The present author is grateful to Professor Francioni for having provided her a copy of his contribution. 7 See FRANCIONI, cit. supra note 4, pp. 132-135. 8 See FRANCIONI, cit. supra note 6.

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functions were of an administrative and operational character rather than a political and decision-based nature. In the view of these Parties, the constitutive instrument should have been a measure adopted under Art. IX(1) of the Treaty, in accordance with the distinction made by Decision 1(1995).9 This decision reorganises the status of the acts, adopted by the ATCM. It distinguishes such acts from each other to form three categories: “Measures”, which become binding after the approval of all ATCPs; “Decisions” that have an operative nature and, thus, are immediately binding; and Resolutions, which have hortatory character only.10 Although it was clear that the adoption of a Measure aimed at establishing the Secretariat would prevent the immediate functioning of this organ, the choice of a Decision was not acceptable from a strictly legal point of view. In fact, the creation of the Secretariat could not be conceived as a measure of purely internal organization of the ATCM; it did require the approval of national governments because of the ﬁnancial commitments that it implied. At the end of the Buenos Aires Meeting it was clear that the proposal of adopting a separate protocol was set aside. In any case, the choice between a Measure and a Decision was still disputed.11 Another issue, which still remained pending at the end of the informal meeting, concerned the entity or the person that should conclude the HQA on behalf of the ATCPs. In international practice, Secretariats usually sign these types of agreements together with the host country. Since the ATCPs did not want to attribute this power to the Secretariat because they considered the recognition of such power a sort of acknowledgment of its international personality, an alternative option was that all the members of the ATCM sign the agreement. This would lead to the odd situation where Argentina should sign the HQA twice, as a member of the ATCM and as the host State. Other Parties suggested that the Chairman of the ATCM should sign the agreement. However, this suggestion evoked strong opposition from those Parties that did not want to consider the ATCM as a separate body with respect to the contracting States. The conclusions of the informal meeting were set down in the Report of the Chairman and were presented as a working paper at the XXV ATCM, held in Warsaw in September 2002.12 The ATCM conﬁrmed Professor Francioni as the Chairman of the Working Group on the Secretariat. The XXV ATCM was of crucial importance to the deﬁnition of a very controversial issue: the legal nature of the constitutive instruments. As afﬁrmed above, it was unclear whether a Measure was more appropriate than a Decision. Such choice could strongly affect the time at which the Secretariat would start to function. For 9

See Antarctic Handbook, cit. supra note 5, p. 130. For an analysis of the object and purpose of Decision 1(1995), see FRANCIONI, cit. supra note 2, p. 12. 11 For a view in favour of the adoption of a Decision establishing the Secretariat in order to accelerate the effective functioning of the Secretariat itself, see SCOTT, cit. supra note 3, p. 487. 12 XXV ATCM/WP 044. 10

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this reason, the Working Group decided to follow a two-step procedure: a Measure would be adopted in order to establish the Secretariat permanently. Simultaneously, such organ would work on the basis of a Decision establishing the provisional application of the Measure. The ATCPs also decided that the HQA would constitute part of the package of the constitutive instruments together with the Measure and the Decision. The text of the HQA was almost totally drafted by the Parties at the Warsaw meeting. In particular, the legal capacity of the Secretariat was deﬁned in a provision of the agreement.13 The Secretariat, as an organ of the ATCM, would have legal personality and capacity to perform its functions in the territory of Argentina. Nevertheless, consensus was not reached with regard to whom should conclude the HQA together with Argentina. Although the majority of States agreed that the Chairman of the ATCM should sign the agreement, others (in particular, Russia) still objected that the ATCM did not have international personality and, thus, could not be a party to an international treaty.14 Notwithstanding these substantive achievements, some fundamental issues still remained unsettled in Warsaw. The most important debatable point concerned the budget and the cost-sharing mechanism to fund the Secretariat.15 Whilst some Parties thought that this organ had to be ﬁnanced by all the ATCPs by means of equal contributions, some Parties preferred an equitable approach, based on the effective capability of States. Both these criteria of cost-sharing were legally justiﬁable. The equal-sharing principle was in line with the fundamental assumption of the ATS that the Consultative Parties must have the same rights and duties. Conversely, the equitable-sharing criterion was justiﬁable on the basis of the most concrete assessment that took into account both the amount of the activities, carried out by the nationals of each Consultative Party in Antarctica, and the real capability of States to contribute to the ﬁnancing of the Secretariat.16 To help resolve these outstanding issues, Argentina organised a second informal meeting in Buenos Aires in April 2003. Professor Francioni, who was again elected as the Chairman, organised the meeting into two groups. The legal group completed the drafting of almost all the constitutive instruments although some doubts still remained. Firstly, even if consensus was reached with regard to the legal effects of the HQA, which would enter into force only when the Measure, establishing the Secretariat, was approved by all the ATCPs, controversy continued over the issue of who should sign this agreement on behalf of the contracting

13 Art. 2 of the Draft Headquarters Agreement, annexed to the Report of the Chairman of the Working Group on the Antarctic Treaty Secretariat, done in Warsaw on 19 September 2002. 14 See para. 40 of the Final Report of the XXV ATCM. 15 Some proposals for the regulation of the budget of the Secretariat were set down in a paper, presented by Argentina and Australia. See XXV ATCM/WP 046. 16 These different criteria of cost-sharing and their possible application were highlighted by Professor Francioni at the Wilton Park’s conference. See FRANCIONI, cit. supra note 6.

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States. Moreover, the status of the Secretariat’s staff was uncertain. Although it was clear that staff could not be considered employees of any State party to the Antarctic Treaty, including Argentina, some Parties did not want to deﬁne these employees as international civil servants.17 Finally, the problem of the intersessional functioning of the Secretariat was still unresolved. Since the Secretariat is an organ of the ATCM, which is not a permanent entity, questions arose about whom the Secretariat should consult in cases of uncertainty on how to act during the periods between two consecutive consultative meetings. It is evident that all the doubts that remained were due to the concern of some Parties that the recognition of the autonomy of the ATCM would entail a preliminary step towards the establishment of an international organisation for Antarctica. The second group had the hard task of resolving the problem of the ﬁnancing of the Secretariat.18 It achieved a very important goal: consensus on the rationale on which cost sharing would be based. The Parties agreed that national contributions would be divided into two parts (the percentage of each part was not decided): one part would be paid in accordance with the criterion of equal sharing, the other part under other criteria such as the scale of Antarctic scientiﬁc activities (as is provided for with regard to the ﬁnancial contributions of the Scientiﬁc Committee on Antarctic Research-SCAR) and each country’s actual capacity to pay.19 Another important point concerning ﬁnancial issues, which was stressed in Buenos Aires, was that Parties should declare in advance if, and if so, what amount, they would make contributions to the budget of the Secretariat. Such information was necessary in order to determine, ﬁrstly, the amount of the variable part of States’ contributions and, secondly, the type and the extent of the expenses that the Secretariat could afford with the available funds. The Report of the Chairman of the Second Informal Meeting of Buenos Aires highlighted the above-mentioned, still-pending points. Moreover, it had eight annexes that respectively corresponded to: 1) a draft Measure for the establishment of the Secretariat; 2) the draft HQA; 3) a draft Decision on the interim functioning of the Secretariat; 4) the draft Financial Regulations; 5) the draft Staff Regulations; 6) a proposal of the provision (Art. 4) of the Measure, that established the general duty of Parties to contribute to the Secretariat’s budget on the basis of the double criterion of equal and variable cost-sharing; 7) a draft Decision for the apportioning of contributions; and 8) the SCAR scale of contributions as a possible example for the future scale of contributions of the Secretariat. 17 Strong objections relating to the issue of the status of the Secretariat’s staff were raised, in particular, by Norway. 18 This group took the name of Committee of the Whole and was chaired by Mr. Jan Huber of the Dutch Delegation. 19 One must highlight that this solution had been already suggested by Professor Francioni at the Wilton Park’s conference. See FRANCIONI, cit. supra note 6.

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This report was presented at the XXVI ATCM, held in Madrid in 2003, as a working paper of the Working Group on the establishment of the Secretariat.20 The ATCM devoted the ﬁrst week of the meeting to the issue of the establishment of the Secretariat. The Meeting also elected Professor Francioni as the Chairman of the Working Group. In order to resolve the controversial issues that still existed, the Chairman established small contact groups that included those Parties, which had conﬂicting positions. Although such effort implied long and intense negotiations, it led to the approval of the very problematic question concerning the person that had to sign the HQA on behalf of the ATCPs. The States that, in Warsaw, had rejected the idea that this agreement could be concluded between Argentina and the ATCM (considering that this power of the ATCM would change the nature of the ATS by transforming it into a sort of international organisation), withdrew their reservations by stating clearly that nothing in the HQA could be construed as modifying the ATCM’s status as deﬁned in Art. IX of the Antarctic Treaty. The redrafted text of the HQA was approved by the ATCM and annexed to the Measure establishing the Secretariat. Further contact groups were created by Professor Francioni in order to deal with both ﬁnancial matters21 and the problem of the functioning of the Secretariat in the interim period before the approval, by all the ATCPs, of the Measure establishing this organ.22 The “ﬁnancial” group developed the fruitful results achieved at the second Buenos Aires meeting. Firstly, consensus was reached with regard to the percentage of 50% that would determine the equal part and the variable part of States’ contributions. Secondly, the Parties agreed that the criterion for determining the variable part of the contributions would not make reference to the SCAR scale, but would be based on the extent of national Antarctic activities, taking into account the capacity of each State to pay.23 For this purpose, ﬁve categories of contributors were established to which each State could freely choose to belong. Finally, the “ﬁnancial” group formulated an initial scale of contributions that was added to the Decision concerning the provisional functioning of the Secretariat. The contact group that had the task of drafting the decision concerning the interim period regime dealt with some important points: a) the functioning of the Secretariat during the interim period, which should take place, as far as possible, in accordance with the provisions concerning the deﬁnitive establishment of the

20

XXVI ATCM/WP 05. This group was chaired by Mr. Jan Huber of the Dutch Delegation. 22 The group that dealt with the issue of the interim functioning of the Secretariat was chaired by Mr. Michel Trinquier of the French Delegation. For an analysis of the work of this group, see the Report of the Chairman of Working Group 1 on the Secretariat of the Antarctic Treaty, XXVI ATCM/IP 125. 23 India presented a paper in order to stress the view that the actual capacity of the Parties to pay had to be assessed by each Party. See XXVI ATCM/IP 110. 21

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Secretariat; b) the provisions for the initial ﬁnancing of the Secretariat on the basis of voluntary contributions, which should ensure some certainty in the estimation of the budget of the Secretariat; and c) the acceptance of the offer of the Argentine Republic to apply the HQA provisionally, which consisted of a letter of commitment from the Argentine Republic. This letter was annexed to the Decision on provisional application of the Measure establishing the Secretariat. Finally, Financial and Staff Regulations were taken into account. In particular, the latter had a still-pending issue concerning the status of the Secretariat’s staff. The ATCM decided to avoid the expression “international civil servants” in order to satisfy the exigencies of those Parties that could not accept, under their national legislation, that an international employee could exist without being associated with an international organisation. In this case, the bifocal approach demonstrated its effectiveness in resolving the problem of the legal nature of the ATCM and its organ in the manner that it did, in 1959 during the negotiations of the Antarctic Treaty, in order to deal with the issue of sovereignty claims over Antarctica. By contrast, the issue concerning consultations during the intersessional periods has remained unsettled. Although in Madrid most Parties highlighted the need to have a common convenor to coordinate such consultations, none of them considered necessary to establish a permanent body, such as a standing committee, from which the Secretariat could seek advice. Other Parties stressed the importance of conferring with all Consultative Parties in some cases.24 The Chairman highlighted that this could now be facilitated by the use of electronic instruments of communication. The issue of intersessional consultations will continue to be discussed at the next ATCMs.25 In short, the instruments that were adopted by the XXVI ATCM, to establish the Secretariat, are: a) Measure 1(2003) on the “Secretariat of the Antarctic Treaty”, with an Annex containing the “Headquarters Agreement for the Secretariat of the Antarctic Treaty”; b) Decision 1(2003) on “Apportioning Contributions to the Secretariat of the Antarctic Treaty”, with a Schedule on “Method for Calculating the Scale of Contributions”; c) Decision 2(2003) on “Provisional application of Measure 1 (2003)”, with one Annex on “Initial Scale of Contributions to the Budget of the Secretariat of the Antarctic Treaty”, and another Annex containing a “Letter of Commitment of the Argentine Republic”; d) Decision 3(2003) on “Staff Regulations of the Secretariat of the Antarctic Treaty”, with an Annex of the said “Staff Regulations”; e) Decision 4(2003) on “Financial Regulations for the Secretariat of the Antarctic Treaty”, with an Annex of the said “Financial Regulations”.26

24 In regard to the issue of intersessional consultations, see para. 24 of the Final Report of the XXVI ATCM. 25 At the XXVII ATCM, held in Cape Town in May 2004, Japan, Argentina, and Australia made some proposals relating to intersessional consultations. However, no agreement was reached by the Consultative Parties. 26 These documents were annexed to the Final Report of the XXVI ATCM: Measure 1(2003) is in Annex A; Decisions 1, 2, 3, and 4 are in Annex B.

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The newly established Secretariat of the Antarctic Treaty is a small organ that has mainly administrative functions. Its fundamental tasks are to facilitate the organisation of the ATCMs and to support both the ATCM and the Committee on Environmental Protection (CEP). It also ensures that records are kept of all the acts adopted during the meetings, assists the ATCM in revising the Recommendations, adopted under Art. IX of the Antarctic Treaty,27 and updates the Handbook of the Antarctic Treaty System, which is a publication that collects all the Antarctic acts.28 For these purposes, it is going to substitute the Depositary State of the Antarctic Treaty, which is the United States. Moreover, it will be a channel for the exchange of information between the ATCPs, but it will also contribute to the dissemination of information concerning the ATS and the activities of the State Parties in Antarctica with respect to the whole international community. The peculiarity of the Secretariat mainly consists in the fact that it is an organ without a body.29 In fact, the ATCM, on the authority of which the Secretariat strongly depends, consists of the representatives of the ATCPs that meet yearly. Nevertheless, one can observe that the creation of this organ will transform many bilateral or multilateral State relationships into supranational contacts. For example one can mention the new manner in which the exchange of information will be carried out, in particular with regard to the reports that States Parties must annually present to the CEP under Art. 17 of the Madrid Protocol and the information concerning monitoring activities. The function of the Secretariat of collecting these data can be considered an initial, although extremely simpliﬁed, form of supranational control.30 One must admit that the independence of the Secretariat is considerably limited. In fact, it has legal personality and capacity only to perform its functions in 27 Since 2001 a contact group has reorganised the measures that were adopted by the ATCM before the approval of Decision 1(1995). This contact group, chaired by the Dutch Delegation, was established by Resolution 1(2001) during the XXIV ATCM, held in St Petersburg. See Antarctic Handbook, cit. supra note 5, p. 130. 28 So far, the Antarctic Handbook has not been a legal source, but it has only had an instrumental character. So, the legal acts that are included in the Handbook cannot be considered authoritative copies of the measures adopted by the ATCM. The authoritativeness of such measures derives from their inclusion in the ﬁnal reports of the ATCMs. When the Secretariat, which is an organ of the ATCM, takes care of collecting Antarctic instruments, the copies of the Antarctic acts that it will disseminate will indisputably have an authoritative status. 29 Actually, other international treaties, such as the Convention on Climate Change, have a secretariat to which no international organisation corresponds (the Climate Change Convention was signed in Rio on 9 May 1992, ILM, 1992, p. 849 ff.). The Climate Change Secretariat cooperates with the Conference of the Parties, which is not a permanent international institution. Nevertheless, one must observe that the Climate Change Convention and its Secretariat are strictly connected with the UN. In fact, this Secretariat was established by a common deliberation of the Conference of the Parties and the UN General Assembly. Therefore, the regime, which originated from the Climate Change Convention, has an international organisation to which it can, at least, make reference. By contrast, the ATS cannot rely on any international entity. For an analysis of the different types of secretariats, see FRANCIONI, cit. supra note 6. 30 For this view see ibid.

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Argentina. Moreover, such capacity can only be exercised to the extent authorized by the ATCM. However, the Secretariat, as such, enjoys privileges and immunities as an organ of the ATCM. The privileges and immunities of its staff correspond to the privileges and immunities of diplomatic personnel.31 Until the Measure enters into force, Decision 2(2003) obliges the Secretariat to apply the Measure, the Staff Regulations and the Financial Regulations on a provisional basis, to the extent that this is possible. The creation of such organ does not correspond to the complete institutionalisation of the ATS in the same way as the establishment of the CEP by the Madrid Protocol has not completely ﬁlled the lacuna of an international system of supervision within the Antarctic regime.32 Nevertheless, considering the signiﬁcantly different views of States Parties and the long and intense negotiations that were necessary to achieve this goal, one must conclude that the establishment of the Secretariat has been perceived as an act of major political and diplomatic importance. Its existence and functioning will certainly contribute to the development of a legal regime, such as the ATS, that has so far been quite successful. This is captured in Professor Francioni’s remarks, in his Report as the Chairman of the Working Group on the Secretariat of the Antarctic Treaty, that the establishment of such an organ is proof of “the will of all Consultative Parties to move toward further strengthening of the mechanism of international cooperation represented by the Antarctic Treaty”.

31 A controversial issue that was not resolved in Madrid concerns the possibility of the Secretariat and its Staff of enjoying privileges and immunities in the country which hosts the ATCM. In fact, States Parties host the annual meetings, following the English alphabetic order. The ATCM did not extend such immunities of the Secretariat to countries other than Argentina. It let each party choose whether or not to recognise these privileges vis-à-vis the Secretariat. This problem was raised by Professor Francioni in his paper, presented at the Wilton Park’s conference and still seems to call for a solution. See ibid. 32 For the view that the institutionalisation of the ATS is scarce and ineffective, see SCOTT, cit. supra note 3, p. 477.

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2003) TULLIO TREVES*

1. During 2003 certain developments, not connected with cases, are related to the composition of the Tribunal, the policy concerning its jurisdiction and its ﬁnancial regulations.1 The composition of the Tribunal underwent a change. After less than one year of tenure, Judge Lennox Fitzroy Ballah of Trinidad and Tobago passed away on 29 March 2003. He was replaced by Mr. Anthony Amos Lucky, of Trinidad and Tobago also, elected by a Special Meeting of State Parties to the United Nations Convention on the Law of the Sea convened on 2 September 2003. As regards the general problems that the Tribunal is facing, in a statement made at the Plenary Meeting of the UN General Assembly on 24 November 2003, the President of the Tribunal, Judge L. Dolliver M. Nelson, took the opportunity to make some remarks concerning the potential of the Tribunal to exercise jurisdiction under the Law of the Sea Convention. He stated that: “32 States Parties have made written declarations relating to the settlement of disputes under Article 287 of the Convention and that 19 States Parties have chosen the Tribunal as the means or one of the means for the settlement of disputes concerning the interpretation or application of the Convention. It is to be hoped that an increasing number of States will utilize the possibility offered by Article 287 of the Convention of choosing means for the settlement of disputes concerning the interpretation or application of the Convention as stated in the draft resolution. Another alternative that States may use is to confer jurisdiction on the Tribunal through international agreements. Several such multilateral agreements have already been concluded”. He then remarked: “[T]he cases dealt with by the Tribunal to date have been largely con* 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”).

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ﬁned to instances where the Tribunal has been granted special jurisdiction – the prompt release of vessels and crews and the prescription of provisional measures. It is ﬁtting for me to bring to the attention of the Distinguished Delegates that the Tribunal has competence under the Convention, and remains ready, to resolve a much wider range of disputes concerning the interpretation or application of the Convention”.2 As far as the Financial Regulations are concerned, they were adopted at the 13th Meeting of the State Parties to the UN Law of the Sea Convention in 2003.3 They are the result of work undertaken by the Tribunal (especially the Registry and the Financial Committee) on the basis of discussions held over various sessions of the Meeting of State Parties.4 Up to their entry into force, the Financial Regulations of the United Nations have been applied mutatis mutandis. The main new element is that: “The ﬁnancial period shall consist of two consecutive calendar years, beginning with the year 2005” (Article 2). As for the budget for 2004, submitted in 2003, it will be the last one-year budget submitted to the Meeting of the State Parties.

2. As regards case-related activities, in 2003 the Tribunal decided only one case. This is the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore).5 The dispute was submitted by Malaysia to an arbitration tribunal to be constituted under Annex VII to the Convention on 4 July 2004 (the Annex VII tribunal). Arbitration was the only possibility for a unilateral application, as neither Malaysia nor Singapore had made a declaration under Article 287. The Law of the Sea Tribunal (the Tribunal) was requested to prescribe provisional measures under Article 290, para. 5, of the Convention. It read out its Order on 8 October 2003.6 In previous cases, in which the Tribunal had had to deal with requests for provisional measures under Article 290, para. 5 (the Saiga case,7 the Southern Blueﬁn 2 Paras. 15 and 16 of the speech on agenda item 52(a), available on the Tribunal’s website http://www.itlos.org. 3 The text can be read in Doc. SPLOS/2003/WP.3, available on the Tribunal’s website. 4 For a summary of the procedure followed, see International Tribunal for the Law of the Sea Yearbook, 2001-2003, p. 64. 5 The decisions of the Tribunal as well as written and oral pleadings concerning this case, as well as the other cases submitted to the Tribunal, are available on the Tribunal’s website. The publication in printed form appears in ITLOS Reports of Judgments, Advisory Opinions and Orders. 6 The Order is available on the Tribunal’s website and in ITLOS Reports of Judgments, Advisory Opinions and Orders, 2003, p. 10. It was adopted unanimously. President Nelson and Judge Anderson appended Declarations. Ad hoc Judges Hossain and Oxman appended a Joint Declaration and Judges Chandrasekhara Rao, Ndiaye, Jesus, Cot and Lucky appended Separate Opinions. 7 TREVES, “ITLOS 1996-2000”, cit. supra note 1, p. 235.

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Tuna cases8 and the MOX Plant case),9 the request for provisional measures was submitted to the Tribunal on the same day as the notiﬁcation instituting proceedings before the arbitration tribunal. In this case, however, the request was not submitted until 2 months (from 4 July to 5 September) had elapsed since that date. As will be seen later, this caused unusual time constraints for the Tribunal and had an impact on the discussion in relation to the question of the urgency of the measures. The case, as submitted by Malaysia to the Annex VII arbitral tribunal, concerned, ﬁrstly, the delimitation of an area of territorial sea located between certain points set out by the parties in their Agreement of 7 August 1995, although no action to delimit the area was taken in the end. Secondly, Malaysia requested a declaration that Singapore had breached its obligations under the Law of the Sea Convention and under general international law by its initiation and continuation of land reclamation activities without due notiﬁcation and full consultation with Malaysia. As a consequence of these breaches, Malaysia requests, inter alia, suspension of land reclamation activities until an adequate impact assessment has been published, and that Singapore afford Malaysia all relevant information and revise its land reclamation plans in accordance with the results of the assessments (para. 22 of the Order). The provisional measures requested by Malaysia of the Law of the Sea Tribunal consisted of requiring that Singapore: a) suspend its land reclamation activities in the vicinity of the maritime border with Malaysia or in areas claimed by it; b) provide Malaysia with full information on current and projected works; c) afford Malaysia full opportunity to comment on the works; and d) agree to negotiate with Malaysia on all remaining unresolved issues (para. 23 of the Order). The Order of the Tribunal is particularly interesting as regards the determination of prima facie jurisdiction, the assessment of the urgency of the measures and the contents of the measures prescribed.

3. Singapore argued that the Annex VII tribunal lacked prima facie jurisdiction in light of Article 283, para. 1, of the Convention, which requires, when a dispute arises, that “the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”. In fact, as it emerges from the Tribunal’s Order, Malaysia had on several occasions notiﬁed Singapore of its concerns regarding the latter’s land reclamation works, and requested meetings with senior ofﬁcials, while Singapore had replied that it would be ready to negotiate only once Malaysia had speciﬁed its concerns. Only after Malaysia had instituted proceedings by requesting the constitution of the Annex VII arbitral tribunal did Singapore propose a meeting. Malaysia agreed to participate under the condition that it would be without prejudice to its right to

8 9

Ibid., p. 237. TREVES, “ITLOS 2001”, cit. supra note 1, p. 169.

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proceed with the arbitration. The meeting was held on 13 and 14 August 2003. A few days later, Malaysia notiﬁed Singapore that it would not continue the discussions unless Singapore suspended its reclamation works. The Tribunal remarked that the discussions of 13-14 August 2003 were held after Malaysia had instituted proceedings and that: “[A]ccordingly, the decision of Malaysia to discontinue the discussion does not have a bearing on the applicability of article 283 of the Convention” (para. 50). Recalling statements made in the Southern Blueﬁn Tuna10 and MOX Plant cases, according to which “a State Party is not obliged to continue with an exchange of views when it has concluded that the possibilities of reaching agreement have been exhausted”,11 the Tribunal stated that: “in the circumstances of the present case Malaysia was not obliged to continue with an exchange of views when it concluded that the exchange could not yield a positive result” (para. 48), and that, consequently, the requirement of Article 283 was satisﬁed (para. 51). Singapore argued that, after Malaysia’s acceptance of Singapore’s proposal to negotiate, “a consensual process of negotiation had commenced” and that “as a legal consequence, both States had embarked upon a course of negotiation under article 281 of the Convention in an effort to arrive at an amicable solution of the dispute between them” (para. 53).12 This meant, in Singapore’s opinion, that the parties had excluded “any further procedure” and that the Annex VII arbitral tribunal lacked jurisdiction.13 The Tribunal dismissed this contention (which is reminiscent of arguments developed in the Annex VII arbitral tribunal award of 2000 on the Southern Blueﬁn Tuna cases)14 by observing that the parties had agreed that the discussions in August 2003 would be without prejudice to Malaysia’s right

10 Order of 27 August 1999, para. 60, ITLOS Reports of Judgments, Advisory Opinions and Orders, 1999, p. 295. 11 Order of 3 December 2001, para. 60, ITLOS Reports of Judgments, Advisory Opinions and Orders, 2001, p. 107. 12 Article 281, para. 1, reads as follows: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure”. 13 See the pleading of Professor Michael Riesman, counsel for Singapore, on 26 September 2003, Doc. ITLOS/PV/03/03, p. 35. It reads, in part: “From a legal standpoint, Malaysia commenced a process of negotiation under Article 281. Singapore, as part of the negotiations, made materials available that it would not otherwise have had to. Malaysia took the materials and then disrupted the negotiations before there was a sufﬁcient opportunity to explore whether those negotiations, if conducted in good faith, could produce an amicable settlement of differences, including resolving the question of the suspension of works. Having selected a mode of dispute resolution, Malaysia cannot unilaterally terminate it without the consent of Singapore before the negotiation has an opportunity to achieve a settlement”. 14 Southern Blueﬁn Tuna cases (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility of 4 August 2000, ILM, 2000, p. 1359, espec. paras. 56-59.

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to proceed with the arbitration and to its request for provisional measures to the Tribunal (para. 56). Consequently, as “no other objection to jurisdiction ha[d] been raised by Singapore” (para. 58), the Tribunal found that the Annex VII arbitral tribunal would have prima facie jurisdiction (para. 59).

4. Various questions arose as regards the requirement of the urgency of provisional measures, speciﬁcally mentioned in Article 290, para. 5, of the Law of the Sea Convention. Firstly, Singapore contended that there was no need to prescribe provisional measures as, according to Annex VII, the arbitral tribunal had to be constituted not later than on 9 October 2003. In fact, the time used for the negotiations of August 2003 (held, as remarked, after the request for the establishment of the arbitral tribunal) had compressed the time available for such establishment according to Annex VII, Article 3. The hearings before the Tribunal were held on 25, 26 and 27 September 2003, so that it was evident that only a very short time would elapse between the date of the reading of the Order and 9 October, the latest date on which the President of the Tribunal could announce the composition of the Annex VII arbitral tribunal.15 The Tribunal dismissed this argument of Singapore considering that: “[U]nder article 290, paragraph 5, of the Convention, the Tribunal is competent to prescribe provisional measures prior to the constitution of the Annex VII arbitral tribunal, and […] there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be conﬁned to that period” (para. 67); “[…] the said period is not necessarily determinative for the assessment of the urgency of the situation or the period during which the prescribed measures are applicable and […] the urgency of the situation must be assessed taking into account the period during which the Annex VII arbitral tribunal is not yet in a position to ‘modify, revoke or afﬁrm those provisional measures’” (para. 68). Implicitly recalling that provisional measures prescribed under para. 5 of Article 290 of the Convention in the Southern Blueﬁn Tuna cases had been revoked by the Annex VII arbitral tribunal as from the date of the award of the latter,16 and that

15 In fact, less than 24 hours elapsed between the reading of the Order on 8 October and the announcement of the composition of the arbitral tribunal on 9 October. 16 Award of 4 August 2000, cit. supra note 14, paras. 66, 67 and 72(2).

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in the MOX Plant case they had been afﬁrmed by the Annex VII arbitral tribunal,17 the Tribunal considered further that “the provisional measures prescribed by the Tribunal may remain applicable beyond that period” (para. 69). The Tribunal then dismissed Malaysia’s claim for provisional measures in relation to the suspension of those land reclamation works conducted in areas of the territorial sea claimed to be Malaysia’s. In the view of the Tribunal, “the existence of a claim to an area of territorial sea is not, per se, a sufﬁcient basis for the prescription of provisional measures under article 290, para. 5, of the Convention” (para. 71). The Tribunal added that: “[T]he evidence presented by Malaysia does not show that there is a situation of urgency or that there is a risk that the rights it claims with respect to an area of territorial sea would suffer irreversible damage pending consideration of the merits of the case by the Annex VII arbitral tribunal” (para. 72). Malaysia’s main contention was that Singapore had breached a number of obligations arising from provisions of the Convention concerning the protection of the environment (Articles 123, 192, 194, 198, 200, 204, 205, 206 and 210) “and the precautionary principle, which under international law must direct any party in the application and implementation of those obligations”(para. 74). Singapore argued in response that there was “no room for applying the precautionary principle for the prescription of provisional measures” (para. 75). The hearings brought about a certain simpliﬁcation of the areas of disagreement. The Tribunal placed on record a number of “assurances” and “commitments” made by Singapore in its oral pleadings (see paras. 81 and 88 of the Order). These included: the conﬁrmation of an offer to share information; the offer of full opportunity to comment on the reclamation works; the readiness and willingness to negotiate; the readiness to re-examine its works and to consider necessary and proper steps, including suspension, if Malaysia could point to “some speciﬁc and unlawful effect”; the acceptance of a proposal by Malaysia that the two countries jointly sponsor and fund a scientiﬁc study by independent experts; and that pending the completion of the joint study “no irreversible action would be taken” as regards the stone revetment around Area D (which was of particular concern to Malaysia).18 Singapore qualiﬁed its commitments stating that they were without prejudice to the right of continuing reclamation works to be conducted, however, “in accord17 Permanent Court of Arbitration, The MOX Plant case, Arbitral Tribunal Constituted Pursuant to Article 287 and Annex VII of the UN Law of the Sea Convention, Order of 24 June 2003, Suspension of Proceedings and Request for further Provisional Measures, ILM, 2003, p. 1187, para. 64 of the reasons and para. 2 of the operative part. See also infra section 6. 18 See paras. 76-80 and 85-87 of the Order.

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ance with international best practice and the rights and obligations of both parties under international law” (para. 89). The Tribunal commented that: “[H]aving regard to the obligation of the parties not to aggravate the dispute pending its settlement, the parties have the obligation not to create an irremediable situation and in particular not to frustrate the purpose of the study to be undertaken by a group of independent experts” (para. 90). The Tribunal then went on to state that the two parties “share the same marine environment in and around the Straits of Johor” (para. 91), and repeated the statement made in the MOX Plant case that: “[T]he duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law and […] rights arise therefrom which the Tribunal may consider appropriate to preserve under article 290 of the Convention”.19 In responding to the claim by Malaysia that Singapore’s land reclamation works had “affected Malaysia’s rights to the natural resources within its territorial sea and violated its rights to the integrity of the marine environment in those areas” and to the opposite view of Singapore that the land reclamation works “have not caused any signiﬁcant impact on Malaysia and that the necessary steps were taken to examine possible adverse effects on the surrounding waters” (paras. 93-94), the Tribunal continued its argument along the pattern inaugurated in the MOX Plant Order by placing commitments on record. While not accepting the claimant’s view that there was urgency to prescribe measures for preserving the marine environment,20 it stated, however, that rights that may be considered appropriate for protection by provisional measures may derive from the violation of the obligation of cooperation. After observing that “an assessment concerning the impact of the land reclamation works on waters under the jurisdiction of Malaysia has not been undertaken by Singapore” (para. 95), and that “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on 19 Para. 92 of the Order, quoting para. 82 of the MOX Plant case Order of 3 December 2001, cit. supra note 12. 20 This point is made only partially (as regards measures concerning areas of territorial sea claimed by Malaysia) in para. 72 of the order quoted supra in the main text. As far as the request for the suspension of land reclamation works in other areas is concerned, the lack of proven urgency is not set out explicitly in the order. It seems to be the unarticulated premise of the measures deriving from lack of cooperation prescribed by the Tribunal. See the Separate Opinion of Judge Chandrasekhara Rao, para. 38.

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the marine environment” (para. 96), the Tribunal stated that “in the view of the Tribunal, the record of this case shows that there was insufﬁcient cooperation between the parties up to the submission of the Statement of Claim on 4 July 2003” (para. 97). The Tribunal ruled that, even though “[T]he last public sitting of the hearing showed a change in the attitude of the parties resulting in the commitments which the Tribunal has put on record, and that it is urgent to build on the commitments made to ensure prompt and effective cooperation of the parties in the implementation of their commitments” (para. 98); “given the possible implications of land reclamation on the marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned” (para. 99).

5. The above considerations are the basis for the operative part of the Order. It consists, ﬁrst of all, in the prescription of provisional measures, that, developing the pattern inaugurated with the measures prescribed in the MOX Plant case, set out a procedure to be followed cooperatively by the parties. The provisional measures, designated as such and introduced by the term “prescribes”, are set out in para. 106(1) (the operative paragraph). They are as follows: “Malaysia and Singapore shall cooperate and shall, for this purpose, enter into consultations forthwith in order to: (a) establish promptly a group of independent experts with the mandate (i) to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapore’s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation; (ii) to prepare, as soon as possible, an interim report on the subject of inﬁlling works in Area D at Pulau Tekong; (b) exchange, on a regular basis, information on, and assess risks or effects of, Singapore’s land reclamation works; (c) implement the commitments noted in this Order and avoid any action incompatible with their effective implementation, and, without prejudice to their positions on any issue before the Annex VII arbitral tribunal, consult with a view to reaching a prompt agreement on such temporary measures with respect to Area D at Pulau Tekong, includ-

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ing suspension or adjustment, as may be found necessary to ensure that the inﬁlling operations pending completion of the study referred to in subparagraph (a)(i) with respect to that area do not prejudice Singapore’s ability to implement the commitments referred to in paragraphes 85 to 87”. It has to be noted that this measure is in full conformity with the unprecedented Joint Declaration by the two ad hoc Judges. In such declaration they state, inter alia: “What is most urgently required to protect the respective rights of the parties pending a decision by the Annex VII arbitral tribunal is the establishment of a joint process for addressing their most immediate concerns in this regard that builds on their respective statements and implements their duty to cooperate. Two elements are particularly important. The ﬁrst is the establishment of a common base of information and evaluation regarding the effects of the land reclamation projects that can command the conﬁdence of both parties. The second is that they are expected to consult with a view to reaching a prompt agreement on such temporary measures with respect to Area D at Pulau Tekong, including suspension or adjustment, as may be found necessary to ensure that the inﬁlling operations pending completion of the joint study with respect to that area do not prejudice Singapore’s ability to implement its commitments”. It must be added that, according to the Separate Opinion of Judge Cot, the suspension of the inﬁlling in Area D would have been the most appropriate measure to prescribe, even though in any case it was, in Judge Cot’s view, Singapore’s obligation. In his view, there is, in the Order, a certain degree of uncertainty as regards the measure in which the inﬁlling in Area D must be suspended or slowed down, pending the result of the study by the group of experts. The operative part of the Order also contains a paragraph 2, according to which the Tribunal: “Directs Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts”. This is the ﬁrst time the Tribunal uses the term “directs” in the operative part of an Order in proceedings on a request for provisional measures. The Tribunal, in conformity with Article 290 of the Convention, ordinarily uses the operative term “prescribes”, and has also used the term “recommends”.21 There is no explanation 21 See M/V “Saiga” No. 2, Order of 23 February 1998, ITLOS Reports of Judgments, Advisory Opinions and Orders, 1998, p. 18, para. 51(2). See the Declaration of Judge Vukas, ibid.,

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for the use of the term “directs” in the text of the opinion, nor in the declarations and separate opinions. It could be argued that the fact that this paragraph is not cast as a “provisional measure”, as para. 1 is, entails that this is not such a measure and the binding effect set out in Article 290, para. 6, does not apply to it. It might, nevertheless, be argued that the term “directs” has a strong compulsory meaning, so that it is more difﬁcult to contend that this provision has a lesser binding effect than the one introduced by the term “prescribes”, in which case it would hold the same meaning as regards a provision using the term “recommends”.

6. It seems relevant to indicate brieﬂy the developments in 2003 of the MOX Plant and Land Reclamation cases submitted to the Tribunal under Article 290, para. 5. Especially as regards the MOX Plant case, these developments show very interesting jurisprudential connections between different tribunals seized in different phases of the same case. As far as the MOX Plant case is concerned,22 pleadings on jurisdiction and on the merits were exchanged by the parties (Ireland and the United Kingdom) before the Annex VII arbitral tribunal23 in writing, and orally during hearings held in June 2003. The Tribunal did not, however, consider it possible to make an award on the merits or even on jurisdiction. In its Order No. 3 of 24 June 200324 it decided to suspend proceedings on jurisdiction and on the merits. It nonetheless made a decision on provisional measures. The arbitral tribunal remarked that problems existed as a result of the fact that both parties to the dispute are members of the European Community, which is itself a party to the Law of the Sea Convention. Among these questions there were those of the standing of Ireland to institute proceedings in reliance upon the Convention and of the United Kingdom to respond, and those concerning the division of competences between the European Union and its Member States in respect to the Convention, and the matters which, by agreement of the parties, are subject to the exclusive jurisdiction of the European Court of Justice under European Community law. The arbitral tribunal observed that only the European Court of Justice could determine which (or whether all) of the provisions on which Ireland relied concerned matters in relation to which competence had been transferred to the European Community. If the interpretation of the Convention between Member States

p. 41, para. 3, and also the Dissenting Opinion of Judge Eiriksson to Order of 27 August 1999 on the Southern Blueﬁn Tuna cases, ITLOS Reports of Judgments, Advisory Opinions and Orders, 1999, p. 336. 22 For the proceedings for provisional measures before the Tribunal, see TREVES, “ITLOS 2001”, cit. supra note 1, pp. 169-173. 23 On whose composition, see TREVES, “ITLOS 2002”, cit. supra note 1, p. 207. 24 Available, with the text of written and oral pleadings, at http://www.pca-cpa.org. The order is reprinted in ILM, 2003, p. 1187.

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fell within the exclusive competence of the European Court of Justice, this would exclude the arbitral tribunal’s jurisdiction by virtue of Article 282 of the Convention (see especially para. 20 of the Order). The arbitral tribunal decided to suspend proceedings on the basis of the following further arguments, which seem as much relevant from the viewpoint of the relationships between international tribunals as they are from that of the respective competences of the European Community and its Member States. The Order of 24 June 2003 stated: “Although it is possible that the Tribunal might conclude from the arguments of the Parties that at least certain provisions of the Convention do not fall within the exclusive jurisdiction and competence of the European Communities in the present case, it would still not be appropriate for the Tribunal to proceed with hearings on the merits in respect of any such provisions. For one thing, it is not at all clear at this stage that the Parties are able to identify with any certainty what such provisions might be; and the Tribunal is in no better position. For another, there is no certainty that any such provisions would in fact give rise to a self-contained and distinct dispute capable of being resolved by the Tribunal. Finally, the Tribunal notes that, whatever the Parties may agree in these proceedings as to the scope and effects of European Community law applicable in the present dispute, the question is ultimately not for them to decide but is rather to be decided within the institutions of the European Communities, and particularly by the European Court of Justice” (para. 26). Furthermore, “The Tribunal observes that the resolution of the essentially internal problems within the European Community legal order may involve decisions that are ﬁnal and binding. The Tribunal further observes that its decision, including a decision on jurisdiction, will be ﬁnal and binding on the Parties by virtue of Article 296 of the Convention and Article 11 of Annex VII to the Convention” (para. 27); “In the circumstances, and bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States, the Tribunal considers that it would be inappropriate for it to proceed further with hearing the Parties on the merits of the dispute in the absence of a resolution of the problems referred to. Moreover, a procedure that might result in two conﬂicting

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decisions on the same issue would not be helpful to the resolution of the dispute between the Parties” (para. 29). As regards provisional measures, the arbitral tribunal was seized with a request of Ireland for the prescription of provisional measures further to those of the (Law of the Sea) Tribunal. The arbitral tribunal observed that the fact that proceedings had been suspended constituted a change of circumstances which “would, if necessary, warrant modiﬁcation of the provisional measures prescribed by ITLOS in accordance with Article 290, para. 5, of the Convention” (para. 40). It then remarked that: “Although the language of Article 290 is not in all respects identical to that of Article 41 of the Statute of the International Court of Justice, the Tribunal considers that it should have regard to the law and practice of that Court, as well as to the law and practice of ITLOS, in considering provisional measures” (para. 41). After observing that neither Article 290 of the Convention, nor Annex VII or the Rules of Procedure of the arbitral tribunal expressly govern applications for the prescription of provisional measures, and that in such a situation, under its Rules, the arbitral tribunal shall decide only after consulting the parties, the Order states: “In that connection, the Tribunal notes that according to Article 89, para. 5, of the ITLOS Rules of Procedure, it is open to ITLOS to prescribe measures different in whole or in part from those requested. A similar provision is contained in Article 75, para. 2, of the Rules of Court of the International Court of Justice. The Tribunal, having drawn these provisions to the attention of the Parties without comment from either, considers that it is also competent to prescribe provisional measures other than those sought by any Party” (para. 43). After these remarks, which seem signiﬁcant as to the relevance of the Rules of the Tribunal and of the ICJ in arbitral proceedings brought under the Convention, the Tribunal dismissed the request of new provisional measures sought by Ireland. Even though the arbitral tribunal had before it a greater volume of material than the Law of the Sea Tribunal had had, it did “not consider that such material leads it to reach any different conclusion as to the question of discharges from the MOX Plant, so far as it concerns the period prior to the decision on the merits” (para. 61). Consequently, the arbitral tribunal was “not satisﬁed that in the present circumstances there is an urgent and serious risk of irreparable harm to Ireland’s claimed rights, which would justify it in prescribing provisional measures relating to discharges from the MOX plant” (para. 62). The arbitral tribunal did, however, afﬁrm the provisional measures (consisting in setting up a mechanism for cooperation) prescribed by the Law of the Sea Tribunal in

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its Order of 3 December 2001 (point 2 of the operative paragraph). As it was “consistent with the practice of ITLOS that each party should submit reports and information on compliance with the Tribunal’s Order” (para. 68), it requested the parties to report on compliance with the provisional measures (point 7 of the operative paragraph). The Tribunal also requested the Parties “to take such steps as are open to them separately or jointly to expedite the resolution of the outstanding issues within the institutional framework of the European Communities; and to notify the Tribunal and each other of all relevant developments” (point 6 of the operative paragraph). Such reports were in fact submitted. In its Order No. 4 of 14 November 2003,25 the arbitral tribunal took note of the information provided by Ireland that the European Commission had decided to commence proceedings against Ireland in respect of Community law issues, and that, according to a letter from Ireland’s Agent, “it is apparent that the resolution of the Community law issues will have to await a decision of the European Court of Justice”. Accordingly, it requested the tribunal to suspend its proceedings until the European Court of Justice has given its judgment. On this basis, the arbitral tribunal decided to suspend the proceedings until the European Court of Justice has given its judgment or until the Tribunal otherwise determines. The ITLOS provisional measures afﬁrmed in Order No. 3 remain in force, and so the obligations to report under such measures, to which is added the decision that reports on the proceedings before the European Court of Justice must be submitted. Both reports must be submitted every six months. As regards the Land Reclamation by Singapore in and around the Straits of Johor case, the Annex VII arbitral tribunal was designated, according to the provisions of the said Annex, by the President of the Tribunal. It is composed of Mr. M.C.W. Pinto (Sri Lanka, President), Mr. Kamal Hossein (Bangla Desh, appointed by Malaysia), Professor Bernard H. Oxman (USA, appointed by Singapore), Professor Ivan Shearer (Australia) and Sir Arthur Watts (United Kingdom). The Initial Report on the implementation of the Tribunal’s Order, whose submission the Tribunal had requested pursuant to Article 95, para. 1, of its Rules (in subpara. 3 of the operative paragraph of its Order of 8 October 2003), for no later than 9 January 2004, was in fact submitted to the Law of the Sea Tribunal on that date by the two parties jointly. This is unprecedented, as hitherto each party has submitted such reports separately. In meetings held in November and December 2003 the parties set up the “Group of Experts” mentioned in the provisional measures of the Tribunal, and adopted detailed terms of reference for the Group and considered an initial statement by Singapore on inﬁlling in Area D. Moreover, the parties agreed on draft Rules of Procedure for the Annex VII arbitral tribunal. The parties also envisaged that pleadings on issues of substance before the Annex VII arbitral tribunal would be deferred until completion of the work of the Group of Experts.

25 Order of 14 November 2003, Further Suspension of Proceedings on Jurisdiction and Merits, available at http://www.pca-cpa.org.

THE ACTIVITY OF THE INTERNATIONAL LAW COMMISSION DURING ITS 55TH SESSION MASSIMO IOVANE*

I.

RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS

1. At the present session, the Commission considered and adopted draft Articles 1, 2 and 3 proposed by the Special Rapporteur, Giorgio Gaja. These articles deal with general principles corresponding to those considered in chapter one of the draft articles on “Responsibility of States for internationally wrongful acts”. The Commission also adopted the commentaries to the said draft articles. Article 1 deﬁnes the scope of the entire draft articles. They are limited to those issues where an international organization may be held responsible under international law. Therefore, the responsibility or liability of international organizations according to municipal law is not covered by the draft articles. Similarly, the draft articles will not concern questions of liability for injurious consequences not prohibited by international law. The cases in which an international organization incurs international responsibility are dealt with in paragraph 1 of Article 1. The Commentary makes clear that the normal case will be that of an organization directly committing an internationally wrongful act. In addition, the Commentary envisages the rather theoretical possibility that an international organization may be held responsible if it aids, assists, directs, controls or coerces another organization or a State into committing an internationally wrongful act. Lastly, responsibility arising from the commission of an internationally wrongful act by another international organization of which the ﬁrst organization is a member is taken into consideration. Paragraph 2 of Article 1 states that the draft will cover another question which, in our opinion, is of more practical importance; namely, the responsibility of a State for a wrongful act committed by an international organization of which it is a member. In fact, in most cases it may prove difﬁcult to distinguish with any precision the activity of an international organization from that of its members. For instance, operational activities of international organizations are often carried out by their member States. Moreover, some international organizations do not possess a complete institutional framework. Finally, the ﬁnancial autonomy of an organization is limited, and member States may thus be called upon to pay for loss and damages caused by the organization’s wrongful activity. Actually, relations between States and international organizations in the ﬁeld of international responsibility may turn out to be quite complex. A range of problems *

Professor of International Law, University of Napoli “Federico II”.

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are likely to arise, especially in connection with the attribution of an internationally wrongful act. While declaring that the present draft should not include in principle questions of attribution of conduct to a State, the Commission does not rule out the possibility of elucidating some particular aspects in this regard. They include the question of the responsibility of a State which aids, assists, directs, controls or coerces an international organization in committing an internationally wrongful act, and the question of a State or a State organ acting as an organ of an international organization.

2. Article 2 addresses the fundamental question of the deﬁnition of “international organization” for all the purposes of the draft. There are three essential elements to the deﬁnition chosen by the Commission. First of all, the term “international organization” refers to an international organization established by a treaty or other instrument governed by international law. According to the Commission, this deﬁnition is preferable to the other expression “intergovernmental organization” for several reasons, above all because an increasing number of international organizations comprise entities other than States as well as States among their members. This deﬁnition also makes it possible to cover those international organizations which are established by States on the international plane without a treaty, but through a resolution adopted by the General Assembly of the United Nations or by a conference of States. On the other hand, organizations set up through instruments governed by municipal law are totally excluded from the present draft’s scope. Secondly, the draft will consider only wrongful acts committed by those international organizations possessing international legal personality. As explained in the Commentary, whether an international organization possesses legal personality or not is a question to be decided through objective criteria. In other words, international legal personality is acquired by the sole fact that an international organization has been created, and is endowed with organs effectively carrying out the organization’s institutional duties at the international level. No formal recognition is required of that personality by the injured State before it may invoke the responsibility of a given international organization. On the other hand, the legal personality of an organization which may give rise to the international responsibility of that organization needs to be “distinct from that of its members”. Thirdly, Article 2 points to the signiﬁcant trend in practice, in which international organizations increasingly have a mixed membership, constituted by States and entities other than States, such as international organizations, territories, or private parties.

3. Article 3 of the draft is modelled on Articles 1 and 2 of the articles on the responsibility of States for internationally wrongful acts. It states the two essential elements needed for an international wrongful act to occur. The ﬁrst element is the

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attribution of conduct to an international organization; the second is that conduct constitutes the breach of an obligation under international law. Damage does not appear to be a constituting element for international responsibility of an international organization.

II. DIPLOMATIC PROTECTION 1. At the present session, the Commission considered the fourth report by the Special Rapporteur, Christopher John R. Dugard, dealing with diplomatic protection of legal persons. It referred to the Drafting Committee Articles 17 to 22 of the draft articles and provisionally adopted Articles 8, 9, and 10. The basic rule on diplomatic protection of legal persons is set out in proposed Article 17. It endorses the principle laid down by the International Court of Justice in the Barcelona Traction case whereby the right of diplomatic protection in respect of an injury to a corporation belonged to the State under whose laws the corporation was incorporated and in whose territory it had its registered ofﬁce, and not to the State of nationality of the shareholders. Most members of the Commission expressed the view that this formal and objective principle was a true reﬂection of customary international law. Coherently, they excluded that the existence of a genuine link should be considered a relevant factor for determining the nationality of a corporation, while recognising that the genuine link criterion could have the effect of discouraging the phenomenon of tax havens. According to the majority of the Commission, the genuine link criterion would create difﬁculties not merely for courts but also for States of investment. On the other hand, it was pointed out that some States do not apply either the place of incorporation or the place of registered ofﬁce requirement. Hence, some members emphasised the necessity of referring to other possible approaches in establishing the nationality of a corporation. This turned out to be a real problem for the Commission. In fact, it had to suggest alternative non-formal links without, at the same time, giving the impression of taking into account the nationality of the shareholders controlling the corporation. To solve this problem, the Commission established a Working Group which concluded its work by suggesting a rather ambiguous wording to be referred to the Drafting Committee. Indeed, the formulation agreed by the Working Group afﬁrms that the State of nationality is the one according to whose laws the corporation was formed and with which it has a sufﬁcient (or close and permanent, administrative/formal) connection. Unless the conjunction “and” is replaced by “or” one could get the false impression that a genuine link is effectively required for a State to exercise diplomatic protection on behalf of a given corporation.

2. Articles 18 and 19 deal with exceptions to the general principles contained in Article 17.

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According to Article 18, the State of nationality of the shareholders is entitled to exercise diplomatic protection on their behalf if the corporation has ceased to exist in the place of its incorporation, or the corporation has the nationality of the State responsible for causing injury to the corporation. In turn, Article 19 recognises the right of the State of nationality of shareholders in a corporation to protect them when they have been directly injured by the internationally wrongful act of another State. Of the two exceptions provided for by Article 18, only the ﬁrst one met with unanimous approval by the members of the Commission and was thus referred to the Drafting Committee without great discussion. On the other hand, the second exception attracted widespread criticism among the members of the Commission. Many of them raised doubts as to whether it was already part of customary international law. As some members put it, the inclusion of the second exception in the draft could result in long and complex proceedings and could lead to difﬁculties with the rule of continuity of nationality, given that shares changed hands quickly. At the end of the debate, the Special Rapporteur conceded that the second exception might not already be part of present customary law. Even if only as progressive development, he insisted that it should nonetheless be referred to the Drafting Committee. He also clariﬁed that the exception in question should be used only as a ﬁnal resort, when there was no other solution provided for by the domestic order of the wrongdoer State or in applicable bilateral and multilateral treaties. The exception envisaged in Article 19 was formulated as a saving clause and met with general approval in the Commission. It was considered to be none other than the codiﬁcation of a principle already set forth in the part of the draft articles devoted to diplomatic protection of natural persons.

3. Article 20 proposed by the Special Rapporteur concerns the problem of continuous nationality of corporations. The solution envisaged by Dugard in this regard requires that a State should be entitled to exercise diplomatic protection in respect of a corporation only when it had been incorporated under its laws both at the time of injury and at the date of the ofﬁcial presentation of the claim. However, a problem may arise if the corporation ceases to exist in the place of its incorporation as a result of an injury caused by an internationally wrongful act of another State. In this case, which State is entitled to bring a claim on behalf of the corporation? Should this right be vested in the State of nationality of the shareholders, or by the State of nationality of the defunct corporation, or by both? The Special Rapporteur expressed his opinion in favour of the latter alternative, which corresponded also to the view put forward by some judges in Barcelona Traction. Some members noticed, however, that this solution would be inconsistent with the one set out in Article 18, where no locus standi to the State of nationality of the defunct corporation has been recognised. At the end of the debate, the Special Rapporteur recommended that the text of Article 20 be referred to the Drafting Committee along the

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lines he proposed, with the intention of harmonising this Article with Article 4 of the draft about continuous nationality of natural persons.

4. Article 21 is a lex specialis clause. It states that the present articles do not apply where the protection of corporations or shareholders is governed by special rules of international law. What the Special Rapporteur had in mind when proposing this provision was the great number of bilateral and multilateral agreements in force on the protection of foreign investments. There was one major objection raised by the members of the Commission with regard to Article 21. Many members thought that diplomatic protection was a means disciplined by customary law in order to protect individuals in the last resort. For this reason, it should not be completely ruled out even when international treaties in force tend to avoid the regime of diplomatic protection because of its discretionary nature. Some of them expressed concern that the clause could even be interpreted in such a way so as to exclude the application of the diplomatic protection of natural persons in the ﬁeld of human rights. In light of these concerns, the Commission decided to refer the provision to the Drafting Committee with a view to having it reformulated and located at the end of the draft articles as a “without prejudice” clause. One may wonder why the Commission had not analysed this widespread treaty practice and veriﬁed the possible formation of new customary principles on the relationship between domestic courts and international proceedings in the ﬁeld of the protection of foreign investments.

5. Article 22 was proposed by the Special Rapporteur with a view to applying the rules expounded in respect of corporations to other legal persons. This could be the case of private universities, foundations and non-governmental organizations increasingly involved in philanthropic work abroad in the ﬁeld of health, welfare, environment, and human rights. Dugard expressed the opinion that it was not possible to draft articles dealing with diplomatic protection of every kind of legal person, as has been done with regard to corporations. Indeed, there was no consistency or uniformity among legal systems for the creation of a person by law. In such circumstances, he thought that the only way forward was to focus attention on the corporation and then insert a general clause which applied the principles laid down for corporation to other legal persons. The Commission decided to refer the draft article to the Drafting Committee with a view to drafting a ﬂexible provision, open to developments in practice on the application of diplomatic protection to other legal persons.

6. As stated at the beginning of this section, the Commission also adopted the texts of draft Articles 8, 9, and 10 with commentaries. They all concern the rule of prior exhaustion of local remedies and the conditions of its application.

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Article 8 codiﬁes the general rule requiring the exhaustion of local remedies as a prerequisite for the presentation of an international claim. Both natural and legal persons are required to exhaust local remedies. Because the remedies available to a foreign national inevitably vary from State to State, the Commission decided not to provide an absolute rule governing all situations. In fact, paragraph 2 describes the main kinds of remedies that must be exhausted in broad terms only. Both judicial and administrative remedies must be exhausted. If the municipal law permits an appeal to the highest court, such an appeal must be also brought in order to secure a ﬁnal decision in the matter. The injured foreign national is, however, only required to exhaust such remedies which are available to him as of right and may result in a binding decision. He is not required to approach the executive for relief in the exercise of its discretionary powers. The last important point discussed in the commentary concerns the arguments that the foreign litigant must raise in order to satisfactorily lay the foundation for an international claim. According to the Commission, he must raise all the arguments he intends to raise in international proceedings in the municipal proceedings. The foreign litigant must therefore produce the evidence available to him to support the essence of his claim in the process of exhausting local remedies. He cannot use the international remedy afforded by diplomatic protection to overcome faulty preparation or presentation of his claim at the municipal law level. Article 9 enounces the classical principle that the exhaustion of local remedies applies only to cases in which the claimant State has been injured “indirectly”, through one of its nationals. It does not apply where the claimant State has been directly injured, that is, when the injury has been caused to one of its organs, assets, or symbols. In the case of a mixed claim, the Commission suggests that it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant. Article 9 also clariﬁes that a request for a declaratory judgement per se is not exempt from the rule of exhaustion of local remedies. The questions governed by subsequent Article 10 are far more complex. This article codiﬁes the exceptions to the local remedies rule. Article 10 envisages four possible exceptions. Three of them deal with circumstances which make it unfair or unreasonable to require that an injured foreign national exhaust local remedies; the last one, provides for the possibility that the respondent State has waived compliance with the local remedies rule. First of all, it would certainly be unfair to claim the exhaustion of local remedies when, regarding the legal system of the respondent State, there is no reasonable possibility of an effective redress. The practice offers many examples when this possibility may occur. Sufﬁce it to mention the notorious lack of independence of local courts, the existence of a consistent and well-established line of precedents adverse to the foreign national in question, or the total inadequacy of the local system of judicial protection.

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Secondly, the requirement of local remedies may be dispensed with in cases in which the respondent State is responsible for an unreasonable delay in allowing a local remedy to be implemented. The delay must be attributable to the State alleged to be responsible for an injury to a foreign national. Thirdly, local remedies need not be exhausted when it would be unreasonable or cause great hardship to the injured alien to bring his or her claim before a foreign court. The Commission justiﬁes this exception because of the absence, in connection with certain injuries, of a voluntary link or territorial connection between the injured individuals and the respondent State. According to the Commission, the requirement of such a connection is part of the rationale of the local remedies rule. It ﬁnds its ground in the assumption of risk by the aliens who decide to live and invest in a foreign country. It is only where the alien has subjected himself voluntarily to the jurisdiction of the respondent State that he or she can be expected to exhaust local remedies. On the other hand, there are many instances today where an individual may be injured by the act of a foreign State outside its territory or by some act within its territory in circumstances in which the individual has no connection with the territory. In such cases the local remedies requirement should be dispensed with. Examples of this situation are offered by transboundary environmental harm or the shooting down of an aircraft that has accidentally strayed into a State’s airspace. In our opinion, the reason why local remedies need not to be exhausted in these cases has nothing to do with the question of a “voluntarily or relevant connection” with the host State. Much simpler, environmental harm or injuries suffered by an individual as a consequence of the use of armed force fall completely outside the international regime on the treatment of aliens. Indeed, the local remedies rule and diplomatic protection are an integral part of this regime only. Injuries to individuals from the violation of different international obligations should follow the general rules on State responsibility for internationally wrongful acts. The fourth exception to the exhaustion of local remedies occurs when the State waives the requirement that local remedies be exhausted. Waiving local remedies may appear in a bilateral or multilateral treaty, or in a contract between the alien and the respondent State. It may be express or implied, or it may be inferred from the conduct of the respondent State.

III. INTERNATIONAL LIABILITY FOR INJURIOUS CONSEQUENCES ARISING OUT OF ACTS NOT PROHIBITED BY INTERNATIONAL LAW (INTERNATIONAL LIABILITY IN CASE OF LOSS FROM TRANSBOUNDARY HARM ARISING OUT OF HAZARDOUS ACTIVITIES) 1. At the present session, the Commission examined the ﬁrst report of the Special Rapporteur, M. Pemmarajau Sreenivasa Rao, on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities.

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It is worth reviewing, in particular, Part III of Rao’s report. It contains a set of submissions for consideration by the Commission based on an analysis of existing treaty regimes on the subject. Fundamentally, this analysis has shown that the problem of compensation for environmental harm has not been tackled so far by resorting to a uniform system of interstate liability established along rigid parameters. On the contrary, international conventions have developed ﬂexible schemes of civil liability where both the responsible and injured subjects are private persons (natural or legal), not States. This general premise was further developed by the Special Rapporteur who proposed to the Commission the different points of a possible, future codiﬁcation of the topic. These points may be summarised as follows. As far as the injured person is concerned, he clariﬁed that the negotiation of a liability convention would not necessarily be the best way to discharge the duty to compensate transboundary harm. This duty could equally be discharged by allowing the plaintiff to sue in the most favourable jurisdiction, or by negotiating an ad hoc settlement. Coherently, any regime the Commission would envisage should be without prejudice to claims under civil liability as deﬁned by national law and remedies available at the domestic level or under private international law. The State should ensure that recourse is available within its legal system, in accordance with evolving international standards, for equitable and expeditious compensation and relief to victims of transboundary harm. Limited liability should be supplemented by additional funding mechanisms. On the side of the subject causing harm, liability and the obligation to compensate should ﬁrst be the onus of the person most in command and control of the hazardous activity at the time the accident occurred. After all, the Special Rapporteur points out that State liability is in practice an exception and is accepted only in the case of outer space activities. Several suggestions have been made concerning the harm viable for compensation. First of all, the person in command and control of the hazardous activity could be considered liable only if the harm caused could reasonably be traced to the activity in question. The test of reasonableness and no strict proof of causal connection should be sufﬁcient to give rise to liability. The model of allocation of loss in case of transboundary harm should be the same as the one adopted for the draft articles on prevention. Secondly, the Special Rapporteur warns that the deﬁnition of damage eligible for compensation was not a well-settled matter. Damage to persons and property was generally compensable. Damage to the environment or natural resources within the jurisdiction or in areas under control of a State was also well accepted, although compensation in such cases was limited to costs actually incurred on account of prevention or response measures. Damage to the environment per se, not resulting in any direct loss to proprietary or possessed interests of individuals or the State should not be considered compensable.

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2. Comments and observations to these submissions were made by the members of the Commission. One may distinguish between general comments and observations to single problems raised by the Rapporteur. General comments by several members focused especially on the viability of the topic. The discussion revealed the existence of divisions of opinions on the feasibility of the project. In fact, some members maintained that the topic, particularly as it concerned the allocation of loss, was inappropriate for codiﬁcation and progressive development; while others stressed that the topic under discussion overlaps with the rules on State responsibility for internationally wrongful acts. Those who expressed themselves in favour of the codiﬁcation, afﬁrmed that it was necessary to establish a link between prevention (which was the subject of the ﬁrst part of the draft articles on hazardous activities) and allocation of loss arising from hazardous activities. It was exactly that link which underpinned the question of compensation. The issue of social costs was also raised during the general debate; the need to take into account the effect of general compensation regime on encouraging or discouraging certain beneﬁcial activities was highlighted. Concerning the comments on speciﬁc submissions, we may say that wide support was expressed only for some general principles such as the residual character of the draft, the intention not to preclude the possibility of receiving better relief under national law and the maintenance of the same threshold of “signiﬁcant harm” as in the draft articles on prevention. The other submissions met with less agreement. At the end of the debate, the Special Rapporteur agreed that the various issues raised needed further reﬂection. He committed to propose concrete formulations on the different points in the course of the next report.

IV. UNILATERAL ACTS OF STATES 1. At the present session, the Commission considered the sixth report of the Special Rapporteur, Victor Rodrìguez Cedeno. The report is mainly devoted to one type of unilateral act, recognition, with special emphasis on the recognition of States. Before dealing with the topic of recognition, the Special Rapporteur reiterated some general remarks on the subject of unilateral acts that he had already expressed in his previous reports. He recalled the difﬁculties encountered by the Commission in deﬁning the nature of unilateral acts, due in particular to the fact that the practice of States has not yet been sufﬁciently analysed. If it proved impossible to draft speciﬁc rules of unilateral acts, he considered it not impossible to prepare some guidelines based on general principles. Presumably (though the report is not very clear on this point), in the Special Rapporteur’s opinion, these guidelines would serve the sole purpose of stimulating coherent behaviour by States concerning the nature and effects of a unilateral act. It is exactly on the basis of this practice that

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he hopes to carry out the future work of codiﬁcation and progressive development of the topic in question. So, how long will it actually take for the codiﬁcation of unilateral acts to be completed? The Rapporteur also pointed out that despite all the problems, some general principles could already be agreed on. In the ﬁrst place, a unilateral act must be formulated by persons authorised to act at the international level and to bind the State they represented. Secondly, the binding nature of a unilateral act might be based on a speciﬁc rule, acta sunt servanda taken from the pacta sunt servanda rule that governed the law of treaties. According to the Special Rapporteur, it might also be stated as a general principle that a unilateral act was binding on a State from the moment it was formulated or the moment speciﬁed in the statement by which the State expressed its will. Similarly, the act could not be modiﬁed, suspended or revoked unilaterally by its author and its interpretation must be based on a restrictive criterion. As far as recognition is speciﬁcally concerned, the Rapporteur stressed the point that the effect of recognising a State or a certain situation as legally formed is not always reached by emanating a formal act of recognition. He thus proposed to exclude from the scope of the codiﬁcation all those facts which could not be considered as formal acts of recognition, such as implied recognition, silence, or resolutions of international organizations. However, this decision seems to contradict the subsequent ﬁndings by the same Special Rapporteur that there do not exist any criteria governing the formulation of an act of recognition and that the form taken by an act of recognition is of no importance. Rodrìguez Cedeno also pointed out that, according to most scholars, the act of recognition was declarative, and not constitutive, of the formation of a new State and its legal personality. Why then bother to codify it? He also discussed the possibility that the recognising State must conduct itself in accordance with its statement, as in the case of estoppel. Still, this possibility cannot be envisaged if the legal effects of recognition or non-recognition have not been established ﬁrst.

2. The debate which followed revealed the continued existence of strong divergence among the members as to whether the topic of unilateral acts was ripe for codiﬁcation at all. Some rightly highlighted that the primary objective of a tentative draft should not be to describe every aspect of the institution of unilateral acts, but rather to determine what their legal effects were. Criticism was also levelled at the Special Rapporteur because the main aspects of recognition had been dealt with on the basis of very theoretical and abstract propositions instead of examining State practice. Differing opinions were also expressed as to the means of future proceedings. Having considered the different opinions expressed during the debate, one gets the overall impression that the Commission has not gone any further in the codiﬁcation of the topic of unilateral acts. It is perhaps exactly for this reason that at the present session the Commission also decided to set up an open-ended Working Group. The Working Group was able

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to adopt a compromise text and made recommendations on the method to be followed in achieving the objectives deﬁned in that text. Both the content of the text and that of the recommendations seem to suggest that the work has to be started again from the beginning! As for the compromise text, it provides ﬁrst of all for a general deﬁnition of unilateral acts. These are conceived as statements expressing the will or consent by which States purport to create obligations or other legal effects under international law. Furthermore, the said text afﬁrms that the study will also deal with the conduct of States which, in certain circumstances, may create obligations or other legal effects under international law similar to those of unilateral acts. In relation to unilateral acts, the study will propose draft articles accompanied by commentaries; whereas in relation to those other conducts, the study will examine State practice and, if appropriate, adopt guidelines or recommendations. Concerning the method of future work, the Working Group agreed that the next report would be exclusively a presentation of State practice. The classiﬁcation of the assembled material should provide an answer to the fundamental issues surrounding the topic, such as the nature of unilateral acts, the criteria for the validity of the express or implied commitment of States, and the circumstances under which any unilateral commitment may be modiﬁed and withdrawn. All the proposals made by the Working Group were ﬁnally adopted by the Commission.

V. RESERVATIONS TO TREATIES 1. At the present session the Commission considered the eighth report of the Special Rapporteur, Alain Pellet, concerning the withdrawal and modiﬁcation of reservations and interpretative declarations as well as the formulation of objections to reservations and interpretative declarations. It also referred some of the guidelines relating to the modiﬁcation and withdrawal of reservations and interpretative declarations (draft guidelines 2.3.5, 2.4.9, 2.4.10, 2.5.12, and 2.5.13) to the Drafting Committee. Draft guidelines relating to speciﬁc aspects of the withdrawal of reservations were only provisionally adopted. The Special Rapporteur also proposed draft guidelines 2.6.1, 2.6.2 bis and 2.6.1 ter on objections to reservations. The Commission discussed these proposals but did not adopt any guideline on that topic at the present session. We will examine the draft guidelines on modiﬁcation and withdrawal of reservations ﬁrst; once this analysis has been completed, we will follow the discussion on the objections to reservations held by the Commission on the basis of Pellet’s proposals. Let us begin by recalling that, according to the Special Rapporteur, the enlargement of the scope of reservations is clearly similar to the late formulation. He thus proposed that draft guideline 2.3.5 could simply refer to the rules applicable to the

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late formulation of reservations. On the other hand, he proposed a draft guideline 2.5.12 stating that States can withdraw simple interpretative declarations whenever they want, provided that it is done by a competent authority. Similarly, he considered that simple interpretative declarations may also be modiﬁed at any time and proposed that draft guideline 2.4.9 should provide for this accordingly. On the other hand, he deemed that the modiﬁcation of a conditional interpretative declaration should follow the regime applicable to the late formulation or strengthening of a reservation and be subordinate to the lack of any objections by any of the other Contracting Parties. This opinion is reﬂected in draft guideline 2.4.10. Finally, draft guideline 2.5.13 on the withdrawal of a conditional interpretative declaration follows the rules relating to the withdrawal of reservations. As stated at the beginning of this paragraph, all these draft guidelines were referred to the Drafting Committee by the Commission with minor formal improvements.

2. Draft guidelines 2.5 to 2.5.11 adopted by the Commission during the present session concern the withdrawal of reservations. Where possible, they tend to reproduce the corresponding provisions of the two Vienna Conventions on the Law of Treaties. Draft guideline 2.5.1 refers to the generally accepted principle that a reservation may be withdrawn at any time. Consequently, the consent of a State or of an international organization which has accepted the reservation is not required. These provisions, which the Commission considers to be part of customary law, stem from the conception, endorsed by the Commission itself, that the withdrawal is a unilateral act. Draft guideline 2.5.2 reproduces the rule, already provided for by both Vienna Conventions, that the withdrawal of a reservation must be formulated in writing. The Commission makes it clear in the Commentary that it would be incongruous if a reservation, about which there can surely be no doubt that it should be in writing, could be withdrawn simply through an oral statement. In this regard, the Commission also considered the possibility of admitting an implicit withdrawal, that is a withdrawal arising from acts or conduct on the part of a State or an international organization. Several examples of alleged implicit withdrawal were analysed, such as the conclusion between the same parties of a subsequent treaty containing provisions identical to those to which one of the parties had made a reservation, whereas it did not do so in connection with the second treaty; the non-conﬁrmation of a reservation upon signature, when a State expresses its consent to be bound; time-limited reservations; and so called “forgotten reservations”. For one reason or another, the Commission denied that these cases were true examples of implied withdrawal. In the end, it conﬁrmed its conviction that a withdrawal occurs only if the author of the reservation declares formally and in writing that he intends to revoke it.

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Draft guideline 2.5.3 draws attention to the need to periodically review the usefulness of reservations. These recommendations were inspired by the general idea that reservations undermine the unity and integrity of the treaty regime. It is thus beneﬁcial for that regime if States reconsider obsolete or superﬂuous reservations from time to time, with a view to withdrawing them totally or partially.

3. Draft guidelines 2.5.4 to 2.5.6 concern the procedure for the withdrawal of reservations. Draft guideline 2.5.4 sets out the requisites that a person must possess in order to be competent to withdraw a reservation made on behalf of a State or an international organization. The guideline is modelled after the provisions of the Vienna Conventions on the competence to express the consent of a State or international organization to be bound by a treaty. In turn, these provisions were already taken into consideration by the Commission when formulating the guidelines on the formulation of reservations. Draft guideline 2.5.5 reproduces the rule already adopted by the Commission in relation to the formulation of reservations. It afﬁrms the absence of consequences of the violation of internal rules regarding the withdrawal of reservations at the international level. In this regard, the Commission did not rule out the possibility that the “defective ratiﬁcation” rule of Article 46 of the Vienna Conventions might be applied in relation both to the formulation and the withdrawal of reservations. However, it noticed that relevant rules on the withdrawal of reservations are very seldom spelled out in formal texts of a constitutional or even a legislative nature. With regard to the communication of withdrawal, the Commission moved the provisions it had adopted on the communications of reservations into draft guideline 2.5.6.

4. The effects of the withdrawal of a reservation are dealt with in draft guideline 2.5.7. There can be no doubt that the effect of withdrawal of a reservation is to restore the original text of the treaty. However, according to the Commission a distinction should be made between three possible situations. In the ﬁrst place, in the relations between the reserving State and the accepting State (or international organization), the reservation ceases to be operational. The same applies, in the second place, to the relations between the State (or international organization) which has objected to, but not opposed the entry into force of the treaty between itself and the reserving State. The third situation occurs where the objecting State or international organization had opposed the entry into force of the treaty between itself and the reserving State or organization. In this case, the treaty enters into force on the date on which the withdrawal takes effect.

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As to the effective date of withdrawal of a reservation, draft guideline 2.5.8 states that the withdrawal becomes operative in relation to a contracting State or international organization only when notice of it has been received by that State or international organization. This provision is identical to the one provided for by Article 22, paragraph 3(a) of the two Vienna Conventions. In the Commentary, the Commission stresses that the withdrawal of a reservation immediately after notiﬁcation is given might give rise to difﬁculty. In such case, the Commission suggests that a clause should be included in the treaty specifying the period of time required to deal with the situation created by the withdrawal. In order to assist the negotiators of treaties where this kind of problem arises, the Commission decided to include in the Guide to Practice three model clauses (A, B, and C) on which they could base themselves. The purpose of model clause A is to extend the period of time required for the effective date of the withdrawal of a reservation. Model clause B is designed to cover the opposite situation, since situations may arise in which the parties agree that they prefer a shorter time period. Model clause C applies to the situation in which the Contracting Parties wish to leave it to the discretion of the reserving State or international organization to determine the date on which withdrawal would take effect. Draft guideline 2.5.9 establishes two exceptions to the principle set out in previous guideline 2.5.8 and in Article 22, paragraph 3(a) of the Vienna Conventions. The ﬁrst one occurs when the withdrawing State decides to set the effective date of withdrawal at a time later than that resulting from the application of above mentioned Article 22, paragraph 3(a). This hypothesis should not raise particular difﬁculties, because the period provided is intended to enable the other parties to be fully informed of the scope of their commitments in relation to the State (or international organization) renouncing its reservation. The second one concerns those cases in which the date set by the author is prior to the receipt of notiﬁcation by the other Contracting Parties. In this situation, only the withdrawing State or international organization (and the depositary) knows that the reservation has been withdrawn. This applies all the more where the withdrawal is assumed to be retroactive.

5. Draft guidelines 2.5.10 and 2.5.11 deal with partial withdrawal of a reservation. Partial withdrawal is connected with the possibility of modifying or even replacing a reservation, provided the result is to limit its effect. According to the Commission, there is no valid reason for preventing a State from limiting the scope of a previous reservation by withdrawing it, if only in part. The treaty’s integrity is better ensured thereby and it is not impossible that, as a consequence, some other parties may withdraw the objections that they made to the initial reservation. The modiﬁcation of a reservation whose effect is to reduce its scope is subject to the same legal regime as a total withdrawal, with the only exception of the ef-

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fects of a partial withdrawal. In fact, while the second paragraph of draft guideline 2.5.10 takes account of the alignment of the rules on partial withdrawal of reservations with those that apply in the case of a total withdrawal, the effects of a partial withdrawal are dealt with separately in draft guideline 2.5.11. The Commentary to the latter guideline points out very clearly that a partial withdrawal does not entail the application as a whole of the provisions to which the reservation is related, because the reservation remains, albeit in a more limited form. By virtue of a partial modiﬁcation, the legal effect of the reservation is modiﬁed only “to the extent of the new formulation of the reservation”. Moreover, in the case of total withdrawal, the effect is to deprive of any consequence the objections that had been made to the reservation as initially formulated. On the contrary, there is no reason for this to be true in case of a partial withdrawal. States and international organizations that had made objections may perfectly well maintain their objections if they deem it appropriate, on the understanding that the objection has been expressly justiﬁed by the part of the reservation that has not been withdrawn. The objecting States or international organizations may reconsider their objections only if the motives that gave rise to them were eliminated by the modiﬁcation of the reservation. If the objection does not apply exclusively to the part of the reservation which has been withdrawn, the authors of an objection are not required to conﬁrm it. This assumption of continuity is considered fairly reasonable, for the partial withdrawal does not eliminate the initial reservation and does not constitute a new reservation. On the other hand, a partial withdrawal cannot constitute a new opportunity to object to the reservation resulting from the partial withdrawal itself. If the Contracting Parties have adapted to the initial reservation, so runs the Commission’s argument, it is difﬁcult to see how they can go against the new one which, in theory, has attenuated effects. There is nonetheless an exception to this principle, namely when a partial withdrawal might have a discriminatory effect. This may be the case if a State or an international organization renounced a previous reservation vis-à-vis certain parties or categories of parties to the exclusion of others. In this situation, it would seem necessary for those parties to be able to object to the reservation even though they had not objected to the initial reservation when it applied to all of the Contracting Parties together.

6. Draft guideline 2.5.11 was the last one to be adopted by the Commission on the topic of reservations during the present session. As stated in the ﬁrst paragraph, we must now summarise the debate held in the plenary about objections to reservations. Draft guideline 2.6.1, proposed by Pellet, deﬁnes the “objection” as a unilateral statement purported to prevent, between the author of the reservation and the State or organization which formulated the objection, the application of the provisions of

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the treaty to which the reservation relates, to the extent of the reservation only, or the application of the treaty as a whole between the same parties. These concepts are conﬁrmed by draft guideline 2.6.1 ter concerning the so called “across-theboard” reservations. The Special Rapporteur also speciﬁes that his deﬁnition does not take a stance on the validity of objections. Draft guideline 2.6.1 bis is intended to avoid confusion over terminology. It states that “objection” may also mean a unilateral statement whereby a State or an international organization opposes the late formulation of a reservation. During the debate, several members were of the opinion that the deﬁnition of objections should be broader than the one suggested by the Special Rapporteur. They pointed out that the legal effects of an objection to a reservation under the Vienna Conventions were uncertain. Therefore, they suggested that the deﬁnition of objections should reﬂect the real intention of the objecting State and not tie that position to the effects attributed to objections under the Vienna Conventions. In fact, the practice of States shows that the objecting States sometimes have in mind effects that are different from those provided for in Articles 20 and 21 of the Vienna Conventions. In the same train of reasoning, other members noted that the deﬁnition of objections should be much more ﬂexible. In his response, the Special Rapporteur agreed with the opinion expressed by the majority of the members that the intention of States or international organizations was a key element of the deﬁnition of objections. Accordingly, he proposed a new wording for draft guideline 2.6.1, which deﬁnes the objection in a much broader way as a unilateral statement, however phrased or named, purporting to prevent the reservation having any or some effects.

VI. SHARED NATURAL RESOURCES 1. This topic was included in the Commission’s programme of work only last year. Mr. Chusei Yamada was appointed as Special Rapporteur. During the present session, the Commission considered the Special Rapporteur’s ﬁrst report, which is intended to provide the general background of his attempt of codiﬁcation. Under the topic, he proposed to cover conﬁned transboundary groundwaters, oil and gas. He also speciﬁed that, although sharing the same atmospheric source, conﬁned groundwaters were distinct from surface waters in several aspects. Moreover, as activities on the surface of the soil could have adverse effects on groundwaters, he also considered the possibility of regulating activities other than uses of groundwaters. The Special Rapporteur concluded his report by indicating that he intended to conduct studies on the practice of States with respect to uses and management, including pollution prevention, and cases of conﬂicts, as well as domestic and international law. During the debate, most members pointed out the necessity of harmonising the topic under considerations with other subjects, such as international liability or

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the non-navigational uses of international watercourses. They also highlighted the need to specify the content of future draft articles better. In fact, some members cast doubts on the advisability of including subtopics such as oil and gas; while others expressed concern regarding the use of some general concepts such as the much debated principle of the “common heritage of mankind”. In his concluding remarks, the Special Rapporteur agreed on the point that he should basically focus on the subject of conﬁned transboundary groundwaters. He would consider the possibility of enlarging the scope of his work at a later stage only. He also conceded that the deﬁnition of groundwaters should be speciﬁed more clearly. Most important, Chusei Yamada concurred in the opinion that it might be preferable not only to suggest legal solutions on the merits, but also to couple these solutions with cooperation regimes, including dispute settlement.

VII. FRAGMENTATION OF INTERNATIONAL LAW: DIFFICULTIES ARISING FROM THE DIVERSIFICATION AND EXPANSION OF INTERNATIONAL LAW 1. At the present session, the Commission decided to establish an open-ended Study Group on the topic and appointed Mr. Martti Koskenniemi as Chairman, to replace the former chairman Mr. Bruno Simma. The Study Group observed that the subject of fragmentation revealed that a distinction ought to be drawn between institutional and substantive perspectives. While the former focused on concerns relating to institutional questions of practical coordination and institutional hierarchy, the latter involved the consideration of whether and how the substance of the law itself may have fragmented into special regimes. On the basis of this distinction, it reiterated the Commission’s intention not to deal with questions concerning the creation of, or the relationship among, international judicial institutions. As regards the substantive aspects, it observed that there were at least three different patterns of interpretation or conﬂict, which were relevant to the question of fragmentation: (a) conﬂict between different understandings or interpretations of general law; (b) conﬂict arising when a special body deviates from general law not as a result of disagreement as to the general law but on the basis that a special law applies; and (c) conﬂict arising when specialised ﬁelds of law seem to be in conﬂict with each other. The Study Group also recalled that the recommendations made by the Commission in its 2002 report showed a preference for a comprehensive study of the rules and mechanisms for dealing with conﬂicts. It also agreed upon a tentative schedule providing for the preparation of studies and outlines of the following topics: “the function and scope of the lex specialis rule and the question of self-contained regime”; “the interpretation of treaties”; “the application of successive treaties relating to the same subject matter”; “the modiﬁcation of multilateral treaties between

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certain of the parties only”; “hierarchy in international law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conﬂict rules”.

2. During the present session, the Study Group also examined an outline of the Study on the lex specialis rule and self-contained regimes prepared by the Chairman. There was agreement among the members on the Chairman’s conclusion that the lex specialis rule could be said to operate in two different contexts, namely lex specialis as an elaboration or application of general law in a particular situation and lex specialis as an exception to the general law. A narrower view considered lex specialis to apply only where the special rule was in conﬂict with general law. It was agreed that the expository study should cover both the broad and narrow conceptions of lex specialis. It was also decided that areas regulated by regional law should be considered within this topic. Concerning self-contained regimes, two problems in particular were discussed. Firstly, it was agreed that while such regimes were sometimes identiﬁed by reference to special secondary rules contained therein, the distinction between these two categories of rules was often difﬁcult to apply and might not be required for the study. Secondly, the Group emphasised the importance of general international law, which was said to regulate those aspects of the functioning of self-contained regimes not speciﬁcally regulated by the latter, and become fully applicable if the self-contained regime ceased to function.

THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2003)* FEDERICO LENZERINI** and MASSIMILIANO MONTINI***

1. INTRODUCTION The prospect of a further development of world trade system were severely curtailed by the failure of the WTO Members to reach an agreement on the hottest issues on the agenda at the Fifth Ministerial Conference, held in Cancun in September 2003. Many doubts now exist regarding the possibility of reaching the objectives set by the Doha Work Program, as agreed at the Fourth Ministerial Conference held in Doha in November 2001, which originally ought to be completed by 1 January 2005.1 This notwithstanding, ﬁgures on the state of the global economy and world trade released by the WTO in April 2004 show that during the year 2003 the global GDP has risen by 2.5% and world trade has grown by 4.5%, largely above the levels observed in 2001-2002 and above the economic forecasts for 2003, although still below the average annual rate of world trade growth registered from 1995 onwards.2 As to dispute settlement, the latest update provided by the WTO (current to the year 2003)3 shows that the overall number of complaints notiﬁed to the Dispute Settlement Body (DSB) since 1 January 1995 now amounts to 304 cases. The number of Panel and Appellate Body reports adopted in the period 1995-2003 now totals 75, while in the same period 42 solutions were mutually agreed and the other settled or inactive disputes amounted to 24. At the reporting date (23 December 2003), 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 Dispute Settlement Understanding (DSU), the ﬁgures available at the reporting date (23 December 2003) show that no compliance panels are active. In the period 1995-2003, a total number of 12 Panel and Appellate Body compliance reports have been adopted, while 7 Arbitrations on the level of suspensions of concessions have been concluded and 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 on seven occasions. * Introduction and section 3 have been written by MASSIMILIANO MONTINI, sections 2 and 4 by FEDERICO LENZERINI. ** J.D., University of Siena; Ph. D., International Law. *** J.D., University of Siena; LL.M., University of London; Researcher, University of Siena. 1 See Cancun Ministerial Statement adopted on 14 November 2003, Doc. WT/MIN(03)/20 of 23 September 2003. 2 See WTO Press Release No. 373 of 5 April 2004. 3 See Update of WTO Dispute Settlement Cases, Doc. WT/DS/OV/18 of 23 December 2003, available at the WTO website, www.wto.org.

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The statistical ﬁgures released this year by the WTO also contain an interesting analysis of the source of the complaints, which distinguishes between developed and developing States. The total number of complaints ﬁled by developed States in the whole period 1995-2003 amounts to 188. Among those complaints, 117 were directed against other developed States and 71 against developing States. Conversely, the complaints ﬁled by developing countries over the same period reached a total number of 110, 64 of which were directed against developed countries and 46 against other developing States. Finally, the complaints jointly ﬁled by developed and developing States were just 6 over the same period and they were all directed against developed countries only. 2. CASE-LAW OF THE APPELLATE BODY4 During the year 2003 the WTO Dispute Settlement Body adopted seven Appellate Body (AB) dispute settlements reports. In chronological order, the ﬁrst of these reports settled a case brought by the European Communities in 2000 against the United States, regarding countervailing measures concerning certain steel and food products originating in various Member States of the EC, produced by formerly state-owned enterprises that had been privatized.5 The United States imposed countervailing measures on such products on the basis of the alleged existence of subsidies for the privatized producers, and, in particular, of the beneﬁts conferred on such enterprises by non-recurring ﬁnancial contributions granted by governments in favour of the producers before privatization had occurred. The United States Department of Commerce (USDOC) found that subsidies existed on the basis of the application of two methods: the “Gamma method” and the “Same Person method”. The “Gamma method” is used to determine the extent to which a non-recurring ﬁnancial contribution granted to a state-owned enterprise should be amortized over time to arrive at a countervailing subsidy rate. The “Same Person method” consists in ascertaining whether the owner of the enterprise after privatization is a new legal person or, on the contrary, the same legal person that received the original subsidy before privatization. The Panel, whose report was circulated to the WTO Members on 31 July 2002, found that the measures taken by the United States were inconsistent with a number of provisions of the WTO legal system, on the basis of the fact, inter alia, that where a privatization is at arm’s length and for fair market value, “the beneﬁt resulting from a prior subsidization bestowed upon the state-owned producer no longer accrues to the privatized producer under 4 On this topic see Appellate Body, Annual Report for 2003, Doc. WT/AB/1 of 7 May 2004, available at the WTO website, www.wto.org. 5 See United States – Countervailing Measures Concerning Certain Products from the European Communities, Report of the Appellate Body, WTO Doc. WT/DS212/AB/R of 9 December 2002, adopted on 8 January 2003.

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investigation”.6 The AB reversed this conclusion, stating that, although there is a “rebuttable presumption that a beneﬁt ceases to exist after […] a privatization [at arm’s length and for fair market value] [,] [n]evertheless it does not necessarily do so”,7 depending on the facts of each case. By contrast, the AB upheld the Panel’s ﬁndings that the United States acted inconsistently with various provisions of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) “by imposing and maintaining countervailing duties without determining whether a ‘beneﬁt’ continues to exist” in the relevant countervailing duty determinations.8 Finally, the AB also upheld the Panel’s conclusion that, “insofar as the United States has infringed its obligations under the SCM Agreement […] these actions of the United States constitute prima facie nulliﬁcation or impairment of beneﬁts accruing to the European Communities, pursuant to Article 3.8 of the D[ispute]S[ettlement]U[nde rstanding]; and, because the United States had failed to rebut this presumption, the United States had in fact nulliﬁed or impaired beneﬁts accruing to the European Communities under the SCM Agreement”.9 In Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products,10 a dispute relating to export subsidies allegedly granted by Canada on dairy products and the administration by Canada of the tariff-rate quota on milk, based on complaints by the United States and New Zealand, went into its third phase. In its ﬁrst report (circulated on 13 October 1999) the AB, upholding the Panel’s ﬁndings only in part, had found that Canada had violated Articles 3.3 and 8 of the Agreement on Agriculture.11 The report was adopted by the DSB on 27 October 1999. On 16 February 2001 the United States and New Zealand requested the DSB to refer the problems relating to the implementation of the report to the original Panel in pursuance of Article 21.5 of the Dispute Settlement Understanding (DSU); the DSB referred the matter to the original Panel on 1 March 2001. The AB (whose report was circulated on 3 December 2001) reversed the compliance Panel’s ﬁndings that the supply of “commercial export milk” (CEM, a particular category of milk, any quantity of which could be sold to Canadian processors for export processing solely on the basis of terms and conditions freely negotiated between the producer and the processor) by domestic milk producers to domestic dairy processors “involves ‘payments’ on the export milk ‘that are ﬁnanced by virtue of governmental action’ under Article 9.1(c) of the Agreement on Agriculture”,12

6

See the Report of the Panel, WTO Doc. WT/DS202/R of 31 July 2002, para. 7.114. See Doc. WT/DS212/AB/R, para. 127 (emphasis in the original). 8 Id., para. 160(a). 9 Id., para. 160(d). 10 Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WTO Doc. WT/DS103/AB/RW2, WT/DS/113/AB/RW2 of 20 December 2002, adopted on 17 January 2003. 11 See WTO Doc. WT/DS/103/AB/R, WT/DS/113/AB/R. 12 See WTO Doc. WT/DS/103/AB/RW, WT/DS/113/AB/RW, para. 126. 7

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In doing this, the AB overturned the Panel’s conclusion that Canada had acted inconsistently with Articles 3.3 and 8 of the Agreement on Agriculture. In addition, the AB found itself unable, “in the light of the factual ﬁndings made by the Panel and the uncontested facts in the Panel record”,13 to complete the analysis of the claims made by New Zealand and the United States. In light of this conclusion, on 6 December 2001 New Zealand and the United States submitted a second recourse pursuant to Article 21.5 of the DSU, pointing out that, since the AB did not make any ﬁndings on the claims previously raised, they continued to believe that Canada had failed to comply with the original recommendations and rulings of the DSB. On 18 December 2001 the matter was referred again to the original Panel, which, in its report (circulated on 26 July 2002), concluded that Canada, through the CEM scheme, had infringed Articles 3.3, 8 and 10.1 of the Agreement on Agriculture.14 The AB (whose report was circulated on 20 December 2002) upheld the conclusion that Canada had acted inconsistently with Articles 3.3 and 8 of the Agreement, and declined to rule on the Panel’s ﬁnding on Article 10.1. On 27 January 2003 the DSB adopted the AB report (circulated on 16 January 2003) regarding the case of United States – Continued Dumping and Subsidy Offset Act of 2000,15 based on a joint complaint brought by Australia, Brazil, Chile, the European Communities, India, Indonesia, Japan, Korea and Thailand, and a separate recourse by Canada and Mexico. This dispute concerned the Amendment to the Tariff Act of 1930, enacted on 28 October 2000, usually referred to as “the Byrd Amendment”, which regulated, on an annual basis, the distribution of “[d]uties assessed pursuant to a countervailing duty order, an anti-dumping duty order, or a ﬁnding under the Antidumping Act of 1921 […] to the affected domestic producers for qualifying expenditures”.16 The complainants alleged that the amendment was inconsistent with several provisions of the GATT, the Anti-Dumping Agreement, the SCM Agreement and the WTO Agreement. The Panel, whose report was circulated to WTO Members on 16 September 2002, concluded that the Amendment violated a number of provisions of the Anti-Dumping Agreement and the SCM Agreement, as well as Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement. The AB, on the basis of the fact that the Amendment was “a non-permissible speciﬁc action against dumping or a subsidy”,17 upheld most of the Panel’s ﬁndings, stating that the United States violated Articles 18.1 and 18.4 of the Anti-Dumping Agreement, Article 32.1 and 32.5 of the SCM Agreement, and Article XVI:4 of the WTO Agreement. It also asserted that, “to the extent that the [Amendment] is inconsistent with provisions of the Anti-Dumping Agreement and

13

Id., para. 127. See WTO Doc. WT/DS/103/RW2, WT/DS/113/RW2. 15 See WTO Doc. WT/DS/217/AB/R, WT/DS/234/AB/R. 16 See United States Tariff Act of 1930, section 754(a). 17 See Doc. WT/DS/217/AB/R, WT/DS/234/AB/R, para. 274 and para. 318. 14

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the SCM Agreement” it nulliﬁed or impaired beneﬁts accruing to the compliant parties under those agreements.18 Another AB report relating to a dispute on anti-dumping was adopted by the DSB on 24 April 2003. It regarded a recourse to Article 21.5 of the DSU by India, with reference to the case of European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India,19 based on the alleged non-compliance of the European Communities with the original recommendations and rulings of the DSB. In its ﬁrst report, adopted on 12 March 2001, the AB had upheld the Panel’s ﬁnding according to which the anti-dumping investigation initiated in 1996 by the European Communities into certain imports of cotton-type bed linen from India, which resulted in the application of the practice of “‘zeroing’ the ‘negative dumping margins’ established for [such products] when calculating the overall rate of dumping for bed linen”,20 was inconsistent with Article 2.4.2 of the Anti-Dumping Agreement. The AB also found that the European Communities, “in calculating amounts for administrative, selling and general costs and proﬁts in the anti-dumping investigation at issue” in the dispute, acted inconsistently with Article 2.2.2(ii) of the same agreement.21 The compliance panel, whose report was circulated on 29 November 2002, rejected the Indian argument, concluding that the European Communities had fully implemented the recommendations of the DSB to conform to the Anti-Dumping Agreement.22 On appeal by India, the Panel’s ﬁndings were challenged before the AB, which, in its report, circulated on 8 April 2003, reversed the Panel’s ﬁnding that the European Communities did not act inconsistently with Article 3 (paragraphs 1 and 2) of the Anti-Dumping Agreement in determining the volume of “dumped imports” for purposes of making a determination of injury,23 since the “approach taken by the European Communities in making such determination was not based on an ‘objective examination’”24 and on “positive evidence”. Also involving the European Communities is the third dispute on anti-dumping whose reports have been adopted by the DSB in 2003.25 This dispute related the deﬁnitive anti-dumping duties imposed by EC Council Regulation No. 1784/2000 on imports of malleable iron tube or pipe ﬁttings originating in a number of countries, including Brazil.26 This latter State considered that the EC had infringed Article VI 18

Id., para. 318(c). See WTO Doc. WT/DS141/AB/RW of 8 April 2003. 20 See WTO Doc. WT/DS/141/AB/R of 1 March 2001, para. 8 and para. 86(1). 21 Id., para. 86(2). 22 See WTO Doc. WT/DS141/RW of 29 November 2002. 23 Id., para. 146 and para. 183(b). 24 Id., para. 132. 25 See European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WTO Doc. WT/DS219/AB/R of 22 July 2003, adopted on 18 August 2003. 26 Council Regulation (EC) No. 1784/2000 of 11 August 2000 imposing a deﬁnitive antidumping duty and collecting deﬁnitively the provisional duty imposed on imports of certain 19

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of GATT 1994 as well as a conspicuous number of provisions of the Anti-Dumping Agreement, alleging that the EC’s behaviour was not based on an objective investigation and evaluation of the facts both at the provisional and deﬁnitive stage of its determination. The Panel, whose report was circulated on 7 March 2003, found that the European Communities violated Article 2.4.2 of the Anti-Dumping Agreement, “in ‘zeroing’ negative dumping margins in its dumping determination”,27 as well as Articles 12.2 and 12.2.2 of the same Agreement for not having adequately explained the lack of relevance or signiﬁcance of factors determined not to be relevant or of signiﬁcant weight. Such an explanation, required by Article 3.4, in light of Article 12.2 must be discernible from the published determination of the investigating authority, and, according to the Panel, in the instant case it was not “directly discernible from the published [EC] Provisional or Deﬁnitive Determination”.28 According to the Panel, the European Communities had not acted inconsistently with other relevant provisions; nevertheless, it concluded that, “to the extent the European Communities has acted inconsistently with the provisions of the AntiDumping Agreement, it has nulliﬁed or impaired beneﬁts accruing to Brazil under that Agreement”.29 Of the seven issues appealed by Brazil, the AB rejected Brazil’s claims with respect of six issues, and reversed the Panel’s ﬁndings with respect to one single issue, concluding that the European Communities had infringed Articles 6.2 and 6.4 of the Anti-Dumping Agreement “by failing to disclose to the interested parties during the anti-dumping investigation the information on the injury factors listed in article 3.4”.30 At its meeting of 10 December 2003 the DSB adopted the AB report (as well as the Panel report as modiﬁed by the AB report) concerning the dispute United States – Deﬁnitive Safeguards Measures on Imports of Certain Steel Products.31 The complainant WTO parties were the European Communities, Japan, Korea, China, Switzerland, Norway, New Zealand and Brazil. This dispute regarded the deﬁnitive safeguard measures imposed by the United States in the form of an increase in duties on imports of several steel products (like, e.g., ﬂat steel, hot rolled bar, cold ﬁnished bar, rebar, stainless steel bar, stainless steel wire, etc.) and of a tariff rate quota on imports of slabs effective as of 20 March 2002. The complainants considered such measures to be inconsistent with a number of provisions of the Agreement on Safeguards as well as GATT 1994 (Articles I:1, II, X:3, XIII and malleable cast iron tube or pipe ﬁttings originating in Brazil, the Czech Republic, Japan, the People’s Republic of China, the Republic of Korea and Thailand, OJ EC No. L 208 of 18 August 2000, p. 8 ff. 27 See WTO Doc. WT/DS219/R of 7 March 2003, para. 8.1(i). 28 Id., para. 7.435 and para. 8.1(ii). 29 Id., para. 8.5. 30 See Doc. WT/DS219/AB/R, para. 196(e). 31 See WTO Doc. WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/ R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R of 10 November 2003.

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XIX). The Panel report was circulated to WTO Members on 11 July 2003. All complaints raised by the eight complainant parties were considered in a single panel process, but the ﬁnal decision of the Panel was issued in the form of “one document constituting eight Panel Reports”.32 This choice was consequent to the request of the United States that eight separate panel reports were issued, on account of the fact that only in such case its WTO rights (including the right to settle the matter with individual complainants) would be granted, and the concurrent strong opposition with regard to such a request by all the complainants, which considered it as being just a means for delaying the Panel process. The Panel justiﬁed its decision by stating that it was suitable to ensure, “as far as possible, a prompt and effective resolution of the dispute, while respecting the rights of all parties”.33 As for the object of the dispute, the Panel concluded that all the (ten) safeguard measures at issue were inconsistent with Article XIX:1 of GATT 1994 as well as with some provisions of the Agreement on Safeguards, on account of the fact that the United States, for each of those measures, had failed to provide a reasoned and adequate explanation regarding the following prerequisites for the imposition of a safeguard measure that is consistent with the WTO legal regime: demonstration of the fact “that ‘unforeseen developments’ had resulted in increased imports causing serious injury to the relevant domestic producers”; explanation of “how the facts supported its determination with respect to ‘increased imports’”; existence of a “causal link” “between any increased imports and serious injury to the relevant domestic producers”; compliance “with the requirement of ‘parallelism’ between the products for which the conditions for safeguard measures had been established, and the products which were subjected to the safeguard measure”.34 The AB, whose report was circulated on 10 November 2003, although reversing the Panel’s ﬁndings that the United States had failed to provide “a reasoned and adequate explanation of how the facts supported its determination with respect to ‘increased imports’” and “of how the facts supported its determination of a ‘causal link’ between any increased imports and serious injury” for two of the ten safeguard measures at issue, upheld the Panel’s ultimate conclusion that all of those measures (including the two with regard to which the Panel’s ﬁnding were partially reversed) had violated Article XIX:1 of GATT 1994 as well as the Agreement on Safeguards.35 On the same day, 10 December 2003, the DSB also adopted the AB report regarding Japan – Measures Affecting the Importation of Apples (hereinafter “Apples case”);36 such dispute will be analysed in detail in the following section. 32 See WTO Doc. WT/DS248/R, WT/DS249/R, WT/DS251/R, WT/DS252/R, WT/DS253/ R, WT/DS254/R, WT/DS258/R, WT/DS259/R of 11 July 2003, para. 10.725. 33 Id., para. 10.729 (emphasis in the original). 34 Id., para. 11.2. 35 See WTO Doc. WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/ R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, para. 513. 36 See WTO Docs. WT/DS245/R of 15 July 2003 (Panel Report), WT/DS245/AB/R of 26 November 2003 (AB Report), adopted on 10 December 2003.

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3. THE APPLES CASE The Apples case brought by the United States against Japan, concerned a national measure adopted and maintained by Japan which restricted the import of US apples into the Japanese territory in order to prevent the potential introduction in Japan of disease-causing organisms, named “Erwinia amylovora”, or more commonly “ﬁre blight”, which can be sometimes found in fruit apples. The validity of the Japanese measure was challenged by the US authorities under various provisions of the SPS Agreement (Agreement on the Application of Sanitary and Phytosanitary Measures), and in particular Articles 2, 5 and 7 thereto. The Panel, in its Report circulated to the WTO Members on 15 July 2003, held that Japan’s measure could not be justiﬁed under the relevant provisions of the SPS Agreement, for three main reasons. In fact, such a measure (i) was maintained “without sufﬁcient scientiﬁc evidence”, inconsistent with Japan’s obligation under Article 2.2 of the SPS Agreement; (ii) could not qualify as a provisional measure under Article 5.7 of the SPS Agreement, because it was not imposed in respect of a situation “where relevant scientiﬁc evidence [was] insufﬁcient”; and (iii) was not based on a “risk assessment” within the meaning of Article 5.1 of the SPS Agreement.37 In September 2003, Japan ﬁled an appeal against the decision contained in the Panel’s Report and the Appellate Body was then called to examine a set of issues, which represent an interesting test for the interpretation and application of the SPS Agreement. Before analysing the most important legal issues concerning the application of the SPS Agreement raised in the present case and addressed by the Appellate Body in its Report, let us brieﬂy explain the exact factual background of the present dispute. It is important ﬁrst of all to discuss at some length the “disease” targeted by Japan with its national phytosanitary measure, following the explanation of the factual aspects of the case contained in the Panel Report and recalled in the AB Report. Such a disease, whose scientiﬁc name is “Erwinia amylovora”, but which is commonly referred to as “ﬁre blight”, constitutes an infection which targets various fruit plants and other garden plants, including apple fruit plants, and which is transmitted primarily through wind and/or rain and by insects or birds to open ﬂowers on the same or new host plants. The “ﬁre blight” disease is commonly held to have never entered the territory of Japan, although it has been reported in various areas of Europe, the United States and Australia.38 Besides focusing on the determination of the “disease” targeted by Japan, the Panel and the AB in their analysis dealt in particular with two other preliminary fac-

37 38

See Panel Report, para. 9.1(a)-(c). See AB Report, para. 8.

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tual issues, namely the determination of the relevant product, which could be “any apple” according to Japan and solely “mature symptomless apples” according to the United States, and the issue of whether the Japanese measure, which consisted of several requirements imposed on imported apples, could be considered as a “single measure” for the purpose of the application of the SPS Agreement. With regard to the ﬁrst issue, the Panel held that the relevant product was “any apple”, whereas as for the second issue, the Panel concluded that the Japanese measure must indeed be considered as a single measure for the purpose of the application of the SPS Agreement.39 Proceeding then to the analysis of the merits of the case, it must be recalled here that Japan, in its appeal before the AB, raised four claims, three of which deserve our particular attention insofar as they involve the issue of the correct interpretation and application of the relevant provisions of the SPS Agreement.40 In the ﬁrst place, the Appellant contested the Panel’s ﬁnding that the national measure was “maintained without sufﬁcient scientiﬁc evidence” and was therefore inconsistent with Japan’s obligations under Article 2.2 of the SPS Agreement. The AB therefore commenced its analysis with a detailed examination of the Panel’s ﬁnding. To this effect, the AB noted that the analysis of the Panel was based on a careful analysis of the scientiﬁc evidence available, which suggested the existence of a negligible risk of possible transmission of “ﬁre blight” through apples and therefore that the importation of US apples into Japan was not likely to serve as a possible pathway for the entry, establishment or spread of “ﬁre blight” within Japanese territory. In fact, the conclusion that the measure at stake was maintained “without sufﬁcient scientiﬁc evidence” was reached by the Panel after having carefully assessed that there was no “rational or objective relationship” between the national measure and the relevant scientiﬁc evidence available, and therefore Japan’s measure was considered to be “clearly disproportionate” to the actual risk posed by the importation of apples from the United States.41 The AB then went on to recall that the expression “sufﬁcient scientiﬁc evidence” implies the existence of a “rational and objective relationship” between the SPS measure taken by a State and the available scientiﬁc evidence, as previously stated by the AB in the case Japan – Agricultural Products II,42 and emphasised that concrete assessment depends on the “particular circumstances of the case” and must be “determined on a case-by-case basis”. Therefore, as to the merits of the case under scrutiny, the AB found that the Panel in its analysis had carefully examined the available scientiﬁc evidence and fully considered the opinions of the experts and had rightly given precedence to the views of the scientiﬁc experts over the evidence submitted by Japan. Therefore, the AB ﬁnally upheld the Panel’s ﬁnding according 39

See AB Report, paras. 9-16. See AB Report, para. 129. 41 See Panel Report, para. 8.171 and AB Report, paras. 143-146. 42 See Japan – Measures Affecting Agricultural Products, Doc. WT/DS76/AB/R of 22 February 1999, adopted on 19 March 1999, para. 84. 40

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to which Japan’s phytosanitary measure was maintained without “sufﬁcient scientiﬁc evidence” within the meaning of Article 2.2 of the SPS Agreement.43 In the second place, the Appellant contested the Panel’s ﬁnding that Japan’s national measure was not imposed in respect of a situation where “relevant scientiﬁc evidence is insufﬁcient”, within the meaning of Article 5.7 of the SPS Agreement. Such a provision in fact stipulates that a Member shall not maintain a sanitary or phytosanitary measure without sufﬁcient scientiﬁc evidence, except as provided for in Article 5.7. On this issue, the Panel in its Report had stated that Japan’s measure was not justiﬁable under Article 5.7 of the SPS Agreement, insofar as it had not been adopted in a situation where “relevant scientiﬁc evidence is insufﬁcient”. The Panel had reached such a conclusion, observing that a large quantity of high quality scientiﬁc evidence existed on the issue at stake, which concluded that a negligible risk existed of transmission of “ﬁre blight” through apple fruit. Therefore, since Article 5.7 was “designed to be invoked in situations where little or no scientiﬁc evidence was available on the subject matter at issue”, the Panel had concluded that Japan’s justiﬁcation of its measure under Article 5.7 of the SPS Agreement could not be sustained.44 For its part, the AB ﬁrstly recalled the four requirements that must be satisﬁed in order to lawfully adopt and maintain a provisional phytosanitary measure, previously set out by the same AB in the case Japan – Agricultural Products II,45 and on the basis of such requirements held that the large quantity and high quality of scientiﬁc evidence available in the case at stake suggested that the risk of transmission of ﬁre blight through apple fruit was negligible and therefore in the present circumstance it could not be argued that the “relevant scientiﬁc evidence” was “insufﬁcient” within the meaning of Article 5.7 of the SPS Agreement. The AB also dismissed Japan’s claim according to which the Article 5.7 exception could be triggered not only by the existence of “insufﬁciency of scientiﬁc evidence”, but also by a mere “scientiﬁc uncertainty”.46 In the third place, the Appellant contested the Panel’s ﬁnding that Japan’s measure was not based on a “risk assessment” as required by Article 5.1 of the SPS Agreement. The AB began its analysis by recalling the relevant deﬁnition of “risk assessment” contained Annex A to the SPS Agreement, according to which “risk assessment” can be deﬁned as “the evaluation of the likelihood of entry, establishment or spread of a pest or a disease within the territory of an importing Member” and recalled the AB ﬁndings in the case Australia – Salmon, according to which a risk assessment conducted on the basis of Article 5.1 of the SPS Agreement must satisfy three conditions. Firstly, it must “identify the diseases whose entry, establishment or spread a Member wants to prevent within its territory”. Secondly, it 43

See AB Report, paras. 162-168. See Panel Report, paras. 8.219-8.222 and AB Report, paras. 169-174. 45 See AB Report, para. 176 and Japan – Measures Affecting Agricultural Products, cit. supra note 42, para. 89. 46 See AB Report, paras. 176-188. 44

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must “evaluate the likelihood of entry, establishment or spread of these diseases”. Thirdly, it must “evaluate the likelihood of entry, establishment or spread of these diseases according to the SPS measures which might be applied”.47 Since the US did not claim that Japan’s risk assessment did not satisfy the ﬁrst one of those conditions, the analysis of the Panel, and then of the AB, focused on the other two conditions. In this sense, in particular, the AB stated that “under the SPS Agreement, the obligation to conduct an assessment of ‘risk’ is not satisﬁed merely by a general discussion of the disease sought to be avoided by the imposition of a phytosanitary measure”, but must be “sufﬁciently speciﬁc” to the concrete risk at stake. On such a basis, the AB substantially upheld the ﬁnding of the Panel according to which Japan’s risk evaluation in the case under scrutiny was not sufﬁciently precise and speciﬁc to amount to a “risk assessment” within the meaning of Article 5.7 of the SPS Agreement, because it had failed to evaluate the “likelihood of entry, establishment or spread” of ﬁre blight speciﬁcally through apple fruit.48 Moreover, the AB noted that Japan in the case under scrutiny had also failed to satisfy the condition which requires a Member to conduct its “risk assessment” not only with regard to the SPS measures which “are being applied”, but also to the sanitary and phytosanitary measures “which might be applied”, where the reference to the term “might” ought to mean that the “risk assessment” analysis should not be limited to an examination of the measures already in place or favoured by the importing Member.49 Therefore, upholding the Panel’s ﬁndings, the AB ﬁnally concluded that Japan’s risk analysis did not satisfy the deﬁnition of risk assessment contained in Annex A to the SPS Agreement, as interpreted by the AB case-law, because it failed (i) to “evaluate the likelihood of entry, establishment or spread of these diseases” and (ii) to “evaluate the likelihood of entry, establishment or spread of these diseases according to the SPS measures which might be applied”. As a consequence, Japan’s measure could not be justiﬁed under Article 5.1 of the SPS Agreement, insofar as it was not “based on a risk assessment” as required by that provision.50 4. PUBLIC HEALTH AND THE TRIPS AGREEMENT51 On 30 August 2003 the WTO General Council adopted a Decision on the implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and

47 See AB Report, para. 196 and Australia – Measures Affecting Importation of Salmon, Doc. WT/DS18/AB/R of 20 October 1998, adopted on 6 November 1998, para. 121. 48 See AB Report, paras. 198-206. 49 See AB Report, paras. 207-209. 50 See AB Report, para. 216. 51 On this topic see LENZERINI and MONTINI, “The Activity of the World Trade Organization (2001)”, IYIL, 2001, p. 191 ff., p. 205 ff.

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public health.52 This paragraph recognized that “WTO members with insufﬁcient or no manufacturing capacities in the pharmaceutical sector could face difﬁculties in making effective use of compulsory licensing under the TRIPS agreement”, and entrusted the Council for TRIPS “to ﬁnd an expeditious solution to this problem”.53 Although this provision recognized that the right of any person in need of medical care to have effective access to medicines cannot be subordinated to a formal and strict application of the rules relating to intellectual property rights, its actual implementation was seriously affected by the opposition of some developed countries, acting under the pressure of Western pharmaceutical ﬁrms which maintain the monopoly of the production of patented anti-pandemic medicines. The Decision of the General Council corresponds to a waiver from the obligations set out in Article 31 paragraphs (f) and (h) of the TRIPS Agreement with respect to pharmaceutical products, a waiver that may be justiﬁed under “exceptional circumstances”, as pointed out by the last sentence of the Decision’s Preamble. The above provisions place two conditions on the possible use, other than that allowed under Article 30,54 of the subject matter of a patent without the authorization of the right holder (so-called “other use”); in particular, paragraph (f) states that “any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use”, while paragraph (h) adds that “the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization”. The Decision allows derogations of paragraph (f) with regard to the obligations of “an exporting Member […] with respect to the grant by it of a compulsory licence to the extent necessary for the

52 See “Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health”, Decision of the General Council of 30 August 2003, WTO Doc. WT/L/540 of 1 September 2003. This Decision had been preceded by the “Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products”, Decision of the Council for TRIPS of 27 June 2002, WTO Doc. IP/C/25 of 1 July 2002 (according to paragraph 1 of which “[l]eastdeveloped country Members will not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these sections until 1 January 2016), and the General Council Decision of 8 July 2002 on “Least-Developed Country Members – Obligations Under Article 70.9 of the TRIPS Agreement with respect to Pharmaceutical Products”, WTO Doc. WT/L/478 of 12 July 2002 (paragraph 1 of which states that “[t]he obligations of least-developed country Members under paragraph 9 of Article 70 of the TRIPS Agreement shall be waived with respect to pharmaceutical products until 1 January 2016”). 53 The text of the Declaration, adopted on 14 November 2001, is available at http:// www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm. 54 Article 30 of the TRIPS Agreement states that “[m]embers may provide limited exceptions to the exclusive right conferred by a patent, provided that such exceptions do not unreasonably conﬂict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account of the legitimate interests of the third parties”.

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purposes of production of a pharmaceutical product(s) and its export to an eligible importing Member(s)”.55 In other words, any WTO Member may export pharmaceutical products made under compulsory licences, derogating from the provision of paragraph (f) (according to which such licences must be used “predominantly for the supply of the domestic market”), for the beneﬁt of developing countries upset by pandemic diseases. In any event, the application of such provision is subject to a number of conditions, which have the clear purpose of preventing Member States from abusing of the waiver. First, the eligible importing Member(s) must make a notiﬁcation to the Council for TRIPS specifying “the names and expected quantities of the product(s) needed”, conﬁrming its eligibility to beneﬁt from the waiver and stating that, “where a pharmaceutical product is patented in its territory, it has granted or intends to grant a compulsory licence in accordance with article 31 of the TRIPS Agreement and […] this Decision”.56 As for the condition of eligibility of the importing country, paragraph 1(b) states that it is met by “any least-developed country Member, and any other Member that has made a notiﬁcation to the Council for TRIPS of its intention to use the system as an importer”. All non-least-developed Member States may only use the system on the condition that they conﬁrm their “insufﬁcient or no manufacturing capacities in the pharmaceutical sector for the product(s) in question”, as explicitly stated by paragraph 2(a)(ii). Also, the compulsory licence issued by the exporting Member57 must respect a number of strict conditions; in particular, “only the amount necessary to meet the needs of the eligible importing Member(s) may be manufactured under the licence and the entirety of this production shall be exported to the Member(s) which has notiﬁed its needs to the Council for TRIPS”.58 In addition, under paragraph 2, the products produced under the licence must be “clearly identiﬁed as being produced under the system set out in this Decision through speciﬁc labelling or marking”.59 As for the terms and conditions according to which the Decision allows the waiving of Article 31(h) of the TRIPS Agreement, according to paragraph 3 such provision may be waived by an eligible importing Member granting a compulsory licence for the same products which are the object of a compulsory licence granted by an exporting Member pursuant to the Decision, only “in respect of those products for which remuneration […] is paid in the [said] exporting Member”. In this respect, according to the ﬁrst part of the said paragraph, “adequate remuneration

55

See paragraph 2. See paragraph 2(a). 57 Paragraph 1(c) deﬁnes “exporting Member” as “a Member using the system set out in this Decision to produce pharmaceutical products for, and export them to, an eligible importing Member”. 58 See paragraph 2(b)(i). 59 See paragraph 2(b)(ii). 56

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pursuant to Article 31(h) of the TRIPS Agreement shall be paid in [the exporting] Member taking into account the economic value to the importing Member of the use that has been authorized in the exporting Member”. Thus, the exporting country bears the responsibility of setting compensation, the amount of which should be established on the basis of the economic value of the product in the importing country. This rule is suitable to allow that the compensation is based upon a fair and reasonable royalty, and it could be implemented by establishing standard criteria that could compensate all of the various patent owners. The adoption of such a system would also be suitable for favouring the rapid availability of generic drugs, without wasting the time needed for establishing the remuneration to be paid in each circumstance. States are already familiar with this course of action, as demonstrated by most recent practice, which has been characterized by the adoption of various forms of royalty guidelines for compulsory licences (established by, inter alia, Canada, Germany, Japan and the Philippines). These guidelines are generally based on medium rates of around 4 percent, increased up to 5 percent for innovative products of particular therapeutic value and reduced as much as 2 percent for products that do not represent a signiﬁcant progress in therapeutic beneﬁts.60 As pointed out by the General Council Chairperson Carlos Pérez de Castillo in his statement held on the same day of the adoption of the Decision,61 the system established by this latter “should be used in good faith to protect public health and […] not be an instrument to pursue industrial or commercial policy objectives”. For this reason, paragraph 4 requires Member States to take reasonable measures, “within their means”, to prevent re-exportation of the products imported into their territories under the system established by the Decision. The same paragraph also introduces a system based on the solidarity of the developed countries which should provide in favour of those Members that experience “difﬁculty in implementing this provision […] technical and ﬁnancial cooperation in order to facilitate its implementation”. In addition, Member States are requested by paragraph 5 to ensure the availability of “effective legal means to prevent the importation into, and sale in, their territories, of products […] diverted to their markets inconsistently with [the Decision’s] provisions”. The relevance of this latter provision is emphasized in the Chairperson’s statement, which stresses the fact that, in the event that products supplied under the Decision are diverted from the market for which they are intended, the purpose of the Decision would be defeated. The principle expressed by paragraph 4 is nevertheless subject to a derogation, provided for by paragraph 6. In this respect it is noteworthy that in the part 60 See, inter alia, LOVE, “Compulsory Licensing: Models for State Practice in Developing Countries, Access to Medicine and Compliance with the WTO TRIPS Accord”, paper prepared for the United Nations Development Programme, 21 January 2001, available at http: //www.cptech.org/ip/health/cl/recommendedstatepractice.html, para. 39 f. 61 The text of the statement is available at http://www.wto.org/english/news_e/news03_e/ trips_stat_28aug03_e.htm.

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of the Chairperson’s statement cited just above, the sentence stating that the Decision may not be considered as “an instrument to pursue industrial or commercial policy objectives” is preceded by the phrase “without prejudice to paragraph 6 of the Decision”. According to such provision, where a least-developed country WTO Member is a party to a regional trade agreement (“within the meaning of Article XXIV of the GATT 1994 and the [Enabling Clause]”),62 at least half of the current membership of which is made up of least-developed countries, Article 31(f) of the TRIPS Agreement “shall be waived to the extent necessary to enable a pharmaceutical product produced or imported under a compulsory licence in that Member to be exported to the markets of those other developing or least developed country parties to the regional trade agreement that share the health problem in question”. In view of promoting the development of the above system of regional patents, the duty of providing technical cooperation is undertaken by developed country WTO Members,63 which should also promote “the transfer of technology and capacity building in the pharmaceutical sector in order to overcome the problem identiﬁed in paragraph 6 of the Declaration”.64 The Decision, which shall not expire until “the date on which an amendment to the TRIPS Agreement replacing its provisions takes effect” for any concerned State,65 applies to any pharmaceutical product, deﬁned as “any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address the public health problem as recognized in paragraph 1 of the Declaration”,66 also including “active ingredients necessary for its manufacture and diagnostic kits needed for its use”.67 In the context of the adoption of the Decision, twenty-three WTO Members declared that they would not use the system set out therein as importing Members,68 and other countries have agreed that they would only use the system as importers “in situations of national emergency or other circumstances of extreme urgency”.69 In addition to Hong Kong China, Israel, Korea, Kuwait, Macao China, Mexico, Qatar,

62 See Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (“Enabling Clause”), decision of 28 November 1979, available at http: //www.wto.org/english/tratop_e/region_e/gattwto31.doc. 63 See paragraph 6(ii). 64 See paragraph 7. As for the “the problem identiﬁed in paragraph 6 of the Declaration”, see supra text corresponding to note 53. 65 See paragraph 11 (specifying that the waivers granted in the decision will maintain their effect until it shall not be terminated). 66 See paragraph 1(a). 67 Id. 68 See note 3 to the Declarations; these members 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, United States. 69 See General Council Chairperson’s Statement, cit. supra note 61.

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Singapore, Chinese Taipei, Turkey and the United Arab Emirates, this commitment had already been undertaken by the new 2004 Members States of the European Union (Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic and Slovenia), which further agreed that “upon their accession to the European Union, they will opt out of using the system as importers”.70 The WTO has established a dedicated webpage to make publicly available the notiﬁcations of importing Members to use the system established by the Decision, as well as those of exporting Members regarding the grant of compulsory licences for export.71 In the immediate aftermath of the adoption of the Decision, the WTO Director General Supachai Panitchpakdi stated that it represents “a historic agreement for the WTO, [proving] once and for all that the organization can handle humanitarian as well as trade concerns”.72 Although it seems to this writer that such proof has been given once and not for all, as is demonstrated by the fact that the “lifelong” problem of the inclusion of a social clause in the WTO system has not yet been resolved, it is indisputable that the Decision is a welcome step towards the recognition of the pre-eminence of human dignity over economic values, and it is particularly noteworthy that such pre-eminence has been recognized in the context of WTO, that is the most important international forum where commercial State interests are developed. Certainly, this course of action is not immune from side effects: in particular, pharmaceutical research is now mainly concentrating on treatments for diseases which are common in developed countries, since they may generate much more income for pharmaceutical ﬁrms than medicines suitable to be included in the system established by the Decision on the implementation of paragraph 6 of the Doha Declaration. In addition, although fully recognizing the positive efforts of WTO Members underlying the Decision, it is important to keep in mind that in the real world its effects may be a mere panacea for a problem that needs to be faced by adopting a multifaceted strategy aimed at resolving, at the same time, all the interrelated causes which give rise to it. As a matter of fact, waivers of intellectual property rights and compulsory licences for medicines risk of being ineffective unless practical problems arising from extreme poverty and deﬁciency of health care in developing countries are not overcome, e.g. the lack of sterile needles for injecting medications, the need to make medicines for the treatment of the adverse side-effects of anti-pandemic drugs available together with such drugs, not to mention the social conditions hindering the adoption of safeguards against sexually transmitted diseases.73 In addition, many developing countries suffer problems of poverty so

70

Id. The address of such website is http://www.wto.org/english/tratop_e/trips_e/public_ health_e.htm. 72 See “Decision WTO removes ﬁnal patent obstacle to cheap drug imports”, available at http://www.cicd-volunteerinafrica.org/Article.asp?NewsID=57. 73 See OWEN, “WTO – Compulsory Licensing in the Developing World”, October 2003, available at http://thomsonderwent.com/ipmatters/ipdc/8199223. 71

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extreme that they cannot afford even the lowest priced generic medicines.74 It is thus important to keep in mind the fact that the system established by the Decision on the implementation of paragraph 6 of the Doha Declaration, although undeniably welcome, represents only a step in a road that is long and difﬁcult. Were it to be considered the solution of all health problems of developing countries, the international community would run the risk of undervaluing one of the most crucial human emergencies of the contemporary world.

74 Id.; the author stresses the fact that “[o]nly approximately 3% of drugs on the essential drug list from the WHO are protected by patent”.

REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2003 BY THE EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO INTERNATIONAL LAW SIMONA GRANATA*

Ever since it began to function, on 1 November 1998, the new European Court of Human Rights has had to struggle in order to prove that the failure of Protocol No. 11 to the European Convention on Human Rights – which had set up this new, permanent Court with a view to ensuring a more efﬁcient processing of the ever-growing applications – was not due to the Court’s own inefﬁciency. Statistics are clear: the number of incoming applications is higher than the number of processed ones, and this trend continues. In 2003, the number of applications lodged with the Court was 38,628; those communicated for observation to the respondent Government were 1720. 753 cases were declared admissible and 16,724 inadmissible. So, every year the ﬁgures of the cases dealt with by the Court in the previous year are accompanied by explanations and justiﬁcations. This year, the dramatic drop in the number of judgments (703 against 844 in 2002 – a decrease of 20%) is said to be due to the artiﬁcial inﬂation of the previous years’ statistics by signiﬁcant groups of cases concerning the length of court proceedings in Italy.1 Whatever the contingent reasons, the truth is that the Court is not able to increase its case-processing capacity to the extent that would allow hope for the possibility of maintaining the right to individual application as it is. * 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 Most of the Italian cases concerning length of judicial or administrative proceedings virtually disappeared from the Court’s docket after the Court decided in 2001 that the remedy introduced by the “Pinto Law” (Law No. 89 of 24 March 2001) was an effective one for the purposes of Article 35, para. 1, of the Convention. However, in the case of Scordino v. Italy (Decision of 27 March 2003), the Court found that the level of compensation awarded to the applicants was too low for them to be deprived of their status as victims; it further found that the applicants were exempted from the obligation under Article 35, para. 1, to appeal to the Court of Cassation in order to challenge the amount of compensation. This decision alerted the Italian authorities. The Plenary Session of the Court of Cassation, by Judgment No. 1339 of 26 January 2004, held that the ﬁnding of a violation of the “reasonable length guarantee” in Article 6, para. 1, of the Convention normally gives rise to the entitlement for the victim to compensation for the moral damage incurred, and the national judge has to determine the amount of such compensation by reference to the pertinent case-law of the Strasbourg Court and may differ from the latter only insofar as is “reasonable”. By a Decision of 13 November 2003 (Application No. 19537/02, Pelli v. Italy), the European Court found that Article 6 of the Convention is applicable to a procedure for obtaining compensation under the “Pinto Law”.

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The Court therefore ﬁghts for its survival by attempting to argue for the right to select the applications it will examine without having to provide reasons for not examining the others. Proposals in this sense have been made within the Committee of Ministers’ Steering Committee for Human Rights. The reform of the Convention, however, seems to be in a deadlock. But while the Court ﬁghts to get rid of most cases, it does not seem to be ready to give up cases involving issues of EU law. And indeed, while the ECJ has increasingly dealt with fundamental rights drawing inspiration from the ECHR and the case-law of the Strasbourg Court, on account of the gaps in the EU human rights protection mechanism, EU citizens have increasingly turned to the Strasbourg Court, which has progressively expanded its scope of competence and has agreed to review national acts of implementation of Community law. It could even be said that a de facto accession of the European Communities is taking place. Divergences in the case-law of the Strasbourg Court and the ECJ have occurred.2 The EU has adopted a Charter of Fundamental Rights, which affords a

2 See, amongst others, ALKEMA, “The European Convention as a Constitution and its Court as a Constitutional Court”, in MAHONEY, MATSCHER, PETZOLD and WILDHABER (eds.), Protecting Human Rights: The European Perspective; Studies in Memory of Rolv Ryssdal, Köln-BerlinBonn-München, 2000, pp. 41-63; LE BOT, “Charte de l’UE et la Convention de sauvegarde des droits de l’homme: la coexistence de deux catalogues de droits fondamentaux”, RTDH, 2003, pp. 781-887; BULTRINI, “L’interaction entre le système de la CEDH et le système communautaire”, Zeitschrift für Europarechtliche Studien, 1998, pp. 493-504; BURGORGUE-LARSEN, “Chronique de jurisprudence européenne comparée”, Revue du droit public, 2003, pp. 961-1022; CHURCHILL and FOSTER, “Double Standards in Human Rights? The Treatment of Spanish Fishermen by the European Community”, EL Rev., 1978, pp. 430-443; COHEN-JONATHAN, “Respect for Private and Family Life”, in MACDONALD, MATSCHER and PETZOLD (eds.), The European System for the Protection of Human Rights, Dordrecht-Boston, 1993, pp. 405-444; JACQUÉ, “The Convention and the European Communities”, ibid., pp. 889-907; JACOBS, “Human Rights in the European Union: The Role of the Court of Justice”, EL Rev., 2001, pp. 331-341; KRÜGER and POLAKIEWICZ, “Proposals for a Coherent Human Rights Protection System in Europe; The European Convention on Human Rights and the EU Charter of Fundamental Rights”, HRLJ, 2001, pp. 113; LAWSON, “Confusion and Conﬂict? Diverging Interpretation of the European Convention on Human Rights in Strasbourg and Luxembourg”, in LAWSON and DE BLOIS (eds.), The Dynamics of the Protection of Human Rights in Europe. Essays in Honour of Henry Schermers, Vol. III, Dordrecht, 1994, pp. 219-252; LECOURT, “Cour européenne des droits de l’homme et Cour de justice des Communautés européennes’’, in MATSCHER and PETZOLD (eds.), Protecting Human Rights: The European Dimension. Studies in honour of Gérard J. Wiarda, Köln et al., 1988, pp. 335-340; LENAERTS, “Fundamental Rights in the EU”, EL Rev., 2000, pp. 575-600; MALINVERNI, “Le droit communautaire devant la Cour de Strasbourg”, in AUER, DELLEY, HOTTELIER and MALINVERNI (eds.), Aux conﬁns du droit. Essais en l’honneur du Professeur Charles-Albert Morand, Basel, 2001, pp. 265-291; ROSSI, “‘Constitutionnalisation’ de l’Union européenne et des droits fondamentaux”, Revue trimestrielle de droit européen, 2002, pp. 27-52; SIMON, “Des inﬂuences spéciﬁques entre CJCE et CEDH: je t’aime moi non plus!”, Pouvoirs, 2001, p. 31 ff.; SPIELMANN, “Human Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts, Inconsistencies and Complementarities”, in ALSTON, BUSTELO and HEENAN (eds.), The EU and Human Rights, Oxford, 1999, pp. 757-780; TULKENS, “Towards a Greater Normative Coherence

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scope of protection of fundamental rights that is not entirely equal to the one afforded by the ECHR. When the Charter becomes legally binding, which is likely to happen, there will be an overlapping of legal instruments (the Charter and the ECHR) and of fora (the Strasbourg and the Luxembourg Courts). Is this overlapping going to constitute a threat to legal certainty in Europe? As unpopular as it may be, the reply to this question cannot be negative. Despite the horizontal provisions in the Charter, different interpretations of the ECHR and the Charter seem inevitable. What will the national authorities do when faced with the choice of whose conﬂicting case-law to apply, that of Strasbourg or that of Luxembourg? Will they risk sanctions in Luxembourg or in Strasbourg? From the perspective of the Council of Europe, it should certainly not be possible for States which are party to the ECHR, such as all EU Member States, to evade, by means of transfers of power to a supra-national or international organization, such as the EU, external supervision by the Strasbourg Court. And indeed, in the absence of such external control, there would be no remedy against a possibly more restrictive interpretation of the Charter provisions by the Luxembourg Court than the interpretation of the equivalent ECHR provisions by the Strasbourg Court: should this happen, there would be a real risk of lowering the level of human rights protection in respect of acts of the Community institutions. For this reason, the European Communities should ratify the ECHR.3 This accession would seem a logical consequence of the circumstance where the Community and the European Union evolve into structures which are increasingly comparable to those of a federal State. In that respect, the Charter would play the same role as the catalogues of fundamental rights contained in the national constitutions and the ECJ would play a similar role to that of the highest national courts. No contradiction is seen, in Strasbourg, with the EC being a party to the ECHR and the principle of autonomy of EC law or the substance of the monopoly of its interpretation by the ECJ. The EU would beneﬁt from such accession: ﬁrst of all, it would be fully represented before the Strasbourg Court. Consequently, its speciﬁc experiences would be taken into consideration more directly and easily by the latter. Furthermore, accession would allow for the satisfactory handling of the issues arising out of the

in Europe/The Implications of the Draft Charter of Fundamental Rights of the European Union”, HRLJ, 2000, pp. 329-332; TURNER, “Human Rights Protection in the EC: Resolving Conﬂict and Overlap between the European Court of Justice and the European Court of Human Rights”, European Public Law, 1999, pp. 454-470; VAN DIJK, Judicial Protection of Human Rights in the European Union – Divergence, Coordination, Integration, Exeter, 1996; WEILER and LOCKHART, “‘Taking Rights Seriously’ Seriously; The European Court and Its Fundamental Rights Jurisprudence”, CML Rev., 1995, pp. 579-627. 3 See the Venice Commission’s Opinion on Implications of a legally binding EU Charter of fundamental rights on human rights protection in Europe, adopted on 12-13 December 2003 (CDL-AD(2003)22).

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implementation of judgments in cases involving EC/EU issues. The credibility of the EU’s policies in the ﬁeld of human rights would also be enhanced.4 Ultimately, accession by the EC to the ECHR would maintain and even reinforce the ECHR mechanism, and avoid the creation of new dividing lines within Europe. This matter, therefore, affects the position of the Council of Europe, and the Strasbourg Court, in the European architecture. It is no wonder that the latter Court is not ready to give up these cases, notwithstanding its overburdened docket.

1. One of the most interesting judgments delivered by the Court in 2003 was Öcalan v. Turkey (Application No. 46221/99, Section I, Judgment of 12 March 2003). It raised numerous issues relating to the applicant’s arrest, detention, conviction and sentence to the death penalty and conditions of detention. The applicant is the former leader of the Turkish Workers’ Party of Kurdistan (“the PKK”). After being expelled from Syria in 1998, he ended up at the residence of the Greek Ambassador in Nairobi, Kenya. This Ambassador, following a meeting with the Kenyan Minister of Foreign Affairs, informed the applicant that he was free to leave to go to the Netherlands. On 15 February 1999, the applicant was driven by a Kenyan ofﬁcial to an aircraft in the international transit area of Nairobi Airport but was arrested by Turkish ofﬁcials after boarding the aircraft, pursuant to seven warrants for his arrest issued by the Turkish Courts. The applicant was ﬂown to Turkey and taken into custody in a prison on the island of ømralı on 16 February 1999 and subsequently interrogated by members of the security forces and, on 22 February 1999, by the Public Prosecutor at the Ankara State Security Court. On 23 February 1999 the applicant appeared before a judge of the State Security Court, who ordered his detention pending trial. On 24 April 1999 the Public Prosecutor at the Ankara State Security Court accused the applicant of carrying on activities with a view to bringing about the secession of part of the national territory and of having formed and led an armed organization for that purpose. He sought the death penalty pursuant to Article 125 of the Criminal Code. During the course of the trial the Constitution was amended so as to exclude military members from the composition of the State security courts. A civilian judge was therefore appointed to replace the military judge as a member of the State Security Court hearing the case. On 29 June 1999 the Ankara State Security Court found the applicant guilty of the offences as charged and sentenced him to death, pursuant to Article 125 of the Criminal Code. In a judgment delivered on 25 November 1999 the Court of Cassation upheld that decision in its entirety. On 13 November 1999 the European Court of Human Rights decided to apply Rule 39 of the Rules of Court and requested the Turkish government to take all necessary steps to ensure that the death penalty was not carried out, so as to enable 4 Today, ratiﬁcation of the ECHR is a pre-condition for EU membership, but the EU is not subject to the ECHR supervisory machinery.

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the Court to proceed effectively with the examination of the admissibility of the applicant’s application. In September 2001 delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the prison where the applicant was being held. The death penalty was abolished in peacetime in Turkey by legislation introduced in August 2002. Consequential amendments were made to the Criminal Code. An action that had been brought in the Constitutional Court to challenge the constitutionality of the legislation abolishing the death penalty was dismissed. In a letter of 19 September 2002 to the Court, the Turkish Government declared that the applicant’s sentence could no longer be executed. By a judgment of 3 October 2002 the Ankara State Security Court converted the applicant’s sentence to one of life imprisonment. Appeals were lodged against that judgment by two trade unions which had intervened in the criminal proceedings on behalf of their deceased members. The appeals were still pending when the Court delivered its judgment. As regards the applicant’s complaint under Article 5, para. 1 ECHR, the Court considered that, after being handed over to Turkish ofﬁcials at Nairobi airport, the applicant had been under the “jurisdiction” of Turkey for the purposes of Article 1 ECHR even if the arrest had been carried out outside the Turkish territory. The arrest and detention had been carried out in accordance with arrest warrants issued by the Turkish criminal courts in accordance with Turkish law, even though these warrants had not been shown to the applicant upon his arrest. It had not been established beyond all reasonable doubt that the operation carried out partly by Turkish ofﬁcials and partly by Kenyan ofﬁcials amounted to a violation by Turkey of Kenyan sovereignty (as claimed by the applicant) and, consequently, of international law. Accordingly, there had been no breach of Article 5, para. 1(c) ECHR. The Court found that there had been a violation of Article 5, para. 4, in that the applicant had not disposed of any opportunity of taking proceedings by which the lawfulness of his detention in police custody could be decided. The Court based itself on its previous ﬁnding that there had been no example of any successful such application and also on the particular circumstances of the applicant’s conditions of detention (total isolation and the impossibility of his lawyers to contact him). The Court also found a violation of Article 5, para. 3 ECHR in that the applicant had been kept in police custody without judicial supervision for an excessively long period of time, even for a case involving an investigation of terrorist offences (a minimum of seven days), the alleged adverse weather conditions not having been proved. As regards the applicant’s complaint that the Ankara State Security Court was not an independent and impartial tribunal, the Court considered that the last-minute replacement of the military judge was not capable of curing the defect in the composition of the State security court that had led the Court to ﬁnd a violation on that point in its previous øncal and Çiraklar judgments, as most of the trial had already taken place before the military judge ceased to be a member of the trial court. It was the presence of the military judge for most of the trial that had given rise to

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the problem and not the change in the court’s composition. A further factor was the exceptional nature of the trial itself, which concerned a high-proﬁle accused who had been engaged in a lengthy armed conﬂict with the Turkish military authorities and sentenced to death. The presence of the military judge could only have served to raise doubts in the accused’s mind as to the independence and impartiality of the trial court. The Court further found that there had been a violation of Article 6(1) ECHR, taken together with Article 6(3)(b) and (c) as the applicant had not had a fair trial on account of the lack of legal assistance while he was in police custody and the impossibility for him to consult his lawyers out of hearing of third parties, the restrictions on the number and length of the visits by the applicant’s lawyers and the lack of or insufﬁcient access by the latter to the case ﬁle and the court ﬁle. The applicant had also alleged that the imposition and/or the execution of the death penalty amounted to a breach of Article 2 and 3 ECHR, and would have been discriminatory. The Court found that, there being no substantial grounds for fearing the execution of the death penalty, there was no violation of Article 2, Article 14 taken together with Article 2, or Article 3 in this respect. In relation to the imposition of the death penalty, the Court found that imposing a death sentence on a person after an unfair trial was to subject that person wrongfully to the fear that he would be executed. The fear and uncertainty as to the future generated by the death sentence, in circumstances where there existed a real possibility that the sentence would be enforced, had to give rise to a signiﬁcant degree of human anguish. Such anguish could not be dissociated from the unfairness of the proceedings underlining the sentence which, given that human life was at stake, became unlawful under the Convention. The Court noted that forty-three of the forty-four Contracting States have abolished the death penalty. Forty-one States have ratiﬁed Protocol No. 6. In these circumstances, the Court considered that Contracting Parties had expressed their agreement to abrogate, or at least to modify, the second sentence of Article 2, para. 1, ECHR. Accordingly, capital punishment in times of peace had become an unacceptable, if not inhuman, form of punishment, prohibited under Article 2 ECHR. The imposition of the death penalty on the applicant following an unfair trial, when there was a real risk during three years that this sentence would be executed, amounted to inhuman treatment. Accordingly, there had been a breach of Article 3 ECHR. The Court instead found that the conditions of the applicant’s detention had not been proved beyond all reasonable doubt to have exceeded the usual degree of humiliation that was inherent in every arrest and detention or attained the minimum level of severity required for Article 3 to apply. This judgment is not ﬁnal: the case is currently pending before the Grand Chamber and it will of course be interesting to see whether any of these conclusions are reversed. It is nonetheless important that the Court acknowledged the

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existence of a European standard on the need to abolish the death penalty irrespective of the alleged crimes committed. It is essential, in particular in these difﬁcult times when the ﬁght against terrorism risks opening the door to double standards and derogations to non-derogable fundamental rights, to reiterate the position of Europe on certain matters. But will all European States stick in all circumstances to the European standards?

2. The question of the compatibility of parliamentary immunity with the right of access to a court, guaranteed by Article 6 of the Convention, came before the Court again in 2003. The question of the permissibility under the Convention of an absolute privilege of an MP in respect of statements made in the course of parliamentary debate had been examined in 2002 (A. v. the United Kingdom, Application No. 35373/97, Second Section, Judgment of 17 December 2002, Final). On 30 January 2003, the Court delivered its judgments in two Italian cases, Cordova v. Italy No. 1 and Cordova v. Italy No. 2,5 concerning parliamentary immunity in respect of acts and statements made outside parliamentary debate. In the ﬁrst case, the applicant, then Procuratore della Repubblica, had carried out certain investigations in respect of a person who had had some connections with a former Italian President of the Republic, now a Senatore a vita. Having received from the latter sarcastic letters and toys as presents, the applicant ﬁled a criminal complaint against the former President, claiming that he had offended the applicant’s reputation and honour. The proceedings, in which the applicant had lodged a civil party application, were however discontinued on account of the Senate’s ﬁnding that the former President enjoyed immunity under the Constitution. The applicant requested the public prosecutor to appeal, but the latter refused to do so, failing to consider that the Senate’s decision was arbitrary. In the second case, the applicant, having been the object of offensive remarks made by a member of Parliament in the course of an electoral meeting, ﬁled a criminal complaint for aggravated slander against him. The court at ﬁrst instance found the MP guilty and sentenced him to a suspended term of imprisonment and required him to pay the applicant compensation for moral damage. This court did not see it ﬁt to suspend the proceedings and seek the authorisation of the Chamber of Deputies, given that the impugned expressions had been used outside parliamentary debate. The MP’s appeal was unsuccessful, but in the course of his appeal on points of law, the Court of Cassation requested the Chamber of Deputies to withdraw his immunity. Due to the Chamber of Deputies having found that the statements had been made within the framework of parliamentary functions, the Court of Cassation annulled 5 Cordova v. Italy No. 1, Application No. 40877/98, and Cordova v. Italy No. 2, Application No. 45649/99, Judgments of 30 January 2003. Cf. GRANATA, “Review of Judgments and Decisions Delivered by the European Court of Human Rights in 2002 on Subjects Relevant to International Law”, IYIL, 2002, p. 257 ff., p. 260.

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the two previous judgments. The applicant’s request to raise a question of conﬂict between State powers before the Constitutional Court was denied. In both cases, the applicant alleged a violation of his right of access to a court, recognised under Article 6 of the Convention, on account of his inability to obtain compensation from the accused for the alleged injury to his reputation and honour. The Court found that the applicant’s obstructed access to justice was due to the pursuit of a twofold, legitimate aim: namely to protect free parliamentary debate and to maintain the separation of the legislative and judiciary powers. The Court recalled nevertheless that while parliamentary debates needed to be protected and preserved, and that interference with freedom of expression within Parliament should be permissible in only extreme circumstances, the same was not always true in respect of acts committed by MPs that are unrelated to parliamentary debate. In the ﬁrst case, the Court found that the facts indicated that there had been a personal dispute between the applicant and the former President. There was no clear link between such dispute – though political in nature and linked with a political activity – and the parliamentary functions of the former President. Accordingly, and given that the bar from the court had been decided by a political organ, the criterion of proportionality between the legitimate aim pursued and the means used to achieve it had to be narrowly interpreted. The Court reached the conclusion that preventing access to court, as in this case, on the sole ground that the impugned acts had been committed by an MP, coupled with the impossibility for the applicant to seek adequate redress through an alternative venue, amounted to a breach of Article 6 of the Convention. The Court noted in addition that the Italian Constitutional Court had taken the position that parliamentary immunity was not to cover statements having no substantial connection with previous parliamentary activities.6 In the second case, the Court found that the public statements which had impinged on the applicant’s honour had been made in the course of an electoral meeting and thus outside of Parliament, hence unrelated to their author’s parliamentary functions strictu sensu. For the same reasons as in the ﬁrst case, the Court subsequently found that the applicant’s right of access to a court had been violated. These cases put emphasis on an important principle. Free parliamentary debate is essential to democracy.7 But democracy cannot be used as a pretext for allowing the abusive exercise of prerogatives by certain individuals to the detriment of other individuals. As evident as this may seem, it took many years and many unfortunate examples before the question was addressed in Italy. The Italian Constitutional Court has had to intervene to reiterate this principle, though it is doubtful that the Italian political class has gotten the message. 6

Judgment No. 289 of 18 July 1998. Reﬂection was initiated within the Council of Europe in 2003 on what is the future of democracy. See, in this respect, the Parliamentary Assembly’s Recommendation 1629(2003) on “Future of Democracy: Strengthening Democratic Institutions” and the Venice Commission’s opinion on the possible follow-up thereto (CDL-AD(2004)15). 7

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3. The case of Markoviü and Others v. Italy8 raised two interesting issues: whether the NATO bombings in Kosovo, not authorised by the UN Security Council, may be considered as lawful acts of war and whether individuals may sue foreign States on account of an allegedly illegal action before the courts of that State. This case originated from the same facts as the famous case of Bankoviü,9 that is to say the bombing by NATO air forces, on 23 April 1999, of the headquarters of the Serbian Radio and TV Station (RTS) in Belgrade. Five of the applicants’ relatives had died as a consequence of the bombing. The applicants had thereafter sued before the Italian courts the Italian Council of Ministers, the Italian Ministry of Defence, as well as the NATO Allied Forces of Southern Europe, on the basis of Article 2043 of the Civil Code, which creates an obligation on whoever causes unjust prejudice to provide redress for such prejudice. They had claimed that the allegedly prejudicial acts could be considered to have been committed in Italy – which entailed the jurisdiction of the Italian courts – to the extent that the military action had been organised and partly carried out on the Italian territory. Italy had in fact participated in the military mission and had permitted the use of its military bases, from which the planes which bombed Belgrade had taken off. The Italian Council of Ministers and Ministry of the Defence had applied to the Court of Cassation seeking a preliminary ruling on a question of jurisdiction (regolamento preventivo di giurisdizione). This Court, in Plenary Session, had found that there was an absolute lack of jurisdiction on the part of the Italian courts.10 The act which had prejudiced the applicants was in fact an act of war and, as such, an emanation of the power of the State and thus exempt from judicial review. The Court had considered furthermore that the relevant international treaties, such as the Additional Protocols to the Geneva Conventions and the European Convention on Human Rights (Articles 2 and 15), did not provide for the possibility for individuals to seek redress for the damage incurred on account of a breach of their provisions. They only regulated inter-state relations. The applicants complained before the Strasbourg Court in the ﬁrst place of the death of their relatives, under several ECHR provisions including Article 2. They further complained of their impossibility to seek reparation for the damage suffered and hence alleged a breach of Article 6 in conjunction with Article 1 of Protocol No. 1. The Strasbourg Court rejected the ﬁrst complaint as being incompatible with the Convention on the same grounds as the Bankoviü case. The second complaint, instead, was communicated in respect of the right of access to a court. In this respect, it is likely that the Court, when examining the 8 Dusan Markoviü and Others v. Italy, Application No. 1398/03, Decision of 12 June 2003 (partly inadmissible). 9 Bankovic and Others v. Belgium and 16 Other Contracting States, Application No. 52207/ 99, Grand Chamber, Judgment of 12 December 2001. 10 Corte di Cassazione (Sezioni Unite), 5 June 2002, No. 8517, Presidenza del Consiglio dei Ministri v. Markoviü and Others, cf. IYIL, 2002, Judicial Decisions XX, with a note by BRUNO.

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admissibility of this complaint, will address the question of the (undoubtedly irritating, from the standpoint of the Court) position taken at times by the Italian supreme jurisdictions as regards the direct applicability in the Italian legal order of the provisions of the ECHR.11

4. Two judgments delivered in 2003 related to environmental questions. The case of Kyrtatos v. Greece (Application No. 41666/98, Judgment of 22 May 2003, Final on 22 August 2003) raised the question of the extent to which environmental pollution may affect the well-being of persons and prevent them from enjoying their homes in such a way as to adversely affect their private and family life, though not endangering their health. The applicants owned real property in the south-eastern part of the Greek island of Tinos, in the Cyclades; the ﬁrst applicant was the co-owner of a house and a plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp by the coast of Ayios Yiannis. The Cyclades prefect issued two decisions which allowed the subsequent issuing of building permits in respect of that area. The applicants sought judicial review of those decisions with some success: the Supreme Administrative Court quashed one of the decisions on the ground that it violated Article 24 of the Constitution, which protects the environment by putting in jeopardy the swamp in Ayios Yiannis, which is an important natural habitat for various protected species (such as birds, ﬁsh and sea-turtles). This Court also annulled the building permits which had been delivered. The authorities however did not concur with this decision; accordingly, certain buildings had been constructed in the area and a part of the swamp was used to build a parking lot and a road. The applicants contended inter alia under Article 8 ECHR that urban development in the south-eastern part of Tinos had led to the destruction of their physical environment and had affected their lives. The Court considered that the applicants’ complaint could be regarded as comprising two distinct limbs. First, they complained that urban development had destroyed the swamp which was adjacent to their property and that the area where their home was had lost all of its scenic beauty. Second, they complained about the environmental pollution caused by the noises and night-lights emanating from the activities of the ﬁrms operating in the area. This second aspect was rejected on account of its insufﬁcient degree of seriousness. 11 See, amongst others, DE SALVIA, “L’acculturazione incompiuta al diritto europeo dei diritti dell’uomo”, Documenti Giustizia, 2000, pp. 46-54; VALABREGA, “L’applicazione giurisprudenziale della Convenzione europea dei diritti dell’uomo in Italia”, ibid., pp. 67-90; GRANATA, Comment to Corte di Cassazione, 8 July 1998, No. 6672, Galeotti Ottieri della Ciaja v. Ministero delle ﬁnanze, IYIL, 1999, Judicial Decisions XI, pp. 165-166.

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In respect of the ﬁrst issue, the Court explained that the crucial issue to be examined in this case was whether environmental pollution had had a directly harmful effect on the applicants’ private or family life. The Court found that there had been no breach of Article 8 ECHR in that it considered that the alleged damage to the birds and other protected species living in the swamp had not been proved to be of such a nature as to directly affect the applicants’ rights under Article 8, para. 1, of the Convention. Such damage would have been more evident, in the Court’s opinion, “if the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house”. This judgment has raised some perplexities amongst the environmental experts,12 not so much in respect of the principle that general environmental deterioration does not as such raise issues under Article 8 ECHR – the idea that neither Article 8 nor any of the other articles of the Convention are speciﬁcally designed to provide general protection for the environment as such was already expressed in 1994 in the case of Lopez Ostra (see Lopez Ostra v. Spain, Judgment of 9 December 1994, Series A No. 303-C, p. 54, para. 51). The conclusion that damage to birds and other protected species might not directly affect an individual’s rights under Article 8 ECHR is understandable. But does the destruction of a swamp only amount to interference with the conditions of animal life? What about the alteration of the ecosystem, could that not be sufﬁciently serious as to affect an individual’s personal life as much as the destruction of a forest, which the Court considers to be a more evident interference with the rights under Article 8?13 This reductive idea of the value of a swamp is hardly reconcilable with the Ramsar Convention on Wetlands of 2 February 1971. In the case of Hatton and Others v. the United Kingdom (Application No. 36022/ 97, Grand Chamber, Judgment of 8 July 2003) the question of the level of noise in the vicinity of the Heathrow airport was raised in the context of Article 8 ECHR. The applicants, who all lived nearby Heathrow airport, had experienced sleep disturbance as the level of noise from aircraft taking off and landing from the airport during the night had increased substantially since 1993. Indeed, following a 1992 study undertaken in the context of a government review of restrictions on night ﬂights which had revealed that very few people were at risk of substantial sleep disturbance, the Government consulted airlines and trade associations with an interest in air travel, which had all emphasised the economic importance of night ﬂights. In 1993, a quota system had been introduced with the stated aim of reducing noise at three London airports, including Heathrow. Under the scheme, each type of aircraft had been assigned a “quota count” depending on its noise level. In addition, aircraft 12 See, for example, WINISDOERFFER, Note sous l’arrêt Kyrtatos c. Grèce, du 22 mai 2003, n° 41666/98, CEDH 2003-VI, Revue juridique de l’environnement, 2004, pp. 176-179; ID., “La jurisprudence de la Cour européenne des Droits de l’Homme et l’environnement”, Revue juridique de l’environnement, 2003, pp. 213-228. 13 See Judge Zagrebelski’s Dissenting Opinion in respect of this case.

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movements had had to be kept within the permitted maximum number of points, the aim being to encourage the use of quieter aircraft. Additional restrictions had applied during the “night quota period” between 11.30 p.m. and 6 a.m. In 1995, the Government had admitted that the scheme had allowed more noise than had been experienced in 1988, contrary to Government policy, but, after a further review of reports on aircraft noise and sleep disturbance, had kept the scheme in force. In judicial review proceedings brought by several local authorities, the Court of Appeal had considered that adequate reasons and sufﬁcient justiﬁcation had been given for the conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree the ability of local people to sleep at night, because of the other countervailing considerations. The House of Lords had refused leave to appeal. The Court considered that in addition to examining the merits of the contested decisions (while leaving the State a wide margin of appreciation), it had to consider whether, in the decision-making process, due weight had been accorded to the applicants’ interests. The Court was convinced that the implementation of the 1993 scheme was capable of adversely affecting the quality of the applicants’ private lives and the scope of their enjoyment of their homes and thus their rights under Article 8 ECHR, even if the applicants had not submitted any evidence in support of the degree of discomfort suffered. The disturbances had not been caused by State organs but had emanated from the activities of private operators. It could therefore be argued either that there had been a direct interference by the State or that the State responsibility in environmental issues might also arise from a failure to regulate private industry in a manner that secured proper respect for rights under Article 8. The Court did not consider it necessary to rule on this point, given that broadly similar principles applied in any case. Unlike in previous cases involving environmental issues which had been examined by the Court, the element of domestic irregularity was wholly absent: the policy was not unlawful and the night ﬂights had not breached the applicable regulations. In order to justify this scheme, the Government had invoked not only the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, the economic interests of the country as a whole, which was legitimate under paragraph 2 of Article 8. As regards the fair balance to be struck between the competing interests of the affected individuals and the economic well-being of the country, the Court was faced with conﬂicting views as to the margin of appreciation to be applied: on the one hand, the Government claimed a wide margin on the ground that the case concerned matters of general policy, and, on the other hand, the applicants claimed that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. The Court emphasised that the 1993 scheme was a general measure not speciﬁcally addressed to the applicants and while it had obvious consequences for them it did not intrude into an aspect of private life in a

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manner comparable to, for example, criminal measures relating to sexual conduct. Accordingly, the Court’s supervisory function was limited to reviewing whether or not a fair balance had been struck in the implementation of the scheme. The authorities were entitled to rely on the available statistical data for this purpose. The very purpose of the scheme was to keep noise disturbance at an acceptable level and it was also acknowledged that the measures had to be kept under constant review. Moreover, it was reasonable to assume that night ﬂights contributed, to a certain extent, to the general economy. The scheme eventually put in place was stricter than that envisaged in the Consultation Paper and the Government had not only resisted calls for more liberal regulation but had introduced additional restrictions. A further relevant factor was the availability of measures to mitigate the effects of aircraft noise, a number of which had been taken. Moreover, it was also signiﬁcant that the individuals had the possibility of moving elsewhere without ﬁnancial loss, the applicants not having contested the Government’s assertion that house prices had not been adversely affected by night noise. As regards the procedural aspect of the case, the Court said that while a governmental decision-making process concerning complex issues of environmental and economic policy necessarily had to involve appropriate investigations and studies, this did not mean that decisions could only be taken if comprehensive and measurable data were available in relation to each and every aspect of the matter. The Government had consistently monitored the situation and the 1993 scheme in particular had been preceded by a series of investigations and studies. Moreover, the applicants had access to the Consultation Paper and it was open to them to make representations. Against this background, the Court, by a majority, found that there had been no violation of Article 8. It found however that the scope of judicial review had been insufﬁcient to comply with Article 13. Indeed, while judicial review proceedings had been capable of establishing that the 1993 Scheme was unlawful because the gap between Government policy and practice was too wide, the scope of review by the domestic courts was limited to the classic English public law concepts, such as irrationality, unlawfulness and patent unreasonableness. At that time, that is, prior to the entry into force of the Human Rights Act 1998, no consideration could be given to whether the claimed increase in night ﬂights under the 1993 Scheme represented a justiﬁable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport. This judgment is considered by many to represent a step backwards in the trend towards ensuring the right to a healthy environment under the European Convention on Human Rights. As is emphasised in the sound Dissenting Opinion by Judges Costa, Ress, Türmen, Zupanþiþ and Steiner, accompanying the judgment,14 it is

14 This Dissenting Opinion contains an outline of the Court’s case-law on environmental matters.

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difﬁcult to accept that health is not an intimate aspect of privacy deserving a special degree of positive obligations on the part of States. Is night noise affecting sleep not a threat to health? And would it be unreasonable to require a State to undertake more stringent studies and analyses before deciding to sacriﬁce the quality of sleep of some of its citizens in the name of the economic well-being of the country?

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.

DIPLOMATIC AND CONSULAR RELATIONS

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 III, Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516; XI, Corte di Cassazione, (Sezioni Unite civili), 14 April 2003, No. 5902; Corte di Cassazione (Sezioni Unite civili), 27 November 2003-26 January 2004, Nos. 13381341; XIV, Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377; XV, Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576, Corte di Cassazione (Sez. I penale), 8 November 2002, No. 37774)

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS Immunity of foreign States from jurisdiction and prejudgement attachment - The issuance of bonds by a State on the international market constitutes a commercial activity not enjoying immunity from jurisdiction - Article 8 of the Bilateral Treaty on the Protection of Investments between Argentina and Italy, signed in Buenos Aires on 22 May 1990 - The request for a prejudgement attachment considered to be justiﬁed on the basis of Argentina’s economic crisis and debt default - Assets belonging to a foreign State may be seized only if they are not destined for the performance of that State’s public purposes Tribunale di Roma, 22 July 2002 (order) Mauri and Others v. the Republic of Argentina Following media news about Argentina’s insolvency and possible bankruptcy, irate bondholders all over the world have braced themselves for an uncertain wrangle trying to get their money back, at least in part. About 44% of Argentina’s private debt is held by small investors. Among them, Italians are by far in the majority. Their number is estimated to be over 450,000. Some groups of private creditors have proposed a negotiated settlement to the Argentine Government, suggesting that their bonds could be stretched out over a ten year period. Other creditors have opted for a judicial solution. This has happened following three basic methods. Actually, many foreign bondholders decided to sell their bonds to speculative buyers who then seek to recover sovereign distressed debt through the courts. A very important proceedings instituted against Argentina by one of these creditor associations is currently pending before the New York Court for the Southern District (Emerging Markets

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Creditors Association v. The Republic of Argentina. Cf. also the US Court of Appeals for the 2nd Circuit). Secondly, many Italian bondholders have ﬁled lawsuits against the banks, claiming that they did not warn them of the risk the bonds posed. As a last resort, other creditors have acted against Argentina before the courts of different States directly, asking for freezing injunctions on its assets abroad that may be seized as a way of paying for the debt and the damages. The case under review may be placed in this latter category. In fact, several Italian creditors have sought interim measures for the seizure of the assets belonging to the Argentine Republic to be identiﬁed at a later stage. In Italian civil procedural law, the precautionary seizure is a coercive measure authorised by the judge in the course of the proceedings on the merits. It may be requested by the creditors to prevent the defendant from getting rid of property that may be needed to pay a judgment to the plaintiff. In other words, it is a means to secure these assets to the satisfaction of the claim. Before issuing the authorisation to attach Argentina’s assets, the Tribunal had to decide whether it had jurisdiction in a proceedings instituted against a foreign State: “According to the universally recognised customary rule par in parem non habet jurisdictionem, automatically incorporated into the Italian legal system by virtue of Article 10 of the Constitution, foreign States are immune from Italian jurisdiction for the activities carried out with a view to achieving their public purposes. On the other hand, a foreign State is not immune from suit in any case in which it engages in private law activities”. Although the terminology used is not wholly precise (there is, for example, a simultaneous, but certainly unconscious, reference to the opposing criteria of the “purpose” and of the “nature” of the act in order to determine if immunity should be accorded or refused in a single case: see, on this point, the critical remarks by DORIGO, “Il debito pubblico argentino dinanzi ai giudici italiani”, RDI, 2002, p. 961 ff.), the tribunal has clearly afﬁrmed that questions of jurisdictional immunities of foreign States should be decided according to the restricted theory of sovereign immunity. Concerning the speciﬁc activity which was the subject of the suit, the Tribunal reached a conclusion consistent with previous judgments by foreign courts on similar actions: “The issuance of bonds by a foreign State is a private activity. It creates a private law relationship and mutual obligations which are governed by civil law. Consequently, the Italian judge has jurisdiction in relation to interim proceedings instituted against a foreign State to

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secure the payment of bonds issued by the latter. Moreover, as far as Argentina is concerned, Italian jurisdiction can be asserted also on the basis of Article 8, paragraph 2, of the Bilateral Investment Treaty concluded in Buenos Aires on 22 May 1990. This Article states that disputes arising out of an investment contract between one of the Contracting Parties and a private investor, should be submitted to the competent tribunal of the Contracting Party in whose territory the investment was made. As the investment in question concerns movable property, the place of the investment is where documents of the bonds are kept”. Having authorised the seizure of Argentine assets, the Tribunal speciﬁed that “the attachment may be executed only on property not intended to be used for public purposes”. Here again, one could notice a certain lack of precision as to what assets belonging to a foreign State might be lawfully attached. New lawsuits are to be expected on that matter. On the other hand, the task of the bondholders will prove to be very difﬁcult as Argentina’s government may have an insufﬁciently small number of overseas assets which the claimants can attach. (The Italian text of the order has been published in RDIPP, 2003, p.174 ff.). Article 11 of the Lateran Treaty between Italy and the Holy See concluded in Rome on 29 February 1929 stating that the central bodies of the Catholic Church are exempted from any interference by the Italian State - Whether this Article precludes the exercise of Italian criminal jurisdiction for offences having effects on the Italian territory - Distinction between non interference and immunity from jurisdiction - The Vatican Radio may not be considered as a central institution taking part in the government of the Catholic Church in the exercise of its universal spiritual mission - Treaty provisions amounting to a limitation to State sovereignty should be restrictively interpreted - Article 31 of the Vienna Convention on the Law of Treaties Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516 Re: Tucci, Borgomeo and Paciﬁci On 23 July 1987 the Italian Corte di Cassazione passed a very controversial judgment on the status of the organs of the Holy See before Italian courts. In that judgment, the Court had granted immunity from criminal jurisdiction to three high ofﬁcials of the IOR (Institute for Religious Works), better known as the “Vatican Bank”, accused of complicity in the fraudulent bankruptcy of the Banco Ambrosiano. The decision met with widespread criticism among scholars and in the public opinion. It was considered as a unilateral concession of privileges not strictly required by international law. The view was also expressed by lower courts that the immunity in question conﬂicted with some fundamental principles of the Italian

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Constitution, such as the principle of equality before the law stated in Article 3, the right of every person to institute judicial proceedings for the protection of his or her rights granted by Article 24, and the principle of legality set forth by Article 25. Actually, the 1987 decision was based on an extensive interpretation of Article 11 of the Lateran Treaty which reads as follows: “All central bodies of the Catholic Church shall be exempt from any interference on the part of the Italian State (except as provided by Italian law in regard to the acquisition of property made by recognized public bodies), and with regard to the conversion of real estate”. On that occasion, the Court afﬁrmed that the obligation of non-interference provided for by Article 11 protected the activities of all those bodies which, being entrusted with legal personality and ﬁnancial autonomy, take part in the universal mission of the Catholic Church. Moreover, according to the Court the said obligation implied that Italy should not limit itself to exempting these entities from its public powers of an administrative nature. It had also to recognise immunity from criminal jurisdiction to the organs of those central bodies whenever acting in their ofﬁcial capacity, i.e. not as private individuals but as representatives of the body in question. This ﬁnding by the Italian Supreme Court was completely reversed by the decision of 2003 under review (for a thorough commentary on the decision, see SCISO, “La giurisdizione penale rispetto a fatti della Radio vaticana: non-ingerenza o immunità?”, RDI, 2003, pp. 774-781). This decision is wholly consistent with the attitude taken by Italian courts on questions of sovereign immunity in the last decade. Actually, many recent judgments have shown a ﬁrm tendency towards revitalising the doctrine of restricted immunity from jurisdiction which, during the 1980s and part of the 1990s, had been afﬁrmed in principle but seldom applied concretely. Furthermore, the Court seized the opportunity offered by this case to set out some general principles limiting the recognition of jurisdictional immunities for the organs of the Catholic Church. Unfortunately, like most judgments by the Cassazione dealing with international law arguments, the wording used by the Court is often rhetoric and convoluted, and also several repetitions of identical concepts run throughout the text. Before examining the legal grounds for the Court’s decision, it is worth recalling the facts which brought about the whole case. In 2002 private citizens and environmental organisations instituted proceedings before the Tribunale di Roma against three managers of the Vatican Radio. They sought redress for alleged damage sustained as a consequence of electro-magnetic radiation emanating from the plants situated in an area immediately outside Rome. The Tribunale declared the lack of Italian jurisdiction on the basis of the 1987 interpretation of Article 11 of the Lateran Treaty but its judgment was challenged before the Supreme Court. As stated before, the plea for immunity was dismissed by the Corte di Cassazione along the following arguments. First of all, the Court speciﬁes what is meant by “central bodies of the Catholic Church” as provided for by the above mentioned Article 11. According to the Court, this expression refers only to the entities constituting the Roman Curia,

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namely to “those entities which take part in the supreme and universal government of the Catholic Church carrying out its spiritual mission to the world”. To possess separate legal personality and ﬁnancial autonomy would not be sufﬁcient per se to be considered as a central body enjoying the protection afforded by Article 11 of the Lateran Treaty. On the basis of this conclusion, the Court was able to exclude the Vatican Radio from the category of the “central bodies”. The Radio does not participate in the governmental organisation of the Holy See directly. In fact, its main activity of propagating the evangelical message as expressed by the Pope is only instrumental to the said universal mission of the Catholic Church. Moreover, canon law itself expressly excludes the Vatican Radio from the central bodies. Article 186 of the Apostolic Constitution considers the Radio as an institution which “is only connected” to the Holy See without being part of the Roman Curia. The legal nature of the Vatican Radio is thus identical to that of other entities, such as the Vatican Television Centre, the different Pontiﬁcal Academies, the Vatican Publishing House, and so on. We think that another consequence may be drawn from this statement by the Court. If the Vatican Radio is outside the governmental structure of the Holy See, its activities could not be automatically considered as belonging to the institutional and public functions of the Catholic Church. Apart from any question of interpretation of the above mentioned Article 11, this assumption means that the activities of the Vatican Radio (and of other entities of the same kind) are not exempt from Italian jurisdiction under the restricted immunity principle provided for by present customary international law. This would mark a complete change from a 1982 judgement (Corte di Cassazione (Sezioni Unite), 5 July 1982, No. 4005, IYIL, 1985, p. 179 ff.), where the same Court held that the Vatican Radio enjoyed immunity from jurisdiction in relation to an employment dispute put forward by one of the Radio’s speakers. The second important conclusion reached by the Court concerns the exact content of the protection afforded to the Holy See activities by the Lateran Treaty. In the Court’s opinion: “The obligation not to interfere is not tantamount to a general waiver by Italy to its sovereignty and, in particular, to the exercise of jurisdiction by its judges. It only aims at protecting the independent performance of the activities connected with the Magisterium of the Catholic Church”. According to the Cassazione, this interpretation is conﬁrmed by the whole framework of international and constitutional rules governing the relationships between Italy and the Holy See. The history of Article 11 of the Lateran Treaty may be traced back to Article 8 of the 1871 Law on Papal Guarantees, already stating that “Papers, documents, books, or registers of a purely spiritual character deposited in pontiﬁcal ofﬁces or

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Congregations shall be free from the legal processes of visit, search, or seizure”. This obligation was only meant to prohibit intrusions of a civil and administrative nature on the part of Italian authorities, with a view to protecting the independence and autonomy of the Church. The 1929 Conciliation Treaty afﬁrmed the principle of full ownership, exclusive dominion, and sovereign authority and jurisdiction over the territories belonging to the Vatican City. However, this principle “does not impose any burden on Italy regarding the exercise of its jurisdictional authority to punish criminal offences having harmful consequences in the Italian territory, whenever these offences are committed by individuals not enjoying any personal immunity”. The Ministry of Justice of the time, also conﬁrmed that the obligation of noninterference exclusively concerned the administration of property belonging to the Church. This was evidenced by the fact that Article 11 mentions the problem of the conversion of real estate expressly. This conclusion is fully consistent with Article 7 of the Italian Constitution according to which the Italian Republic and the Holy See are, each in its own order, independent and sovereign. To hold the contrary, “would amount to the recognition of a widespread jurisdictional immunity to organs and ofﬁcials of the central bodies of the Catholic Church, which is in no way provided for either by Lateran Pacts or customary international law”. Actually, the relationship between jurisdictional immunity and non interference is the speciﬁc subject of the third argument put forward by the judges. According to the Court, the obligation of non interference may not be considered in any way as equivalent to immunity from jurisdiction. Whereas the latter requires that the Italian State waive its jurisdictional authority, no such limitation is implied when abiding by the obligation of non interference. In the Court’s reasoning this difference is very important: “[T]he right to invoke immunity from jurisdiction must be expressly stated and cannot be inferred from a provision dealing with non interference only. In fact, as the privilege of immunity imposes heavy limitation to State sovereignty, it must be provided for by special rules which do not permit an extensive interpretation”. That immunity from jurisdiction cannot be inferred from the different obligation of non interference, is ultimately conﬁrmed by Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties, which considers the textual criterion to be the general rule of interpretation of treaty provisions. Particularly interesting is the ﬁnal section of the decision. It has been shaped in the form of a general principle governing the respective competences of Italy and the Holy See in jurisdictional matters: “By undertaking the conventional obligation not to interfere and by recognising the absolute sovereignty and independence of the Catholic Church as far as its spiritual ministry and mission of evangelisation are concerned, the Italian State has, at the same time, maintained

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its own sovereignty in the temporal order. In the latter ﬁeld, Italy suffers no limits in the exercise of its competence to punish criminal offences that, although committed in the territory of the Holy See, have caused harmful effects into the national territory. The exercise of Italian jurisdiction is subject to the sole condition of a causal link between those harmful effects and the illicit act committed on the territory of the Holy See. This conclusion also respects the right of individuals, provided for both by statutory and constitutional rules, to receive full judicial protection of their rights and interests in civil as well as in criminal matters”. (The Italian text of the decision has been published in RDI, 2003, p. 821 ff.). MASSIMO IOVANE

XI. HUMAN RIGHTS Article 14 (Personal Domicile) of the Italian Constitution - Right to respect for private life - Article 8 of the European Convention on Human Rights and Fundamental Freedoms - Article 17 of the International Covenant on Civil and Political Rights - Articles 7 and 52 of the Charter of Fundamental Rights of the European Union Corte Costituzionale, 24 April 2002, No. 135 The Judge for preliminary investigation (Giudice per le indagini preliminari) of the Tribunale of Alba, acting as judge a quo, challenged the compatibility with the Italian Constitution of Article 189 of the Italian Code of Criminal Procedure (hereinafter c.p.p.), concerning the means used to provide proof not foreseen in law, and of Articles 266-271 c.p.p., all dealing with interceptions of conversations and other forms of communication. In particular, the Corte Costituzionale was asked to clarify whether the execution of tape and video recording in “private” locations, during criminal investigations, might be in contrast with Articles 3 and 14 of the Italian Constitution protecting, respectively, equality among citizens and personal domicile. Article 14 also provides for inspections to be conducted “in cases and in the manner laid down by law”. The facts can be summarised as follows. During investigations aimed at ascertaining whether criminal activities (aiding, abetting and exploitation of prostitution) were taking place in a night club, the Judge for preliminary examination had authorised interceptions. In performing his/her duty, the Public Prosecutor (pubblico ministero) gave instructions on the modalities for such interceptions, and ordered for the instalment of video cameras. The manager of the club had been under house arrest, thanks also to video recording. The arrest, decided and conﬁrmed by the Tribunale of Torino, had then

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been quashed by the Corte di Cassazione. The Corte declared that video recordings made in a place that could be considered a “private domicile” could not be used as a means of proof, unless they were speciﬁcally authorised. The proceedings against the manager were re-opened for the pre-trial examination before the Judge for preliminary investigations. The Public Prosecutor asked for a committal for trial, availing himself of the video recordings as well as other proofs. The defense counsel asked for the exclusion of the video recordings, endorsing the judgment of the Corte di Cassazione. The Judge of the Tribunale of Alba, at this stage of the proceedings, decided to refer the case to the Constitutional Court for a preliminary ruling on the constitutionality of the provisions of c.p.p. dealing with interceptions of conversations and other forms of communication. In the opinion of the judge a quo, it was not entirely clear which was the constitutional jurisprudence on the subject of video recordings in “private sites”. He suggested three possible interpretations. The ﬁrst, with which he disagreed, excluded altogether this possibility; video recordings had to be forbidden, in observance of the principle of inviolability of private domicile provided for in Article 14 of the Constitution. The second hypothesis, based on Article 266 paragraph 2 of the c.p.p., allowed for video recordings in private sites; yet, these activities had to be explicitly authorised by the judiciary. In the third hypothesis, any act of the judiciary – including practical instructions issued to implement a general authorization on interceptions – could be considered sufﬁcient for admitting video recordings. This hypothesis, with which the judge a quo agreed, was based on a literal interpretation of Article 14 of the Constitution, which provides for a limitation of the principle of inviolability of domicile when other constitutional values have to be preserved. The State Attorneys (Avvocatura generale dello Stato), intervening on behalf of the Prime Minister’s Ofﬁce (Presidenza del Consiglio dei Ministri), asked the Corte Costituzionale to declare the case ill-founded. The possible incompatibility with the Constitution had to be excluded. They insisted on the constitutional limitations to the “right to privacy”; investigations carried out in “private domicile” could be authorized with the purpose of respecting the constitutional value of the prevention and repression of crimes. Before considering the merits of the claim, the Corte ascertained whether such investigative activities were totally forbidden, in domestic and international law. First of all, it considered whether the intrusive character of video recordings ought to be viewed as a “signiﬁcant improvement” compared to other means provided for in Article 14 – inspections, searches, seizures – and therefore any inclusion within the above-mentioned measures would not be possible. In addition, it examined whether such activities violated the Constitution, in so far as they were covert activities, whereas inspections, searches and seizures were, by their nature, undisguised forms of interference. An absolute constitutional prohibition was then excluded. With reference to Article 14, the list of possible interferences is not “closed”. The means indicated

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were the only forms of limitations of domicile inviolability “historically based and juridically typiﬁed when the Constitution was written”; the Constituent Assembly did not make any distinction between the undisguised or covert character of possible activities. Moreover, limitations are also established in other provisions of the Constitution enforcing other liberties and rights, such as personal liberty (Article 13) and liberty of communication (Article 15). In one case (Article 13), the wording of limitations is the same as Article 14, while Article 15 paragraph 2 refers to possible limitations to communication, without any speciﬁc reference to the “means”. With reference to international rules “neither the European Convention on Human Rights and Fundamental Freedoms [hereinafter ECHR] (Article 8), nor the International Covenant on Civil and Political Rights [hereinafter ICCPR] (Article 14) provide for a limitation of the typology of interferences carried out by public authorities in private domiciles. Such a limitation is also absent in the Charter of Fundamental Rights of the European Union (Articles 7 and 52), adopted in Nice on December 2000. Reference to the Charter is made in the full awareness that it does not have any legal force and in recognition that it expresses common principles of European legal orders”. The Corte declared the case ill-founded, but it added some considerations to the hypothesis of video recordings in private domiciles in a context that is different from investigations, hypothesis upon which doubts are cast. It observed that: “[A]lthough […] both liberty of domicile and liberty of communication can fall within a common and wider concept of protection of ‘private life’ – guaranteed as such by Article 8 ECHR, Article 17 ICCPR, and also by Article 7 of the Charter of Fundamental Rights of the European Union – the content of these liberties is considerably different. Liberty of domicile has to be understood as a negative liberty, since it is the right to preserve those places in which a person performs his/her own intimate life from any external interference, private or public. Liberty of communication, however, has a qualiﬁed positive meaning, even if it has a negative proﬁle to it – the exclusion from the information of others than addressees. Such a liberty may be understood as establishing contacts among people aimed at the transmission of qualiﬁed data”. In conclusion, the Corte deems that the whole subject of video recordings in a context that is different from investigations should be examined by the legislative

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power, the only constitutional organ which could guarantee the respect of constitutional values in the performance of such activities. A few remarks on this judgment are appropriate. The Corte Costituzionale refers to the European Convention on Human Rights and the International Covenant on Civil and Political Rights for the purpose of reinforcing its argument on the lawfulness of public interference in private domiciles. But it does not consider at all the interpretation of the provisions given by the organs established by the Conventions. A circumstantial examinations of Article 8 paragraph 2 ECHR would have given a more comprehensive picture of the topic of compatibility with fundamental rights of video interceptions. The European Court of Human Rights has an extensive jurisprudence on Article 8 paragraph 2, which provides for limitations “prescribed by law” to the right to private life. More speciﬁcally, in examining a case in which interceptions in criminal investigations were not formally provided for by domestic law, the European Court declared that “[i]n relation to paragraph 2 of Article 8 of the Convention and other similar cases, the Court has always understood the term ‘law’ in its ‘substantive’ sense, not its ‘formal’ one” (Kruslin v. France, Application No. 11801/85, Judgment of 24 April 1990, para. 29; Huvig v. France, Application No. 11105/84, Judgment of 24 April 1990, para. 28). The use of discretionary power in the selection of means of investigations has also been considered. The European Court has claimed that such power is not unlimited. When the scope and manner of exercise of the relevant discretion conferred on the public authorities is not indicated with “reasonable clarity”, “the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking” (Malone v. the United Kingdom of Great Britain and Northern Ireland, Application No. 8691/79, Judgment of 2 August 1984, para. 79). A ﬁnal remark concerns the Charter of Fundamental Rights of the European Union. For the ﬁrst time, the Corte Costituzionale refers to it as an expression of “common principles of European legal orders”. At the same time, its non-mandatory character is emphasized. We do not know yet what the function of the Charter will be in the “European constitutional framework” since the “constitutional process” is still under way. The position of the Corte Costituzionale is, however, in line with the general attitude of other Italian courts, which often recall the European Charter in their judgments, as a “catalogue” of fundamental rights (see, for example, Corte d’Appello of Roma (Sez. lavoro), 11 April 2002 (Order), Favelli L. v. Condominio Via Brichetti, 23). (The text of the judgment has been published in Giur. Cost., 2002, p. 1062 ff.). Article 6 paragraph 2 of the Treaty on European Union - Preliminary ruling of the Court of Justice of the European Communities - Article 1 paragraph 1 of the First Protocol to the European Convention on Human Rights and Fundamental

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Freedoms - Direct applicability - Compatibility of land planning with the right of property Corte di Cassazione (Sez. I civile), 19 July 2002, No. 10542 Muscas and Others v. Comune di Cagliari The direct applicability of the European Convention on Human Rights (ECHR) and the extent of the power of interpretation by the Court of Justice of the European Communities over violations of fundamental rights are the core questions of this judgment of the Corte di Cassazione. The facts of the case were related to the ascertainment of the existence of conditions for land occupation, in order to determine which legal regime had to be applied, and consequently how much had to be awarded as compensation for expropriation. The physical area under dispute had been included in the “landscape planning” (piano territoriale paesistico) of the Regione Sardegna, which prescribed the limitations on the suitability for building. The piano is a legal instrument of land planning, speciﬁcally aimed at the protection of landscapes and environmental goods adopted by the Regional Authorities and binding for private citizens. The applicants in this case, owners of a plot of land, sued the Comune of Cagliari for the occupation-expropriation (occupazione appropriativa) of the area. The Tribunale of Cagliari condemned the Administration to award compensation for damages. The Corte d’Appello of Cagliari, with a provisional ruling, stated that the damages could not be awarded, because the expropriation had not yet begun. In actual fact, an ofﬁcial declaration of public interest (dichiarazione di pubblica utilità) had not been issued by the public authorities. In the interpretation of the Corte d’Appello, the occupation had to be considered a “permanent illegal situation” (illecito permanente). Only when the Administration had complied with all the requirements for the expropriation, could compensation for damages be awarded. Against this decision of the Corte d’Appello, the applicants lodged a complaint with the Corte di Cassazione. They raised a claim before the Corte di Cassazione for obtaining a ruling from the European Court of Justice on the interpretation of Article 6 of the Treaty of the European Union and Article 1 of the First Protocol to the ECHR. In particular, the applicants asserted that the adoption of a piano territoriale paesistico could lead to a violation of the right of property, as established in the Convention. They asked whether the provisions on the limitations to suitability for building could not be considered a “lawful measure” to control the use of property, as provided for in Article 1 paragraph 2 of the First Protocol. The Corte di Cassazione conﬁrmed that the piano territoriale paesistico is an instrument for the protection of the landscape, imposing limitations on its use, including the suitability for building. Such limitations, on the other hand, cannot

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be considered so absolute as suggested by the applicants; public authorities under certain circumstances can derogate the piano. The Corte excluded that the European Court of Justice could give a ruling on the interpretation of an ECHR rule, because “Article 6 (F) paragraph 2 of the Maastricht Treaty of 7 February 1992 provides for the respect by the EU of fundamental rights as guaranteed by the ECHR. The said provision cannot be interpreted as conferring on European Union law the power to control the respect of the Convention signed in Rome on 4 November 1950. The opinion that the interpretation of ECHR provisions can be requested from the Luxembourg Court of Justice, which has jurisdiction over European Union rules, cannot be shared. Article 6 paragraph 2 simply provides for the respect of fundamental rights, as recognized by the ECHR, by the EU institutions”. In the jurisprudence of the European Court of Justice, the possibility of considering the Convention as part of the European law has been explicitly excluded. As the Corte di Cassazione points out, the Luxembourg Court denied its jurisdiction for preliminary ruling on interpretation when the provisions under examination were outside the ﬁeld of European Union law: “ECHR as such cannot be the object of scrutiny before the European Union Courts, regardless of its contribution to the establishment of general principles of community law”. In the opinion of the Supreme Court, any domestic tribunal may directly apply ECHR provisions to a concrete case, whenever it is deemed necessary: “A domestic tribunal can provide for a direct application of Article 1 of the First Protocol to ECHR (ratiﬁed by Italy with Law No. 848 of 4 August 1955). When the judge notices a contrast with national law, he must give prevalence to a self-executing treaty provision”. But, as for the case under examination, the Corte dismissed the application adding: “The Corte is not of the opinion that the laws on planning and on the protection of landscapes violate any property right as provided for in Article 1 paragraph 1 of the First Protocol to the ECHR. The Convention allows States to control the use of property for general interest, and also to expropriate goods in the public interest. When the protection of the environment or of the landscape is concerned, and when there is a general interest in providing guidelines for the development of a region, the control over the ius ediﬁcandi cannot be considered a violation of property right. In the jurisprudence of the Strasbourg Court a principle of proportionality between the public interest and private property is often recalled.

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The application of restrictions to the property for the safeguarding of the environment and/or landscapes is certainly not excluded”. The position maintained by the Corte di Cassazione in the present judgment is in line with the principles applied by the Luxembourg Court of Justice, when it has examined cases of violation of fundamental rights. First of all, the Supreme Court unequivocally states that the duties described in Article 6 of the European Union Treaty have to be considered a benchmark only for European institutions. Then, it is made clear that the Luxemburg Court has jurisdiction to rule over possible violation of fundamental rights only when a “general principle of European Union law” is involved in the case before it. The ﬁeld of application of ECHR is different. Individuals can lodge a complaint with a national judge, or with the Strasbourg Court, to obtain compensation in the event of a violation of fundamental rights protected by ECHR. As far as Article 1 paragraph 1 of the First Protocol to ECHR is concerned, it is a self-executing provision, in the opinion of the Supreme Court. Any domestic tribunal can apply the treaty rule directly and not enforce the national legal provisions in contrast with the conventional rule. (The text of the judgment has been published in Foro It., 2002, I, p. 2606 ff.). GIOVANNI CARLO BRUNO Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 - Right to life - Deprivation of life Lawfulness of the use of force and ﬁrearms by law enforcement ofﬁcials - Absolute necessity - Article 53 Italian Criminal Code Corte di Cassazione (Sez. IV penale), 2 May 2003, No. 20031 Re: Fusi The present case originated by a decision of the Rimini investigating judge (Giudice delle indagini preliminari, Gip). The applicant, an ofﬁcial of Italian army police (Arma dei Carabinieri), was charged with the crime of murder and personal injuries of two persons who had committed a robbery in a bank. The applicant was found guilty with a decision of 10 November 2000. According to the investigating judge, in fact, he had exceeded the due diligence in the use of force (eccesso colposo nell’uso legittimo putativo delle armi) having ﬁred several shots, while pursuing the car of the robbers, killing one of the criminals and wounding the other one. The Gip sentenced the applicant to four months in prison and condemned him to pay damages to the injured persons. Against the decision of the Gip, the applicant appealed to the Corte d’Appello (Sez. II penale) of Bologna which conﬁrmed, substantially, the decision of the lower judge. The appellate decision was challenged before the Corte di Cassazione on several grounds.

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In the ﬁrst place, the applicant argued that the judgment passed by the Bologna Court conﬂicted with Article 2, paragraph 2, of the European Convention on Human Rights, which states that “deprivation of life shall not be regarded as inﬂicted in contravention of this article when it results from the use of force which is no more than absolutely necessary”. Actually, the use of force by ﬁrearms was necessary in order to stop the car of fugitives, to arrest them, and to prevent further danger for public safety. Secondly, the applicant alleged that the facts were a consequence of a fortuitous event as his aim was to shot to the tyres of the car, while the presence of road bumpers for slowing down vehicles, caused an anomalous skip of the car so that the trajectory of the bullets was deviated. The Corte di Cassazione quashed the judgment of the Corte d’Appello di Bologna and ruled in favor of the applicant’s allegations. According to the Court: “[T]he appeal judge afﬁrmed that the use of force by law enforcement public ofﬁcials, towards criminals that are trying to escape the arrest, must rely on the prerequisite of the absolute necessity, and that this condition lacked in the case under examination. This statement does not hold true”. And, furthermore: “The principle enshrined in Article 2, paragraph 2, of the European Convention on Human Rights and Fundamental Freedoms, involving the lawfulness of the use of arms in the execution of an arrest, has to be applied in the present case. In fact, ﬁre shots were necessary to prevent criminals from escaping, to bring them before justice and to rescue the loot”. The judgment by the Corte di Cassazione invites for some considerations. The Corte di Cassazione held that the case fell just within the scope of Article 2 of the Convention and, in particular, within its exceptions provided for by paragraph 2. As well known, the right to life is included in the catalogue of articles of the Convention from which no derogation is permitted in any circumstances: so-called “non-derogable rights” (Article 15 of the Convention). This means that no other exception of this right is admitted unless those expressly provided for by the very same text of the article (as to the extensive literature dealing with the margin of appreciation doctrine, see CALLEWAERT, “Is There a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?”, HRLJ, Vol. 19, 1998, p. 6 ff.; and ARAI-TAKAHASHI, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerp et al., 2002). Unlike other judgments passed, in the same period, by the same Supreme Court on the European Convention (see decisions on the application of Law No. 89 of 24 March 2001 – also known as “Legge Pinto” – in which the Corte di Cassazione disputed that Strasbourg Court’s case-law may bind domestic judges and, furthermore, seemed to challenge the principle of the prevalence of the norms of the Eu-

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ropean Convention over incompatible domestic legislation. For a survey of these judgments see IYIL, 2002, p. 276 ff.), in the present case the Corte di Cassazione afﬁrmed the binding nature and the direct application of Article 2 of the Convention. It went even further, assuming a commonality between the norms of the European Convention on Human Rights and EU regulations. Indeed, the Corte noted that “European law norms, even in the absence of the enforcement by national provisions within the domestic legal system of the Member States, bind domestic judges and prevail over domestic incompatible norms […]”, and that “[a]s regards this issue, the Italian Constitutional Court (Judgment No. 183/73) stated that the rationale of the EU legal system requires that EU regulations, if complete in all their elements, are source of rights and obligations for States and for their citizens […]”. It follows that: “Similarly, it is undoubted that Article 2 paragraph 2 of the European Convention on Human Rights, according to which the use of force by ﬁrearms is lawful when necessary in order to effect a lawful arrest, had to be applied to the present case; consequently the applicant was authorized to use ﬁrearms, as it was necessary in order to stop the car of fugitives, to arrest them, to prevent further danger for public safety, and to rescue the loot”. The decision of the Court conﬁrms the lack of agreement among domestic tribunals as to the exact position of the European Convention within the Italian legal system. In the present judgment, the Court stated the direct applicability of the Convention and recognised that it prevails over incompatible domestic law. This prevalence has been based on well known arguments drawn from established case-law on the priority of EU regulations, and more in general of EU law, over incompatible domestic law (see, inter alia, Corte Costituzionale, 5 June 1984, No. 170). It seems, anyway, that the Corte di Cassazione furthered its reasoning to the point of treating the European Convention on Human Rights as being part of EU law. Such an approach is unusual and unsupported by the majority of the legal literature and of constitutional case-law (see, Corte Costituzionale, 16 December 1980, No. 188). EU law and the European Convention on Human Rights, indeed, remain two different legal regimes that maintain different spheres of application, and this notwithstanding some steps undertaken toward their progressive integration. As to the direct applicability of the Convention and its prevalence over incompatible domestic law, it is worth noting that in the past the Corte Costituzionale and the Corte di Cassazione granted these effects by assuming that the Convention is an atypical source of law whose norms could not be abrogated, neither modiﬁed, by domestic law (see Corte Costituzionale, 19 January 1993, No. 10 and Corte di Cassazione (Sez. I penale), Medrano, 10 July 1993, No. 10). Nowadays, the Legge Costituzionale (Constitutional Amendment) No. 3 of 18 October 2001, which modiﬁed Title V of the Italian Constitution and rewrote Article 117, appears to have clariﬁed the

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ranking of the Convention within the domestic legal system. According to the ﬁrst paragraph of the new Article 117, “[i]n performing their legislative powers, the State and the Regions shall respect the Constitution and obligations arising from international law and European Community law”. This involves that the priority of international agreements (including the European Convention) over incompatible domestic law is assured at a constitutional level. In other words, under Article 117 of the Constitution, the norms of the European Convention on Human Rights constitute a parameter to verify the constitutional legitimacy of national legislation. It follows, that in case of conﬂict between norms of the Convention and domestic legislation, the priority of the Convention should be assured by the means of the interpretative activity of domestic judges; when this solution is not viable, and only in this case, the prevalence of the international treaties over incompatible domestic law should be assured, extrema ratio, by the Constitutional Court (on this topic, see CONFORTI, “Reﬂections on the Recent Amendments to the Italian Constitution Concerning Respect for International and European Community Law”, IYIL, 2001, p. 3 ff.). From this point of view, the solution of the Corte di Cassazione in the present case seems to be correct as to the result (the acknowledgment of the direct applicability of the Convention within the domestic legal system). At the same time, we cannot share the reasoning of the Supreme Court regarding the European Convention being EU law. Finally, as far as the issue of the “absolute necessity” is concerned, it is worth reminding that Article 2 paragraph 2 of the Convention provides three cases, not falling under the prohibition of the ﬁrst paragraph, where deprivation of life results from the use of force for a given purpose and only under the condition that the force used “is no more than absolutely necessary”. Furthermore, the words “absolute necessity” has to be interpreted in such a way that there must also be proportionality between the force used and the interest pursued. From this point of view, the text of the Article 2 of European Convention, read as a whole, does not deﬁne situations where it is permitted intentionally to kill an individual, but situations where the use of violence is permitted, which may then, as an unintentional consequence, result in deprivation of life (as to the ECHR case-law on the topic see, inter alia, McCann and Others v. the United Kingdom, Judgment of 27 September 1995, Series A No. 324, paras. 148 ff., and Hugh Jordan v. the United Kingdom, Application No. 24746/95, Judgment of 4 May 2001, ECHR, 2001, III, para. 104). In this regard the European Court of Human Rights has pointed out the requirements that have to be satisﬁed in order to assure this goal. As to the Court case-law, the obligation to protect the right to life under Article 2 of the Convention has to be read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms deﬁned in [the] Convention” (see the McCann and Others decision, cit. supra). Accordingly, it falls upon domestic authorities to comply with the procedural obligation in order to fulﬁl the scope of Article 2 of the Convention. This means, by implication, that there should be an effective ofﬁcial investigation when individuals have been killed

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as a result of the use of force (see, mutatis mutandis, the Kaya v. Turkey, Judgment of 19 February 1998, Reports of Judgments and Decisions, 1998-I, p. 324, para. 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The assessment of requisites of “absolute necessity” and proportionality implies an uncontroversial fact-ﬁnding. This kind of activity may only be achieved by domestic authorities involved with the same case, and may be subject of review, if necessary, by domestic courts in order to evaluate the fairness of investigations and to judge carefully the respect of the absolute necessity and of the proportionality principle. As to the present case, we have to assume that the fact-ﬁnding investigations of domestic tribunals have disclosed all the circumstances of the case as they really happened. Notably, the escape of bank-robbers with a car, the high speed (60/70 Km.) they were running within a build up area (where the speed limits is ﬁxed by law in 30 Km.), the danger for people present in the street, the uselessness of the other instruments available to police forces (as acoustic alarms, car’s horn, etc.) which did not contribute to stop the criminals, might be consistent with an evaluation of the “absolute necessity” of the use of the army force. The presence of road bumpers not indicated to car-drivers by road signs, the irregular dimensions of these last (they were much higher than standard dimensions) and the consequent deviation of the trajectory of the bullets shot by the applicant, might be consistent with the applicant allegations that the deprivation of life was an unintended outcome deriving from a lawful use of the force. Anyway, perplexities may arise under this last point of view. In fact, even if these circumstances would seem to support an evaluation of the absolute necessity and of the proportionality of the deprivation of life in the present case, it is worth noting that in its judgment the Corte di Cassazione does not seem to assign them a decisive relevance for the ﬁnal decision. In the Court’s opinion, the issue of the direct applicability of Article 2 paragraph 2 of the European Convention absorbs all other grounds of the judgment, which, according to the Court, have been used only “ad abundantiam”. (The Italian text of the decision has been published in Foro It., 2003, II, p. 434 ff.). MARCO FASCIGLIONE Right of Property - “Occupation-expropriation” rule - Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms - Role of the case-law of the European Court of Human Rights Corte di Cassazione (Sezioni Unite civili), 14 April 2003, No. 5902 Stea-Schiralli v. Comune di Modugno Once again, the Corte di Cassazione has been asked again to clarify whether the constructive expropriation (occupazione acquisitiva or accessione invertita)

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rule may lead to a violation of Article 1 of the First Protocol to the European Convention on Human Rights, concerning the protection of property. Starting from the 1970s, a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken. The core question was whether the mere carrying out of works had consequences on the landowner title of property. In a judgment of 1983 (Sezioni Unite, No. 1464) the Corte di Cassazione established the rule, under which the public authorities “acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed. If, initially, the land is possessed without authority, the transfer of property takes place when the works in the public interest are completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession” (European Court of Human Rights, Carbonara and Ventura v. Italy, Application No. 24638/94, Judgment of 30 May 2000, paragraph 25). The owner was entitled to compensation, but he had to lodge a claim for damages within a ﬁve-year limitation period from the date in which the land was irreversibly altered. Other judgments of the Supreme Court clariﬁed some points of the issue (i.e. extension of the limitation period – Judgments No. 7952 of 1991, No. 10979 of 1992; cases excluding the application of the principle of constructive expropriation – Judgments Nos. 1907 and 6515 of 1997); the Corte Costituzionale (Judgment No. 188 of 1995) declared the compatibility with the Constitution of the rule, since the public interest in the preservation of works for the public good outweighed the individual’s interest in the right of property. In the present case, the applicants – owners of a plot of land – sued the Comune of Modugno because it took possession of the land belonging to them without a formal expropriation order. They asked for compensation for the loss of the area, on which council houses were built, and also for the damages caused by the illegal occupation. The Tribunale of Bari considered the category on constructive expropriation as unlawful and granted to the applicants a compensation based on market value. The Corte d’Appello of Bari, before which the Comune of Modugno had introduced an appeal against the ﬁrst judgment, awarded compensation for damages to the owners of the plots of land but stated that the interference by public authorities could be considered legal, having been started through a declaration of public utility and an expedited procedure, as provided for in Italian law. The Corte d’Appello recognised the validity of the constructive-expropriation rule which nulliﬁed the right of property of the former owners once the public works had been completed. The applicants maintained that, in the case under exam, the Corte had to take into consideration the judgment of the European Court of Human Rights of 30 May 2000

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in the case of Belvedere Alberghiera v. Italy (Application No. 31524/96), in which the jurisprudential inconstancies on constructive expropriation rule had been censored. But the Corte d’Appello dismissed the argument declaring that the case before it was completely different from the one examined before the Strasbourg Court. The petition was then lodged with the Corte di Cassazione by the applicants on four different grounds. First of all they maintained that the judgment of the Corte d’Appello had violated and erroneously applied the legality principle, Italian law and the ECHR. In their opinion, the Corte d’Appello should have also considered in its analysis another judgment of the European Court of Human Rights delivered on 30 May 2000, in the case of Carbonara and Ventura v. Italy. The judgment criticized the constructive-expropriation rule as violating the legality principle. As a consequence, the argument of the Corte d’Appello according to which the conclusions reached by Italian Courts and the European Court were similar had to be rejected. The jurisprudence of the European Court should have prevailed because Member States were bound to the judgments of the Court according to Article 46 of the Convention; moreover, such jurisprudence formed a “common European law” on the values protected by the Convention. As a consequence, application of the jurisprudence was deemed necessary. As for the second ground, in the plaintiffs’ opinion the judgment was contradictory in its reasoning on a central issue. The Corte d’Appello considered equally important constitutional and ECHR values, but in practice, they did not apply all the rules concerning the protection of property. The third ground for appeal referred to the notion of property and to the right to compensation in domestic law. Finally, the applicant maintained that, even if the formal rank of the Convention and its Protocols as well as the jurisprudential principles thereof had been respected, the Corte d’Appello would not have reached its conclusion accordingly. Two of the principles established by ECHR (and the Constitution) for the expropriation, that is “conditions provided for by the law” and “the balancing between the general interest and the sacriﬁce of individual right to property”, had not been respected by the Comune of Modugno, which did not assess any compensation. The Corte had not awarded any compensation either. The Corte di Cassazione dismissed the plea, but corrected and integrated the reasoning followed by the Corte d’Appello in reaching its conclusions. Its analysis starts from the reconstruction of the occupation-expropriation rule, bearing in mind the provisions in domestic law governing property – Article 42 of the Constitution, Articles 832 and 834 of the Civil Code – together with Article 1 of the First Protocol to the ECHR. Examination of the relevant judgments of the Supreme Court and of the Corte Costituzionale allows the Corte di Cassazione to state that the occupation-expropriation rule has now acquired stable characteristics, which can be evaluated through the parameters established by the European Court in its Judgments of 30 May 2000. It is afﬁrmed that:

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“[A]lthough no international rule provides for the erga omnes compulsory character of the European Court dictum before domestic courts, these judgments have to be taken into account in order to ensure effective protection to the rights provided for in the Convention. These decisions can be considered authoritative precedents and they are relevant for the interpretation of domestic provisions”. According to the Corte di Cassazione, the reference made to the Belvedere Alberghiera case is not relevant. In that case the interference with the right to property had to be seen as unlawful occupation, since any formal declaration of public utility was absent; therefore the right to property maintained its integrity. As provided for in the occupation-expropriation principle, when the occupation is unlawful, the owner is entitled to claim restitutio in integrum or can bring an action for damages. The Carbonara and Ventura case dealt with occupation-expropriation, but, according to the Supreme Court, the case had characteristics that are substantially different from those examined by the Strasbourg Court. The evaluation made in 2000 by the European Court on the violation of the right of property and of the criteria for public interference in the possession and the use of property has to be reconsidered because “it has to be stressed that the occupation-expropriation rule (which needs to be based on a valid declaration of public utility of a work, executed by the public authorities in the general interest of the community, and leaving no room for the restitution of the private good after its incorporation) can be regarded as ‘a complex of rules accessible, precise and foreseeable’, compatible therefore with treaty rules, in the interpretation given by the European Court. Jurisprudential variations are nowadays absent and the context of the application of the rule is clear”. Moreover, “it can be maintained that a balance has been reached between the right to property, as provided for in domestic law and in ECHR (as interpreted by the European Court) and the general interests of the community. In fact, the need for a declaration of public utility has been recognized; a reasonable compensation to the owner is provided for; and an effective judicial protection is established”. In 2001 the occupation-expropriation rule 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 De-

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cember 2002, and entered into force on 30 June 2003). Accordingly, any problem concerning the test of creating a “set of rules accessible, precise and foreseeable” should be ﬁnally overcome. However, the consolidated text does not apply, having no retroactive effect, to the cases very recently admitted before the European Court on a possible violation of Article 1 of the First Protocol for events occurred in the 1980s and 1990s and connected to the application of the said rule (see Pasculli v. Italy, Application No. 36818/97, decision on admissibility of 6 April 2004). Article 6 paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms - Right to “reasonable time” in the length of proceedings - Just satisfaction - Establishment of the alleged non-pecuniary damage - Interpretation of the European Convention on Human Rights and Fundamental Freedoms - Effects of judgments of the European Court of Human Rights - Law No. 89 of 2001 (“Legge Pinto”) Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1338 Balsini v. Ministero della Giustizia Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1339 Lepore v. Ministero della Giustizia Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1340 Corbo v. Ministero della Giustizia Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1341 Lepore-Lepore v. Ministero della Giustizia In the previous volume of this Yearbook (pp. 276-283) some notes were published on the effects of the entry info force of Law No. 89/2001, known as Legge Pinto, establishing a system for compensation for violation of the right to a reasonable length of proceedings, a right which had ﬁrst been provided for in the European Convention on Human Rights and Fundamental Freedoms (ECHR), and then incorporated in its entirety in Article 111 of the Italian Constitution. Those notes highlighted that the Corte di Cassazione, charged with the task of verifying whether the Corti d’Appello were applying the Law correctly, had failed to produce a consistent jurisprudence. In particular, the Corte di Cassazione had seldom considered the jurisprudence of the European Court of Human Rights concerning the “criteria” to be applied when determining both the existence of and the compensation for damage, either pecuniary or non-pecuniary. The Corte stated that such “criteria” could not be different from those applied in other cases of domestic law. The European Court, in a decision on admissibility (Scordino and Others v. Italy, Application No. 368193/97, decision of 27 March 2003), cast some doubts

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over this practice and, in general, it questioned the “effectiveness” of the remedy established by Italian law. As a consequence, modifying its opinion on the Legge Pinto (Brusco v. Italy, Application No. 68789/01, decision on admissibility of 6 September 2001; Di Cola v. Italy, Application No. 44897/97, decision on admissibility of 11 October 2001), the Court admitted again a case on a possible violation of excessive length of proceedings. Facing this new situation, and in order to prevent the re-opening of all the cases which had been dismissed by the European Court, the Corte di Cassazione decided to clarify the role of the domestic appeal for just satisfaction, with reference to the excessive length of proceedings within the Italian legal system. It also had to address the role of the European Court and, in particular, whether it may be considered the most competent interpreter of the living law that stems from the Convention. Some of the cases on the Legge Pinto were then deferred to the Sezioni Unite of the Corte di Cassazione which were asked to settle “a general and very important issue”, as provided for in Art. 374 of the Italian Code of Civil Procedure. The Corte di Cassazione accepted the petitions of the plaintiffs and, consequently, quashed the judgments of the Corti d’Appello. Although the claims had been introduced before the Corte di Cassazione by the applicants against the decisions of the Corti d’Appello on various grounds for appeal, the four Judgments of 27 November 2003-26 January 2004 are analysed together, for they all deal with the question of compensation for non-pecuniary damage. The present note will be based mainly on the ﬁrst case (Balsini, No. 1338), and only few references will be made to the peculiar questions examined in the other decisions. In the Balsini case, the Corte d’Appello had recognized the violation of the right to a reasonable length of proceedings, but had excluded compensation, observing that “the delay in the decision cannot determine damage ex se. Damage, pecuniary or non-pecuniary, can be compensated only if its existence is proved”. The central issue of the judgment of the Corte di Cassazione concerns nonpecuniary damage. “The question can be summarized as follows. On the one hand, according to the Law No. 89/2001, non-pecuniary damage stemming from unreasonable length of proceedings may be identiﬁed in the violation itself of the right to a reasonable length of proceedings, and therefore such damage is a direct and automatic consequence of the ascertainment of such violation. On the other hand, such damage may be qualiﬁed as a constitutive element of the right to compensation, separate from the violation of the right to reasonable length, which is not recognizable in itself, and such damage necessary for the ascertainment of the violation. Nonpecuniary damage should be proved by the applicant who, for its identiﬁcation, may also assert its existence during the proceedings”.

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After re-examining its former jurisprudence on the subject, the Corte observes that it had been constantly denied that non-pecuniary damage could automatically result from an excessive length of proceedings; on the contrary, the alleged victim had to prove such damage even by the use of presumptions of law and notorious facts. This reasoning relied, principally, on the alleged programmatic nature of Article 111 of the Italian Constitution, which includes the right to reasonable length of proceedings among fundamental rights. As a consequence, no subjective right could stem directly from the said Article. Moreover, the previous position of the Court insisted on an interpretation of the wording of Article 2 paragraph 1 of the Law No. 89/2001 under which it did not provide for any direct connection to compensation as a result of the protraction in the proceedings beyond any reasonable length. The Corte di Cassazione, in the Balsini case, does not share this view and states: “Article 111 paragraph 2 of the Italian Constitution […] which states that the ‘law provides for the reasonable length’ of any proceedings, has to be integrated with Article 6 ECHR, which provides that ‘everyone is entitled to [a] hearing within a reasonable time’. The constitutional provision, placed in the context of the rules on jurisdiction, is directed to the legislative branch, imposing a duty to organize the proceedings in accordance with the right to reasonable length. The ECHR, which deﬁnes fundamental rights, confers rights upon a person which can be raised against the State. The protected value in the two provisions is always the same: the reasonable length of proceedings. The perspective under which it is taken into consideration is different: for the Constitution such reasonable length is an objective guarantee, whereas it is a subjective guarantee in the ECHR”. It is then excluded that a non-self executing character of Article 111 may be inferred from the fact that rights contained in it were not mentioned in the First Part of the Constitution, deﬁning the rights of citizens. In order to reinforce its argument, the Corte di Cassazione quotes a judgment of the Corte Costituzionale (Judgment No. 399 of 12 December 1998), which observed that “human rights, guaranteed also by universal and regional agreements signed by Italy, are recognised and enjoy a not less intense protection in the Constitution” (see also Corte Costituzionale, Judgment of 22 October 1999, No. 388, IYIL, 2001, p. 289 ff., p. 291). An effective protection by Article 24 of the Constitution, which guarantees the fundamental right of access to justice for the protection of legal rights and legitimate interests, includes the guarantee for the reasonable length of proceedings. The judgment of the Constitutional Court indirectly declared the self-executing character of the right to reasonable length.

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In the opinion of the Corte di Cassazione, an instrument for the effective protection of the right to “reasonable time” in the length of proceedings is the Legge Pinto; as can be clearly drawn from its Article 2 paragraph 1, the event producing the right to compensation is “the violation of Article 6 paragraph 1 ECHR”; “The Convention provides for the establishment of a Tribunal (the European Court of Human Rights, sitting in Strasbourg) to ensure the respect of its provisions (Article 19). Therefore the power of the Court to interpret ECHR provisions must be recognized”. Accordingly, “the task of the European Court is to identify all the elements composing the legal fact; its jurisprudence is compulsory for Italian judges, as far as the application of the Law is concerned. It is not necessary to raise the general question of relationships between ECHR and the Italian legal order […] Any possible opinion on this very complicated problem, or on the formal rank of the European Convention on Human Rights within the hierarchy of sources in domestic law, does not modify the argument that the direct application of an ECHR provision, that is Article 6 paragraph 1 in the part of ‘reasonable time’, provided for in Law No. 89/2001, cannot diverge from the interpretation given by the European Court”. Any other solution “aiming to allow a substantial difference in the way in which the Legge Pinto is applied in the domestic legal order, and the interpretation given to the right to a reasonable length of proceedings by the Strasbourg Court, would nullify the Law, thereby involving a violation by Italy of Article 1 ECHR, according to which the Parties ‘shall secure to everyone within their jurisdiction the rights and freedoms deﬁned in Section I of this Convention’ – including Article 6”. To reinforce its argument, the Corte analyses the reasons which led the Italian Parliament to adopt the Law No. 89/2001, with special reference to the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights; the above principle is expressed in Article 35 ECHR, under which “[t]he Court may only deal with the matter after all domestic remedies have been exhausted”. A duty for States to guarantee effectively the protection of fundamental rights within their domestic legal order is a direct corollary of this principle. The Legge Pinto serves this purpose and, as such, had been positively welcomed even by the Strasbourg Court.

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“The mechanism aimed at applying the Convention and respecting the principle of subsidiarity of the intervention of the Strasbourg Court cannot operate where the consequences of the ascertained violation of the Convention were not compensated in the domestic legal order, or were only partially compensated. In those cases, Article 41 enables the European Court to intervene and grant satisfaction to the injured party. In the cases here referred to, the application ex Article 34 is admissible […] and the Court provides for a direct protection of the alleged victim, who is not adequately guaranteed in the domestic legal order”. Any application of the Law No. 89/2001 by an Italian judge that is inconsistent with the ECHR enables the victim to lodge a complaint with the Strasbourg Court. However, in the view of the Corte di Cassazione the duty to conform to the interpretation of the European Court is not absolute. In fact, “the Italian judge, called to apply the Legge Pinto, in conformity with the ECHR and as it is implemented through Strasbourg case-law, has to do so it ‘as far as possible’. A limitation might be found in the wording of the law; in this case, he/she may not violate the law, being himself/herself subject to it […]. A possible conﬂict between the Law and ECHR might also clash with the Constitution, in that it also safeguards the right to reasonable length, among the inviolable rights of the person (Article 2). Whether an interpretation favourable to ECHR is possible, it should be ascertained, taking into consideration the rule of interpretation according to which a legislative act has to be interpreted in conformity with the Constitution”. It is not entirely clear what the reason is for quoting the principle that judges are subject only to law (as afﬁrmed also in Article 101 of the Italian Constitution). More correctly, the Corte could have maintained the argument that such a conﬂict had no basis because the ratio of the law was to apply the right to reasonable length of proceedings, as is envisaged in Article 6 paragraph 1 ECHR. Going back to the question of the compensation of non-pecuniary damage, as a direct and immediate consequence of the violation of the right to reasonable length of proceedings, the Corte di Cassazione, extensively quoting the case-law of the European Court, states that “[f]rom the settled case-law of the European Court a conclusion may be drawn that non-pecuniary damages deriving from non reasonable

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length of proceedings, once the violation of Article 6 is proved, are awarded to the injured party, without any proof of their existence. The situation is different for pecuniary damage, whose existence has to be proved”. In the opinion of the Corte, it does not mean that non-pecuniary damage is in re ipsa. There are cases in which it might be excluded. According to the wording of Article 41, once the European Court has found a violation of the Convention, it “shall, if necessary”, grant just satisfaction. The Balsini decision considers that, in some cases, “the Strasbourg Court considered the solemn acknowledgement, declared in the judgment regarding the merits on the existence of the violation, sufﬁcient satisfaction for non-pecuniary damage”. In our opinion, the above-mentioned argument is rather obscure, and can be criticized from two points of view. First of all, the Corte – which correctly stressed that all the cases quoted did not deal with the unreasonable length of proceedings (Magee v. United Kingdom, Application No. 28135/95, Judgment of 6 June 2000; Daktaras v. Lithuania, Application No. 42095/98, Judgment of 10 October 2000; Riepan v. Austria, Application No. 35115/97, Judgment of 14 November 2000; Ganci v. Italy, Application No. 41576/98, Judgment of 20 October 2003) – should have censured rather than approved this practice of the European Court. In actual fact, this jurisprudence relates mainly to situations in which the applicants were detained under special measures, so that the impression is given that the Court is too timid, if not superﬁcial, when considering the effect of the increase of anxiety on the person detained. Secondly, it seems to us that the Corte di Cassazione only wanted to stress the difference between Italian and European principles with regard to determining non-pecuniary damage and its consequent compensation thereby, leaving open the possibility of different treatment, applying the European Convention. In the judgment, the Corte di Cassazione insists on denying the qualiﬁcation of non-pecuniary damage as a “part of the violation of the right” (danno-evento). It holds that it normally stems from delay in obtaining a judgment; but there are cases in which “unreasonable time” may have positive effects on the alleged victim, even though such situations can be considered an exception to the rule which provides for the existence of non-pecuniary damage. To sum up, it is stated that “once the entity of the violation of the principle on reasonable length of proceedings is ascertained and determined, according to Law No. 89/2001, the judge must compensate non-pecuniary damage with the exception that, in the case under examination, peculiar circumstances do not prevent such compensation for the individual”. A consideration can be drawn from the conclusion reached by the Corte di Cassazione in this case, and conﬁrmed also in the other judgments. It can be afﬁrmed

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that, for the violation of the right to reasonable length of proceedings, the general principles of the Italian Civil Code, which state that the onus lies with the applicant to prove that he has suffered damage, pecuniary or non-pecuniary, from a wrongful act, are replaced by the principles settled in the jurisprudence of the Strasbourg Court, under which non-pecuniary damage is a consequence that automatically stems from the anxiety and prejudice suffered by the victim. As corollaries of the principle stated on the existence of an obligation to compensate non-pecuniary damage for “unreasonable” length of proceedings, two more questions are tackled by the Sezioni Unite in the other cases under exam. Non-pecuniary damage, ascertained by the Strasbourg organs, cannot be excluded when the same case is dealt with by the national judge. This question is discussed in depth in the second (Lepore, No. 1339) and in the fourth (Lepore-Lepore, No. 1341) judgment, both concerning cases in which the European Commission of Human Rights had found a violation of Article 6 paragraph 1 and the Committee of Ministers had granted a compensation for the delay. The Corte di Cassazione imposes to take into consideration the amount for compensation awarded by the European Court, though a reasonable margin of appreciation can be conferred upon the national judge. Anyway, such a “margin of appreciation” cannot lead to compensation which “does not bear a reasonable relationship to the amounts awarded by the Court in […] similar cases”. National courts, however, have to bear in mind that they “must also comply with the Court’s case-law by awarding corresponding amounts” (see Scordino and Others v. Italy, decision of 27 March 2003). Recalling the Legge Pinto, the Corte di Cassazione – in the third judgment (Corbo, No. 1340) – states that, as for non-pecuniary damage, it is mandatory for the national judge to respect the criteria established in similar cases by the Strasbourg Court. A further indication concerns the way in which the determination of damages can be achieved: “The search of similar cases and of just satisfaction of non-pecuniary damage granted by the European Court can be done by the judge. He can carry out this speciﬁc task even in cooperation with the parties concerned and, in particular, with the assistance of the plaintiff, who has a speciﬁc interest in giving any useful elements for the determination of the amount of compensation”. In the same judgment, the Corte di Cassazione maintains that only recent decisions should be considered the benchmark for reference to the issues of compensation, to minimise the discrepancy between the amount awarded by the Corte d’Appello and alleged “precedents” within the case-law of the European Court. In general, it seems to us that the judgments here analysed realign both European and Italian perspectives on the right to just satisfaction for the violation of the right to reasonable time in obtaining a decision before a tribunal. The recognized

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important role of European jurisprudence in the deﬁnition of criteria for compensation of damage, where the rights conferred by Article 6 paragraph 1 ECHR are violated is a signiﬁcant advance in the Italian application of the Convention. Although the formal application of stare decisis cannot be declared in the Italian legal system, it is correct to attach adequate importance to the interpretation given by the Sezioni Unite of the Corte di Cassazione, which is particularly relevant as living law for the lower courts (see CAVINO, “Il precedente tra certezza del diritto e libertà del giudice: la sintesi nel diritto vivente”, Diritto e società, 2001, p. 95 ff.). In conclusion, what remains unfortunately still unclear, and widely debated in legal doctrine, is the question of how long the existence of a provisional remedy established to compensate “systemic” violation of fundamental rights will be considered a condition sufﬁcient to comply with the obligations provided for in ECHR. (The text of the Judgments No. 1338 and No. 1340 has been published in Foro It., 2004, I, respectively p. 699 ff. and p. 693 ff.; Judgments No. 1339 and No. 1341 have not yet been published). GIOVANNI CARLO BRUNO

XII. INTERNATIONAL CRIMINAL LAW (Cf. infra XIV, Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377)

XIII. INTERNATIONAL RESPONSIBILITY (Cf. supra XI, Corte di Cassazione (Sezioni Unite civili), 27 November 200326 January 2004, Nos. 1338-1341)

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS Co-operation with the International Criminal Tribunal for the Former Yugoslavia (ICTY) on enforcement of sentences - Recognition of the judgments of the ICTY - Whether the national authorities have the power to convert, by adopting the “exequatur” order, the sentence pronounced by the ICTY into a national sentence of a lesser term of imprisonment - Agreement between Italy and the United Nations of 6 February 1997 - Interpretation of an agreement authenticated in two languages - Interpretation of conventional rules in the light of legal rules of the State of the judge - Interpretation of conventional rules in the light of relevant rules contained in United Nations Security Council Resolution No. 827(1993) adopting the Statute of the ICTY

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Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377 Re: Jelisic On 1 July 1999 the Agreement between Italy and the United Nations on the enforcement of judgments of the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY), adopted in The Hague on 6 February 1997 (hereinafter “the Agreement”), entered into force. Italy had already declared its willingness to execute the ICTY’s sentences. To this end, it had enacted DL No. 544 of 28 December 1993 (converted with minor changes into Law No. 120 of 14 February 1994, hereinafter “the Decree”), immediately after the establishment of the Tribunal by the Security Council. Subsequent Law No. 207 of 7 June 1999, by which the Agreement was ratiﬁed and implemented in the Italian legal order, has not ofﬁcially abrogated the Decree. On the contrary, some articles of the Agreement expressly refer to speciﬁc provisions of the Decree. The two texts contain overlapping regimes with regard to quite a number of aspects relating to the execution of the ICTY judgments. Thus, problems of interpretation are very likely to arise before Italian tribunals trying to co-operate with the judicial activity of the UN Tribunal. The judgment of the Corte di Cassazione here under review addresses one of these problems. The provisions of the two acts which appeared to be conﬂicting are, on the one hand, Article 7, paragraph 4, of the Decree and, on the other hand, Article 3, paragraph 1, of the Agreement. The ﬁrst one states that the Court of Appeal, by recognising a judgment of the Tribunal “shall determine the sentence to be enforced in the State. For this purpose, the Court shall convert the term of imprisonment imposed by the International Tribunal into a term of reclusione. The duration of the sentence (penalty) shall in no case exceed a term of reclusione of thirty years” (the word reclusione means imprisonment in Italian). The Cassazione had to decide whether Article 7, paragraph 4, of the Decree, had been implicitly abrogated by Article 3, paragraph 1, of the Agreement which reads: “In enforcing the sentence pronounced by the International Tribunal, the competent national authorities of the requested State shall be bound by the duration of the sentence”. This case originated in 2001, when the Registrar of the ICTY addressed a request to the Government of the Italian Republic to enforce a forty-year prison sentence imposed to Goran Jelisic, who was found guilty of acts of genocide. According to Article 2, paragraph 3, of the Agreement and Article 7, paragraph 1, of the Decree, the Minister of Justice has to submit the request to the Attorney General (Procuratore Generale) attached to the Court of Appeal of Rome. On 31 January 2002, the Court of Appeal of Rome recognized the judgment of the International Tribunal and sentenced Jelisic to forty years of imprisonment. In other words, it applied the regime provided for by the Agreement. “When two national provisions of equal rank appear to be conﬂicting”, so runs the Court’s argument, “the contrast should be solved by recourse to the chronological criterion afﬁrming that lex pos-

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terior derogat priori”. The Court argued that Article 3, paragraph 1, of the Agreement had abrogated Article 7, paragraph 4, of the Decree. Therefore, the competent Italian authorities were under an obligation to respect the duration of the penalty imposed by the International Tribunal (this conclusion had already been reached in Italian legal literature by LATTANZI, “Rapporti fra giurisdizioni penali internazionali e giurisdizioni penali interne”, in LAMBERTI ZANARDI and VENTURINI (eds.), Crimini di guerra e competenza delle giurisdizioni nazionali, Milano, 1998, p. 47 ff.). The appellate decision was reversed by the Corte di Cassazione. Basically, the Supreme Court afﬁrmed that the two provisions in question should not be considered as conﬂicting one with another, because they concern different issues. In fact, whereas Article 7 of the Decree addresses the question of the recognition of the judgment passed by the International Tribunal, Article 3 of the Agreement deals with the phase which follows the recognition of the judgment by the competent Italian authorities, i.e. the enforcement of the sentence. The Court goes on by clarifying that Article 7 of the Decree governs such questions as the appointment of competent national authorities, the procedure to be followed and the conditions under which the recognition of the judgment is possible. In particular, paragraph 4 of Article 7 speciﬁes one of these conditions, namely that the sentence pronounced by the ICTY must not exceed thirty years’ imprisonment. On the other hand, Article 3 of the Agreement regulates the proceedings relating to the execution of the sentence, which may begin only when the judgment has been duly recognised by the Italian judicial authorities in a previous phase. In conclusion, the Cassazione ruled that Article 3, paragraph 1, has not abrogated Article 7, paragraph 4, of the Decree. As a consequence, nothing prevents national authorities from reducing an imprisonment sentence pronounced by the ICTY. As for the legal grounds of its ﬁnding, the Court afﬁrmed that its interpretation of Article 3, paragraph 1, could be unequivocally drawn by the ordinary meaning to be given to the terms of this provision. Actually, the Italian text of Article 3 reads as follows: “[T]he competent national authorities of the requested State shall promptly decide upon the request of the Registrar, in accordance with national law, and more speciﬁcally, with Article 7(2)(3)(4) of DL No. 544” (emphasis added). According to the Court, support to its decision came also from a comparative analysis of Article 3 and Article 2 of the same Agreement. Indeed, Article 2 is entitled “Procedure” and expressly relates, in its paragraph (4), to “the decision of the competent national authorities on the request of the Registrar”, while Article 3 is entitled “Enforcement” and expressly refers to “the execution of the sentence”. In the Court’s view, this language would clearly demonstrate that Article 3 does not include the preliminary phase concerning the recognition of the international judgment. Furthermore, in the Cassazione’s opinion, an indirect conﬁrmation of the correctness of this interpretation can be found in Law No. 181 of 2002 on co-operation

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with the International Criminal Tribunal for Rwanda. Article 7 of this Law is identical to Article 7 of the Decree, in that it grants the competent national authorities the power to convert the international sentence into a national sentence of a lesser length. An interpretation of the Agreement preventing the Italian judges from reducing the sentence imposed by the ICTY would amount to a violation of the principle of equality before the law enshrined in Article 3 of the Italian Constitution. Finally, the Court found its interpretation consistent with Article 27 of the Statute of the ICTY, which establishes that imprisonment “shall be imposed in accordance with the applicable law of the State concerned”. In our opinion, the Cassazione appears to have completely disregarded international rules of treaty interpretation. In fact, the Agreement has been considered as a purely national set of rules throughout all its reasoning. In the ﬁrst place, no application has been made of the rule codiﬁed in Article 33, paragraph 1, of the Vienna Conventions on the Law of Treaties, stating that: “When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail”. Indeed, the Court ignored the English text of the Agreement, and referred only to the Italian one, whereas according to the Agreement, it is the English text which had to be considered as authoritative. Now, it is worth noting that Article 2, paragraph 4, of the Agreement, in the English version, simply stipulates that “the competent national authorities [...] shall promptly decide [...] in accordance with national law”. No mention is made of reducing the sentence imposed by the Hague Tribunal. A purely nationalistic approach is shown by the Court when it afﬁrmed to be interpreting Article 2, paragraph 4, of the Agreement in accordance with Article 7 of Law No. 181 of 2002 on the execution of the ICTR’s sentences. However, it is a very well established principle of treaty interpretation, reﬂected in Article 31, paragraph 3, of the Vienna Conventions, that for the purpose of the interpretation of a treaty the “context” comprises all other international instruments in force between the Contracting Parties. National legislation is not included in this concept. Apart from any question concerning the criteria provided for by international law for the interpretation of treaties, other critical remarks may be addressed to the Court. Firstly, a cross examination of both the Agreement and the Decree leads to an interesting result which completely undermines the Court’s reasoning. In effects, many provisions of the Agreement expressly refer to rules of the Decree. Among these rules, no reference has been made to Article 7 on the power to reduce the terms of imprisonment. This could be considered as an intentional choice by the Parties to the Agreement who wanted to retain some principles contained in previous Italian legislation and to rule out others. Secondly, the Court’s reading of Article 27 of the Statute of the Tribunal should be also criticised. The Court recalled only that part of Article 27 which afﬁrms that imprisonment shall be imposed according to the “applicable law of the State

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concerned”. Once again, the Court stuck to a one-sided interpretation of an international rule which instead considered important “the supervision of the International Tribunal” also. In our opinion, Article 27 of the Statute does not leave the judgment of the ICTY in the hands of the State of execution exclusively. Rather, it provides a balance of competences and responsibilities between this State and the ICTY. Even if the Statute does not explain what the concept of “supervision” means, there is general agreement among legal scholars that the power to “supervise” include ensuring that the State of execution does not “alter the nature of the penalty to affect its truly international character”, as afﬁrmed by the Trial Chamber in the ﬁrst sentencing judgment in the Erdemovic case (Prosecutor v. Erdemovic, Sentencing Judgement No. IT-96-22, 29 November 1996, paragraph 71. See on this point TOLBERT, “The International Tribunal for the Former Yugoslavia and the Enforcement of Sentences”, Leiden JIL, 1998, p. 655 ff.; KRESS and SLUITER, “Imprisonment”, in CASSESE, GAETA AND JONES (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford, 2002, Vol. II, p. 1757 ff., p. 1774). If these considerations are correct, the Court’s interpretation of Article 2, paragraph 4, of the Agreement allows an inadmissible “intrusion” of Italian authorities into the ICTY’s prerogatives. Moreover, this intrusion seems unreasonable, given that in Italy the highest maximum sentence for the most serious crimes is life imprisonment. I would like to add just one ﬁnal remark. According to a decision of the President of the ICTY, issued on 29 May 2003, Goran Jelisic was transferred to Italy to serve his sentence (see ICTY, Registry, press release of 29 May 2003, JL/P.I.S./758-e). It seems difﬁcult to see in this decision the will of the ICTY to acknowledge (or to acquiesce to) the principle afﬁrmed by the Cassazione. Rather, it reﬂects the difﬁcult task which the ICTY is facing now, with a number of sentencing judgments already issued and others expected in cases pending before it, on the one hand, and with few States having accepted to assist it with enforcement of sentences, on the other hand. (The Italian text of the judgment has been published in RDIPP, 2003, p. 830 ff.). MASSIMO STARITA Execution of letters rogatory - Whether copies require ofﬁcial authentication for their admissibility as evidence - 1959 European Convention on Mutual Assistance in Criminal Matters - Relationship between treaty law and domestic law - Treaty between Italy and Switzerland concluded in Rome on 10 September 1998 which supplements the European Convention on Mutual Assistance in Criminal Matters and facilitates the application of the principles contained therein - Letters rogatory are governed by the law of the requested State according to a universal principle of international law - Interpretation of a treaty in the light of any subsequent practice in its application - Article 31, paragraph 3(b) of the Vienna Convention on the Law of Treaties - Schengen Agreements Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576 Re: Monnier

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Corte di Cassazione (Sez. I penale), 8 November 2002, No. 37774 Re: Strangio and Others In the last two volumes of this Yearbook, we described the intricate judicial saga concerning the interpretation of international conventions on the execution of letters rogatory. This interpretation became even more complicated after the entry into force of Law No. 367/2001, which modiﬁed some important provisions of the Italian Criminal Code and the Code of Criminal Procedure relating to international rogatory letters. Essentially, defendants in some criminal proceedings had challenged the validity of the documentary evidence transmitted from abroad. They argued that the documents lacked proper certiﬁcation as to their conformity to the original text, and this was said to conﬂict with Article 3, paragraph 3, of the European Convention on Mutual Assistance in Criminal Matters. They also denounced the violation of Article 15, paragraphs 1 and 2, of the latter Convention. In fact, the documents had been handed over directly to the judicial authority, whereas Article 15 prescribes that rogatory letters should be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party. The Milan Tribunal rejected these allegations. Among the different arguments used by the Tribunal to conﬁrm the validity of the documents handed over by Switzerland, there was one based on international law on treaty interpretation. Concerning Article 3 of the European Convention, the judges afﬁrmed that States have so far constantly followed the practice of transmitting uncertiﬁed copies of the requested documents. Also with regard to the formalities of the transmission, the direct transmission has superseded the original wording of Article 15. Neither of these practices have ever been objected to by the interested States. They could be thus considered as a means of interpreting the treaty’s provisions in conformity with Article 31, paragraph 3(b) of the Vienna Convention on the Law of Treaties. In our opinion, this argument was backed also by the Constitutional Court in the more recent order of 4 July 2002, No. 315 (IYIL, 2002, p. 291). In the two decisions under review here, the Corte di Cassazione has now conﬁrmed the correctness of this reasoning once and for all. In the Monnier decision, the Court dealt with the problem of direct transmission of letters rogatory, which the accused persons deemed to be in contrast with Article 15 of the European Convention on Mutual Assistance in Criminal Matters. It ruled as follows: “[T]he direct transmission of letters rogatory between the jurisdictional authorities of the requesting and the requested State is not illegitimate. It is in conformity with the international conventions which are mentioned in Article 696, paragraph 1, of the Code of Criminal Procedure, and with the practice that the contracting parties have been developing with regard to their concrete application. On this point, Law No. 367/2001 which amended Article 696 added nothing

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new. In fact, this provision reafﬁrms the basic concept that international law, both customary and conventional, prevails over domestic law concerning letters rogatory. This is true even with regard to those international law principles, such as that provided for by Article 31 of the Vienna Convention on the Law of Treaties, recognising that subsequent practice has a decisive role in the application and interpretation of the said conventions. The practice consisting in the direct transmission of letters rogatory between jurisdictional authorities of the contracting parties has been expressly recognised also by Article XVII of the Bilateral Agreement between Italy and Switzerland concluded in Rome, on 10 September 1998. This tendency aims at facilitating co-operation among States and rendering the procedures in the ﬁeld of mutual judicial assistance simpler and more effective. It is exactly the same goal which inspires Article 53, paragraph 1 of the Convention Implementing the Schengen Agreement, stating that requests for assistance may be made directly between legal authorities and returned through the same channels”. The Strangio and Others decision deals with the problem of copies of documents transmitted from abroad. On this problem, the accused persons recalled Article 3, paragraph 3, of the European Convention on Mutual Assistance in Criminal Matters, which prescribes that “only certiﬁed copies or certiﬁed photostat copies of records or documents” may be transmitted by the requested Party. Therefore, documentary evidence lacking proper certiﬁcation as to their conformity to the general text should be considered invalid and may not be used as evidence by the Italian judges. According to the Court, Article 3 does not impose any peremptory obligation to the requested State to hand over only formally certiﬁed copies or photostat copies. On the contrary, the whole text of the Convention appears to be inspired by the need to simplify judicial co-operation among the contracting parties. This assumption is clearly conﬁrmed by Article 17 of the Convention, expressly ruling that “evidence or documents transmitted pursuant to this Convention shall not require any form of authentication”. After this general statement, the Court moved to give its interpretation of Article 3, paragraph 3, which is substantially similar to the one given on Article 15 of the European Convention in the Monnier decision: “According to Article 696 of the Code of Criminal Proceedings, as amended by Law No. 367/2001, domestic rules concerning international judicial assistance apply only insofar as international rules, both conventional and customary, do not exist or do not provide otherwise. The 1959 European Convention on Mutual Assistance in Criminal Matters is expressly mentioned in Article 696. Therefore, it takes

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priority over domestic rules and must be interpreted according to the principles of international law governing the interpretation of international treaties. It is a general principle of international law that, in the interpretation of a treaty, account must be taken of any subsequent practice followed by the parties in its application. On the basis of this practice, it must be concluded that the requested State may transmit copies or photostat copies, unless the requesting State had expressly asked for the originals. The ofﬁcial letter attached to the transmitted documents by the requested authority is sufﬁcient to testify to the exact conformity of those documents to the originals”. In order to support this ﬁnding, the Court pointed out once again that Article 53 of the Convention Implementing the Schengen Agreement states that assistance may be made “directly between legal authorities and returned through the same channels”. On the other hand, by reaching this conclusion as to the exact interpretation of Article 3 of the European Convention, the Court has proved to be rather uncertain in handling concepts such as international customary law or general principles of international law. It has afﬁrmed, in the ﬁrst place, that Article 10, paragraph 1, of the Italian Constitution, which provides for the incorporation of general international law into the Italian legal system, also favours the superiority of international conventions over domestic rules. Yet, this assumption has been already rejected several times by the same Court. According to established case-law, only customary norms enjoy a higher rank in the Italian legal order. Secondly, the Court erroneously equated the “subsequent practice in the application of the treaty”, which is a means of interpretation, with a material rule of international customary law binding all States. This mistake had already been made by the Tribunale di Roma and was noted by the Constitutional Court (Order No. 315 of 4 July 2002, IYIL, 2002, p. 291). Finally, the Court referred to the existence of “a universally recognised principle of international law whereby letters rogatory must be fulﬁlled according to the law of the requested State (lex loci)”. However, the existence of this principle is afﬁrmed without any reference to State practice. (The Italian text of the decisions has been published in RDI, 2003, respectively p. 249 ff., and p. 252 ff.). MASSIMO IOVANE

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW Regional competence to undertake international agreements - “Letter of intent” between the Veneto Region and Argentina of 31 March 1999 - Principle of “loyal cooperation” between State and Regions

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Corte Costituzionale, 30 January 2003, No. 13 Presidente del Consiglio dei Ministri v. Regione Veneto The above decision deals with the issue of regional competence to undertake international obligations. It falls under the constitutional system in force prior to the reform of Title V, Part II of the Italian Constitution, a reform implemented by constitutional amendment No. 3 dated 18 October 2001 (see IYIL, 2001, p. 416 f., and CONFORTI, “Reﬂections on the Recent Amendments to the Italian Constitution Concerning Respect for International and European Community Law”, ibidem, p. 3 ff.). The decision, however, was handed down when the reform, especially the new text of Article 177 of the Constitution, was already in force. The subject of the decision is the clash of attributions (conﬂitto di attribuzioni) between the central government (Presidency of the Council of Ministers) and the Veneto Region, an issue that arose as a result of a “letter of intent” signed on 31 March 1999 by the President of the Veneto Region and the Minister of Foreign Affairs of Argentina. In this letter of intent both parties pledged “[i]n accordance with their respective legal systems, to promote the adoption of measures necessary to develop institutional, economic and cultural cooperation between the Veneto Region and the Republic of Argentina, for the purpose of encouraging cultural, economic and social exchanges”. The intent therefore was to encourage various initiatives of collaboration and cooperation. According to the Presidency of the Council of Ministers, the agreement was prejudicial to the competence of the State and violated the constitutional principle of “loyal cooperation” between State and Regions for three reasons. First, the government was not notiﬁed in advance of the initiative undertaken; second, because the Protocol was entered into by “non homologous bodies”; ﬁnally, because the issues subject of the “letter of intent” allegedly come under State and not regional jurisdiction. In its defense the Veneto Region maintained that the undertaking initiated jointly with the Republic of Argentina was to be considered as “an activity of mere international signiﬁcance” through which the Region simply established the premises for future initiatives, without committing itself to carrying out any speciﬁc acts. Furthermore, the sectors affected by the “letter of intent” were, according to the Region, of “deﬁnite regional pertinence”. The Constitutional Court sustained the appeal and annulled the “letter of intent”, stating that “[e]ntering into agreements with foreign bodies or institutions, without the Region having previously informed the Government, thus without the required agreement or assent, is in itself prejudicial to State competence”. According to the Court, therefore, the Government should have been placed in a position to verify in advance “the consistency of such activities with foreign policy, something that comes under the competence of the State”. This would be applicable whatever the subject matter, even if the agreement concerned issues that came under regional jurisdiction.

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This decision conﬁrms the conclusions reached by the court in previous decisions on the same topic (see No. 179/1987 and No. 472/1992, IYIL, 1988-1992, p. 12 ff., with note DE SENA; No. 428/1997 and No. 332/1998, IYIL, 1999, p. 147 ff., with note ANDREONE). Thus the entry into force of the reform of Title V of the Constitution does not appear to have produced any relevance in this particular case. We must also add that the Court had issued an order during the trial requesting both parties to submit new briefs in order to make them taking into account the Constitutional reform. In the briefs ﬁled, both parties concluded for the need to apply the previous regime. In my opinion, it would have been plausible to expect the Region to attempt to have the new formulation of Article 117 of the Constitution, granting the Regions greater power than in the past in respect of international relations, taken into consideration even if to a limited extent. In fact, one wonders what the decision of the Court would have been if the constitutional text currently in force were to have been applied, and, consequently, if an agreement such as the one objected to by the Court in its ruling would have been admissible in light of the new constitutional reform. To this end I believe it would be useful to rapidly review the various phases of the evolution of regional competence regarding international relations. Presidential Decree 31 March 1994 provided guidelines by sustaining and incorporating the conclusions of constitutional decisions, speciﬁcally the principle according to which the regions could accomplish activities “of mere international signiﬁcance”, enter into “understandings” of international signiﬁcance and, upon receiving Government consent, enter into actual international agreements such that would involve the responsibility of the State. Naturally, in the latter case, the issues would have to be of a regional competence and not among those in respect of which Article 80 of the Constitution requires Parliament to issue a law authorizing ratiﬁcation by the Head of State. The Reform of Title V of the Italian Constitution expands the external powers of the Regions. While maintaining, in the revised formulation of Article 117, the exclusive competence of the State in matters of external politics and international relations, Regions acquire a concurrent legislative power for the conduct of their own international relations and can sign international agreements with foreign States and understandings with foreign bodies. According to Article 117, paragraph 9, “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”. Of course, apart from a formulation that is surely ambiguous in its brevity, this provision does not grant any international personality to Regions (although several scholars of constitutional law seem to state the opposite: see for example CARAVITA, La Costituzione dopo la riforma del Titolo V, Torino, 2002, p. 119). An international agreement negotiated by a Region with a subject of international law cannot but be considered as an international agreement of the Italian State in which the Region acts on behalf of the State, perhaps even as a body of the State

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(as stated by CONFORTI, cit. supra, p. 8). We may thus interpret this provision as bringing about a decentralization of the State’s foreign competences. This is true in the case of international agreements that, as such, commit the State in its entirety. As for “understandings with national or foreign territorial bodies”, we must ask ourselves if, at this point, the need for prior governmental consent is still necessary. The issue is not of great relevance for scholars of international law because these understandings cannot be placed under the rules of international law and are more of a political rather than a legal value. However, I believe that until such time as the laws referred to by Article 117, paragraph 9 are issued, the preexisting laws remain valid and thus prior governmental consent is still a requirement. The interpretative doubts that had led to the formulation of paragraph 9, Article 117 seem to have been dispelled by the recent Law No. 131 of 5 June 2003, containing “Provisions for conforming the Republic’s legal system to Constitutional Law No. 3 of 18 October 2001”. With respect to international agreements, Article 6 of this law requires that for issues that come under their legislative competence, Regions are directly responsible for the implementation and enforcement of ratiﬁed international agreements, providing prior notiﬁcation to the central bodies of the State, and that the Regions may autonomously conclude implementation and enforcement agreements of international covenants already in force, or technicaladministrative or program agreements, if they have the consent of the State. The nature of a State body within Regions, in these cases, derives from the necessity, as per the last part of Article 6, for the Minister of Foreign Affairs to confer “full signatory power as required by general international law and by the Vienna Convention on the Law of Treaties”. Concerning “understandings”, the law substantially conﬁrms the contents of Article 117 of the Constitution, contemplating the possibility of entering into “agreements” with national territorial bodies of foreign States “aimed at promoting economic, social and cultural development and carrying out activities of mere international signiﬁcance”. At this point we can effect a comparison between the obligations issuing from the “letter of intent” concluded between the Veneto Region and Argentina and the new provisions on the issue that have been introduced into our legal system. The result of this assessment is that any relation of an international nature, thus any commitment assumed with foreign States (not just with national territorial bodies of the latter) must of necessity be approved by the Minister of Foreign Affairs. Agreements concluded by Regions without the conferral of full powers by the government are expressly regarded as void (see Article 6, Law No. 131/2003). Therefore, the decision of the Constitutional Court in this case would not have been different if the new rules on the treaty-making power of Regions introduced into the Italian legal system were to have been applied, since, as is clear in this case, there was no governmental consent. However, government objections regarding subject matter of the “letter of intent” would have been invalidated as the 2003 Law speciﬁcally contemplates the possibility for Regions, once they have received treaty-making power from

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the State, to conclude agreements with other States “of a programmatic nature to encourage their economic, social and cultural development”. Finally, it should be pointed out that several appeals are currently pending before the Constitutional Court against Law No. 131/2003. These appeals have been submitted by the Regions and are based on the alleged limitation of regional competence in the sphere of international relations imposed by this law as compared to the constitutional dictate – a dictate that can undoubtedly be subjected to an even more extensive interpretation of this competence than the one chosen by Law No. 131/ 2003. (The Italian text of the decision has been published in RDI, 2003, p. 563 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 (Cf. supra IOVANE, “The Activity of the International Law Commission during Its 55th Session”, section V) On 31 October 2003, during the debate in the Sixth Committee of the UN General Assembly (LVIII Session) on the Report of the International Law Commission on the Work of its Fifty-ﬁfth Session (UN Doc. A/58/10), the Italian delegate, Mr. Braguglia, intervened on the topic of reservation to treaties. Mr. Braguglia said the following: “The deﬁnition of objections to reservations – if ever such a deﬁnition were to be needed – should include the whole range of adverse reactions that a State could have with regard to reservations, both if the objection addresses the reservations’ content and if it addresses the reservations’ timeliness. This should be done without modifying the effect of objections, which should remain the same as deﬁned in the Vienna Convention on the Law of Treaties. Even if this is one of the parts of the Convention that are less satisfactory, the Commission should conform itself to its mandate not to change anything in the treaty regime. Asserting the need that objections be motivated responds to a clear interest, in that this would allow the reserving State better to appreciate what the intent of the objection’s author is. However, only rarely does this kind of rules involve relevant practical consequences”. He further noted that: “With regard to the draft guideline concerning the enlargement of the scope of a reservation, it seems to stem from the project that the Commission has just adopted that, in conformity with certain depositories’ practice, it would be admissible for a State to express a late reservation so long as no other contracting State objects as to the reservation’s late character. It would seem logical that a similar

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rule be set out also with regard to amendment to reservations aimed at enlarging their scope”.

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS 1. SOVEREIGNTY OVER US AND NATO MILITARY BASES On 23 January 2003, at the Camera dei Deputati (Chamber of Deputies) (252nd Meeting, XIV Legislature), the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Francesco Bosi, answered a parliamentary question regarding the transport of weapons outside the US Military Base of Camp Darby, in the neighbourhood of Pisa, which was carried out because the underground ammunition depot was beginning to collapse. The Sottosegretario afﬁrmed that the operation was done in full safety and in close contact with the Italian Commander of the Base. Moreover, with regard to the legal justiﬁcation of NATO and US bases in Italy, he stated: “First of all, in general terms, as concerns international agreements, one should highlight that the presence of NATO and US forces in Italy is based on the framework of the North Atlantic Treaty of 1949. With regard to the use of the bases, there is no extra-territoriality status and the Italian State fully exercises its sovereignty. As speciﬁcally concerns Camp Darby, the Commander of the Base is an Italian Ofﬁcer. The bases, as a portion of territory devoted to logistic and operational support and endowed with personnel and means, do not belong to NATO nor to the United States: they are only used by NATO or US military forces with no limitation or infringement of our national sovereignty”.

X. TREATMENT OF ALIENS AND NATIONALITY 1. DIPLOMATIC PROTECTION (Cf. supra IOVANE, “The Activity of the International Law Commission during Its 55th Session”, section II) On 29 October 2003, speaking before the Sixth Committee of the General Assembly (LVIII Session) on the Report of the International Law Commission (Fifty-ﬁfth Session, UN Doc. A/58/10), the Italian delegate, Mr. Braguglia, commenting on Chapter V of the Report, “Diplomatic Protection”, made the following statement:

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“[…] [A]lthough the draft articles concerning the exhaustion of local remedies rule appear to be satisfactory, it might have been preferable to consider the principle according to which remedies available at domestic level should be adequate as an integral part of the rule, rather than as an exception to it. Indeed, it seems difﬁcult to understand why the principle should be accepted that private persons would ﬁrst have to exhaust domestic procedures that would not guarantee a real remedy. A certain concern arises out of the reading of the Commission Report’s paragraphs 102 to 104. The majority of the Commission’s members would seem to be favorable to draft Article 18(b). This text aims to render it possible for every State of which a corporation’s shareholders are nationals to exercise diplomatic protection when the corporation that has suffered an injury has the nationality of the host-country. This opens a broad exception to the rule contained in Art. 17, according to which only the company’s national State can enjoy protection. Such rule reﬂects the solution that the International Court of Justice adopted in the Barcelona Traction case and on which the majority of delegations expressed consent during the Sixth Committee last year. In any case, the exception would raise considerable practical problems in view of the difﬁculty of identifying a given company’s shareholders”. He also added: “My delegation favorably considers the Special Rapporteur’s intention to engage, during next year’s session, in examining the diplomatic protection of members of a ship’s crew and of the personnel of an intergovernmental organization. With regard to the diplomatic protection of members of a ship’s crew, the elaboration of draft articles would give some guidance on an issue that, notwithstanding its practical relevance, is not regulated – at least not explicitly – in the United Nations Convention on the Law of the Sea. With regard to issues raised in paragraph 29 of the Report, dealing with other questions that the Commission wishes to address, it would be useful to enquire further to what extent the draft articles that the Commission has already prepared on diplomatic protection would be applicable with regard to human rights violations related to the treatment of foreigners […]”.

2. RIGHT OF ASYLUM On 3 April 2003, the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Alfredo Mantovano, intervened at the Camera dei Deputati

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(Chamber of Deputies) (292nd Meeting – XIV Legislature) expressing the opinion of the Government on a motion concerning the ﬂow of refugees coming from Iraq in consequence of the beginning of the military operations and of the very serious humanitarian crisis in that country. In that context, the Sottosegretario, dwelling on the essential features of the Italian law of asylum, declared: “I do not think it is necessary to recall that our law, which complies with international law and EC law, distinguishes amongst those people who enter Italy irregularly: irregular entrance by itself is a condition of clandestineness, which implies expulsion. On the contrary, any submission of a request for asylum leads to the application of the discipline provided for by the Geneva Convention of 1951, which was ratiﬁed by Italy and followed by domestic normative acts, including the acceleration of the procedures provided for by Law No. 189/2001. The above mentioned act provided for the establishment of territorial commissions (assisted by humanitarian organizations) substituting the Central commission. Moreover, a review of an asylum seeker’s application is provided for without expulsion in case of rejection. Our legal system does not admit the submission of asylum applications to the Italian Diplomatic Representations and Embassies, contrary to what the motion of Mrs. Maura Cossutta and other motions suggested. For a basic necessity of uniformity, an autonomous introduction of that option is totally inappropriate as long as it will not be examined and possibly approved by the European Union. With regard to this, I recall that the adoption of a resolution concerning asylum has been on the agenda of the EU Council of Ministers of Internal Affairs for a long time. The Greek Presidency, now in ofﬁce, is strongly promoting its adoption before the ﬁrst semester of 2003. The case of signiﬁcant humanitarian needs in the context of conﬂicts is regulated by Art. 20 of the Consolidated Act (Testo Unico) on immigration, which provides for the adoption of a speciﬁc Decree of the Presidente del Consiglio (President of the Council of Ministers) in order to deﬁne temporary protection measures. After the declaration of the state of emergency (on 20 March 2002, subsequently extended until 31 December 2003 by the Decree of the Presidente del Consiglio of 11 December 2002), owing to the continuous and regular ﬂow of refugees towards our territory, the adoption of extraordinary measures concerning the reception of foreigners – and thus also refugees coming from conﬂict areas – is already possible. Moreover, Art. 19 of the Consolidated Act (Testo Unico) on immigration forbids expulsion of non-EU citizens to countries in which they might be persecuted”.

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On 23 October 2003, at the Senato della Repubblica (Senate) (477th Meeting, XIV Legislature), the Sottosegretario di Stato alla Presidenza del Consiglio dei Ministri (Under-Secretary of State for the Presidency of the Council of Ministers), Mr. Cosimo Ventucci, dwelt again on the Italian domestic legislation concerning asylum in answering a question concerning the case of a Syrian citizen, Muhammad Sa’id al-Sakhri. Mr. al-Sakhri, after having been repatriated from Italy to Syria, together with his wife and their four children – as they had no passports and, nevertheless, they did not seek asylum in any way –, was arrested in his country of origin. This situation – which ﬁnally had a positive conclusion with the release of Mr. al-Sakhri – raised deep concerns about the effectiveness of respect for human rights.1 The Sottosegretario, focussing on the Italian asylum legislation, produced the following short list of the most important normative acts: “Article 10 of the Constitution, which expressly recognizes the right to asylum; Article 1 of the Law No. 39 of 1990 (the so-called Martelli Law) and the implementing regulation (Decree of the President of the Republic No. 136 of 1990), which contains rules on the procedure of appraisal of requests, on the treatment of applicants pending the decision and establishes the National Commission for the recognition of the refugee status; the Geneva Convention of 1951 (an integral part of our domestic law), which deﬁnes the rights of the refugee; Article 19 of the Legislative Decree No. 286 of 1998, which envisages the prohibition of expulsion and repatriation in accordance with the principle of non-refoulement; the Council Regulation 343/2003 of 1 February 2003 (replacing the European Dublin Convention of 1990), which determines the Member State responsible for the appraisal of the asylum application; the Council Directive 2003/9/CE of 27 January 2003, laying down minimum standards concerning the reception of the asylum seekers in Member States; Articles 31 and 32 of the Law No. 189 of 2002 (whose implementing regulation was approved by the Consiglio dei Ministri on last 27 June), which modiﬁed the procedures of appraising requests for the recognition of refugee status, attributing the relative decision-making competencies to newly established territorial organs, i.e. the territorial commissions”.

1 See also Camera dei Deputati (Chamber of Deputies), XIV Legislature, 340th Meeting, 15 July 2003: the Sottosegretario di Stato per l’interno (Under-Secretary of State for Domestic Affairs), Mr. Alfredo Mantovano, and the Sottosegretario di Stato per gli affari esteri (UnderSecretary of State for Foreign Affairs), Mr. Alfredo Luigi Mantica, intervened during an urgent presentation of information by the Government on the case of the Syrian citizen Muhammad Sa’id al-Sakhri, expelled by Italy and arrested in Syria.

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XI. HUMAN RIGHTS 1. TORTURE AND OTHER CRUEL, INHUMAN AND/OR DEGRADING TREATMENT On 28 July 2003, at the Camera dei Deputati (Chamber of Deputies) (347th Meeting, XIV Legislature), the Sottosegretario di Stato per gli affari esteri (UnderSecretary of State for Foreign Affairs), Mrs. Margherita Boniver, intervened in the debate regarding two motions concerning the case of a Nigerian woman, Amina Lawal, sentenced to death by stoning for having a child out of wedlock (see also infra XVII.2.A). The Sottosegretario referred to various initiatives, in which Italy is engaged together with other European Union partners, aimed at promoting the abolition of the death penalty and endorsing feasible measures limiting the application of capital punishment where it is still in force. The Sottosegretario, while focussing on the draft resolution submitted by the European Union to the United Nations Commission on Human Rights, at its 59th Session (Geneva, 17 March-24 April 2003), declared: “In particular, on the basis of an Italian proposal, an explicit request to avoid capital sentences based on discriminatory elements against women has been introduced to States which continue to keep the death penalty in force. In short, such States have been requested to exclude the death penalty for all those crimes discriminating against women as such and for which the equivalent application of the same punishment to men is not provided for. Clearly, this request stemmed also from the apprehension and pain caused by cases such as those of the two Nigerian women now under discussion”.

XIII. INTERNATIONAL RESPONSIBILITY 1.

INTERNATIONAL LIABILITY

(Cf. supra IOVANE, “The Activity of the International Law Commission during Its 55th Session”, section III) On 20 October 2003, speaking before the Sixth Committee of the General Assembly (LVIII Session) on the Report of the International Law Commission on the Work of its Fifty-ﬁfth Session (UN Doc. A/58/10), the Italian delegate, Mr. Braguglia, commenting on Chapter VI of the Report, devoted to the issue of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities), stated that:

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“[I]t would be useful if the Commission could make a decision on the issue of whether the ﬁnal aim of its work on the topic will be to formulate a number of recommendations to States or, rather, to engage in the drafting of a model treaty of a general character that would apply only in the absence of speciﬁc treaty regimes. If the Commission were to choose this second option, it might have to conﬁne itself to drafting a mere preliminary text that would serve as a basis for further negotiations among States’ representatives. In fact, interests at stake are diverse and possible ﬁnancial implications of any ﬁnding of international liability for injurious consequences arising out of acts not prohibited under international law substantial. In particular, an effective system of insurance presumes a broad participation of potentially interested States”.

2. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS (Cf. supra IOVANE, “The Activity of the International Law Commission during Its 55th Session”, section I) On 27 October 2003, during the debate in the Sixth Committee of the UN General Assembly (LVIII Session) concerning the Report of the International Law Commission on the Work of its Fifty-ﬁfth Session (UN Doc. A/58/10), the Italian delegate, Mr. Braguglia, considered the report of the Commission on the topic of responsibility of international organizations. Mr. Braguglia stated the following: “[…] Italy is pleased to note that it has been able to approve three articles already after the presentation of the ﬁrst Report. While these articles follow the approach that the Commission adopted with regard to international responsibility of States, they also seem to properly address speciﬁc issues. As my delegation had wished in its intervention on the same topic last year, the Commission seems to be willing to avoid the mistake made in the framework of the codiﬁcation of treaty law, namely to draft a text that far too strictly followed the one adopted for States, without taking into full account the distinctive features of international organizations. The deﬁnition of ‘international organization’ contained in the draft’s Art. 2 might have well been labeled differently. Such deﬁnition, however, contains the essential elements. On the other hand, it is particularly important that the Commission conﬁnes its study to the organizations of which States are members”. He also added that:

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“With regard to the future work, the Commission, in conformity with the Draft Articles on State’ Responsibility, ought to elaborate a principle of attribution that is parallel to that Draft’s Art. 4. Such a rule should mention who has to be considered as an organ of the organization. This is, of course, with a view to the attribution of an internationally wrongful act, and not in order to deﬁne an ‘organ’ in light of the organization’s internal law. The Commission could make reference to both the organization’s rules and its established practice. The Commission could therefore reproduce, with the necessary changes, the deﬁnition contained in Art. 2 of the Vienna Convention on the Law of Treaties between States and international organizations or between international organizations. It would be preferable that the Commission clarify to what extent the organization’s established practice is relevant in case such practice diverges from the organization’s founding treaty”. With regard to the speciﬁc issue of peace-keeping forces, Mr. Braguglia further commented that: “[…] [T]he responsibility for acts [committed by such forces] should in principle fall on the United Nations, except for matters for which contingents remain under the contributing State’s control. It may well be that, in speciﬁc cases, a certain conduct will have to be attributed at the same time to both the United Nations and the contributing State. Once the issue of the attribution is resolved, however, it remains to be established whether a joint or concurrent responsibility of the United Nations for acts attributed to the contributing State can be envisaged”. Intervening on the same topic on behalf of the European Union, the Italian representative, Mr. Nesi, stated that: “Given its role as an actor and participant in the international system, the European Community (EC) naturally takes a great interest in the topic of the responsibility of international organizations and recognises that it may have particular relevance to its own activities. The EC is often described as differing from the ‘classical’ model of an international organization in a number of ways. Firstly, the EC is not only a forum for its Member States to settle or organize their mutual relations, but it is also an actor in its own right on the international scene. The EC is a party to many international agreements with third parties within its areas of competence. Quite often the EC concludes such agreements together with its Member States, each in accordance

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with its own competencies. In that case the speciﬁcity of the EC lies in the fact that the EC and the Member States each assume international responsibility with respect to their own competencies. The EC is also involved in international litigation, in particular in the context of the WTO. Secondly, the EC is regulated by a legal order of its own, establishing a common market and organizing the legal relations between its members, their enterprises and individuals. Legislation enacted under the EC Treaty forms part of the national law of the Member States and thus is implemented by Member States’ authorities and Courts. In that sense, the EC goes well beyond the normal parameters of classical international organizations as we know them. It is important that the ILC draft articles fully reﬂect the institutional and legal diversity of structures that the community of States has already established. In that respect we submit that established notions such as ‘regional economic integration organization’, reﬂected in modern treaty practice, may require special consideration when dealing with substantive questions in the subsequent ILC draft articles”. He further recalled that: “While the EC is in many ways sui generis, it is clear that all international actors, be they States or organizations, need to recognize their international responsibility in the event of any wrongful acts. This does not exclude the possibility of taking differences into account in the course of the future work of the ILC concerning the responsibility of international organizations. Above all common-sense practical solutions are needed in order to cover a wide variety of situations and to cover the activities of organizational structures in a range of ﬁelds”.

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. SECURITY CO-OPERATION A. The “Total Information Awareness” Project and the Right to Privacy On 17 June 2003, at the Camera dei Deputati (Chamber of Deputies) (324th Meeting – XIV Legislature), the Sottosegretario di Stato per la difesa (UnderSecretary of State for Defence), Mr. Filippo Berselli, answered a parliamentary question on the establishment by the United States Government of a global data

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bank concerning every kind of personal record and every data bank in the world. According to the questioner, that information system could constitute a serious risk for the Italian Defence System and for the privacy of the citizens. With regard to the ﬁrst point, the Sottosegretario recalled that the security of the defence system is regulated by a number of acts, legislative measures and directives of the Presidente del Consiglio dei Ministri (President of the Council of the Ministers) and that there seems not to be the conditions for a violation of the security systems. As concerns the protection of privacy from external interference, he recalled the essential features of domestic and EC law and, in particular, he dwelled on the content of the EC Directive No. 2002/58: “Finally, one should highlight that the EC Directive 2002/58 of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communication sector, starting from the assumption that the development of the information society is marked by the introduction of new technologies for electronic communications services, which give rise to speciﬁc requirements concerning the protection of personal data and privacy of the user, binds Member States to adopt, in the public communications sector, speciﬁc legal, regulatory and technical provisions in order to protect fundamental rights and freedoms of natural persons and legitimate interests of legal persons without affecting the possibility of Member States to carry out lawful interception of electronic communications or to take other measures necessary for the protection of public security, defence and State security”.

B. Fight against Terrorism and Right to Privacy On 5 November 2003, at the Camera dei Deputati (Chamber of Deputies) (384th Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minister for the Relationships with the Parliament), Mr. Carlo Giovanardi, answered a question regarding the agreement, concluded on 15 October 2003, between the Italian airline company, Alitalia, the ENAC (Ente Nazionale per l’Aviazione Civile – National Authority for the Civil Aviation) and the United States Embassy in Italy. In accordance with this agreement, the United States authorities, and in particular the Custom Board Security, will have access to the Alitalia database. The Ministro, specifying that the agreement at issue represented a temporary solution, waiting for a deﬁnition of the matter by the European Community, declared: “The collection and treatment of these data by the American authority is clearly aimed at a more effective struggle against terrorism and other crimes linked to it. Those aims have always been shared by the

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European Union and the Italian Government. The aim of a more effective struggle against terrorism should obviously be balanced with the effective protection of the privacy of the data. The search of this delicate balance is currently negotiated by the European Commission and the United States. The Italian Presidency [of the European Union] is actively encouraging those negotiations to reach a solution before the end of the year, also because it has been recognized at the European level that the United States domestic legislation requires the disclosure of the data in order to enter the country”.

2. DEVELOPMENT CO-OPERATION A. Human Rights Violations and Aid Suspension: The Cases of Cuba and Vietnam On 3 July 2003, at the Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Legislature), the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mrs. Margherita Boniver, answered a question concerning the detention of the Cuban economist Martha Beatriz Roche. The situation of Mrs. Roche – that raised deep concerns on the respect of human rights and fundamental freedoms in Cuba, with particular reference to the detention conditions and the possibility of application of inhuman and degrading treatment – pertained to a wider situation concerning the events that occurred on April 2003, when several Cuban political dissidents were arrested, convicted for crimes of opinion, and three of them sentenced to death and executed. The Sottosegretario dwelt on the Italian reaction to these grave facts, declaring:2 “As a consequence of the wave of arrests and sentences involving 78 Cuban dissidents, Italy considered it imperative to let the Cuban counterpart know, in the clearest way, its ﬁrm complaint against the very heavy repressive measures carried out by Castro’s regime. In

2 On 3 July 2003, the difﬁcult situation of human rights and fundamental freedoms in Cuba was also the subject matter of two questions submitted to the Senato della Repubblica (Senate) (431st Meeting, XIV Legislature). The Sottosegretario di Stato alla Presidenza del Consiglio dei Ministri (Under-Secretary of State for the Presidency of the Council of Ministers), Mr. Cosimo Ventucci, in answering such questions – after pointing out that human rights promotion is a matter of priority and a landmark in Italian foreign policy – focussed, in particular, on the measures decided by the Italian Government in reaction to the serious events that occurred in Cuba in April 2003 and referred, in the same terms, to the suspension of all cooperation programmes for development with Cuba.

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order to give a clear and unequivocal signal of our total opposition to these measures to the Cuban counterpart, we also decided to suspend all of the cooperation programmes for development with Cuba, both on the bilateral and multilateral levels, with the exception of the humanitarian emergency interventions”. The opportunity of reacting, mainly at a bilateral level, to grave violations of human rights through instruments of economic pressure, consisting of reduction or suspension of economic and ﬁnancial cooperation programmes, was again discussed in Parliament with reference to the situation in Vietnam. The issue of respect for human rights in such country – which affected, in particular, the rights of ethnic minorities, freedom of religion, freedom of expression and other civil and political rights – was also discussed by Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati.3 In particular, on 17 December 2003 (XIV Legislature), Permanent Committee III approved two similar resolutions4 on the violation of political freedoms, freedom of religion and freedom of opinion in Vietnam. Both these two resolutions bind the Italian Government, among other things: “[T]o evaluate the advisability, in case of persistence of imprisonments, acts of violence and disregard of civil and political rights against Vietnamese citizens, and in particular against the Montagnard, to reconsider the initiatives of bilateral cooperation with the Government of Vietnam”. 3. IMMIGRATION On 22 October 2003, at the Camera dei Deputati (Chamber of Deputies) (377th Meeting, XIV Legislature), the Ministro dell’interno (Minister for Domestic Affairs), Mr. Beppe Pisanu, introduced to the Parliament an urgent piece of information by the Government concerning the recent shipwreck of boat-people, that occurred off the coast of Lampedusa island. The accident was closely related to the serious issue of the continuous landings of illegal immigrants on Italian shores. Such phenomenon, because of its gravity and remarkable dimensions, required – as the Ministro pointed out – the adoption of effective policies not only at the national

3 See also Camera dei Deputati (Chamber of Deputies), Assembly, XIV Legislature, 360th Meeting, 23 September 2003: the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mrs. Margherita Boniver, answered a question on the respect for human rights in Vietnam. 4 Resolution Cima No. 7-00350 (ﬁnal version, No. 8-00067) and Resolution Malgieri No. 7-00351 (ﬁnal version, No. 8-00068): Violation of the political freedom, freedom of religion and freedom of opinion in Vietnam.

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level, but above all at the European and global level. In particular, the Ministro dwelt on the proposals regarding a European policy for immigration, included in the program of the Italian Presidency of the European Union. He stated: “I have established the program of the Italian Presidency along three main lines of action, strictly connected to one another. The ﬁrst line regards aid for development in favour of third world countries from which the most signiﬁcant migrant ﬂows stem. As to this, I only remind us that, at present, the remittances from migrants toward the countries of origin deﬁnitely exceed the total amount of ﬁnancial aid coming from the ﬁrst world, so that we can say that the most solid contribution in favour of underdeveloped countries comes from the poorest of the richest countries: the migrants. The second line of action is the regulation of migrant ﬂows, through bilateral and multilateral agreements between countries of origin and transit, from one side, and countries of destination, from the other side. The third line of action is the integrated management of the European external borders, which is essential both to regulate the legal ﬂows, and to perform with the greatest possible effectiveness the war against criminal organisations which exploit illegal immigration”. In addition, the Ministro emphasised that: “[T]he key element of a European policy for immigration is the adoption of a system of entry quotas in the EU countries. The quota should be autonomously established by each country and agreed upon by the migrants’ countries of origin, in exchange for their co-operation in the regulation of illegal ﬂows, prevention of illegal immigration and re-acceptance of expelled illegal migrants”. Among the various instruments, adopted at the European level in the framework of a strategy aimed at involving the migrants’ countries of origin and transit in the ﬁght against illegal immigration, the Ministro focussed on bilateral co-operation and, in particular, on the so-called re-admission agreements. In the written text of his intervention, containing supplementary considerations, the Ministro speciﬁed: “Italy has, until now, signed twenty-eight agreements, twenty-four of these with non-EU countries. I must recall that ﬁfteen of these agreements were signed in order to comply with the obligations connected to the entry into force of the Schengen system. From 1999 until the ﬁrst semester of 2001, we signed only two agreements (with Algeria

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and Nigeria). From the second semester of 2001 to date we resumed intensive negotiations, and we concluded ﬁve agreements with Sri Lanka, Malta, Cyprus, Moldavia and Serbia-Montenegro. Although without formal agreements, a good cooperation for the repatriation of illegal migrants also exists with countries such as Pakistan, Bangladesh, Ghana”. Moreover, the Ministro added: “We are now negotiating with fourteen other countries. Negotiations with ﬁve other countries (China, Pakistan, Russia, Turkey and Ukraine) have been suspended because a mandate for negotiation was appositely conferred to the European Union. Regarding this point, I believe it could be useful to emphasize that the European Commission received a mandate for negotiations with eleven countries (besides the ﬁve mentioned above, Morocco, Sri Lanka, Hong Kong, Macao, Algeria and Albania). Only an agreement with Hong Kong was signed, while with Macao and Sri Lanka negotiations have been concluded and we are just waiting for signature. The other negotiations are proceeding somewhat slowly and the Italian Presidency is trying to solicit them, in accordance with the European Commission. During an informal meeting with France, Germany, United Kingdom and Spain, held last Sunday and Monday in La Baule, we agreed to consider joint initiatives regarding the re-admission of migrants with countries of common interest that have not yet signed agreements at the European Community level”.

XVII. INTERNATIONAL ORGANIZATIONS 1. UNITED NATIONS A. Justice and the Rule of Law: The Role of the United Nations In a Statement pronounced on 30 September 2003 on behalf of the European Union before the Security Council on the topic “Justice and the Rule of Law: The United Nations Role”, the Permanent Representative of Italy to the United Nations, Ambassador Marcello Spatafora, said that: “The European Union, which is a community built upon mutuallyagreed principles of law, remains convinced that an essential element to sustained stability in a post-conﬂict environment is the strength-

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ening and consolidation of a local rule-of-law capacity. During the last decade the nature of armed conﬂicts has radically changed: the number of internal conﬂicts increased rapidly. In this context the UN has often been called to intervene in the reconstruction of national societies disrupted by atrocious conﬂicts. This in turn has implied a major change both in nature and scope of UN post-conﬂict peace operations. The Security Council has placed increasing emphasis on the need to restore justice and the rule of law at a local level, when this is not achievable through intrinsic processes in the short term. As a consequence, the UN is increasingly being involved in postconﬂict reconciliation and transitional justice. Results achieved so far are encouraging: in Kosovo, Cambodia, East Timor, Sierra Leone, the Democratic Republic of Congo and Afghanistan. Liberia will be the next important test case, as the Secretary-General reminded us last week. The European Union is fully aware that each of these situations has its own characteristics which must be addressed accordingly. Nevertheless, further efforts must be made to draw lessons from current experiences in order to assess the effectiveness of UN actions in this area and to identify guidelines for the future. The international community is sometimes called upon to intervene in order to put an end to impunity for the most heinous international crimes. In such situations, the establishment of ad hoc international criminal tribunals or the setting up of national courts with varying degrees of international assistance has made an important contribution to reconciliation in emerging, post-conﬂict societies. The EU also strongly believes that the International Criminal Court provides a powerful, permanent instrument of deterrence against such crimes. The EU will remain ﬁrmly committed to its effective functioning. The Court does not aim at replacing domestic jurisdictions. It may assume responsibility as a last resort and only when a State is unable or unwilling to do so. It is not just a judicial institution designed to prevent and put an end to the impunity of the perpetrators of serious crimes but is also an essential means of promoting respect for international humanitarian law and human rights law, thus contributing to freedom, security, justice and the rule of law as well as to the preservation of peace and the strengthening of international security”. He further declared that: “The European Union supports the concrete proposals made by several of its Member States at the meeting of the Security Council at

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the ministerial level on 24 September. It considers that rule-of-law elements should be included, as appropriate, in mission mandates. […] Furthermore, the EU supports the formation of legal assessment teams comprised of civilian police and other rule-of-law elements, as appropriate, in the planning process for new missions. These teams should participate in reconnaissance missions to the ﬁeld in order to evaluate the needs of the host country and create an environment in which the application of and adherence to the rule of law can be achieved. Speciﬁc attention should be devoted, inter alia, to promoting the setting up of legislative transparency, reliable civilian police structures, independent judiciary, the right to a fair trial and penitentiary systems. In order to promote further consideration of these matters, we welcome the offer by the Secretary-General to provide a report and look forward to assisting him in this endeavour”. He also emphasised that: “Accepting and promoting this new approach entails the assumption of new responsibilities on the part of the United Nations. The EU believes that in accomplishing these tasks the UN should continue exploring all possible forms of cooperation with international organizations and institutions that can provide experience and expertise. In this regard the EU seizes this opportunity to reafﬁrm its readiness to actively contribute to restoring the rule of law at the local level in situations in which the Security Council might consider that the support by international organizations to such processes is needed”. He concluded by asserting that: “The European Union remains convinced that the success of a rule of law mission lies to a large extent in the capacity and readiness of local actors to be fully involved from the beginning in the achievement of the objectives. As a principle, local law should be applied to the largest extent possible. Rapid build up of capacities and subsequent hand-over to local ownership is essential. The EU therefore fully subscribes to what was stated by the UN Secretary-General last week before the Security Council: ‘Local actors must be involved from the start. We should, wherever possible, guide rather than direct, and reinforce rather than replace. The aim must be to leave behind strong local institutions when we depart’”.

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B. Annual Report of the Security Council to the General Assembly In a Statement pronounced on 13 October 2003 on behalf of the European Union before the General Assembly (LVIII Session) on the Report of the Security Council, the Permanent Representative of Italy to the United Nations, Ambassador Marcello Spatafora, said: “The report highlights the broadening scope of responsibilities that the Security Council assumed on various fronts simultaneously, from regional crises to counter-terrorism, from proliferation of small arms to peaceful settlement of disputes, to other thematic issues. […] Further progress could be made in this direction. Indeed, transparency continues to be an important means by which non-Council members cannot only be informed about the state of deliberations inside the Security Council, but also channel their views and positions on speciﬁc issues. Another area where continued progress should be made is in the interaction between SC members and non-members whose interests are especially affected, as purveyed by Article 31 of the Charter”. He continued by observing that: “Greater participation of non-members on issues like conﬂict prevention, peace-keeping and transition to post-conﬂict peace building could bring substantial value to Security Council decision-making and help mobilize the active support of the international community. An enhanced dialogue with non-members could contribute to the forging of more effective and coherent global policies to address many pressing crises that confront us today. Promotion of the rule-oflaw, protection of civilians in armed conﬂicts and gender mainstreaming in peace operations are further areas where interaction with the broader membership could be useful to the deﬁnition of SC lines of action. A framework for cooperation with troop-contributing countries has been established. There is still unexploited potential. Similar ﬂexible mechanisms, based on transparency and dialogue, could be developed with regard to other components of Security Council activity, for example the management of special political missions. The Security Council could further develop its relations and consultations with regional organizations, particularly those that have developed crisis-management capacities to such a level that they can effectively contribute to the collective action of the international community. The Council could therefore avail itself more frequently of the views of these regional organizations, since they are often equipped

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with signiﬁcant political and ﬁnancial resources, and better able to mobilize the will of the main regional actors. The same applies to the implementation of sanctions, where close cooperation between regional organizations and Sanctions Committees or Monitoring Groups can give satisfactory results. Italy supports the continuing efforts by Sanctions Committees to improve their working methods, thus increasing transparency and effective fulﬁllment of their mandates”. He also added that: “This rare opportunity for dialogue and interaction between two main organs of the United Nations, pursuant to Article 15 of the Charter, should not be merely ritualistic. It is our hope that it will induce speciﬁc, constructive proposals to improve the capacity of the Security Council to effectively and collectively face new global challenges and emerging threats to international peace and security. In the context of UN reform, it is important to forge stronger interactive links between the Security Council, the General Assembly and the ECOSOC, so that their partnerships become more operational and effective, strengthening the coherence of the UN system. Furthermore, a betterstructured dialogue with UN Agencies, Funds and Programmes could help in deﬁning more credible mandates during crisis management, exit strategies and transition to peace-building. We should seize this moment to reform the practices of the Security Council and move this dialogue forward”.

C. Security Council Reform On 14 October 2003, during the LVIII UN General Assembly, the Permanent Representative of Italy, Ambassador Marcello Spatafora, intervened during the open debate on “Report of the Security Council and the Question of Equitable Representation and on Increase in the Membership of the Security Council and related matters”. On that occasion, he stated that: “Italy’s position on the issue of Security Council composition is well known. We strongly believe that the current reform process should aim at enhancing the Council’s effectiveness and representative character, together with its legitimacy and credibility. Our conviction has been reinforced by the Secretary-General’s report on the follow-up to the Millennium Declaration. Like many other UN members, we believe that the creation of new permanent seats would not be coherent with these objectives. As it has

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been said last week, it would create new ‘centers of privilege’. It would therefore go against the tide in History, where priority is 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, will feel comfortable, and will feel that he will be more adequately represented and taken on board. Would this happen with the establishment of new permanent members, which would not be accountable to the electoral scrutiny of the membership? Certainly not. And it would neither enhance the Council’s legitimacy and representative character, nor the effectiveness of its actions. Indeed, new permanent members endowed with veto power would undoubtedly make it more difﬁcult for the Council to swiftly deﬁne and implement collective actions, impairing the effectiveness of the Council’s decision making process and increasing the risk of inaction. A comprehensive reform of the Security Council should therefore also address the power and exercise of veto. On the other hand, also the proposal, aired by some, to add new permanent members without veto, entails serious drawbacks and would not help the cohesion of the UN membership. It would create further divisions in the Council membership and establish a new layer of hierarchy that would be detrimental to the United Nations. Do we really want to have a ﬁrst-class membership, a second-class membership and a third-class membership? Mr. President, the United Nations is not a corporate concern, a Company or Fund listed on the Stock Exchange, with Class A shares, Class B shares and Class C shares. Moreover, let us have clear in mind that the enlargement of the Security Council, in whatever shape it will take place, will be limited in number. The ﬁgure generally mentioned is between 20 and 25 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 will 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 [...]”. He continued arguing that: “The UN membership might decide that, after ten years of debate, it is now time to reach an agreement on a formula that could build

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on common ground and therefore could be capable of gathering the largest support within the General Assembly. If so, the only realistic formula would be a limited increase in the number of non-permanent members for the time being. Such an enlargement of the Council would increase its representative character and, indeed, the legitimacy of its actions in the eyes of the international community. An increase of elective seats would facilitate Council access and participation for all UN Member States. Furthermore, greater legitimacy in Council decisions would make their implementation more prompt, thus enhancing the overall effectiveness of the Council”. He also recalled that: “[…] [B]ack in 1993 Italy tabled a speciﬁc proposal according to which countries that shoulder the greatest responsibilities in the maintenance of peace and security, as well as for other purposes of our Organization, could participate more frequently in the Council. This proposal remains on the table. One could also contemplate a review of the current ban against immediate re-election of non-permanent members. In light of the strong appeal launched by the Secretary-General on the need to reform the Security Council to enable it to face the new global challenges to peace and security, Italy of course is also open to working with other countries on possible innovative formulas, provided that they are balanced and reﬂect the basic principles that inspire our approach”. He then added a few comments on the EU proﬁle in the Security Council: “The more the European Union becomes a strong and cohesive international subject, the more it will be able to provide valuable inputs to the UN in general and to shaping Security Council deliberations. The recently signed Joint Declaration on EU-UN cooperation in crisis management is an example of the European Union determination to enhance its role in peace and security-related issues at the United Nations and to help the Organization to achieve its goals. We are working to fully implement EU-coordinated actions in international organizations, pursuant to the relevant EU Treaty provisions. Realism should not stop us from looking forward. This process must be approached gradually, incrementally and consensually. It is our hope that the European Union will progressively enhance its capacity to contribute to an effective multilateralism centred on the United Nations”.

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D. International Court of Justice Advisory Opinion on Israel’s “Separation Wall” On 10 December 2003 (XIV Legislature), the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Mario Baccini, intervened in the discussion regarding a resolution of the Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati (Chamber of Deputies) on the construction by Israel of the so-called “separation wall” in the Occupied Palestinian Territories. The Sottosegretario, after having recalled that the Italian Government has constantly adopted, in accordance with the European Community partners, an adverse position to the construction of such a wall, focussed on the request that the United Nations General Assembly submitted to the International Court of Justice in order to receive an advisory opinion on the legal consequences arising from the construction of the wall. The Sottosegretario, recalled that:5 “[A] vote has already been expressed in the United Nations Organisation, with the approval, on this 8 December – even with a majority of 90 votes in favour, 8 against and 74 abstentions – of the General Assembly resolution6 with which the matter has been referred to the International Court of Justice. While recalling that the Italian Government abstained together with all the 25 countries7 on the vote of the resolution, [the Sottosegretario] deems however – in accordance with the European partners and other States – that in this difﬁcult moment, in which one moves with difﬁculty toward resuming direct negotiations between the two parts, the involvement of the International Court of Justice could lead to the stiffening of both parts in their own positions and could divert the dialogue from the mediation process to the unfruitful juxtaposition of legal arguments. After specifying that a General Assembly resolution8 declaring the illegality of the construction of the wall in the Occupied Palestinian Territories already exists, [the Sottosegretario] concludes by pointing out that one should not take for granted a pronunciation of the International Court of Justice proclaiming the lack of competence of the Arab group in raising a question on a territory on which it does not exercise its sovereignty”. 5 The quotation is an excerpt from the summary report of the Meeting of 10 December 2003 of the Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati (Chamber of Deputies), as it was not available in the verbatim report. 6 UN Doc. A/RES/ES-10/14 (8 December 2003), “Illegal Israeli Actions in Occupied East Jerusalem and the rest of Occupied Palestinian Territory” (translator’s note). 7 The Sottosegretario referred to the 25 EU countries (both members and candidates) (translator’s note). 8 UN Doc. A/RES/ES-10/13 (21 October 2003), “Illegal Israeli Actions in Occupied East Jerusalem and the rest of Occupied Palestinian Territory” (translator’s note).

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2. EUROPEAN UNION A. Human Rights Protection On 28 July 2003, at the Camera dei Deputati (Chamber of Deputies) (347th Meeting, XIV Legislature), the Sottosegretario di Stato per gli affari esteri (UnderSecretary of State for Foreign Affairs), Mrs. Margherita Boniver, in her intervention during the debate regarding two motions concerning the case of Amina Lawal, the Nigerian woman sentenced to death by stoning (see also supra XI.1), focussed on the instruments of pressure that the European Community could adopt. She stated: “Finally, as concerns the ﬁeld of protection of human rights, fundamental freedoms and democracy, we fully adhere, in the European Community framework, to what has been sanctioned by the Cotonou Agreements, which include, for the ﬁrst time, the so-called ‘conditionalities’ on human rights, whose disregard by a State party may lead to the suspension of the agreements themselves”. Besides, with regard to measures, both at the European level and at the national level, aimed at the revocation of death sentences and the suspension, or possible commutation, of punishment, the Sottosegretario speciﬁed: “As far as this is concerned, the European Union has been endowed with guidelines against the death penalty which allow the Union itself to intervene to face third States authorities with the utmost rapidity and effectiveness. However, it must be recalled that the European Union usually avoids intervention when sentences are not yet ﬁnal, in order to avoid being charged with interference in the domestic affairs of a State and illegal pressure on the judiciary of the country at issue. Actions at the national and the European level, aimed at supporting the granting of pardon to Amina Lawal will eventually be carried out only when all domestic remedies have been exhausted, because pardon may be granted only in cases where the sentence is ﬁnal”.

B. International Monitoring of Elections: The Case of Venezuela On 4 December 2003, at the Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Legislature), the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State for Foreign Affairs), Mrs. Margherita Boniver, answered a question concerning the sending of electoral observers to Venezuela in order to monitor the referendum on the revocation of Hugo Chavez’s Presidential mandate. Emphasising the necessity

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of the consent of the territorial sovereign to exercise such kind of activities, the Sottosegretario declared: “The Italian Presidency pointed out to the European Union partners the opportunity to contribute to the observation of the collection of signatures. Nevertheless, lacking an invitation from the Venezuelan authorities, the European Union had not been able to establish an ofﬁcial mission. However, the European Union is ready to guarantee, should it receive a request in these terms, the monitoring of the referendum or elections which could be held in Venezuela”.

XX. WAR, NEUTRALITY, AND DISARMAMENT 1. THE IRAQI CRISIS A. Use of Italian Infrastructures On 26 February 2003, at the Camera dei Deputati (Chamber of Deputies) (272nd Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minister for the Relationships with the Parliament), Mr. Carlo Giovanardi, answered a question concerning the concession to the United States of the support of the bases on the Italian territory, and of the use of the infrastructures, of the transport system and of the national airspace in order to carry out the intervention in Iraq. He recalled that those decisions were based both on a series of agreements concluded by Italy in the framework of the North Atlantic Alliance (e.g. the Agreement of 20 October 1954 and the Memorandum of Understanding between the Italian Ministry of Defence and the United States Department of Defence) and on a decision of the North Atlantic Council of 4 October 2002. With the latter, the Member States of the Alliance authorized the United States forces to ﬂy over the territories and to access ports and airports on their national territories. He further declared: “Therefore, in the situation at issue, we did not have to take a decision regarding the authorization to use the infrastructures and the transport system, but we simply had to acknowledge that our Ally exercised the authorization already received because of decisions taken, reasserted in time and agreed upon by an overwhelming majority in the Parliament. A different view of the matter would certainly involve the questioning of our international commitments and the Government cannot ﬁnd any legal justiﬁcation, nor any procedural, technical, military or political one for such conduct”. Moreover, the Ministro stated:

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“As a matter of fact, avoiding the refusal of the transit on the national territory, we contributed to the exercise of credible pressure on the Iraqi regime in order to make it co-operate actively in the full implementation of UN Resolution 1441 and we supported the will of the United Nations for a paciﬁc settlement of the crisis within its ﬁeld of action. In case of war, the Government, as we repeatedly stated, would resubmit its opinions and decisions to the Parliament”.

B. Legal Justification of the Use of Force On 19 March 2003, the Presidente del Consiglio dei Ministri (President of the Council of the Ministers), Mr. Silvio Berlusconi, intervened at the Camera dei Deputati (Chamber of Deputies) (283rd Meeting, XIV Legislature) on the developments of the Iraqi crisis. With regard to the legal basis of the decision to use force, Mr. Berlusconi recalled that the resolutions of the Security Council concerning Iraq and adopted between 1991 and 2002 were still valid and authorized coercive disarmament. In this context, he further declared: “Amongst these resolutions for disarmament, the last one, Resolution No. 1441, was unanimously approved by the Security Council last November. The text was unequivocal: the United Nations called for total, immediate and unconditional disarmament and otherwise entailed serious consequences. In the previous resolutions, which deﬁned the acts of the Iraqi regime as a blatant violation of United Nations’ orders, the will to use force in case of breach of the demands of the Security Council was explicit”.

C. The Multinational Intervention in Iraq On 26 March 2003, at the Camera dei Deputati (Chamber of Deputies) (287th Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minister for the Relationships with the Parliament), Mr. Carlo Giovanardi, answering a parliamentary question, recalled the position of the Italian Government on the armed intervention in Iraq. With regard to the nature of the Italian contribution to the multinational force, he declared: “We believe that the United States, the United Kingdom, the Netherlands, Denmark, quoting only some States which are members of NATO, are not operating outside international law, although I remind us that Italy, contrary to the past, does not participate with its own

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troops and means in military actions. Italy is not a co-belligerent country because, contrary to the past, we are not at war. Exactly like all the other European countries, including France and Germany – I think the only exception is Haider’s Austria – and in accordance with our foreign policy’s guidelines for conduct in the last ﬁfty years, Italy guarantees logistic support and the right to overﬂy”. As concerns the political advisability of the Italian position, the Ministro concluded his speech declaring: “In conclusion, as the Presidente del Consiglio dei Ministri (President of the Council of the Ministers) already said in his communications, I would like to point out that the Italian position on the Iraqi crisis has always been deﬁned by the Government in accordance with international treaties and conﬁrming – I must state this – a relationship of political friendship with the United States, the United Kingdom, Denmark, the Netherlands, Spain, Poland, Bulgaria, Australia, New Zealand; to sum up, our friends and allies. We acted, exactly like France and Germany, which conceded the use of the bases and the right to overﬂy – France not having any base only gave the right to overﬂy – within the unity of the European views, which must be reestablished in the future. In fact, we work for the reconciliation of the differences within Europe and aim at reaching a more positive role of our continent after the war”.

D. The Italian Participation in the Multinational Force On 8 May 2003, at the Camera dei Deputati (Chamber of Deputies) (XIV Legislature – 306th Meeting), the Sottosegretario di Stato per la difesa (Under-Secretary of State for Defence), Mr. Filippo Berselli, answered a question concerning alleged violations of humanitarian law by the American forces and the nature of the Italian participation in the military operations. With regard to the latter issue, he declared: “In particular, the Mission at issue will involve several administrations in a context of integrated and co-ordinated mutual support, both to assure to the Iraqi people the provision of the necessary humanitarian aid and to urgently and immediately restore the functioning of the infrastructures and services, which are useful to guarantee to the Iraqis the best possible living conditions. In the Italian intervention as a whole, the military part will have to guarantee, as far as possible in the most uniﬁed and integrated way,

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the security framework without which every intervention might prove unrealistic or even impracticable. Therefore, it is and it will be a mission aimed at facilitating the operations of humanitarian assistance and rebuilding the country, while favouring the timely establishment of a provisional Iraqi Government. It is not aimed, as the questioner afﬁrmed, at military control of the territory”. On 12 November 2003, at the Camera dei Deputati (Chamber of Deputies) (388th Meeting, XIV Legislature), the Ministro della difesa (Minister for the Defence), Mr. Antonio Martino – intervening during an urgent presentation of information by the Government on the attack against the Italian military contingent in Nassiriya, Iraq – dwelt again, in particular, on the role of the Italian contingent in Iraq and on the legal basis of the Italian participation to the mission conducted by the multinational force. He declared:9 “I recall again that the Italian action in Iraq is multidimensional in character and covers various sectors of the administration, in an integrated and coordinated context of mutual support, both to ensure that the population of that area will receive the necessary aid, and to restore the infrastructures, which are urgently needed, and those services useful to guarantee better living conditions to Iraqis, as long as it is possible. Today our participation to the mission takes shape in accordance with United Nations Resolution No. 1511, adopted last 16 October, which, considering that the process of reconstitution of Iraq is conditioned by the security and stability conditions, authorized a multinational force under uniﬁed command to take all necessary measures to contribute to the maintenance of security and stability. The Resolution has shown a clear political route which aims at the restitution, as soon as possible, of the full sovereignty and responsibility of powers to the Iraqi people. The unanimous vote in the Security Council, which led to the approval of the Resolution shows that, by now, the entire international community endorses that route”.

9 On 12 November 2003, the Ministro della difesa (Minister for the Defence), Mr. Antonio Martino – in his intervention at the Senato della Repubblica (Senate) (490th Meeting, XIV Legislature), during the communications of the Government on the attack against the Italian military contingent in Iraq – expressed in the same terms the Italian Government position on the multinational force operating in Iraq. On 3 December 2003, at the Permanent Committee IV (Defence) of the Camera dei Deputati (Chamber of Deputies), the Ministro della difesa (Minister for the Defence), Mr. Antonio Martino, during a public hearing on the updating of international missions, dwelt again on the role of the multinational force, especially referring to United Nations Security Council Resolution No. 1511 (16 October 2003).

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E. Multilateral Participation in the Management of the Iraqi Crisis On 26 November 2003, at Permanent Committee III (Foreign and European Community Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Legislature), the Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco Frattini, intervened during a public hearing on the implementation of Security Council Resolution No. 1511 concerning the situation in Iraq and unanimously approved on 16 October 2003. The Ministro referred to a perspective of multilateral participation in the future management of the Iraqi crisis: such perspective was anticipated, from one side, by Resolution No. 1511 itself, and from the other by the results of the International Donors Conference, held in Madrid. The Ministro afﬁrmed: “The main elements and innovative points of that Resolution, in addition to the political fact of the unanimous solution, are represented, in particular, by the afﬁrmation of the will to transfer, as quickly as possible, the political authority to organs representative of the Iraqi reality, and by the indication of a principle of management of the political transition to be realized through the participation of three subjects contributing to this transition by acting together. The ﬁrst is the United Nations’ authority, through the Special Representative of the Secretary-General. As you may probably know, we have exhorted, directly and indirectly, the appointment of the Special Representative who will substitute Mr. Vieira de Mello, and the Secretary-General, Mr. Koﬁ Annan, assured that in short time – so he replied – he will provide for the appointment. The second subject contributing, in accordance with the mentioned Resolution, to the process of political transition is the Coalition Provisional Authority. The third subject is the Iraqi Governing Council, that is, the temporary organ which is trying to organize, in some way through a Government that it has recently appointed, the resumption of the functioning of the Iraqi State administrations. In accordance with the Resolution, these subjects together shall conduct the transitional phase. Therefore, the United Nations’ role will have the same qualiﬁcation and level as the other two subjects’ role. Moreover, the same Resolution authorizes a multinational force under uniﬁed command. The US uniﬁed command shall refer periodically to the Security Council on the developments and activities of the military multinational force. This is the ﬁrst element. The second one is the International Donors Conference, held in Madrid at the end of October. In my opinion, the Conference was successful and Italy, which holds at present the Presi-

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dency of the European Union, contributed actively to this success together with the UN and other main actors. The purpose, which has been declared, and to a certain extent attained by the Conference, was to involve as many States as possible, not only European States but in particular those States that have not intervened, in any way through ﬁnancial aid, in the reconstruction process of Iraq”. The Ministro, besides, dwelt on the agreement between the Iraqi Governing Council and the Coalition Provisional Authority, reached on 15 November and aimed at a quick transfer of the political power, in accordance with Security Council Resolution No. 1511. After having recalled the main stages of the process that should lead to the completion of the political transition in Iraq (in particular, the drafting of a fundamental law, the establishment of a transitional national assembly, the election of a constituent assembly and the holding of free political elections), the Ministro referred to the possibility of a new UN Security Council resolution endorsing the agreement of 15 November: “The purpose of the intermediate stages was to speed up, as required by the entire international community, the transition and to establish by June 2004 a provisional executive power capable of assuming real responsibility of Government. These decisions have been assessed by Europe in the ﬁrst meeting of the Council of Ministers for Foreign Affairs, held two days after the agreement was reached. The Italian Presidency proposed the adoption of a document expressing the approval of the 15 November plan, from one side by encouraging the UN to appoint the Mr. Vieira de Mello’s successor, and from the other side by inciting the Iraqi Governing Council to act immediately in order to ensure that the program planned for the period FebruaryJune 2004 will be respected. The document, which was approved and shared by the 25 Ministers for Foreign Affairs of the European Union, is exactly aimed at this. Therefore today there is a clear change of strategy, which rises from Resolution No. 1511 and ﬁnds its ﬁrst actual realization in the agreement of 15 November. What is left to do? I believe that a step – and in my opinion a study on this could be possible and also useful – is the strengthening and the sanctioning of the agreement of 15 November in another Security Council resolution. The UN did not deem it necessary to enact a new resolution, realistically noting that the agreement exists and will be respected also by the UN Secretary-General. Therefore the approval through another resolution of the content of that agreement will not have brought, as I think, an institutional innovation. Nevertheless, Italy – we will discuss this in Europe – favourably considers the assessment of this possibility. Although not entailing a signiﬁcant insti-

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tutional change, because the agreement should be implemented, the resolution could perhaps give a symbolic value of further legitimisation to an agreement concerning three subjects until now: the United Nations, the Coalition Provisional Authority and the Iraqi Governing Council. The ‘umbrella’ of a Security Council resolution would probably be another step forward from the point of view of the symbolic proﬁle of legitimisation, but, I repeat, the UN Secretary-General does not deem it necessary or indispensable. From a political point of view, we may notice the acceptance of the entire international community and a shared consent by Europe and the United States on these principles”. On 3 December 2003, at the Permanent Committee IV (Defence) of the Camera dei Deputati (Chamber of Deputies) (XIV Legislature), the Ministro della difesa (Minister for the Defence), Mr. Antonio Martino, during a public hearing on the updating of international missions, dwelt in particular on the situation in Iraq and – underlining the necessity of a more multilateral participation in the management of the crisis and in the institutional and material reconstruction of Iraq – referred, among other things, to the possible role of NATO in accordance with the new conﬁguration assumed by such organization. He declared: “In this context, one of the most pressing problems is the role of international institutions: we have always ﬁrmly asserted that the United Nations, the major organ responsible for peace and international security and guarantor of respect for human rights, should assume, also in Iraq, wider responsibilities. It is in the framework of the United Nations, as has already occurred in other cases and in other parts of the world, that international intervention can ﬁnd a high-proﬁle answer. On the other hand, the resolution10 does not provide for direct engagement of the United Nations. For this reason, Italy, in the exercise of the Semester Presidency of the European Union as well as in every other summit, keeps on striving in order for a univocal and strong position of the United Nations to be assumed in support of the institutional and material reconstruction of Iraq and for an increasingly multilateral involvement in the management of the crisis. In this context, the hypothesis of a NATO lead for the international forces, on the model of what is happening in Afghanistan, is possible in the future, if and when required by a representative Iraqi Govern-

10 The Ministro referred to the United Nations Security Council Resolution No. 1511 (16 October 2003) (translator’s note).

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ment, since NATO, from a defensive coalition at the times of the cold war, has become a security organization. It must not be excluded that involvement of the European Union itself is also evaluated, to the extent that it will be able to lead military operations autonomously”.

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 2003. Part B) contains a list of agreements signed by Italy and published before 2003, but whose entry into force was announced in the Gazzetta Ufﬁciale in 2003. 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. In the ﬁrst part, 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. In both parts, 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 2003

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).

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VI. LAW OF THE SEA Bilateral Agreements Agreement between Italy and the Federal Republic of Yugoslavia for the Establishment of a Common Vessel Trafﬁc Service in the Adriatic Sea, done at Rome on 11 December 2000, entered into force on 20 April 2003 (GU Suppl. to No. 240 of 15 October 2003); Framework Agreement between Italy and Malta for the Aero-Maritime Surveillance in the Mediterranean Sea for the Fight against Illegal Trafﬁcking at Sea, with Particular Reference to the Activities that Directly Cause Harm to Customs and Revenue, done at Rome on 20 December 2002, entered into force on 31 July 2003 (GU Suppl. to No. 240 of 15 December 2003).

Comment The Framework Agreement between Italy and Malta was concluded during the meeting of Italian Foreign Minister Franco Frattini and Maltese Foreign Minister Joe Borg, held in Rome on 20 December 2002 to facilitate Malta’s rapid accession to the European Union. During the meeting, Italy and Malta also signed the Fifth Protocol relating to Economic, Technical and Financial Assistance, covering the period from 2003 to 2005, an Investment Guarantee Agreement providing legal protection with respect to movable and immovable property, ownerships rights, capital gains and other activities connected with investment and the renewal of the Memorandum of Understanding for Co-operation between the Ofﬁce of the Minister for European Community Policies of Italy and the Ministry of Foreign Affairs of Malta. In this perspective, one has to note that Malta signed the EU Accession Treaty in Athens on 16 April 2003 and, consequently, according to Article 2, para. 2 of this treaty, became a member of the European Union on 1 May 2004 (the text of the Accession Treaty is published in OJ EU No. L 236 of 23 September 2003, p. 17 ff.). In order to facilitate respect and implementation of the EU acquis, a wider network of bilateral relations between the two States has been established in the last decade, particularly in the ﬁeld of ﬁnancial and economic co-operation (since 1990, three Protocols concerning ﬁnancial and economic assistance have been established between the two countries). In this light, the Framework Agreement listed above represents a further example of co-operation concluded particularly with the aim of enforcing the Area of freedom, security and justice established by the Amsterdam Treaty. In particular, its provisions must be considered in conjunction with a group of three treaties signed in this ﬁeld, i.e. the Co-operation Agreement in the ﬁght against illicit trafﬁcking of drugs and psychotropic substances and organized crime (28 February 1991,

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amended on 3 September 1996), the Co-operation Agreement in the ﬁeld of mutual administrative assistance in the ﬁght against money laundering and use of money, assets and other instrumentalities as proceeds from crime, and the Readmission Agreement of persons in irregular positions (the last two treaties, signed on 8 December 2001, are listed infra in the “Treatment of Aliens” and “Co-operation in Judicial, Legal, Security, and Socio-Economic Matters” sections). The rationale of the Framework Agreement is directly linked with the management of the external borders of the European Union, whose current EU acquis has largely been developed in the context of the “Schengen Laboratory”, which also entails the lifting of internal border controls (on this issue see the Communication from the EU Commission to the Council and the European Parliament, Towards Integrated Management of the External Borders of the Member States of the European Union, COM(2002) 233 ﬁn. of 7 May 2002). It might be recalled that much of this acquis will not apply to the acceding countries upon accession, only later. In fact, according to Article 3 of the Accession Act, the border controls between Member States and new Member States (Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovak Republic) will be abolished only by a decision of the EU Council. The only rules which must be in place as of accession are those regarding the management of the external border, while the rules concerning the internal borders will be binding, but not applicable (for a general overview of this subject see DEN BOER (ed.), The Schengen Acquis and the EU Candidate Countries, Brussels, 2001; PUONG, “Enlarging ‘Fortress Europe’: EU Accession, Asylum and Immigration in Candidate Countries”, ICLQ, 2003, p. 641 ff.). In accordance with this framework, the bilateral agreement between Italy and Malta intends to set up a system of co-operation to facilitate the ﬁght against some forms of threats to Member States and to security of persons at the external borders and to complete preparations for Malta’s membership with regard to the justice and home affairs chapter of negotiations (the so-called 24th Chapter). Keeping this general introduction in mind, the Framework Agreement implements the bilateral relations established by the three treaties listed above as lex specialis. In particular, it aims to establish permanent co-operation between the competent authorities of two countries entrusted with the aero-maritime surveillance of customs and revenue, i.e. the Italian Guardia di Finanza, of the one part, and the Maltese Armed Force, of the other (Article 1). Article 2 of the Agreement points out the ﬁelds touched by the bilateral co-operation. In particular, reference is made to: a) exchange of reports; b) use of installations; c) maritime or aerial joint efforts; d) use of personnel and communication instruments. Paragraph 2 of Article 2 indicates the main aim of the co-operation established: the ﬁght against smuggling, illicit trafﬁcking of drugs and psychotropic substances, illegal immigration and other customs and ﬁscal offences that violate the customs and ﬁscal laws of both parties.

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As for the procedures to be followed in implementing the co-operation, Art. 3 of the Agreement provides for the setting up of a Joint Working Group (Gruppo di lavoro congiunto) tasked with discussing technical aspects involved in achieving the objectives set out in the text, resolving any problems that may arise from time to time, and identifying ways to improve co-operation between the two countries in this ﬁeld. The understandings established between the members of the Joint Working Group shall be implemented by agreements or memoranda of understanding. (Federico Casolari)

VII. ENVIRONMENT Bilateral Agreement Agreement between Italy and the World Conservation Union, done at Geneva on 16 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003).

X. TREATMENT OF ALIENS AND NATIONALITY 1. IMMIGRATION AND EMIGRATION Bilateral Agreements Agreement between Italy and Malta on the Re-admission of Persons not Conforming to the Norms Regulating the Entry and Stay in the Respective Territories, done at La Valletta on 8 December 2001, entered into force on 29 November 2002 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and the Republic of Cyprus on the Re-admission of Persons Illegally Entering and or Staying in the Territory of the Two Countries, done at Nicosia on 28 June 2002, entered into force on 22 May 2003 (GU Suppl. to No. 240 of 15 October 2003).

XI. HUMAN RIGHTS Multilateral Agreements European Convention on the Exercise of Children’s Rights, done at Strasbourg on 25 January 1996, implemented by Law No. 77 of 20 March 2003 (GU Suppl. to No. 91 of 18 April 2003), entered into force on 4 July 2003 (GU Suppl. to No. 240 of 15 October 2003).

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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 Latvia on Cooperation for Small and Medium-Sized Enterprises, signed in Riga on 12 November 2002, entered into force on 30 April 2003 (GU Suppl. to No. 240 of 15 October 2003); 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); Agreement between Italy and Slovenia on the Stockage in Italy of Slovenian Minimal Stocks of Crude Oil, Intermediate Oil Products and Oil Derivatives, done at Ljubljana on 17 June 2002, entered into force on 14 November 2002 (GU Suppl. to No. 111 of 15 May 2003).

2. TAXATION Bilateral Agreements Convention between Italy and Ethiopia on the Prevention of Double Taxation, with regard to Income Taxes, and of Fiscal Avoidance, with an Addition Protocol, done at Rome on 8 April 1997, and Subsequent Corrective Exchange of Letters, done in Rome on 26 October and 11 November 1999, implemented by Law No. 242 of 19 August 2003 (GU No. 202 of 1 September 2003); Convention between Italy and Georgia on the Prevention of Double Taxation, with regard to Income Taxes and Capital Levies, and of Fiscal Avoidance, with an Addition Protocol, done at Rome on 31 October 2000, implemented by Law No. 205 of 11 July 2003 (GU Suppl. to No. 181 of 6 August 2003).

3. INVESTMENTS Bilateral Agreements Agreement between Italy and Cameroon on the Reciprocal Promotion and Protection of Investments, with a Protocol, done at Yaoundè on 29 June 1999, im-

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plemented by Law No. 20 of 15 January 2003 (GU No. 35 of 12 February 2003); Agreement Protocol between Italy and Congo (Brazzaville) on the Promotion and Protection of Investments, done at Brazzaville on 17 March 1994, entered into force on 10 January 2003 (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Eritrea on the Reciprocal Promotion and Protection of Investments, done at Rome on 6 February 1996, and Subsequent Exchange of Letters done at Asmara on 20 and 26 April 1999, entered into force on 14 July 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Libya on the Promotion and Protection of Investments, done at Rome on 13 December 2000, implemented by Law No. 318 of 3 November 2003 (GU No. 270 of 20 November 2003); 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); Agreement between Italy and Paraguay on the Promotion and Protection of Investments, with a Protocol, done at Rome on 15 July 1999, implemented by Law No. 150 of 3 June 2003 (GU No. 148 of 28 June 2003); 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); Agreement between Italy and Slovenia on the Promotion and Protection of Investments, with a Protocol, done at Rome on 8 March 2000, implemented by Law No. 37 of 14 February 2003 (GU Suppl. to No. 60 of 13 March 2003); 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); Agreement between Italy and Tanzania on the Promotion and the Protection of Investments, done at Dar-Es-Salaam on 21 August 2001, implemented by Law No. 21 of 15 January 2003 (GU No. 36 of 13 February 2003), entered into force on 25 April 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Turkey on the Reciprocal Promotion and Protection of Investments, done at Ankara on 22 March 1995, implemented by Law No. 294 of 27 October 2003 (GU No. 256 of 4 November 2003);

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Agreement between Italy and Venezuela on the Promotion and Protection of Investments, with an Additional Protocol, done at Rome on 14 January 2001, implemented by Law No. 329 of 3 November 2003 (GU No. 275 of 26 November 2003).

4. ECONOMIC DEVELOPMENT AND DEVELOPMENT CO-OPERATION Multilateral Agreements Memorandum of Understanding between Italy, the Inter-American Development Bank and the International Fund for Agricultural Development, done at Milan on 21 March 2003, entered into force on the same day (GU Suppl. to No. 240 of 15 October 2003).

Bilateral Agreements Agreement between Italy and Cape Verde on the Implementation of the Initiative “Creation of a Permanent System of Agricultural Statistics”, done at Praia on 30 April 2003, entered into force on the same day (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and China on the Implementation of the Vocational Training Programme to Improve Employability in the Provinces of Shaanxi and Sichuan (Soft Loan Component), with Three Annexes and a Manual of Instructions, done at Rome on 11 October 2001, entered into force on 5 June 2002 (GU Suppl. to No. 111 of 15 May 2003); Agreement Protocol between Italy and Cuba on the Concession of an Aid Credit Line for the Development Programme “Support for Food Security to Beneﬁt the Cuban Population through the Rehabilitation of Irrigation Systems in the Havana and Grama Provinces”, done at Rome on 6 May 2002, entered into force on 26 September 2002 (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Ethiopia on the Financing of the Project “Italian Contribution to the Health Sector Development Programme (HSDP)”, done at Addis Ababa on 20 September 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and the Inter-American Development Bank Concerning the Establishment of the Italian Trust Fund for Information and Communication Technology for Development, done at Rome on 21 March 2003, entered into force on the same day (GU Suppl. to No. 240 of 15 October 2003);

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Agreement between Italy and Mozambique on the Implementation of the “Additional Project of Agricultural Development – PISA”, done at Maputo on 11 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Mozambique on the Implementation of the “National Programme of Agricultural Development – PROAGRI”, done at Maputo on 11 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Mozambique on the Implementation of the “Development Programme of the National Statistical System”, with a Technical Annex, done at Maputo on 17 October 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Protocol of Agreement between Italy and Senegal on the Training Project for the Management of Natural Resources and Food Security, done at Dakar on 17 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and South Africa Concerning the National Students Financial Aid Scheme, done at Pretoria on 4 June 2001, entered into force on 5 February 2003 (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Tunisia Concerning Assistance for Tunisia’s Balance of Payments, with an Annex, done at Rome 14 November 2002, entered into force on 10 February 2003 (GU Suppl. to No. 111 of 15 May 2003).

5. DEBT CONSOLIDATION AND CANCELLATION TREATIES Bilateral Agreements Agreement between Italy and Algeria on the Implementation of the Debt Conversion into Development Projects, with Two Annexes, done at Algiers on 3 June 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Burkina Faso on the Cancellation of the Debt (Paris Club, 24 October 2000), with an Annex SACE, done at Rome on 12 November 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003);

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Agreement between Italy and Ecuador on the Consolidation of the Debt (Paris Club, 15 September 2000), done at Rome on 24 May 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Ecuador on the Conversion of the Debt, with Annexed SACE Lists, done at Milan on 22 March 2003, entered into force on 24 July 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Ethiopia on the Consolidation of the Debt (Paris Club, 5 April 2001), done at Addis Ababa on 5 June 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Guinea on the Consolidation of the Debt (Paris Club, 25 January 1995), done at Conakry on 13 May 1997, entered into force on 3 April 2002 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Guinea on the Consolidation of the Debt (Paris Club, 26 February 1997), with an Annex SACE, done at Rome on 30 June 1998, entered into force on 3 April 2002 (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Guinea on the Conversion of the Debt, done at Conakry on 10 April 2003, entered into force on the same day (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Guinea-Bissau on the Consolidation of the Debt (Paris Club, 23 February 1995), with Two Annexes, done at Bissau on 8 November 1996, entered into force on 20 August 2002 (GU Suppl. to No. 38 of 15 February 2003); Exchange of Letters between Italy and Guinea-Bissau on the Extension of the Consolidation Period (Paris Club, 11 February 1998) of the Third Agreement on the Consolidation of the Debt (Paris Club, 23 February 1995) of 8 November 1996, done at Dakar and Bissau on 5 May 1998 and 11 April 2001, entered into force on 11 April 2001 (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Indonesia on the Consolidation of the Debt (Paris Club, 23 September 1998), done at Jakarta on 11 February 2000, entered into force on 3 June 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Ivory Coast on the Consolidation of the Debt (Paris Club, 24 April 1998), done at Rome on 11 September 1998, entered into force on 17 September 2003 (GU Suppl. to No. 38 of 15 February 2003);

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Agreement between Italy and Malawi (Paris Club, 25 January 2001), with Annex, done at Lilongwe on 17 June 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Mauritania on the Cancellation of the Debt (Paris Club, 16 March 2000), done at Dakar on 24 October 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Exchange of Notes between Italy and Pakistan Amending the Bilateral Agreement signed on 18 February 2000 for Rescheduling of Loans, done at Islamabad on 15 August 2001 and 19 September 2001, entered into force on 19 September 2001 (GU Suppl. to No. 111 of 15 May 2003); Memorandum of Understanding between Italy and the Russian Federation on a Program for the Conversion of Soviet-era Sovereign Debts, Previously Rescheduled at the Paris Club, into Investments in the Russian Economy, done at Rome on 17 December 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003); Agreement between Italy and Tanzania on the Cancellation of the Debt (Paris Club, 14 April 2000), done at Rome on 10 January 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003).

6. TRANSPORT, TRAFFIC, COMMUNICATION Bilateral Agreements Agreement between Italy and Albania establishing Common Rules on the International Road Transport of Passengers and Goods, done at Tirana on 5 April 1993, implemented by Law No. 292 of 6 October 2003 (GU No. 254 of 31 October 2003); Agreement between Italy and Algeria Concerning the International Road Carriage of Passengers and Goods in Transit, done at Algiers on 24 October 2000, implemented by Law No. 330 of 3 November 2003 (GU Suppl. to No. 276 of 27 November 2003); Agreement between Italy and Armenia on the International Road Transport of Passengers and Goods, done at Erevan on 7 August 1999, implemented by Law No. 16 of 15 January 2003 (GU No. 33 of 10 February 2003);

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Agreement between Italy and the Former Yugoslav Republic of Macedonia Concerning the International Road Carriage of Passengers and Goods in Transit, done at Rome on 21 May 1999, implemented by Law No. 248 of 19 August 2003 (GU No. 207 of 6 September 2003); Agreement between Italy and Uzbekistan establishing Common Rules on the International Road Transport of Passengers and Goods, done at Rome on 21 November 2000, implemented by Law No. 325 of 3 November 2003 (GU No. 273 of 24 November 2003).

7. SOCIAL AND HEALTH MATTERS Bilateral Agreements Memorandum of Understanding between Italy and Algeria on Co-operation in the Field of Health, done at Algiers on 8 March 1999, entered into force on 7 April 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Bolivia on International Adoptions, done at Rome on 15 February 2002, entered into force on 18 November 2002 (GU Suppl. to No. 38 of 15 February 2003); Memorandum of Understanding between Italy and Bulgaria in the Field of Health and Medical Sciences, done at Rome on 17 October 2000, entered into force on 18 July 2002 (GU Suppl. to No. 240 of 15 October 2003); Convention between Italy and the Holy See on Social Security, done at Vatican City on 16 June 2000, implemented by Law No. 244 of 19 August 2003 (GU No. 203 of 2 September 2003), entered into force on 1 January 2004 (GU No. 256 of 4 November 2003); Cooperation Agreement between Italy and Israel in the Field of Health and Medical Sciences, done at Rome on 8 October 2002, entered into force on 6 August 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and the Sovereign Military Order of Malta Concerning Relations in the Field of Health, done at Rome on 21 December 2000, implemented by Law No. 157 of 9 June 2003 (GU No. 153 of 4 July 2002), entered into force on 1 August 2003 (GU No. 207 of 6 September 2003).

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8. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION Bilateral Agreements Agreement between Italy and Albania on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex, done at Tirana on 12 March 1998, implemented by Law No. 160 of 18 June 2003 (GU No. 155 of 7 July 2003); 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); Exchange of Notes between Italy and Austria on Mutual Recognition of University Qualiﬁcations, with Three Annexes, which completes the Annex to the Exchange of Notes between Italy and Austria of 28 January 1999, done at Rome on 26 and 27 February 2003, entered into force on 1 April 2003 (GU Suppl. to No. 240 of 15 October 2003); Agreement between Italy and Belgian French Community on Cinematographic Co-production, with Three Annexes, done at Venice on 31 August 2000, implemented by Law No. 202 of 11 July 2003 (GU No. 180 of 5 August 2003); Agreement between Italy and Croatia on Scientiﬁc and Technological Co-operation, with One Annex, done at Rome on 29 October 1999, implemented by Law No. 149 of 3 June 2003 (GU No. 147 of 27 June 2003); Memorandum of Understanding between Italy and Egypt Concerning the Establishment of an Italian-Egyptian Centre for Professional Training in the Field of Restoration and Archaeology, done at Cairo on 25 November 2002, entered into force on 25 November 2002 (GU Suppl. to No. 240 of 15 October 2003); Cinematographic Agreement between Italy and France, with Three Annexes (not published), done at Paris on 6 November 2000, implemented by Law No. 19 of 15 January 2003 (GU No. 34 of 11 February 2003), entered into force on 1 June 2003 (GU No. 142 of 21 June 2003); Memorandum of Understanding between Italy and Hong Kong Special Administrative Region of the People’s Republic of China on Cultural Co-operation, done at Rome on 23 May 2002, entered into force on 25 September 2002 (GU Suppl. to No. 38 of 15 February 2003); Memorandum of Understanding between Italy and Hong Kong Special Admin-

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istrative Region of the People’s Republic of China in the Field of Telecommunications and Information Technologies, done at Rome on 23 May 2002, entered into force on 20 September 2002 (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Iceland on Cultural, Scientiﬁc and Technological Co-operation, done at Rome on 14 January 1999, implemented by Law No. 9 of 15 January 2003 (GU No. 26 of 1 February 2003), entered into force on 20 December 2003 (GU No. 270 of 20 November 2003); Agreement between Italy and Israel on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, with One Annex, done at Rome on 27 April 1999, implemented by Law No. 74 of 20 March 2003 (GU Suppl. to No. 91 of 18 April 2003), entered into force on 1 July 2003 (GU No. 220 of 22 September 2003); Agreement between Italy and Israel on Industrial, Scientiﬁc and Technological Research and Development Co-operation, done at Bologna on 13 June 2000, implemented by Law No. 154 of 11 July 2002 (GU No. 175 of 27 July 2002), entered into force on 1 October 2002 (GU Suppl. to No. 38 of 15 February 2003); Agreement between Italy and Morocco on Cultural, Scientiﬁc and Technological Co-operation, done at Rabat on 28 July 1998, implemented by Law No. 79 of 24 March 2003 (GU Suppl. to No. 91 of 18 April 2003); Interim Agreement between Italy and Palestine Liberation Organization (PLO) 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); Memorandum of Understanding between Italy and the Russian Federation on Technical Bilateral Co-operation 2002-2004, done at Moscow on 3 April 2002, entered into force on 5 March 2003 (GU Suppl. to No. 240 of 15 October 2003); 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); Agreement between Italy and Slovakia on Mutual Administrative Assistance for the Prevention, Investigation and Repression of Customs Offences, done at Bratislava on 25 October 2000, implemented by Law No. 246 of 19 August 2003 (GU No. 205 of 4 September 2003), entered into force on 1 January 2004 (GU No. 295 of 20 December 2003);

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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); Agreement between Italy and Syria on Scientiﬁc and Technological Co-operation, with One Annex, done at Damascus on 23 April 1998, implemented by Law No. 165 of 26 May 2000 (GU No. 143 of 21 June 2000), entered into force on 7 February 2002 (GU Suppl. to No. 111 of 15 May 2003); 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); Agreement between Italy and Uzbekistan on Mutual Administrative Assistance in Customs Matters, with One Annex, done at Rome on 21 November 2000, implemented by Law No. 247 of 19 August 2003 (GU No. 206 of 5 September 2003); 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).

9. 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); Co-operation Agreement between Italy and Libya in the Fight against Terrorism, Organized Crime, Illicit Trafﬁcking of Drugs and Psychotropic Substances and Illegal Immigration, done at Rome on 13 December 2000, entered into force on 22 December 2002 (GU Suppl. to No. 111 of 15 May 2003); Co-operation Agreement between Italy and Malta on Mutual Assistance in the Fight against Money Laundering and the Use of Money, Property and Other Effects of Illegal Origin, done at La Valletta on 8 December 2001, entered into force on 8 October 2002 (GU Suppl. to No. 111 of 15 May 2003);

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Co-operation Agreement between Italy and Mexico in the Fight against Organized Crime, done at Mexico City on 19 November 2001, entered into force on 10 July 2002 (GU Suppl. to No. 111 of 15 May 2003); Co-operation Agreement between Italy and Panama in the Fight against Organized Crime, done at Rome on 12 September 2000, entered into force on 5 February 2003 (GU Suppl. to No. 111 of 15 May 2003); Co-operation Agreement between the Ministry of Justice of Italy and the Ministry of Justice of the Russian Federation, done at Moscow on 18 September 2000, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Co-operation Agreement between Italy and Slovakia in the Fight against Terrorism, Organized Crime, Illicit Trafﬁcking of Drugs and Psychotropic Substances, done at Bratislava on 19 April 2002, entered into force on 6 November 2002 (GU Suppl. to No. 111 of 15 May 2003).

10. CO-OPERATION AGAINST TERRORISM Multilateral Agreements International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations at New York on 15 December 1997, implemented by Law No. 34 of 14 February 2003 (GU Suppl. to No. 58 of 11 March 2003); International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations at New York on 9 December 1999, implemented by Law No. 7 of 14 January 2003 (GU No. 21 of 27 January 2003).

11. MILITARY AND SECURITY MATTERS Multilateral Agreements Framework Agreement between France, Germany, Italy, Spain, Sweden and the United Kingdom Concerning Measures to Facilitate the Restructuring and Operation of the European Defense Industry, with Annex, done at Farnborough on 27 July 2000, implemented by Law No. 148 of 17 June 2003 (GU No. 146 of 26 June 2003), entered into force on 20 September 2003 (GU Suppl. to No. 240 of 15 October 2004);

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Agreement between Italy, France, Portugal and Spain Containing the Statute of EUROFOR, done at Rome on 5 July 2000, implemented by Law No. 251 of 19 August 2003 (GU No. 209 of 9 September 2003).

Bilateral Agreements Bilateral Co-operation Agreement between the Ministry of Defense of Italy and the Ministry of Defense of Bulgaria, done at Rome on 11 July 1995, implemented by Law No. 78 of 20 March 2003 (GU No. 91 of 18 April 2003); 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); Agreement between Italy and Djibouti on Defense Co-operation, done at Djibouti on 30 April 2002, implemented by Law No. 327 of 31 October 2003 (GU No. 274 of 25 November 2003); Memorandum of Understanding between the Ministry of Defense of Italy and the Ministry of Defense of Egypt, with Annex, done at Rome on 23 March 1998, implemented by Law No. 76 of 20 March 2003 (GU No. 91 of 18 April 2003); Memorandum of Understanding between the Ministry of Defense of Italy and the Ministry of Defense of Finland on Co-operation in the Field of Defense Materials, done at Helsinki on 24 April 1998, implemented by Law No. 334 of 3 November 2003 (GU No. 277 of 28 November 2003); Agreement between Italy and Latvia on the Development of Relations in the Field of Military Co-operation, done at Riga on 20 February 1998, implemented by Law 11 of 15 January 2003 (GU No. 28 of 4 February 2003); Agreement between Italy and the Russian Federation on the Installation of a Protected Telephone Line between Palazzo Chigi in Rome and the Kremlin in Moscow, done at Moscow on 7 October 2002, entered into force on 3 February 2003 (GU Suppl. to No. 240 of 15 October 2003); 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); Agreement between Italy and Sweden on Co-operation in the Field of Defense Materials, done at Stockholm on 18 April 1997, implemented by Law No. 245 of

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19 August 2003 (GU No. 204 of 3 September 2003); Agreement between Italy and Uzbekistan on Defense 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).

Comment The Framework Agreement Concerning Measures to Facilitate the Restructuring and Operation of the European Defense Industry is worthy of note, in so far as it institutes a structured co-operation between EU Member States in the ﬁeld of defense industry. The Defense Ministers of France, Germany, Italy, Spain, Sweden and the United Kingdom signed it at the Farnborough Air Show on 27 July 2000. The Farnborough Agreement is the outcome of joint efforts undertaken pursuant to the Letter of Intent (LOI) signed by said Defense Ministers in London on 6 July 1998. The LOI, which did not constitute a legally binding commitment, was aimed at establishing a co-operative framework to facilitate the restructuring of the European defense industry, with a view to maintaining its competitiveness on the world market. The Farnborough Agreement, which by contrast is an international agreement stricto sensu, was negotiated within the Executive Committee, the only permanent organ envisaged by the LOI, with the help of ad hoc working groups. It sets up a wide range of measures with the aim of consolidating and rationalizing the European defense industry. In particular, it focuses on seven issues: achieving security in military supply for all Parties; simplifying national procedures for transfer and export of military goods and technologies; facilitating exchanges of classiﬁed information; fostering co-ordination of joint research activities; harmonizing national procedures for access to and use of technical information; homogenizing the military requirements of the Parties’ armed forces; and protecting commercially sensitive information. In line with Article 80 of the Italian Constitution, Parliament authorized the Head of State to ratify the Farnborough Agreement by Law No. 148 of 17 June 2003. Because of the delay in the enactment of this law, Italy was the last signatory to deposit the instrument of ratiﬁcation. In fact, Law No. 148 also provided the so-called order of execution (ordine di esecuzione) conferring the formal status of domestic law upon the Farnborough Agreement. But this order was not sufﬁcient to ensure compliance with the Agreement because existing legislation had to be amended. To be exact, Law No. 148 also amended Law No. 185 of 9 July 1990, which contains a comprehensive regulation of national procedures for import, export and transit of armaments. It was in fact the Opposition’s contrariety to such amendments that had delayed enactment of Law No. 148 (see in this regard NONES, “Il processo di costruzione dell’Europa della difesa e la partecipazione italiana”,

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in COLOMBO and RONZITTI (eds.), L’Italia e la politica internazionale, Bologna, 2003, p. 131 ff., pp. 133-134). The main provisions of Law No. 185, subject to amendments, deserve some remarks. Article 1, para. 6(c), of Law No. 185 prohibits export and transit of armaments, inter alia, towards countries against which an arms embargo, either total or partial, has been declared by the United Nations. By means of this provision, resolutions by which the Security Council decides or merely recommends an embargo on arms supplies against certain States are complied with automatically, as soon as they are adopted. Thanks to the subsequent articles of Law No. 185, which also provide for penalties for infringement, those who do not respect the embargo are punishable by domestic courts (see on this point MANCINI, “Sull’attuazione delle decisioni del Consiglio di sicurezza nell’ordinamento italiano”, RDI, 2000, p. 1027 ff., p. 1032 ff.). Law No. 148 supplements Article 1, para. 6(c), by prohibiting export and transit of armaments also towards countries against which a total or partial embargo on arms supplies has been declared by the European Union. By this amendment, it ensures compliance with the EU Code of Conduct for Arms Exports of 8 June 1998, referred to in the preamble and Article 13 of the Farnborough Agreement. The said code of conduct, which is not legally binding, states respect for the sanctions decreed by the United Nations and the European Union as one of the criteria with which the EU Member States should comply. Within the European Union, arms embargoes are imposed in the framework of the Common Foreign and Security Policy, either to implement United Nations Security Council resolutions or independently of them. The Council adopts common positions by which it decrees an embargo on arms supplies to certain States. The EU Member States are obliged to ensure that their national policies conform. As a consequence of the said amendment, the conformity of Italy to such common positions is automatically guaranteed, since export and transit of armaments are forbidden towards all States subject to EU embargo. Thanks to the subsequent articles of Law No. 185, especially those concerning penalties applicable to infringements, domestic courts can directly punish violations of the EU embargo. Article 13 of Law No. 185 makes import, export and transit of armaments conditional on a case-by-case license issued by the Minister of Foreign Affairs. Law No. 148 supplements Article 13 by providing for a global project license, similarly issued by the Minister of Foreign Affairs. By this amendment, it ensures compliance with Article 12 of the Farnborough Agreement, which prescribes use of global project licenses in the context of co-operative armament programs. These programs are carried out under international agreement or arrangement between two or more Parties. A global project license can be granted for the transfer of military goods and technologies when this is needed to achieve the program or is effected for national military use by one of the Parties. The granting of such license removes the need for speciﬁc authorizations. According to Article 13 of Law No. 185, as amended, a global project license can be issued with respect to import, export and transit of armaments to be effected

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in the context of joint research, development and production programs, carried out with companies from EU or NATO countries with which Italy has concluded ad hoc agreements, as well as with regard to supply of armaments, developed or produced in the framework of said programs, for national military use by one of the concerned EU or NATO countries. This provision, introduced by Law No. 148, has been criticized by some authors as going beyond the scope of the Farnborough Agreement, since it allows global project licenses to be issued with respect to all EU or NATO countries stipulating agreements with Italy, while the Agreement envisages such licenses only with regard to the Parties (see PINESCHI, “Esportazione, importazione e transito di materiale di armamento: un’ambigua liberalizzazione del mercato delle armi nei rapporti tra l’Italia e gli Stati membri dell’Unione Europea e della NATO”, CI, 2003, p. 601 ff., p. 606 f.). As far as the EU countries are concerned, however, it has to be noted that, after its entry into force for all signatory States, the Farnborough Agreement is open to accession by all EU Member States. Article 56 of the Agreement regulates the accession by EU Member States. As for the NATO countries that are not members of the European Union (Bulgaria, Canada, Iceland, Norway, Romania, Turkey, United States), the Government, when submitting the draft of Law No. 148 to Parliament, remarked that these countries, especially the United States, often participate in joint research, development and production programs with Italy and other EU Member States and that, in the framework of such programs, the procedures for import, export and transit of armaments should be the same for all States concerned (see Camera dei Deputati – XIV Legislatura, Disegno di Legge No. 1927, Relazione, p. 4). There is however more to Law No. 148 than just the amendments to Law No. 185. The law also requires the President of the Council of Ministers to enact a decree establishing the conditions for Royal Decree No. 1161 of 11 July 1941 relative to classiﬁed information to apply to the EU or NATO countries with which Italy has concluded agreements on transfer, export or supply of armaments. Such a decree is intended to ensure compliance with Articles 19-27 of the Farnborough Agreement, aimed at facilitating the exchange of classiﬁed information between the Parties or their defense industries. The provision concerning that decree is susceptible to the same criticism levelled at the above mentioned provision, in so far as it regards all EU or NATO countries stipulating agreements with Italy. The same remarks made above, however, can be formulated. (Marina Mancini)

12. FRIENDSHIP AND CO-OPERATION TREATIES Bilateral Agreements Memorandum of Understanding between Italy and the Democratic Peoples’ Republic of Korea for the Establishment of a Co-operation Ofﬁce in Pyongyang,

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done at Rome on 28 September 2000, entered into force on 16 June 2003 (GU Suppl. to No. 240 of 15 October 2003); 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).

13. DIPLOMATIC CONFERENCES AND INTERNATIONAL MEETINGS Bilateral Agreements Agreement between Italy and the United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO) concerning the International Congress of Experts Celebrating the 30th Anniversary of the Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) held in Venice from 14 to 16 November 2002, done at Paris on 18 October 2002, entered into force on the same day (GU Suppl. to No. 111 of 15 May 2003).

14. NEIGHBOURLY RELATIONS Bilateral Agreements 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); Exchange of Notes Establishing an Agreement between Italy and Slovenia for the Reciprocal Recognition of Driving Licenses, done at Ljubljana on 18 November 2002 and 15 January 2003, entered into force on 6 July 2003 (GU Suppl. to No. 240 of 15 October 2003); Exchange of Letters between Italy and Switzerland on the Extension of the Free License Concerning the Installations at the Brogeda Pass according to Article 3 of the Exchange of Letters dated 13 October 1997, done at Rome on 25 June 2002 and 25 March 2003, entered into force on 1 January 2002 (GU Suppl. to No. 240 of 15 October 2003).

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XVII. INTERNATIONAL ORGANIZATIONS 1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS Bilateral Agreements Memorandum of Agreement between Italy and the World Health Organization Regional Ofﬁce for Europe Concerning the Establishment of the WHO European Ofﬁce for Investment for Health and Development, done at Rome on 11 January 2001, implemented by Law No. 12 of 15 January 2003 (GU No. 29 of 5 February 2003), entered into force on 1 June 2003 (GU Suppl. to No. 240 of 15 October 2004); Agreement between Italy and the World Health Organization Regional Ofﬁce for Europe, done at Rome on 3 May 2002, implemented by Law No. 295 of 23 October 2003 (GU No. 257 of 5 November 2003).

2. EUROPEAN UNION Bilateral Agreements Stabilization and Association Agreement between the European Communities and its Member States, of the one part, and the Former Yugoslav Republic of Macedonia, of the other part, done at Luxembourg on 9 April 2001, with Annexes, Protocols and Declarations, implemented by Law No. 260 of 19 August 2003 (GU Suppl. to No. 215 of 16 September 2003); Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and South Africa, of the other part, with Protocols, Final Act, Annexes and Declarations, done at Pretoria on 11 October 1999, implemented by Law No. 320 of 24 October 2003 (GU Suppl. to No. 271 of 21 November 2003); Partnership and Co-operation Agreement establishing a Partnership between the European Communities and its Member States, of the one part, and Turkmenistan, of the other part, with Annexes, Protocol and Final Act, done at Brussels on 25 May 1998, implemented by Law No. 323 of 24 October 2003 (GU Suppl. to No. 272 of 22 November 2003).

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3. NATO Multilateral Agreements Agreement between Austria, France, Italy and Switzerland on Exercise AMADEUS 2002, done at Vienna on 29 April 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003); Protocol to the North Atlantic Treaty on the Accession of Bulgaria, Protocol to the North Atlantic Treaty on the Accession of Estonia, Protocol to the North Atlantic Treaty on the Accession of Latvia, Protocol to the North Atlantic Treaty on the Accession of Lithuania, Protocol to the North Atlantic Treaty on the Accession of Romania, Protocol to the North Atlantic Treaty on the Accession of Slovakia, Protocol to the North Atlantic Treaty on the Accession of Slovenia, done at Brussels on 26 March 2003, implemented by Law No. 255 of 19 August 2003 (GU Suppl. to No. 212 of 12 September 2003).

Bilateral Agreements Memorandum of Understanding between the Ministry of Defense of Italy and the Supreme Command of the Allied Forces in the Atlantic Concerning the Flag of the NATO Coastal Research Units, with Annex, done at Rome on 15 May 2001 and at Norfolk on 20 June 2001, implemented by Law No. 321 of 24 October 2003 (GU No. 271 of 21 November 2003).

4. 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); Protocol Amending the Convention on International Civil Aviation, done at Montreal on 1 October 1998, implemented by Law No. 10 of 15 January 2003 (GU No. 27 of 3 February 2003).

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XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING Bilateral Agreements Exchange of Notes between Italy and the Multinational Force and Observers Concerning the Italian Participation in the Multinational Force and Observers, done at Rome on 6 and 25 March 2002, implemented by Law No. 249 of 19 August 2003 (GU No. 208 of 8 September 2003).

Comment The exchange of notes between Italy and the Multinational Force and Observers (MFO) deserves some comment. It took place between the Italian Prime Minister and Minister of Foreign Affairs, Berlusconi, and the MFO Director General, Hughes; and constituted an agreement extending the Italian participation in the MFO for a further period of ﬁve years from 25 March 2002. The MFO is a peace-keeping force, created by the Protocol between Egypt and Israel of 3 August 1981. It was set up as an alternative to the UN Forces and Observers, provided for by the Egyptian-Israeli Peace Treaty of 26 March 1979. The MFO was indeed vested with the functions assigned by the peace treaty to the UN Forces and Observers. The mission of the UN force was to supervise the maintenance of peace, once Israel had withdrawn from the Sinai and returned it to Egypt. The Protocol Concerning Israeli Withdrawal and Security Arrangements, annexed to the peace treaty, established four security zones, three in Egypt and one in Israel, where military personnel and equipment were severely limited. The UN force was to observe and verify compliance with those limitations and report its ﬁndings to both Egypt and Israel. In addition, it was to ensure freedom of navigation through the Strait of Tiran. Its establishment actually proved impossible because of the lack of agreement within the Security Council. Consequently, thanks to the mediation efforts of the United States, the MFO was created as a peace-keeping force outside the United Nations (see a detailed analysis of the differences between the MFO and the UN peace-keeping forces in SIEKMANN, “The Multinational Peace-keeping Force in the Sinai in the Light of United Nations Practice on Peace-keeping Forces”, Indian Journal of International Law, 1984, pp. 504-524). The Egyptian-Israeli Protocol of 3 August 1981, which the United States also signed as a witness, established the MFO as an international organization independent of both Egypt and Israel. Both countries decided not to contribute troops and observers. Therefore, the MFO Director General, responsible for direction of the force in fulﬁllment of its functions, concluded separate agreements with third countries contributing troops and observers. In this context, an agreement between the Italian Government and the MFO Director General was concluded by an exchange of letters on 16 and 25 March 1982. In this agreement, Italy committed itself to

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providing the MFO with a naval contingent consisting of three minesweepers, a maximum of ninety personnel and related equipment. The task of the Italian naval contingent was to conduct naval patrols in the Strait of Tiran and its approaches as part of the MFO mission to ensure freedom of navigation through the Strait (see the Exchange of Letters between Italy and the MFO, with two Annexes, done at Rome on 16 March 1982, implemented by Law No. 967 of 29 December 1982 (GU Suppl. to No. 7 of 8 January 1983)). Italian participation in the MFO was stipulated by the said agreement for a term of two years. It was extended by subsequent agreements for periods of two years until 1992, and for periods of ﬁve years afterwards. The agreement effected by the exchange of letters of 6 and 25 March 2002 extends the Italian contribution to the MFO for a further ﬁve-year term. The composition and the task of the Italian naval contingent are unmodiﬁed. The participation in the MFO does not imply ﬁnancial burdens for Italy, as it is ﬁnanced by the MFO itself (see Camera dei Deputati – XIV Legislatura, Disegno di Legge No. 3537, Relazione, p. 2). Like all previous agreements, the Head of State ratiﬁed the agreement of March 2002 after Parliament authorization in accordance with Articles 87, para. 8, and 80 of the Constitution. Parliament authorized the Head of State to ratify by Law No. 249 of 19 August 2003. Like the previous agreements, the agreement at issue was applied provisionally pending ratiﬁcation for reasons of urgency. The last agreement concerning Italian participation in the MFO would have expired on 25 March 2002 (see the Exchange of Notes between Italy and the MFO, done at Rome on 16 December 1996 and 21 March 1997, implemented by Law No. 132 of 23 April 1998 (GU No. 105 of 8 May 1998)). The Italian naval contingent could not be maintained in the Strait of Tiran after that date without an appropriate legal basis. From an international point of view, provisional application of the agreement of March 2002 is in conformity with Article 25 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986. This convention, which was ratiﬁed by Italy but is not yet in force, admits that treaties be applied provisionally pending their entry into force if they so provide or the negotiating subjects in some other manner so agree, likewise the Vienna Convention on the Law of Treaties of 23 May 1969. From an internal point of view, provisional application of international agreements like the one at issue has been criticized by a number of authors. In their opinion, it implies an overtaking of the competences of the Head of State and Parliament enshrined in Articles 87, para. 8, and 80 of the Constitution. In particular, it prevents Parliament from exercising effective control of the international agreements that the Government intends to conclude. However, provisional application of the agreement of March 2002 conforms to an extensive practice that has developed as a remedy for the lengthy procedures required to enact laws authorizing ratiﬁcation (see on this point MANCINI, “L’applicazione provvisoria degli accordi in materia di difesa”, in RONZITTI (ed.), Il diritto dei trattati nelle attività di interesse delle forze armate, Roma, 2002, pp. 97-117). (Marina Mancini)

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XX. WAR, NEUTRALITY, AND DISARMAMENT Additional Protocol to the Agreement between Austria, Belgium, Denmark, Finland, Germany, Greece, Ireland, Italy, Luxemburg, Netherlands, Portugal, Spain, Sweden, the European Atomic Energy Community (EURATOM) and the International Atomic Energy Agency (IAEA) in Execution of Article III, paras. 1 and 4 of the Treaty on the Non-Proliferation of Nuclear Weapons, with Annexes, done at Vienna on 22 September 1998, implemented by Law No. 332 of 31 October 2003 (GU No. 276 of 27 November 2003).

B) AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2003, THE ENTRY INTO FORCE OF WHICH WAS ANNOUNCED IN THE GAZZETTA UFFICIALE IN 2003

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION Bilateral Agreements Agreement between Italy and Mongolia on Economic and Technical Cooperation, done at Rome on 20 November 1996, implemented by Law No. 384 of 14 October 1999, entered into force on 23 October 2000 (GU No. 290 of 13 December 2002).

2. TRANSPORT, TRAFFIC, COMMUNICATION Multilateral Agreements Amendments to Annex I, Appendix I, paras. 2 and 4 of the Agreement on the International Carriage of Perishable Foodstuffs and on the Special Equipment to be used for Such Carriage (ATP), done at Geneva on 1 September 1970, implemented by Law No. 264 of 2 May 1977 (GU Suppl. to No. 152 of 6 June 1977), entered into force on 7 February 2003 (GU No. 73 of 28 March 2003); Amendments to Article 3 and to Annexes 2, 3, 5, 6 and 7 of the Customs Convention on the International Transport of Goods under Cover of TIR Carnets, done

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at Geneva on 14 November 1975, implemented by Law No. 706 of 12 August 1982 (GU Suppl. to No. 277 of 7 October 1982). The Amendments to Article 3 entered into force on 12 May 2002 (GU No. 147 of 27 June 2003); the Amendments to Annexes 2 and 7 entered into force on 12 June 2001 (GU No. 147 of 27 June 2003); and the Amendments to Annexes 3, 5 and 6 entered into force on 12 May 2002 (GU No. 222 of 24 September 2003).

3. SOCIAL AND HEALTH MATTERS Bilateral Agreements Agreement between Italy and Croatia on Social Security, done at Rome on 27 June 1997, implemented by Law No. 167 of 27 May 1999 (GU Suppl. to No. 138 of 15 June 1999), entered into force on 1 November 2003 (GU No. 225 of 27 September 2003).

4. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION Multilateral Agreements Convention Deﬁning the Statute of European Schools, done at Luxembourg on 21 June 1994, implemented by Law No. 151 of 6 March 1996 (GU No. 70 of 23 March 1996), entered into force on 1 October 2002 (GU Suppl. to No. 111 of 15 May 2003).

Bilateral Agreements Agreement between Italy and Germany on Cinematographic Co-production, with One Annex, done at Rome on 23 September 1999, implemented by Law No. 151 of 11 July 2002 (GU No. 174 of 26 July 2002), entered into force on 5 November 2002 (GU No. 44 of 22 February 2003); Agreement between Italy and the Russian Federation on Co-operation and Mutual Administrative Assistance in Customs Matters, done at Rome on 10 February 1998, implemented by Law No. 71 of 2 April 2002 (GU No. 95 of 23 April 2002), entered into force on 1 November 2002 (GU No. 132 of 10 June 2002).

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5. LEGAL AND JUDICIAL CO-OPERATION Bilateral Agreements Agreement between Italy and the Russian Federation on Co-operation and Mutual Assistance in the Field of Exchange Control of Import and Export Operations and in the Fight against Money Laundering, done at Rome on 29 July 1996, implemented by Law No. 77 of 23 March 1998 (GU No. 82 of 8 April 1998), entered into force on 3 June 1998 (GU No. 111 of 15 May 2003).

6. CO-OPERATION AGAINST TERRORISM Multilateral Agreements Convention on the Marking of Plastic Explosives for the Purpose of Detection, with Annex, done at Montreal on 1 March 1991, implemented by Law No. 420 of 20 December 2000, (GU No. 15 of 19 January 2001), entered into force on 25 November 2002 (GU Suppl. to No. 38 of 15 February 2003).

7. NEIGHBOURLY RELATIONS Bilateral Agreements Agreement between Italy and France on the Establishment of a New Railway Line between Turin and Lion, done at Turin on 29 January 2001, implemented by Law No. 228 of 27 September 2002 (GU No. 248 of 22 October 2002), entered into force on 1 May 2003 (GU No. 93 of 22 April 2003).

XVII. INTERNATIONAL ORGANIZATIONS 1. EUROPEAN UNION Multilateral Agreements Treaty of Nice Amending the European Union Treaty, the Treaties Establishing the European Communities and Certain Related Acts, with Final Act, Protocols and Declarations, done at Nice on 26 February 2001, implemented by Law No. 102 of 11 May 2002 (GU No. 126 of 31 May 2002), entered into force on 1 February 2003 (GU Suppl. to No. 111 of 15 May 2003).

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XX. WAR, NEUTRALITY, AND DISARMAMENT Multilateral Agreements Agreement between Croatia, Germany and Italy on the Regional Arms Control Veriﬁcation and Implementation Assistance Center (RACVIAC), Established within the Framework of the Stability Pact for South Eastern Europe, done at Zagreb on 8 March 2001, entered into force on 20 September 2002 (GU Suppl. to No. 240 of 15 October 2003).

LEGISLATION (edited by Pia Acconci, with the exception of legislation on Diplomatic and Consular Relations, Air and Space Law, and Nationality edited by Chiara Battistini, legislation on Environment edited by Massimiliano Montini, legislation on Immigration and Emigration, Use of Force Short of War and Peace-Keeping, and War, Neutrality, and Disarmament edited by Gianluca Rubagotti) IV. DIPLOMATIC AND CONSULAR RELATIONS Law No. 109 of 23 April 2003 (GU Suppl. to No. 116 of 21 May 2003) Amendments and integrations to DPR No. 18 of 5 January 1967 concerning the regulation of the Ministry of Foreign Affairs. Law No. 109/2003 chieﬂy reforms the organisation of the Ministry of Foreign Affairs. Its administration is now composed of central ofﬁces of the Ministry of Foreign Affairs, diplomatic missions, consular ofﬁces and the Italian cultural institutes. The Italian cultural institutes are the government agencies of the Italian Ministry of Foreign Affairs that represent Italy abroad and promote Italian culture in their assigned consular areas. These institutes organise and provide cultural events, such as poetry readings, conferences, book presentations, round table discussions, art exhibitions, concerts, in-house movie screenings and other such events/activities. According to Art. 8 of Law No. 109/2003, the consular ofﬁces have to guarantee the exercise of the right to vote for the Italian citizens residing abroad. If necessary, diplomatic missions, consular ofﬁces and the Italian cultural institutes can employ additional personnel (not more than 2,277) for a stipulated period of time, with the authorisation of Central Administration. From an international point of view, the most important amendment made by Law No. 109/2003 to the pre-existing legislation is the insertion, by Art. 6 of Law No. 109/2003, of new Art 30-bis in DPR No. 18 of 5 January 1967. This provides for the establishment of separated branches for diplomatic missions, by Decree from the Ministry of Foreign Affairs, jointly with the Ministry of Economy and Finance. A separated branch can be located in a State other than that of the seat of the diplomatic mission, within the same territorial competence. The Ministry of Foreign Affairs can also substitute the seat of a diplomatic mission with a branch or, alternatively, suppress a separated branch. According to international law, the chief of a diplomatic mission also maintains his/her powers in the State in which a separated branch is located. As for the implementation of Law No. 109/2003, an amount of EURO 2,091,124 was provided by the “Special Fund” of the Ministry of Economy and Finance for 2003.

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(Cf. infra X.1, DPR No. 104 of 2 April 2003 concerning the exercise of the right to vote by Italian citizens residing abroad).

VII. ENVIRONMENT DM 31 March 2003 (GU No. 204 of 3 September 2003) Enlargement of the Carabinieri “Corps for the Protection of the Environment”. Decree 31 March 2003 of the Ministry of Defence enlarges the number of operative units of the Carabinieri “Corps for the Protection of the Environment” throughout Italy. This should further reinforce the important role already played by the Carabinieri for effective monitoring and enforcement of the legislation for the protection of the environment and the management of the territory. DM No. 203 of 8 May 2003 (GU No. 180 of 5 August 2003) Provisions on “green” public procurement. Decree No. 203/2003 of the Ministry of the Environment and for the Protection of the Territory imposes an obligation upon public authorities and companies with a prominent public ownership to cover at least 30% of their annual needs with the purchase of goods and products made from recycled materials, in order to promote recycling rather than the disposal of waste. The deﬁnition of the concrete procedures for the accomplishment of such a general obligation for ‘green’ public procurement is delegated by the Ministry to the Regions. DPR 23 May 2003 (GU Suppl. to No. 139 of 18 June 2003) Approval of the “National Health Plan” 2003-2005. The Decree contains the approval of the Italian “National Health Plan” for the years 2003-2005. The Plan is of particular relevance in the present context, since it largely explores the interactions between environmental risks and the protection of public health. Law No. 131 of 5 June 2003 (GU No. 132 of 10 June 2003) Provisions for the implementation of Constitutional Law No. 3/2001. Law No. 131/2003 contains provisions for the effective implementation of the constitutional amendment contained in Law No. 3/2001, which modiﬁed Title V of the Italian Constitution. By means of such a constitutional amendment, the respective legislative competencies of the State and the Regions were completely redeﬁned. In particular, as far as the competencies in the sphere of environmental law and policy are concerned, Article 117 of the Italian Constitution, as amended,

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establishes that the State enjoys an exclusive legislative competence in the ﬁelds of the protection of the environment, the ecosystem and cultural heritage. Conversely, in various other ﬁelds, such as those related to the protection of safety in the workplace, protection of public health, management of production, transmission and distribution of energy and land management, the legislative competence is “concurrent” between the State and the Regions. DPR No. 261 of 17 June 2003 (GU No. 215 of 16 September 2003) Redeﬁnition of the internal organisation of the Ministry of the Environment. The Decree contains provisions for a further restructure of the administrative organization of the Ministry of the Environment and for the Protection of the Territory, following the amendments already introduced by D.Lgs. No. 287/ 2002. The Ministry now consists of 6 General Directorates, namely: a) Directorate for the protection of nature; b) Directorate for quality of life; c) Directorate for environmental research and development; d) Directorate for environmental safeguarding; e) Directorate for soil protection; and f) Directorate for internal services. DPCMs 8 July 2003 (GU No. 199 of 28 August 2003 and No. 200 of 29 August 2003) Implementation of the framework law on pollution prevention from electromagnetic ﬁelds. By means of two Decrees of the President of the Council of Ministers (DPCMs) the three different sets of values and criteria prescribed by Law 36/2001 for the protection of public health, that is the framework law on pollution prevention from electromagnetic ﬁelds, were ﬁnally set. Such values are: the exposure limit values, the warning values and the quality objectives. In particular, according to the provisions of Law No. 36/2001, the exposure limit values are those determined for the protection of public health from acute effects and must not be exceeded at any time or in any situation. The warning values are those set for the protection of public health from long-term effects and must not be exceeded in homes, schools or in any place intended for a prolonged presence of human beings. The quality objectives represent the criteria for the localisation of the electric grids, the town and land planning prescriptions, the prescription and incentives for the use of the best available technologies and the exposure limit values to be progressively reached which may be determined in order to achieve a gradual improvement of the overall exposure of the population to electromagnetic ﬁelds. The two Decrees determine the said three sets of values respectively for electromagnetic ﬁelds generated by frequencies below 50 Hz, mainly by electromagnetic grids and networks, and for those generated by frequencies ranging from 100 khz to 300 Ghz by any other plant or equipment.

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D.Lgs. No. 259 of 1 August 2003 (GU Suppl. to No. 214 of 15 September 2003) Code for electronic communications. The so-called “Code for electronic communications”, adopted by means of Legislative Decree No. 259/2003, aims at regulating the whole matter regarding the management of electronic communications. In such a context, of special interest are the provisions which dictate rules on the requirements and procedures to be followed in order to obtain the administrative authorisation to install communication networks and plants within the Italian territory, contained in Article 86 ff. of the Code. DL No. 269 of 30 September 2003 (GU No. 229 of 2 October 2003) converted into Law No. 326 of 24 November 2003 (GU Suppl. to No. 274 of 25 November 2003) Urgent measures for the correction of the public budget. Decree-Law No. 269/2003, converted into Law No. 326/2003, contains urgent measures for the correction of the Italian public budget. Among various provisions, it introduces the so-called “condono edilizio”, according to which it is possible to obtain in certain cases an ex-post authorisation for those buildings and other works built outside the scope of the applicable legislation on land and town planning, landscape or environmental protection. The ex-post authorisation may be issued by the competent Regions, upon payment of a certain sum determined by the Law. DL No. 354 of 24 December 2003 (GU No. 300 of 29 December 2003) converted into Law No. 45 of 26 February 2004 (GU No. 48 of 27 February 2004) Urgent measures for the re-organisation of the Special Public Water Courts. Decree-Law No. 354/2003, converted into Law No. 45/2004, contains urgent measures for the re-organisation and the functioning of the Special Public Water Courts, established at regional level and originally governed by Decree No. 1775/ 1933. The new regulation provides that the functions of the Special Public Water Courts, established at regional level, from now on will be exercised by a speciﬁc section of the competent Court of Appeal, usually established at regional or subregional level.

IX. AIR AND SPACE LAW D.Lgs. No. 128 of 4 June 2003 (GU No. 129 of 6 June 2003) Reorganisation of the Italian Space Agency. D.Lgs. No 128/2003 substitutes D.Lgs. No. 27 of 30 January 1999 (cf. IYIL, 1999, pp. 313-314). D.Lgs. No. 128/2003 reorganises the Italian Space Agency

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(hereinafter ASI), by redeﬁning its purposes, activities, bodies, principles, tasks and organisation, in order to improve its functioning. With regard to the aims of the ASI, Art. 2(1) gives the Agency ﬁnancial autonomy from the Ministry for University and Research and provides it with the authority to manage its cash-based accounting. Among other activities the ASI, in coordination with the Ministry of Foreign Affairs, participates in the work of the European Spatial Agency Council (hereinafter ESA), promotes and coordinates the Italian contribution to the projects approved by the ESA and drafts bilateral and multilateral agreements with foreign organisations and agencies, in conformity with the relevant rules of the European Union law. As to the Agency’s organisation, according to Art. 4, ASI bodies are composed of: a President; a Board of Directors; Auditors and the new Technical-scientiﬁc Board. Arts. 6, 7 and 9 specify the composition, as well as the general tasks, of the President, the Board of Directors and the Auditors. These Articles therefore amend D.Lgs. No. 27/1999. D.Lgs. No. 128/2003 assigns advisory tasks concerning technical-scientiﬁc aspects of ASI activity to the Technical-scientiﬁc Board. Art. 8(2) speciﬁes that the Technical-scientiﬁc Board is nominated by the Board of Directors and is composed of the ASI President jointly with eleven scientists, whether or not of Italian descent, of international reputation. According to the former legislation, internal regulations ruled ASI bodies, whereas now they are ruled by the same D.Lgs. No. 128/2003 (Arts. 6 to 11). Furthermore, D.Lgs. No. 128/2003 put in order the sector of technical activity (Art. 12) and the Activity Plans (Art. 14), which are based on a three-year program. Tasks, research programs, and the attended economic results are deﬁned in accordance with the National Research Plan. According to Art. 16 of D.Lgs. No. 128/2003, in order to carry out its activities, the ASI can negotiate international agreements, create or join foundations and societies, promote the establishment of companies, create and participate in international research centres as well as organise external research activities, in association with scientiﬁc institutions in different countries.

X. TREATMENT OF ALIENS AND NATIONALITY 1. NATIONALITY Law No. 122 of 30 May 2003 (GU No. 125 of 31 May 2003) Enactment as a law, with amendments, of Decree-Law No. 52 of 31 March 2003 concerning the extension of the deadlines for the election of new members of the Committees of Italian citizens residing abroad;

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Law No. 286 of 23 October 2003 (GU No. 250 of 27 October 2003) Provisions concerning the regulation of the Committees of Italian citizens residing abroad; Law No. 336 of 24 November 2003 (GU No. 277 of 28 November 2003) Enactment as a law, with amendments, of Decree-Law No. 272 of 2 October 2003 concerning the extension of the deadlines for the election of new members of the Committees of Italian citizens residing abroad. Law No. 122/2003 enacts as a law, with amendments, the Decree-Law No. 52/2003 that extended the deadlines for the election of new members of the Committees of Italian citizens residing abroad, hereinafter Committees, to 31 December 2003. Law No. 336/2003 enacts as a Law, with amendments, the Decree-Law No. 272/2003 that extended again the deadlines in question, in order to carry out the elections after the approval and the enforcement of Law No. 286/2003 concerning the reform of the Committees here-considered. Law No. 336/2003 establishes that the elections should take place not later than 31 March 2004. Law No. 286/2003 substitutes both Law No. 205 of 8 May 1985 (GU No. 119 of 22 May 1985) as subsequently amended and Law No. 172 of 5 July 1990 (GU No. 157 of 7 July 1990) which regulated the Committees. Law No. 286/2003 reiterates the general structure and the text of many articles of the former, but introduces the innovations listed below. First, Art. 1 establishes one Committee of Italian citizens residing abroad for each consular district in which at least 3,000 Italian citizens registered in the electoral lists of the foreign electoral ward reside (see Art. 5(1) of Law No. 459 of 27 December 2001, cf. IYIL, 2001, pp. 394-396). In particular cases of need, as to the dimension of the consular district or due to the presence of a signiﬁcant group of Italian citizens, more than one committee in a single consular district may be established by Decree of the Minister of Foreign Affairs, jointly with the Minister of Economy and Finance and the Minister for Italians in the World. Each Committee shall adopt its own internal regulation concerning its organisational structure and function. Each Italian diplomatic mission must inform its respective local government of the establishment of the committee and of its activities. Together with the diplomatic mission, the committee can act for the Italians residing in that district before the local government, except in regard to issues concerning relationships between States. Art. 2 provides new deﬁnitions and speciﬁcations of the Committees’ tasks and functions. Each Committee, through studies, research or other methods, helps to identify the requirements for social, cultural and civil development in its respec-

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tive community and provides contributions to the diplomatic or consular ofﬁces in order to develop the operation programs in the different States. To this aim, each Committee promotes initiatives for cultural and social life, together with the diplomatic mission, the regions and local government, as well as private bodies, associations and other committees. In conformity with domestic, international and European law, each Committee can cooperate with its corresponding diplomatic mission to promote the full integration of Italian citizens in the local society, while also maintaining all ties with their country. Among other duties, each Committee has to guarantee the observance of citizens’ rights and interests, with particular consideration for labor rights, civil rights and possible violations of domestic, international and European law. An important innovation concerns ﬁnance. According to Art. 3, the budget of each Committee is composed of ﬁnancial revenues, annual contributions by the Ministry of Foreign Affairs, possible contributions by other Italian administrative structures, any possible public or private contributions whether by the countries in which a Committee is settled or by their citizens, and returns on Committee activities. Every year, on or before 31 October, each Committee submits to the Ministry of Foreign Affairs the estimated costs budget for the following year, together with the amount of ﬁnance requested, which may be granted by Decree of the Ministry of Foreign Affairs. The monetary distribution is more speciﬁc and efﬁcient (Art. 3, para. 6). The funds are distributed holding in due consideration the number of a Committee’s members and of Italian citizens, the dimension of the territorial jurisdiction as well as the social and economic context. Law No. 286/2003 authorises the payment of EURO 2,274,995 each year for implementing its Art. 3 (the Committees budget). Furthermore, Law No. 286/2003 introduces a budget constraint on the recruitment of external employment (Art. 4). Art. 27 (concerning ﬁnancial support) ﬁxes maximal amounts for public ﬁnancing, with the possibility of amendments by Decree of the Ministry for Economy and Finance. Other important amendments include the introduction of rules to ensure equal opportunities for men and women in the procedure for electing Committee members (Art. 5) and the establishment of a Board of Presidents in every State in which more than one Committee is established (Art. 6). DPR No. 104 of 2 April 2003 (GU No. 109 of 13 May 2003) Implementing regulation of Law No. 459 of 27 December 2003 concerning the exercise of the right to vote by Italian citizens residing abroad. This regulation aims at deﬁning the rules for exercising the right to vote by Italian citizens residing abroad. As to Art. 2, the Italian consular ofﬁces send to all Italian citizens residing abroad, who are at least 18 years old to participate in the elections of the Camera

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dei deputati and 25 years old to participate in Senate elections, who are registered on the electoral lists in conformity with Art. 5(1) of Law No. 459/2001 (cf. IYIL, 2001, p. 394 ff.), a package containing a special personal data form to update the electoral lists. Voters are required to return the form in an enclosed pre-stamped envelope to the notifying Consular Ofﬁce within 30 days of receipt of the package. In the personal data form, voters must write their updated personal data and any relevant information concerning their residence abroad. In conformity with Art. 5, information is used to update the register of voters. Law No. 459/2001 speciﬁes that voters abroad shall vote by post or opt expressly to exercise his/her right to vote in Italy, returning to Italy and voting for the candidates who are on the ballots in the constituency corresponding to the national electoral division in which they are registered. This option shall be exercised separately for each poll and shall be valid only for the electoral poll in question. Voters who intend to return to Italy to vote must give notice in writing to their consular ofﬁce by 31 December of the year prior to the ordinary close of the legislature or – If an election takes place earlier – within 10 days from the beginning of the election in question. The option is valid for only one election or referendum. To this aim, together with information on how to vote, the personal data form and the pre-stamped envelope, the package includes an option form to be used by the Italian citizen abroad to notify the Italian Consular Ofﬁce of their intention to vote in Italy. This option form is valid only for an upcoming election and includes the closing date by which it must arrive at the Consular Ofﬁce. According to Art. 3 of DPR 104/2003, the Italian Consular Ofﬁces are required to send the package to each registered Italian citizen abroad at least every two years. Arts. 4 and 5 specify the information requested by the option form and the personal data form. In particular, according to Art. 4, the option to return to Italy to vote can be written on ordinary paper. The Ministry of Home Affairs and the Ministry of Foreign Affairs together have jurisdiction over producing and updating the electoral registers. In order to co-ordinate the activities of these Ministries, Art. 6 provides for the establishment of a permanent Committee to assist in reviewing and updating the electoral lists. This Committee shall be composed of 13 members, all of whom must be persons skilled in registry activities nominated by Decree by the Ministry for Italians in the World, Ministry of Foreign Affairs, Ministry of Home Affairs, or Ministry for Innovations and Technologies. Finally, DPR No. 104/2003 includes detailed provisions concerning the carrying out of election campaigns, as well as the requisites for eligibility. (Cf. infra XI, Law No. 92 of 24 April 2003 concerning ﬁnancial support for victims of political and racial persecutions and of their surviving relatives and Law No. 107 of 15 May 2003 concerning the establishment of a parliamentary enquiry commission on the disappearance of dossiers concerning Nazi crimes)

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2. IMMIGRATION AND EMIGRATION DPCM of 6 June 2003 (GU No. 143 of 23 June 2003) Temporary planning of the quota of non-European Union workers who can enter the territory of Italy during 2003. This Decree was adopted in conformity with the recent Italian law on immigration (cf. Law No. 189/2002, IYIL, 2002, pp. 346-348), according to which, in the absence of the decree for determining the annual global maximum quota of non-EU workers who can enter the Italian territory, the Prime Minister can determine the quota by decree, as an interim measure, within the limits established for the previous year. For the year 2002, the Decree of temporary planning for the entry of non-EU workers (cf. DPCM of 15 October 2002, IYIL, 2002, pp. 349-350), together with the Decrees of the Ministry of Welfare (Decrees of 4 February 2002, of 12 March 2002, of 22 May 2002 and of 16 July 2002) authorised, as a whole, 79,500 entries. Furthermore, the Decree of temporary planning for the year 2003 (cf. DPCM of 20 December 2002, IYIL, 2002, p. 350) authorised 60,000 entries for seasonal jobs. In 2003, local authorities emphasised a need for a greater non-EU workforce, especially in sectors of national economy such as tourism and agriculture and services, requiring both foreign workers for seasonal labour, as well as persons for highly qualiﬁed positions. Taking this need into account, Art. 1 of the Decree of 6 June 2003 establishes an increased maximum quota of 19,500 non-EU citizens, residing abroad, who are allowed to enter the territory of Italy for both self-employment and other employment. Art. 2 provides that, within the quota of 19,500, no more than 8,500 non-EU citizens are allowed to enter Italy for seasonal employment, according to the allocation, made by the Ministry of Welfare, to the Regions and Autonomous Provinces. This quota applies to non-EU seasonal employed workers coming from countries that signed the Treaty of accession to the EU (i.e. Slovenia, Poland, Estonia, Latvia, Lithuania, the Czech Republic and Slovakia), from Serbia, Croatia, Montenegro, Bulgaria and Romania as well as from countries that signed co-operation agreements with Italy concerning migration (i.e. Tunisia, Albania, Morocco, Nigeria, Moldova, Sri Lanka and Egypt) and ﬁnally to non-EU citizens with a residence permit for a seasonal job in the years 2001 and 2002. Art. 3 allows the entry of 800 non-EU citizens, residing abroad, within the maximum quota of 19,500, for self-employed jobs as included in the listed sectors (i.e. researchers, entrepreneurs whose activities are of interest for the national economy, professionals and internationally-known artists employed by public or private organisations), allowing, for such cases, the conversion of resident permits for study or professional training into resident permits for self-employment.

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In conformity with Art. 17(1)(b) of Law No. 189/2002, Art. 4 takes into account the particular political and economic situation of Argentina, which has resulted in difﬁcult conditions for many workers of Italian origin living there, and therefore establishes that no more than 200 entries, within the maximum quota of 19,500, will be reserved for workers of Italian origin residing in Argentina. For such workers Italian diplomatic or consular authorities in Argentina have prepared an ad hoc list including the names and professional qualiﬁcations. Finally Art. 5 establishes that a maximum of 10,000 non-EU citizens, residing abroad, may be allowed to enter Italy for a non-seasonal employment. Of this quota (which is within the maximum quota of 19,500 pursuant to Art. 1) 500 entries are for executives or highly qualiﬁed personnel, and 3,600 are for citizens coming from countries that signed speciﬁc co-operation agreements with Italy as far as migration is concerned, according to this list: 1,000 citizens from Albania; 600 citizens from Tunisia; 500 citizens from Morocco; 300 citizens from Egypt; 200 citizens from Nigeria; 200 citizens from Moldova; 500 citizens from Sri Lanka; 300 citizens from Bangladesh. DPCM of 19 December 2003 (GU No. 18 of 23 January 2004) Temporary planning of the quota of non-European Union seasonal workers who can enter the territory of Italy during 2004; DPCM of 19 December 2003 (GU No. 18 of 23 January 2004) Temporary planning of the quota of non-European Union non-seasonal workers who can enter the territory of Italy during 2004. These two Decrees establish, for 2004, the maximum quota of non-EU workers, both seasonal and non-seasonal, who can enter the territory of Italy. The sum of these two quotas (50,000 for seasonal and 29,500 for non-seasonal workers) derives from the number of authorisations established for the year 2003 by the Decrees of 20 December 2002 and of 6 June 2003 (see above), that is 79,500. The Decree of 19 December 2003 therefore establishes that, for 2004, a maximum quota of 50,000 non-EU citizens residing abroad are allowed to enter the territory of Italy for seasonal employment, in anticipation of meeting the maximum quotas of entries of non-EU workers for 2004. This quota, to be allocated among the Regions and Autonomous Provinces, applies to seasonally employed non-EU workers coming from countries whose accession to the EU has been accepted (i.e. Slovenia, Poland, Estonia, Latvia, Lithuania,

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Czech Republic and Slovakia), from Serbia-Montenegro, Croatia, Bulgaria and Romania as well as from those countries which already have or are to sign co-operation agreements with Italy concerning migration (i.e. Tunisia, Albania, Morocco, Moldova and Egypt) and ﬁnally to those non-EU citizens with a residence permit for seasonal employment in 2002 and 2003. This Decree states that, after 30 June 2004, the need for a decree aimed at satisfying a further demand of seasonal workers will be taken into consideration. The second Decree establishes for 2004 a maximum quota of 29,500 non-EU citizens residing abroad to be allowed to enter the territory of Italy for self-employment and non-seasonal employment, in anticipation of the maximum quotas of entries of non-EU workers for 2004. This quota, to be allocated among the Regions and Autonomous Provinces, takes into account the need for highly qualiﬁed and self-employed workers in particular economic sectors. Provision is made in Art. 17(1)(b) of Law No. 189/2002 (cf. IYIL, 2002, pp. 346-348), that a quota must be reserved to workers of Italian origins, as included in an ad hoc list prepared by Italian diplomatic or consular authorities. The Decree provides that within this maximum quota of 29,500, 6,100 entries are to be granted to non-EU non-seasonally employed workers, while 2,500 entries are to be granted to self-employed workers as included in the listed sectors (i.e. researchers, entrepreneurs whose activities are of interest for the national economy, professionals, and internationally-known artists employed by public or private organisations), allowing, for such cases and up to the maximum quota of 1,250, the conversion of resident permits for study or professional training into resident permits for self-employment. The remaining part of the maximum quota of 29,500 is reserved for workers of Italian origin residing in Argentina, Uruguay and Venezuela (400 workers), for both non-seasonal employment and self-employment, and for non-seasonal employed workers coming from countries which already have or are to sign speciﬁc co-operation agreements on migration (20,500 citizens, of which 500 executives or highly qualiﬁed workers). This quota is allocated according to this list: 3,000 citizens from Albania; 3,000 citizens from Tunisia; 2,500 citizens from Morocco; 2,000 citizens from Nigeria; 1,500 citizens from Egypt; 1,500 citizens from Moldova; 1,500 citizens from Sri Lanka; 1,500 citizens from Bangladesh; 1,000 citizens from Pakistan; 2,500 citizens from other non-EU countries which have signed agreements aimed at the control and regulation of migration and readmission procedures.

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DM of 14 July 2003 (GU No. 220 of 22 September 2003) Provisions relating to the ﬁght against illegal immigration. This Decree is intended to set the guidelines for actions taken in order to prevent and combat illegal immigration by sea. Art. 1 establishes that, pursuant to the consolidated text concerning immigration and the legal status of aliens (cf. D.Lgs. No. 286/1998, IYIL, 1999, p. 320 ff.), the actions of supervision and prevention of, and ﬁght against, the illegal immigration by sea are to be carried out by aircrafts and ships of the Navy, Police forces and port authorities (Capitanerie di porto). All information collection and action co-ordination responsibilities are performed by the so-called Central Ofﬁce of Immigration and Border-patrol Police (Direzione centrale dell’immigrazione e della Polizia delle frontiere), which was established by Art. 35 of Law No. 189/2002, and to which local authorities must promptly communicate all known information and data concerning ships that might reasonably be suspected of being involved in the trafﬁc or transport of migrants. Art. 2 of the Decree describes the possible actions that Italian authorities may carry out to prevent and combat the trafﬁc of migrants by sea, in terms of monitoring, aid or police intervention: 1) in the country of origin, a mainly diplomatic action aims at preventing the phenomenon at source; 2) in international waters, the action has the different purposes of monitoring, supervising, spotting and checking ships; 3) in territorial waters, the intervention of the competent authorities aims at discovering the interconnections with transnational organisations dealing with illicit trafﬁcs in order to sequester their property of illegal origin, as well as at repressing offences. Art. 3 deﬁnes the role of the naval units engaged in the monitoring activities, both in the territorial and international waters, while Art. 4 is dedicated to the activity of surveillance. The subsequent two articles are centred upon the types of activities in the various zones of the sea: Art. 5 aims at preventing and ﬁghting the illicit trafﬁc of migrants, in international waters, through the spotting and identiﬁcation of suspected ships, and at making the intervention of police forces in the territorial waters more effective; Art. 6 establishes that the Finance Police (Guardia di Finanza) should co-ordinate all the actions up to the limit of the contiguous zone. Art. 7 reiterates the general principle that every action must aim to safeguard human life and respect the dignity of the person. Therefore a framework of security must be granted before any right of visit on board a vessel is exercised (if the ship is in international waters the Ministry of Home Affairs will have obtained prior authorisation from the ﬂag country), and whenever the use of force is required, the intensity and duration of the response must be proportionate to the intensity of the offence, as well as to the effectiveness of the threat.

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The last articles of this Decree concern the need to obtain the best possible integration and dissemination of information (Art. 8), to provide for advanced qualiﬁcation courses, both in Italy and abroad (Art. 9), and ﬁnally to identify the organs responsible for the implementation of all the provisions. (Cf. IYIL, 1999, pp. 315-335; and IYIL, 2002, pp. 346-350)

XI. HUMAN RIGHTS Law No. 91 of 17 April 2003 (GU No. 96 of 26 April 2003) Establishment of the national museum of the Shoah. Art. 1 of Law No. 91/2003 establishes the Italian national museum of the Shoah (hereafter, the Museum) as the symbolic place for remembering the tragic events of racial persecutions and the Holocaust. The Museum is located in Ferrara. The Museum aims at: a) collecting and showing evidence of the Shoah and of the deportations of Italian Jews; b) promoting teaching activities, as well as organising national and international meetings, conferences, permanent and temporary exhibitions, ﬁlm and show projections concerning peace and brotherhood among peoples and close understanding among different cultures and religions; c) organising national and international awards for books and works made by people or bodies that have contributed to the promotion of knowledge concerning the Shoah and its memory. According to Art. 2 of Law No. 91/2003 the Museum is to be managed by an ad hoc foundation under the supervision of the Ministry of Cultural Heritage. Art. 3 of Law No. 91/2003 authorised the payment of EURO 15,000,000 for 2003, speciﬁcally for the building of the Museum’s seat, and of EURO 1,000,000 as the annual State contribution to the Museum’s day-to-day costs to be paid every year, beginning 2003. To this end, Art. 4 of Law No. 91/2003 provides that liquid assets of the Ministry of Economy and Finance are to be employed. Law No. 92 of 24 April 2003 (GU No. 96 of 26 April 2003) Amendments to Art. 4 of Law No. 96 of 10 March 1955 concerning ﬁnancial contributions on behalf of victims of political and racial persecutions and of their surviving relatives; Law No. 107 of 15 May 2003 (GU No. 113 of 17 May 2003) Establishment of a parliamentary enquiry commission on the reasons of the disappearance of dossiers concerning Nazi crimes.

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Law No. 107/2003 establishes a parliamentary enquiry commission to investigate why 695 dossiers concerning Nazi crimes committed against about 15,000 people during the Second World War had been “temporarily” pigeonholed and had disappeared. In 1994 these dossiers were found at the general military prosecutor’s ofﬁce, at Cesi Palace in Rome. These dossiers should have been kept in the archives of the abolished war tribunals and of the special Tribunal for the defence of the State. The parliamentary enquiry commission must perform its task within a year from its establishment. At the end of its task the commission must submit a report on the results achieved to the Parliament. Legge costituzionale (constitutional amendment) adopted by Law No. 1 of 30 May 2003 (GU No. 134 of 12 June 2003) Amendments to Art. 51(1) of the Italian Constitution concerning the equal treatment between women and men. Law No. 1/2003 provides for the equal treatment between women and men with respect to access to public administrative and elective ofﬁces. Speciﬁcally, the new text of Art. 51(1) of the Italian Constitution reads as follows: “To this end the Republic promotes the equal treatment between women and men through special acts”. Law No. 174 of 8 July 2003 (GU No. 162 of 15 July 2003) Enactment as a law of Decree-Law No. 111 of 21 May 2003 concerning the extension of the provisions ensuring temporary hospitality and protection to some Palestinians. Art. 1 of Law No. 174/2003 extends until 31 December 2003 the deadline provided by Law No. 141/2002 for the temporary hospitality and protection in Italy of three Palestinians on humanitarian grounds. According to Art. 2 of Law No. 174/2003, these hospitality and protection measures require the payment of EURO 400,000 for 2003. To this end, liquid assets of the Ministry of Economy and Finance are to be partly employed. (Cf. IYIL, 2002, p. 351) Law No. 228 of 11 August 2003 (GU No. 195 of 23 August 2003) Provisions against trafﬁcking in persons. Law No. 228/2003 modiﬁes some articles of the Italian criminal procedure code and of the Italian criminal code, in particular its Arts. 600, 601 and 602. These Articles concern three different crimes, respectively the imposition and maintenance of slavery (new Art. 600 of the Italian criminal code), the trafﬁcking in per-

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sons (new Art. 601), and the purchase and sale of slaves (new Art. 602). Law No. 228/2003 provides that whoever commits any of these crimes can be imprisoned for a period of eight to twenty years. Law No. 228/2003 also provides that this punishment is increased by one third or a half of the designated period if one of the crimes in question is committed against minors or is directed at exploiting them for prostitution or for removing a human organ. Law No. 228/2003 clariﬁes the kind of conduct that would be classed as one of the three crimes. This is an important novelty. The imposition and maintenance of slavery is the basic crime, which is deﬁned as the exercise on a person of “powers corresponding to those of the property right” or as the maintenance of “a person under continuous subjection, by forcing him or her to beg or imposing on him or her forced labour or sexual or other forms of exploitation ”. Organised crime directed to committing the crimes stated in Arts. 600, 601 and 602 is punishable by greater penalties than maﬁa organisation: promoters belonging to a gang can be imprisoned from ﬁve to ﬁfteen years (whereas promoters belonging to a maﬁa organisation can be imprisoned from four to nine years) and mere members of a gang can be imprisoned from four to nine years (whereas mere members of a maﬁa organisation can be imprisoned from three to six years). According to Arts. 9 and 10 of Law No. 228/2003, the public prosecutor and judicial police have extensive powers with respect to interceptions, secret activities and protection measures in order to make the ﬁght against trafﬁcking in persons more efﬁcient. Art. 12 of Law No. 228/2003 establishes a Fund against trafﬁcking in persons, to be administered by the Presidency of the Council of Ministers. This Fund is to be employed to provide ﬁnancial assistance and/or social integration programmes to victims or social protection programmes (see, in this regard, Art. 18 of D.lgs. No. 286/1998). This Fund includes money coming from the conﬁscation of goods of crime organisations involved in trafﬁcking in persons. Art. 13 of Law No. 228/2003 establishes a programme for assisting victims of crimes regulated by new Arts. 600 and 601 of the Italian criminal code. (Cf. IYIL, 1999, pp. 337-343)

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. FOREIGN TRADE Deliberation of CIPE (Interministerial Committee for Economic Planning) No. 20 of 9 May 2003 (GU No. 187 of 13 August 2003)

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According to Law No. 49 of 26 February 1987, the Interministerial Committee for Economic Planning (hereinafter CIPE) must determine general trends concerning co-operation for development, the corresponding program and co-ordination functions. Furthermore, Art. 3 of Law No. 49/1987 speciﬁes that CIPE has to approve the annual report concerning policies related to co-operation for development submitted by the Ministry of Foreign Affairs to the Parliament. Deliberation No. 20 of 9 May 2003 approves the 2001 annual report concerning the carrying out of policies related to co-operation for development. Law No. 213 of 1 August 2003 (GU No. 185 of 11 August 2003) Enactment as a law, with amendments, of Decree-Law No. 159 of 3 July 2003 concerning the prohibition of trade and ownership of arachnids that are highly dangerous for human beings, i.e. all living arachnids that are wild or come from captivity. 2. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES CONCERNING POLITICAL AND MILITARY CO-OPERATION Law No. 145 of 18 June 2003 (GU No. 145 of 25 June 2003) Italian ﬁnancial contribution to the Palestinian general delegation in Italy for the functioning costs of its seat. Art. 1 of Law No. 145/2003 authorises the payment of EURO 309,875 for each year from 2002 to 2004 inclusive to the Palestinian general delegation in Italy for the functioning costs of its seat in Italy. This ﬁnancial contribution is of an ad hoc nature. Speciﬁcally, Art. 2 of Law No. 145/2003 authorises the payment of EURO 619,750 for 2003 and of EURO 309,875 for 2004. To this end, liquid assets of the Ministry of Foreign Affairs are to be partly employed. 3. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT Law No. 142 of 18 June 2003 (GU No. 144 of 24 June 2003) Increase in the annual Italian ﬁnancial contribution to the Executive Secretariat of the Centre of information and documentation of the Central European Initiative (CEI). The Central European Initiative (CEI) is a sub-regional co-operation initiative established by Austria, Italy, Hungary and Yugoslavia in 1989, as “Quadrilateral” co-operation. Its membership increased to 10 by 1994, to 16 by 1996 and to 17 in 2000 with the accession of the Federal Republic of Yugoslavia. CEI works as an inter-governmental forum for co-operation, in order to promote cohesion and

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solidarity in Europe. Speciﬁcally, CEI is an integrated framework of dialogue, co-ordination and co-operation in the political, economic, cultural and parliamentary ﬁelds. The CEI programmes and projects aim at three main objectives: at strengthening co-operation among and between Member States; at strengthening the participation of all Member States in the process of European integration; and at strengthening the process of economic transformation of the CEI countries in transition. Art. 1(1) of Law No. 142/2003 accords a ﬁnancial contribution of EURO 1,267,470 for 2003 and of EURO 1,186,470 for 2004 and subsequent years to the CEI Executive Secretariat of the Centre of Information and Documentation in Trieste in order to pay its functioning costs, as well as its operational and training activities carried out in conformity with CEI objectives. According to Art. 1(2) of Law No. 142/2003, every year, by 31 December, the Executive Secretariat of the Centre of Information and Documentation in Trieste must submit a report on the activities carried out and the amount of the Italian ﬁnancial contribution used to the Ministry of Foreign Affairs. If this report is not submitted, the Italian ﬁnancial contribution is suspended. Art. 2(1) provides that liquid assets of the Ministry of Foreign Affairs are to be partly employed for the payment of the Italian ﬁnancial contribution in question. Law No. 146 of 18 June 2003 (GU No. 145 of 25 June 2003) Provision of loans guaranteed by Italy on behalf of the “Poverty Reduction and Growth Facility (PRGF)” of the International Monetary Fund. Art. 1(1) of Law No. 146/2003 authorises the Central Bank of Italy to loan 250 million Drawing Special Rights, at market rates of interest, to the “Loans Account” of the “Poverty Reduction and Growth Facility (PRGF)” managed by the International Monetary Fund in accordance with conditions agreed to by the International Monetary Fund, the Central Bank of Italy and the Ministry of Economy and Finance. Art. 1(2) of Law No. 146/2003 authorises the Central Bank of Italy to loan an additional 550 million Drawing Special Rights, at the market rates of interest, to the “Loans Account” of the PRGF managed by the International Monetary Fund in accordance with conditions agreed to by the International Monetary Fund, the Central Bank of Italy and the Ministry of Economy and Finance. According to Art. 1(3) of Law No. 146/2003, both these loans are guaranteed by the State within the limits of special reduced rates applied by the PRGF. According to Art. 2 of Law No. 146/2003, assets of the Ministry of Economy and Finance are to be employed for any cost incurred due to the implementation of Law No. 146/2003. (Cf. IYIL, 2000, pp. 403-405 and IYIL, 2001, p. 412)

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4. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES ESTABLISHED FOR THE PURPOSES OF CULTURAL CO-OPERATION Law No. 61 of 20 March 2003 (GU No. 83 of 9 April 2003) Italian ﬁnancial contribution to the performance of cultural joint events with the Russian Federation and the Arab Republic of Egypt. Art. 1(1) of Law No. 61/2003 provides that, in accordance with the arrangements agreed to between Italy and the Russian Federation, during 2003, 2004 and 2005 the Ministry of Foreign Affairs and the Ministry of Cultural Heritage, with the collaboration of the Russian authorities, shall organise exhibitions in Rome and Moscow concerning the relationship between Italy and Russia over the course of centuries. To this end Art. 2(1) of Law No. 61/2003 authorises the payment of EURO 3,800,000 to be allocated in the following way: EURO 1,100,000 for 2003, EURO 1,900,000 for 2004 and EURO 800,000 for 2005. To satisfy this amount liquid assets of the Ministry of Foreign Affairs are to be partly employed. Art. 1(2) of Law No. 61/2003 provides that, in accordance with the arrangements agreed to between Italy and the Arab Republic of Egypt, during 2003 and 2004 the Ministry of Foreign Affairs and the Ministry of Cultural Heritage, with the collaboration of the Egyptian authorities, shall organise cultural events both in Italy and Egypt in order to show their own cultures as well as their scientiﬁc and cultural relationships. To this end Art. 2(2) of Law No. 61/2003 authorises the payment of EURO 2,200,000 to be allocated in the following way: EURO 1,100,000 for 2003 and EURO 1,100,000 for 2004. To satisfy this amount liquid assets of the Ministry of Foreign Affairs are to be partly employed.

XVII. INTERNATIONAL ORGANIZATIONS 1. WORLD HEALTH ORGANIZATION Law No. 166 of 10 July 2003 (GU No. 159 of 11 July 2003) Enactment as a law, with amendments, of Decree-Law No. 103 of 9 May 2003 concerning urgent provisions concerning the Severe Acute Respiratory Syndrome (SARS). Art. 1(1) of Law No. 166/2003 provides that, during the emergency due to SARS outbreak, passengers and staff of ﬂights coming from the affected areas, as determined by the World Health Organization, and staff of national airports and ports that are assigned to dealing with the SARS emergency, must submit themselves to health control that, in doctors’ opinions, can include the taking of their

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temperature and any other assessment or request for health and administrative information. If someone has suspected symptoms of SARS, as deﬁned by the World Health Organization, the procedures laid down by the international health regulation adopted in Boston on 25 July 1969, as amended by the additional international health regulation adopted in Geneva on 23 May 1973 (cf. Law No. 106 of 9 February 1982), apply. According to Art. 2(1) of Law No 166/2003 the Italian Institute of Health (Istituto superiore di sanità) is competent to approve diagnostic tests for SARS, without any burden on the budget of the State.

2. INTERNATIONAL MONETARY FUND (Cf. supra XV.3, Law No. 146 of 18 June 2003 as regards the provision of loans on behalf of the “Poverty Reduction and Growth Facility” (PRGF))

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING Law No. 42 of 18 March 2003 (GU No. 66 of 20 March 2003) Enactment as a law, with amendments, of Decree-Law No. 4 of 20 January 2003 concerning urgent provisions on the extension of the Italian participation in international military operations. Amendments to the Italian criminal military code; Law No. 231 of 11 August 2003 (GU No. 197 of 26 August 2003) Extension of the Italian participation in international operations. These two laws extended Italian military and civil participation in international operations until 30 June 2003 (Law No. 42/2003) and 31 December 2003 (Law No. 231/2003). The operations involved are carried out in the Former Yugoslav Republic of Macedonia (Joint Guardian and NATO Headquarters in Skopje), in Albania (Albit, Albania 2 and NATO Headquarters in Tirana), in the territories of the Former Yugoslavia (Joint Force and Multinational Specialised Unit in Bosnia), in Kosovo (Multinational Specialised Unit, Joint Guardian, United Nations Mission and Criminal Intelligence Unit in Kosovo), in Hebron (Temporary International Presence in Hebron), in Ethiopia and Eritrea (United Nations Mission in Ethiopia and Eritrea). The sums established in these Laws (EURO 359,549,625 in Law No. 42/2003 and EURO 358,355,586 in Law No. 231/2003) are also intended to cover Italian presence in other military and civil international operations, i.e. the EU mission in

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the Former Yugoslav Republic of Macedonia, the International Security Assistance Force, Enduring Freedom, the related Active Endeavour mission in Afghanistan and the EU monitoring mission in the territories of the Former Yugoslavia. The same extensions are granted to the personnel of the State Police involved in the United Nations Mission in Kosovo and in the EU Police Mission in BosniaHerzegovina, as well as to the programme of co-operation of Italian police forces in Albania and in the Balkan Countries. These two Laws provide for Italian participation in the peace conference on Somalia and the peace negotiations on Sudan (Law No. 42/2003 authorises the payment of EURO 141,319 and Law No. 231/2003 of EURO 229,251), and Art. 4 of Law 231/2003 further establishes that the Ministry of Foreign Affairs can carry out international peace initiatives for the beneﬁt of sub-Saharan Africa, up to a maximum expense of EURO 5,200,000. Art. 6 of Law No. 42/2003 authorises, until 31 December 2003, expenses up to a maximum of EURO 5,165,000 to continue the activities of assistance to the Albanian armed forces, while the Italian military contingent in Kosovo is authorised to continue, until the same date, the logistical support and training to a Romanian infantry troop (Law No. 42/2003 provides for the payment of EURO 685,664, and Law No. 231/2003 of EURO 697,029), pursuant to Law No. 15 of 27 February 2002 (cf. IYIL, 2002, pp. 361-362). According to Security Council Resolution No. 1378 of 14 November 2001, the Ministry of Defence is authorised to supply the Afghan Armed Forces with materials, equipment and vehicles, excluding armaments which are no longer used by Italy. Art. 12 of Law No. 231/2003 establishes that the military personnel deployed in the international operations Enduring Freedom and International Security Assistance Force be subject to the wartime military criminal code, as amended by Law No. 6 of 31 January 2002 (cf. IYIL, 2002, p. 361), while the provisions of the peacetime military criminal code apply to the military staff involved in the other international operations referred to in this law. The offences committed by a foreigner, in the Afghan territory, against the Italian State or Italian citizens taking part in the international operations Enduring Freedom and International Security Assistance Force will be prosecuted before the Rome Tribunal, upon request of the Ministry of Justice, and after consulting the Ministry of Defence in cases of crimes against personnel of the armed forces. According to Art. 14 of Law No. 231/2003, the Ministers of Foreign Affairs and of Defence are to inform the Parliament every six months on the international operations, in terms of the objectives, results and effectiveness of the actions carried out. Finally, both Laws authorise the use of the reserve fund for unexpected expenses to cover the costs resulting from the implementation of their provisions (including the mission allowances accorded by Royal Decree No. 941 of 3 June 1926, as subsequently amended).

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Law No. 219 of 1 August 2003 (GU No. 191 of 19 August 2003) Enactment as a law, with amendments, of Decree-Law No. 165 of 10 July 2003 concerning urgent action on behalf of the Iraqi people, and extension of the Italian participation in international military operations. Art. 1 of Law No. 219/2003 provides for the establishment of a mission of humanitarian aid and reconstruction in Iraq, aiming at ensuring the improvement of the living conditions of the Iraqi population. The areas particularly involved are: a) the health sector, with the purpose of organising and enhancing the public health system, with speciﬁc attention to activities preventing transmissible diseases; b) the infrastructure sector, especially for water and energy supplies, as well as streets, ports and airports; c) the education sector, with the aim of providing the population with suitable educational structures; and d) the cultural sector, with emphasis on the conservation of the heritage of humankind, as well as the restoration of what has been damaged. Law No. 219/2003 authorises the Ministry of Foreign Affairs to involve personnel in these activities that are not part of the public administration but have speciﬁc, professional qualities, for instance experience in humanitarian non-governmental organisations. Art. 3(6) grants volunteers deployed by the Italian Red Cross in Iraq the right of protection against dismissal in Italy while involved in the mission of humanitarian aid, for a maximum period of 90 days a year, as well as a daily allowance of EURO 103,29. For all these activities a sum of EURO 21,554,000 is provided. Art. 6 authorises an amount of EURO 232,452,241, to be covered by the reserve fund for unexpected expenses, to send a military contingent to Iraq, with the aim of granting the necessary security conditions for the humanitarian interventions as well as contributing to the stabilisation of the Country. Art. 6-bis requires the Ministers of Foreign Affairs and of Defence to inform the Parliament, by 31 December 2003, regarding the results which have been obtained as well as the effectiveness of the various activities carried out. The military personnel involved in this operation are granted the mission allowances accorded by Royal Decree No. 941 of 3 June 1926, as subsequently amended, and are subject to the provisions of the wartime military criminal code (cf. Laws No. 42/2003 and No. 231/2003 above, also regarding the prosecution of crimes committed by foreigners, in the territory of Iraq, against the Italian State or citizens involved in the international operations here-described). Law No. 369 of 24 December 2003 (GU No. 8 of 12 January 2004) Enactment as a law, with amendments, of Decree-Law No. 337 of 28 November 2003 concerning urgent measures for the beneﬁt of military and civil victims of terrorist attacks abroad.

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Law No. 369/2003 has the purpose of providing ﬁnancial aid to the families of the victims of two terrorist attacks which took place in Nassirya, on 12 November 2003, and Istanbul, on 15 November 2003, as well as for the Italian civilians, whose injuries have resulted in a permanent inability to work. Law No. 369/2003 also increases the ﬁnancial resources to assist the victims of terrorism and criminal organisations and their relatives. The relatives of the victims have to apply to the administrative chief of the State Police (Prefetto) of the province where they reside, or to the relevant diplomatic or consular authority, upon which their application will be sent to the Ministry of Home Affairs. Any compensation payable will not be subject to the taxation of a natural persons’ income (IRPEF). The budget for these measures is established at EURO 3,970,588 for the year 2003 and EURO 2,855,000 for the year 2004 and will be covered by a special fund.

XX. WAR, NEUTRALITY, AND DISARMAMENT Law No. 197 of 24 July 2003 (GU No. 175 of 30 July 2003) Amendments and integrations to Law No. 484 of 15 December 1998 concerning the Treaty on the total ban of nuclear experiments. Art. 1 of Law No. 197/2003 reiterates Art. 3 of Law No. 484 of 15 December 1998 (by which Italy ratiﬁed the Treaty on the total ban of nuclear experiments), establishing the Ministry of Foreign Affairs as the National Authority, with the support of the Ministry of Home Affairs, the Ministry of Defence, the Ministry of Education, University and Scientiﬁc Research and the Ministry of Environment and Territory, as well as of the agencies and departments with a particular competence in the technical surveillance of the national territory. The amount authorised to ﬁnance activities to ban nuclear experiments is a maximum of up to EURO 855,750 for the year 2003 and EURO 718,888 for the year 2004. This Law sets a framework to facilitate the inspections carried out by the Organisation for the total ban of nuclear experiments and the National Authority, establishing a duty of co-operation for the natural and legal persons involved. In case of non co-operation, Art. 5 provides for forced implementation, to be authorised by the competent tribunal, as well as for such consequences as incarceration (two to ﬁve years) and a ﬁne (EURO 25,000 to EURO 130,000). Art. 6 ﬁnally provided a further sum of EURO 9,718,797 for the year 2002 and provides EURO 5,886,226 from the year 2003, for the Organisation provided for by Art. II of the Treaty on the total ban of nuclear experiments.

BIBLIOGRAPHIES

ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW 2003 (edited by Giulio Bartolini, Federico Lenzerini and Massimiliano Montini) This bibliography includes books and articles published during the year 2003, with some exceptions going back to 2002. 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 usually 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 CARBONE S., LUZZATTO R. and SANTA MARIA A. (eds.), Istituzioni di diritto internazionale (Principles of International Law), 2nd ed., Torino, 2003, pp. 494. CASSESE A. (GAETA P. ed.), Diritto internazionale (International Law), Bologna, 2003, pp. 370. CONFORTI B., Scritti di diritto internazionale (Collection of Essays in International Law), Napoli, 2003, 2 vols., pp. 720. LUZZATTO R. and POCAR F., Codice di diritto internazionale pubblico (Code of Public International Law), 3rd ed., Torino, 2003, pp. 586. TANZI A., Introduzione al diritto internazionale contemporaneo (Introduction to Contemporary International Law), Padova, 2003, pp. 534.

I.

INTERNATIONAL CUSTOM

LAW

IN

GENERAL AND

INTERNATIONAL

BARGIACCHI P., Contributo allo studio dei fattori giuridici e politici dell’ordine internazionale (Contribution to the Study of the Legal and Politic Factors of the International Order), Milano, 2003, pp. 254.

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BARIATTI S., CURCIO M., LEANZA U., MACHETTA M. and RAIMONDI G., “The Development of Public International Law Within Other International Organisations”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 1459 ff. BARILLARO L., BOSCO G. and LEANZA U., “National Practice Related to International and European Community Courts”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 1505 ff. GRADONI L., “L’exploitation des principes généraux de droit dans la jurisprudence des Tribunaux pénaux internationaux” (The Use of General Principles of Law in the Case-Law of International Criminal Tribunals), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc (International Criminal Justice in the Context of the CaseLaw of Ad Hoc Courts), Milano, 2003, p. 10 ff. IOVANE M., “The Activity of the International Law Commission During Its 54th Session”, IYIL, 2002, p. 219 ff. LEANZA U., “Un governo per la comunità statale in funzione della tutela degli interessi individuali nella Società internazionale contemporanea” (Governing the National Community in View of Protecting Individual Interests in Contemporary International Society), in LABRIOLA S. (ed.), Ripensare lo Stato (Rethinking the State), Milano, 2003, p. 435 ff. MARCHESI A., Obblighi di condotta e obblighi di risultato. Contributo allo studio degli obblighi internazionali (Obligations of Conduct and Obligations of Result. Contribution to the Study of International Obligations), Milano, 2003, pp. 174. MONTELEONE C., Le relazioni transatlantiche e la sicurezza internazionale (Transatlantic Relations and International Security), Milano, 2003, pp. 211. ODDENINO A., Pacta Sunt Servanda e buona fede nell’applicazione dei trattati internazionali. Spunti ricostruttivi (Pacta Sunt Servanda and Good Faith in the Application of International Treaties. Some Remarks), Torino, 2003, pp. 180. RONZITTI N., “Il potere estero tra indipendenza e libertà” (Foreign Power between Independence and Liberty), in LABRIOLA S. (ed.), Ripensare lo Stato, Milano, 2003, p. 233 ff.

II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 1. GENERAL BELLELLI G.R., CHIAVARELLI E., CICIRIELLO M.C. and CURCIO M., “Multilateral Treaties: Their Negotiation and Conclusion”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 1447 ff. BELLELLI G.R. and LEANZA U., “The Progressive Development and Codification of Public International Law within the United Nations”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 1449 ff.

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CHICCO FERRARO R.M. and LEANZA U., “Bilateral Treaties: Their Negotiation and Conclusion”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 1498 ff. EBOLI V., “Il valore giuridico delle risoluzioni del Consiglio Atlantico alla luce dell’art. 9 del Trattato NATO e il valore giuridico delle risoluzioni ed intese non vincolanti (soft law)” (The Legal Signiﬁcance of the Atlantic Council Resolutions in the Light of Article 9 of the NATO Treaty and the Legal Signiﬁcance of Non-binding Resolutions and Understandings (Soft Law)), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate (Law of Treaties in the Activities of Interest to the Armed Forces), Latina, 2003, p. 199 ff. EBOLI V., “La stipulazione di accordi relativi alle PSO e ai SOFA” (Stipulation of Agreements relating to PSO and SOFA), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 217 ff. GATTINI A., “Questioni di metodo nella revisione dei trattati” (Methodologies in the Revision of Treaties), in Verso la Costituzione europea. Atti dell’incontro di Studio. Urbino, 17 giugno 2002 (Towards the European Constitution. Proceedings of the Urbino Meeting of 17 June 2002), Milano, 2003, p. 89 ff. MANCINI M., “L’applicazione provvisoria degli accordi in materia di difesa” (Provisional Application of Agreements on Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 97 ff. MANCINI M., “L’attuazione degli accordi in materia di difesa” (Implementation of Agreements on Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 119 ff. MANCINI M., “La violazione delle norme interne sulla competenza a stipulare come causa di invalidità degli accordi in materia di difesa” (Violation of Provisions of Internal Law regarding Competence to Conclude Treaties as a Cause of Invalidity of Agreements on Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 133 ff. PALAZZOLO E., Ordinamento costituzionale e formazione dei trattati internazionali (Constitutional Order and Formation of International Treaties), Milano, 2003, pp. 430. RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate (Law of Treaties in the Activities of Interest to the Armed Forces), Latina, 2003, pp. 264. RONZITTI N., “Considerazioni introduttive” (Preliminary Remarks), in ID. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 17 ff. VIRZO R., “Note sui procedimenti di formazione dei trattati in materia di interesse militare nell’ordinamento italiano” (Remarks on the Procedures for the Formation of Treaties on Military Matters in the Italian Legal Order), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 67 ff.

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ZICCARDI CAPALDO G., “Treaty Law and National Law in a Globalizing System”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 139 ff.

2. RESERVATIONS TO TREATIES GAJA G., “Le riserve tardive ai trattati: un fenomeno a molti inviso (ma non sempre visto bene)” (Late Treaty Reservations: A Phenomenon Widely Criticized but not Always Correctly Appraised), RDI, 2003, p. 463 ff.

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS BIANCHI A., “Serious Violations of Human Rights and Foreign States’ Accountability Before Municipal Courts”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y., FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/London, 2003, p. 149 ff. CANNIZZARO E., “La sovranità mista: l’UE e i suoi Stati membri come soggetti dell’ordinamento internazionale” (Mixed Sovereignty: The EU and its Member States as Subjects of the International Legal Order), in SIDI, L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale (Internationalisation of Media and State Sovereignty), Napoli, 2003, p. 13 ff. CANNIZZARO E., “Le relazioni esterne delle Regioni nella legge di attuazione del nuovo titolo V della Costituzione” (The Regions’ External Relations under the Law Implementing the New Title V of the Italian Constitution), RDI, 2003, p. 759 ff. CONDORELLI L., “La protection diplomatique et l’evolution de son domaine d’application actuelle” (Diplomatic Protection and its Current Scope of Application), RDI, 2003, p. 5 ff. LEANZA U., “Le regioni nei rapporti internazionali e con l’Unione Europea a seguito della riforma del titolo V della Costituzione” (The Regions in International Relations and and the Relations with the European Union after the Reform of Title V of the Italian Constitution), CI, 2003, p. 211 ff. NATALI A., “Considerazioni per una nozione unitaria di ‘Governo di fatto’ nel diritto internazionale” (Remarks for an Unitarian Notion of ‘De Facto Government’ in International Law), CI, 2003, p. 301 ff. PILLITU P.A., “European ‘Sanctions’ against Zimbabwe’s Head of State and Foreign Minister: A Blow to Personal Immunities of Senior State Ofﬁcials?”, JICJ, 2003, p. 453 ff. SCISO E., “La giurisdizione penale rispetto a fatti della Radio vaticana: non-ingerenza o immunità?” (Criminal Jurisdiction over the Activities of the Vatican Radio: Non-interference or Immunity?), RDI, 2003, p. 774 ff.

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IV. DIPLOMATIC AND CONSULAR RELATIONS MEDICI L., “La diplomazia multilaterale italiana nel secondo dopoguerra: il caso dell’ammissione dell’Italia all’UNESCO” (Multilateral Italian Diplomacy after World War II: the Case of the Admission of Italy to UNESCO), CI, 2003, p. 69 ff.

V. TERRITORY GIOIA A., “Recent Decisions by the International Court of Justice Relating to Territorial and Boundary Disputes (1999-2002)”, IYIL, 2002, p. 149 ff. PAPANICOLOPULU I., “In merito alla decisione della Corte Internazionale di Giustizia nel caso relativo alla delimitazione marittima e alle questioni territoriali tra Qatar e Bahrein” (On the ICJ Decision on the Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrein), DM, 2003, p. 76 ff.

VI. LAW OF THE SEA BERLINGIERI F., “Sulla applicabilità della Convenzione del 1989 al ‘salvataggio’ di tronchi di legno in un ﬁume” (On the Applicability of the 1989 Convention to the Salvage of Logs in a River), DM, 2003, p. 274 ff. BERLINGIERI F., “Sull’interpretazione delle parole ‘such damage’ dell’articolo 4 della Convenzione LLMC” (On the Interpretation of the Words ‘Such Damage’ in Article 4 of the LLMMC Convention), DM, 2003, p. 619 ff. FRESE A., “Gli incidenti della navigazione: misure di tutela e prevenzione” (The Accidents durig Navigation: Measures of Protection and Prevention), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi (The Protection of the Mediterranean Sea from Pollution: Old and New Problems), Napoli, 2003, p. 123 ff. PAPANICOLOPULU I., “The 2001 Decision of the International Court of Justice in the Qatar v. Bahrain Case (Merits) and its Bearing upon the 1982 UN Convention on the Law of the Sea”, Revue hellénique de droit international, 2002, p. 385 ff. SCHIANO DI PEPE L., “Diritto internazionale e traffico di migranti per mare: alcune brevi note” (International Law and Trafﬁcking of Migrants at Sea: Some Brief Remarks), DM, 2003, p. 907 ff. SCOVAZZI T., “La prevenzione degli incidenti di navigazione nell’attuale sistema di diritto internazionale del mare” (The Prevention of Accidents during Navigation in the Present System of the International Law of the Sea), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 93 ff.

352

BIBLIOGRAPHIES

TERRILE P., “La decisione del Tribunale del Mare nel caso ‘Grand Prince’” (The Decision of the Tribunal for the Law of the Sea in the ‘Grand Prince’ case), DM, 2003, p. 1232 ff. TERRILE P., “La decisione del Tribunale del Mare nel caso ‘Mox Plant’” (The Decision of the Tribunal for the Law of the Sea in the ‘Mox Plant’ case), DM, 2003, p. 1243 ff. TREVES T., “The Exclusive Economic Zone and the Settlement of Disputes”, in FRANCKX E. and GAUTIER P. (eds.), The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1982-2000: a Preliminary Assessment of State Practice, Bruxelles, 2003, p. 79 ff. TREVES T., “The International Tribunal for the Law of the Sea (2002)”, IYIL, 2002, p. 207 ff.

VII. ENVIRONMENT BOSCO G., “The Optional Rules for Conciliation of Disputes relating to Natural Resources and/or the Environment”, RCGI, 13/2003, p. 106 ff. BURCHI S., “International Rivers and Lakes/Groundwater”, YIEL, 2002, p. 271 ff. BUZZETTI M. G., “Il ruolo della Comunità europea nell’attuazione della Convenzione della ﬂora e della fauna marina dell’Antartide (CCAMLR)” (The Role of the European Community in the Implementation of the CCAMLR Convention), RGA, 2003, p. 621 ff. CAMARDA G., “Misure preventive e di soccorso in tema d’inquinamento del mare e sicurezza della navigazione” (Prevention and Intervention Measures with regard to Sea Pollution and Safety of Navigation), RGA, 2003, p. 1087 ff. CARBONE S.M., “La prevenzione dell’inquinamento marino tra regole di diritto internazionale e diritto comunitario” (Prevention of Marine Pollution between International Law and EC law), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 71 ff. CATALDI G., “Brevi osservazioni su alcuni aspetti problematici della protezione del Mar Mediterraneo dall’inquinamento” (Brief Remarks on Some Problematic Aspects Relating to the Protection of Mediterranean Sea from Polllution), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 111 ff. CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi (The Protection of the Mediterranean Sea from Pollution: Old and New Problems), Napoli, 2003, pp. 316. CICIRIELLO M.C., “L’applicazione del principio di sviluppo sostenibile al Mar Mediterraneo” (The Application of the Principle of Sustainable Development to the Mediterranean Sea), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli 2003, p. 115 ff.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

353

FERRAJOLO O., “Les réunions des Etats Parties aux traités relatifs à la protection de l’environment” (The Meetings of State Parties to Environmental Treaties), RGDIP, 2003, p. 73 ff. FODELLA A., “Il vertice di Johannesburg sullo sviluppo sostenibile” (The Johannesburg Summit on Sustainable Development), RGA, 2003, p. 385 ff. FRANCIONI F., “Dispute Avoidance in International Environmental Law”, in KISS A. SHELTON D. and ISHIBASHI K. (eds.), Economic Globalization and Compliance with International Environmental Agreements, The Hague, 2003, p. 229 ff. FRANCIONI F. and MONTINI M., “Integrating Scientific Evidence into Environmental Law: The International Dimension”, in BIONDI A. et al. (eds.), Scientiﬁc Evidence in European Environmental Rule Making, The Hague, 2003, p. 17 ff. GARABELLO R., “Italy”, YIEL, 2002, p. 546 ff. JACOMETTI V., “Rivalutazione degli strumenti proprietari a tutela dell’ambiente: Tradable Pollution Rights and Emissions Trading” (Revaluation of Proprietary Instruments for Environmental Protection: Pollution Rights and Emissions Trading), RGA, 2003, p. 275 ff. LEANZA U., “Il quadro giuridico di riferimento per la protezione del Mare Mediterraneo dall’inquinamento” (The Legal Context for the Protection of the Mediterranean Sea from Pollution), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 15 ff. MIGIARRA M., “Note a margine del terzo Forum mondiale per l’acqua” (Some Remarks on the Third World Water Forum), RGA, 2003, p. 645 ff. MONTINI M., “The Interplay Between the Right to Development and the Protection of the Environment: Patterns and Instruments to Achieve Sustainable Development in Practice”, African Yearbook of International Law, 2002, p. 181 ff. MONTINI M., “Improving Compliance with Multilateral Environmental Agreements through Positive Measures: The Case of the Kyoto Protocol on Climate Change”, in KISS A. SHELTON D. and ISHIBASHI K. (eds.), Economic Globalization and Compliance with International Environmental Agreements, The Hague, 2003, p.157 ff. MUCCI F., “L’approccio precauzionale a tutela dell’ambiente marino nel diritto internazionale e comunitario: tra disciplina sostanziale e soluzioni procedurali” (The Precautionary Approach for the Protection of the Marine Environment in International Law and EC Law: between Substantive Rules and Procedural Solutions), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 129 ff. NENNA M., “Lo sviluppo sostenibile: da Rio a Johannesburg” (Sustainable Development: from Rio to Johannesburg), Quaderni di studi europei, 2/2003, p. 65 ff. NIOLA M., “Ambiente e sviluppo sostenibile nel Mediterraneo tra diritto internazionale e normativa italiana” (Environment and Sustainable Development in the Mediterranean Sea between International Law and the Italian Legal Order), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo

354

BIBLIOGRAPHIES

dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 149 ff. PALOMBINO F.M., “Il significato del principio ‘chi inquina paga’ nel diritto internazionale” (The Meaning of the Polluter Pays Principle in International Law), RGA, 2003, p. 871 ff. 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), CI, 2003, p. 369 ff. SCOVAZZI T., “Deep Seabed and Ocean Floor”, YIEL, 2002, p. 334 ff. SICO L., “Profili di responsabilità da inquinamento nel Mar Mediterraneo” (Liability for Pollution of the Mediterranean Sea), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 83 ff. SPATAFORA E., “La normativa internazionale sulla tutela dell’ambiente e la qualità delle norme alla luce del d.d.l. n. 1798 del 19 ottobre 2000” (International Environmental Law and the Quality of Legislation in the Light of Bill No. 1798 of 19 October 2000), RCGI, 13/2003, p. 53 ff. VIGNI P., “The Antarctic Treaty System and Its Environmental Aspects”, Ceske Pravo Zivotniho Prostredi, 2003, p. 68 ff.

VIII. CULTURAL HERITAGE FRANCIONI F., “Thirty Years On: Is the World Heritage Convention Ready for the 21st Century?”, IYIL, 2002, p. 13 ff. FRANCIONI F., “Guerra e patrimonio culturale” (War and Cultural Heritage), Il giornale dell’arte, June 2003, p. 1. FRANCIONI F. and LENZERINI F., “The Destruction of the Buddhas of Bamiyan and International Law”, EJIL, 2003, p. 619 ff. MUCCI F., “The Legal Protection of Cultural Heritage: A Comparative Analysis of Some Mediterranean National Legislations in the Light of the Relevant International Conventions”, CI, 2003, p. 287 ff. SCOVAZZI T., “La Convention sur la protection du patrimoine culturel sub-aquatique” (The Convention on the Protection of the Underwater Cultural Heritage), AFDI, 2002, p. 579 ff.

IX. AIR AND SPACE LAW CIAMPI A., “Questioni concernenti l’applicabilità della Convenzione di Montreal nel caso Lockerbie” (Questions Concerning the Applicability of the Montreal Convention in the Lockerbie Case), RDI, 2003, p. 1043 ff. DINUZZI R., “Il trattato sui cieli aperti” (The Treaty on Open Skies), CI, 2003, p. 97 ff.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

355

X. TREATMENT OF ALIENS AND NATIONALITY 1. IMMIGRATION AND EMIGRATION BARATTA R., “La Convenzione delle Nazioni Unite sulla protezione dei lavoratori migranti: quali ostacoli all’adesione dei Paesi di ricezione dei ﬂussi migratori?” (The United Nations Convention on the Protection of the Rights of Migrant Workers: What Obstacles to the Accession of States Receiving Flows of Immigrants?), RDI, 2003, p. 764 ff. SCOVAZZI T., “La lotta all’immigrazione clandestina alla luce del diritto internazionale del mare” (The Fight against Illegal Immigration in the Light of the International Law of the Sea), Diritto, immigrazione e cittadinanza, 4/2003, p. 48 ff. ZANGHÌ C. (ed.), Immigrati e rifugiati nel Mediterraneo. La situazione in Sicilia (Immigrants and Refugees in the Mediterranean Area. The Situation in Sicily), Torino, 2003, pp. 280.

2. REFUGEES AND RIGHT TO ASYLUM LENZERINI F., “Witch Hunting: The Influence of the Fear of Terrorism in the Implementation of Asylum Law”, IYIL, 2002, p. 95 ff.

XI. HUMAN RIGHTS 1. GENERAL ANGIOI S., “Le dinamiche universalismo-regionalismo nei diritti umani e i loro riﬂessi sulle relazioni euromediterranee: quali prospettive per un dialogo tra Europa e mondo arabo?” (The Dynamics between Universalism and Regionalism in the Context of Human Rights and its Effects of the Euro-Mediterranean Relations: Which Perspectives for a Dialogue between Europe and the Arab World?), RIDU, 2003, p. 44 ff. BLENGINO C., Il lavoro infantile e la disciplina del commercio internazionale (Child Labour and International Trade Law), Milano, 2003, pp. 270. BORRELLI S., “Terrorism and Human Rights: Treatment of Terrorist Suspects and Limits on International Co-operation”, Leiden JIL, 2003, p. 803 ff. CARLACCINI E., “Giustizia, verità, riconciliazione: le commissioni per la verità nel mondo” (Justice, Truth, Reconciliation: The Truth Commissions in the World), CI, 2003, p. 405 ff. CASSESE A., I diritti umani nel mondo contemporaneo (Human Rights in the Contemporary World), 8th ed., Roma-Bari, 2003, pp. 172.

356

BIBLIOGRAPHIES

CRETA A., “Hostages in Their Own Land: Which Protection for Afghan IDPs in the Operation Enduring Freedom?”, in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre (Beyond Reaction: Complexity and Limits to International Terrorism after September 11), Pisa, 2003, p. 293 ff. GAJA G., “Rapporti tra trattati di estradizione e norme internazionali sui diritti umani” (The Relationship between Extradition Treaties and Human Rights Norms), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini (Human Rights, Extradition and Expulsion: Proceedings of the Ferrara Meeting in Honour of Giovanni Battaglini), Padova, 2003, p. 125 ff. LENZERINI F., “The Interplay between Environmental Protection and Human and Peoples’ Rights in International Law”, African Yearbook of International Law, 2002, p. 63 ff. NASCIMBENE B., “Le garanzie nel procedimento di espulsione dello straniero” (Guarantees in the Expulsion Procedure of the Alien), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 183 ff. NIFOSI I., “Do the Conditions of Detention at Guantanamo Bay Amount to Torture or Other Inhuman and degrading Treatment?”, in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 365 ff. PECORARO M.L., La protezione internazionale delle minoranze (International Protection of Minorities), Napoli, 2003, pp. 268. PICOTTI L., “I diritti fondamentali come oggetto e limite del diritto internazionale” (Fundamental Rights as an Object and a Limit of International Law), Indice penale, 2003, p. 259 ff. PILLITU P.A., La tutela dei diritti dell’uomo e dei principi democratici nelle relazioni della Comunità e dell’Unione europea con gli Stati ACP (Protection of Human Rights and Democratic Principles in the Relations of the European Community and the European Union with the ACP States), Torino, 2003, pp. 307. POCAR F., “Patto internazionale sui diritti civili e politici ed estradizione” (International Covenant on Civil and Political Rigths and Extradition), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 79 ff. POCAR F., “Human Rights under the International Covenant on Civil and Political Rights and Armed Conﬂict”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y. FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The

ITALIAN BIBLIOGRAPHICAL INDEX 2003

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Hague/Boston/London, 2003, p. 729 ff. SIMONE P., La tutela internazionale delle minoranze nella sua evoluzione storica (The Evolution of the International Protection of Minorities), Napoli, 2003, pp. 206. SPATAFORA E., CADIN R. and CARLETTI C., Sviluppo e diritti umani nella cooperazione internazionale. Lezioni sulla cooperazione internazionale per lo sviluppo umano (Development and Human Rights in the Context of International Cooperation. Lessons on International Co-operation for Human Development), Torino, 2003, pp. 280. STROZZI G., “Libertà di informazione e società dell’informazione” (Freedom of Information and the Information Society), in SIDI, L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale (Internationalisation of Media and State Sovereignty), Napoli, 2003, p. 49 ff. ZAPPALÀ S., Human Rights in International Criminal Proceedings, Oxford, 2003, pp. 280.

2. EUROPEAN SYSTEMS La Corte europea dei diritti umani e l’esecuzione delle sue sentenze (The European Court of Human Rights and the Implementation of Its Judgements), Napoli, 2003, pp. 192. ALBEGGIANI F., “Convenzione europea dei diritti dell’uomo ed uso legittimo delle armi” (The European Convention on Human Rights and the Legitimate Use of Weapons), Foro It., 2003, p. 435 ff. BERGAMINI E., “L’intervento amicus curiae: recenti evoluzioni di uno strumento di common law fra Unione europea e Corte europea dei diritti dell’uomo” (The Amicus Curiae Intervention: Recent Evolution of a Common Law Instrument between the European Union and the European Court of Human Rights), DCSI, 2003, p. 181 ff. BONETALLI P., “I diritti umani dopo l’11 settembre 2001: il caso del Regno Unito” (Human Rights after September 11: The Case of the United Kingdom), CI, 2003, p. 481 ff. CALIFANO L., “La Costituzione europea e la Carta dei diritti fondamentali” (The European Constitution and the Charter of Fundamental Rights), in Verso la Costituzione europea. Atti dell’incontro di Studio. Urbino, 17 giugno 2002 (Towards the European Constitution: Proceedings of the Urbino Meeting of June 17, 2002), Milano, 2003, p. 17 ff. CONFORTI B., “I limiti dell’immunità parlamentare secondo la Corte di Strasburgo” (The Limits of Parlamentary Immunity according to the Strasbourg Court), Giur. It., 2003, p. 1993 ff. CONFORTI B., “Community Law and European Convention on Human Rights: A Quest for Coordination”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y.

358

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FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/London, 2003, p. 221 ff. COSI A.R., “The Protection of Fundamental Rights in the European Multilevel Legal Context”, CI, 2003, p. 109 ff. DI STEFANO A., “Public Authority Liability in Negligence e diritto ad un ricorso effettivo nell’ordinamento britannico. Nota alla sentenza della Corte europea dei diritti dell’uomo nel caso Z. e altri contro Regno Unito” (Public Authority Liability in Negligence and Right to an Effective Remedy in the British Legal Order. Note on the ECHR Case Z. et al. v. the United Kingdom), RIDU, 2003, p. 97 ff. DORIGO S., “Equa riparazione ed eccessiva durata dei giudizi tributari” (Just Satisfaction for the Violation of the Right to Trial within a Reasonable Time in Tax Proceedings), RDI, 2003, p. 178 ff. EBOLI V., “Gli effetti extraterritoriali della Convenzione europea dei diritti dell’uomo” (The Extraterritorial Effects of the European Convention on Human Rights), Giur. It., 2003, p. 2427 ff. ESPOSITO V., “La liberté des Etats dans le choix des moyens de mise en oeuvre des arrêts de la Cour européenne des droits de l’homme” (State Fredoom in the Choice of the Means of Implementation of the ECHR Decisions), RTDH, 2003, p. 823 ff. GRANATA S., “Review of Judgments and Decisions Delivered by the European Court of Human Rights in 2002 on Subjects Relevant to International Law”, IYIL, 2002, p. 257 ff. GRIGOLO M., “Sexualities and the ECHR: Introducing the Universal Legal Subject”, EJIL, 2003, p. 1023 ff. LIGUORI A., “Garanzie procedurali e rispetto della vita familiare in un’importante sentenza della Corte di Strasburgo” (Procedural Guarantees and Respect of Family Life in an Important Judgment of the Strasboug Court), Giur. It., 2003, p. 2009 ff. MALINVERNI G., “I limiti all’espulsione secondo la Convenzione europea dei diritti dell’uomo” (Limits to Expulsion according to the European Convention on Human Rights), in SALERNO F., Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 165 ff. MANACORDA S., “Restraints on Death Penalty in Europe: A Circular Process”, JICJ, 2003, p. 263 ff. PADELLETTI M.L., La tutela della proprietà nella Convenzione europea dei diritti dell’uomo (The Protection of Private Property in the European Convention on Human Rights), Milano, 2003, pp. 286. PADELLETTI M.L., “Espropriazione e indennizzo nella Convenzione europea dei diritti dell’uomo e nella Carta dei diritti fondamentali dell’Unione europea” (Expropriation and Indemnity in the European Convention on Human Rights

ITALIAN BIBLIOGRAPHICAL INDEX 2003

359

and in the Charter of Fundamental Rights of the European Union), Studi senesi, 2003, p. 278 ff. PADELLETTI M.L., “Ancora sulla legge Pinto: equa riparazione o indennizzo iniquo per la durata irragionevole del processo?” (A Rejoinder on the Pinto Law: “Just Satisfaction” or Inequitable Compensation for Unreasonable Length of Trial?), RDI, 2003, p. 771 ff. PADELLETTI M.L., “L’occupazione acquisitiva in relazione al principio di legalità stabilito nella Convenzione europea dei diritti dell’uomo” (The Acquisitive Occupation with regard to the Principle of Legality written in the European Convention on Human Rights), Giur. It., 2003, p. 2244 ff. SEATZU F., “Le modalità d’esame dei ricorsi dei privati in materia civile da parte della Corte di Cassazione e l’art. 6, par. 1 (equo processo) della Convenzione europea dei diritti dell’uomo: alcune osservazioni sulle sentenze della nuova Corte europea nei casi Dulaurans e Annoni di Gussola e altri c. Francia” (The Examination of Applications of Individuals in Civil Matters by the Italian Court of Cassation and Article 6(1) (fair process) of the European Convention on Human Rights: Some Remarks on the Judgments of the ECHR in the cases Dulaurans and Annoni di Gussola et al. v. France), RIDU, 2003, p. 128 ff. SEATZU F. and SCOTTO C., “La libertà di espressione, la Convenzione europea dei diritti dell’uomo e il difensore” (Freedom of Expression, the European Convention on Human Right and the Legal Counsel), CI, 2003, p. 561 ff. STARACE V., “Convenzione europea dei diritti dell’uomo ed estradizione” (Extradition and the European Convention on Human Rights), in SALERNO F. (eds.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 97 ff. ZANGHÌ C., “Premières observations sur la Charte des droits fondamentaux de l’Union européenne” (Preliminary Remarks on the Charter of Fundamental Rights of the European Union), in Avancées et conﬁns actuels des droits de l’homme aux niveau international, européen et national: mélanges offerts à Silvio Marcus Helmons (Developments and Present boundaries of Human Rights Protection at International, European and National Level: Essays in Honour of Silvio Marcus Helmos), Bruxelles, 2003, p. 377 ff.

3. BIOETHICS CAMPIGLIO C., Procreazione assistita e famiglia nel diritto internazionale (Assisted Reproduction and Family in International Law), Padova, 2003, pp. 347. PALAZZANI L., “I diritti ‘sessuali’ e ‘riproduttivi’: recenti istanze del femminismo giuridico” (Sexual and Reproductive Rights: Recent Issues of Legal Feminism)”, RIDU, 2003, p. 86 ff.

360

BIBLIOGRAPHIES

XII. INTERNATIONAL CRIMINAL LAW ALLEGREZZA S., “Les règles d’exclusion de la preuve testimoniale devant la Cour pénale internationale et dans la jurisprudence des Tribunaux pénaux internationaux; un aperçu critique” (The Rules on the Exclusion of the Witness Evidence before the International Criminal Court and in the Case-Law of International Criminal Tribunals: A Critical Analysis), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 240 ff. ARNÒ R. and CALIGIURI A., “I crimini contro l’umanità” (Crimes against Humanity), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive (The International Criminal Court: Problems and Perspectives), Napoli, 2003, p. 93 ff. BLENGINO C., “La position juridique de l’individu dans le Statut de la Cour pénale internationale” (The Legal Position of the Individual in the Statute of the International Criminal Court), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir (International Criminal Justice between Past and Future), Milano, 2003, p. 153 ff. BOSCO G., “The Special Court for Sierra Leone and the Extraordinary Chambers for Cambodia”, RCGI, 15/2003, p. 15 ff. BRUNO G.C., “Le crime de genocidie dans la jurisprudence des Tribunaux pénaux internationaux pour l’ex-Yougoslavie et pour le Rwanda” (The Crime of Genocide in the Case-Law of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 94 ff. CAIANELLO M. and FRONZA E., “Il principio di legalità nello Statuto della Corte penale internazionale” (The Principle of Legality in the Statute of the International Criminal Court), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive (The International Criminal Court: Problems and Perspectives), Napoli, 2003, p. 159 ff. CARLIZZI G., “La collocazione della CPI nel quadro del vigente sistema di giustizia internazionale penale” (The International Criminal Court in the Framework of the Present System of International Criminal Justice) in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 433 ff. CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, pp. 638. CARLIZZI G., “L’hypothèse spéciale de responsabilité du supérieur hiérarchique dans le Statut du Tribunal penal international pour l’ex-Yougoslavie” (The Special Case of the Responsibility of the Hierarchical Superior in the Statute of the International Criminal Tribunal for the Former Yugoslavia), in FRONZA E.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

361

and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 146 ff. CASSESE A., “International Criminal Law”, in EVANS M. (ed.), International Law, Oxford, 2003, p. 721 ff. CASSESE A., International Criminal Law, Oxford, 2003, pp. 472. CASSESE A., “Quelques réflexions sur la justice pénale internationale” (Some Remarks on International Criminal Justice), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 283 ff. CASSESE A., “The Belgian Court of Cassation v. the International Court of Justice: The Sharon and others Case”, JICJ, 2003, p. 437 ff. CASSESE A., “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction”, JICJ, 2003, p. 589 ff. CATENNACCI M., “Legalità” e “Tipicità del reato” nello Statuto della Corte Penale Internazionale” (Legality and Typicality of Crime in the Statute of the International Criminal Court), Milano, 2003, pp. 228. CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir (International Criminal Justice between Past and Future), Milano, 2003, pp. 400. CHIAVARIO M., “Droit de l’accusé… et autres dans la perspective de la justice pénale internationale” (Right of the Accused… and Others in the Perspective of International Criminal Justice), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 329 ff. CONDORELLI L., “Responsabilité étatique et responsabilité individuelle pour violations graves du droit international humanitarie” (State Responsibility and Individual Responsibility for Gross Violations of International Humanitarian Law), in VOHRAH L.C., POCAR F., FEATHERSTONE Y., FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/London, 2003, p. 211 ff. CONDORELLI L., “L’obbligo generale degli Stati di cooperare al rispetto del diritto internazionale umanitario e la Corte penale internazionale” (The General Obligation of States to Co-operate for the Respect of International Humanitarian Law and the International Criminal Court), in SALERNO F., Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 13 ff. CONVERTI A., “La responsabilità dei subordinati per i crimini commessi in esecuzione di ordini superiori” (The Responsibility of the Subordinates for Crimes Committed in the Execution of Superior Orders), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 289 ff. CONVERTI A., “La cooperazione internazionale e l’assistenza giudiziaria nello Statuto della Corte penale internazionale” (International Co-operation and Judicial

362

BIBLIOGRAPHIES

Assistance in the Statute of the International Criminal Court), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive (The International Criminal Court: Problems and Perspectives), Napoli, 2003, p. 325 ff. DE VITTOR F., “L’apport des Tribunaux penaux internationaux à la définition du crime de torture” (The Contribution of International Criminal Tribunals to the Deﬁnition of the Crime of Torture) in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 109 ff. DEAN F., Diritto penale internazionale (International Criminal Law), 3rd ed., Perugia, 2003, pp. 560. DELLA MORTE G., “La potestà giurisdizionale della Corte penale internazionale: complementarità, condizioni di procedibilità, soggetti legittimati a richiedere l’esercizio dell’azione penale e ne bis in idem” (The Jurisdictional Competence of the International Criminal Court: Complementarity, Conditions of Prosecutability, Subjects Entititled to Request the Exercise of Criminal Jurisdiction and ne bis in idem), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 1 ff. DELLA MORTE G., “Le champ des conflits: réflexions autour de la compétence ratione loci des Tribunaux pénaux internationaux” (The Field of Conﬂicts: Remarks on the Competence ratione loci of International Criminal Tribunals), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 213 ff. DONAT CATTIN D., “The Rights of Victims and International Criminal Justice”, in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 347 ff. FORNARI M., “Corte penale internazionale, Stati Uniti e Impunity Agreements” (International Criminal Court, United States and Impunity Agreements), CI, 2003, p. 241 ff. FRONZA E., “Il crimine di genocidio” (The Crime of Genocide), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 61 ff. FRONZA E. and GUILLOU N., “Les dynamiques d’élaboration des normes pénales internationales: une analyse à partir de la jurisprudence sur le viol et la participation criminelle” (The Dynamics of Elaboration of International Criminal Norms: An Analysis of the Case-Law on Rape and Criminal Participation), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 27 ff. FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc (International Criminal Justice in the Decisions of the Ad Hoc Tribunals), Milano, 2003, pp. 360.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

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FRONZA E. and TRICOT J., “Fonction symbolique et droit pénal international: une analyse du discours des Tribunaux pénaux internationaux” (Symbolic Function and International Criminal Law: An Analysis of the Practice of the International Criminal Tribunals), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 292 ff. GAETA P., “Ratione Materiae Immunities of Former Heads of State and International Crimes: The Hissène Habré Case”, JICJ, 2003, p. 186 ff. GREPPI E., “La Cour pénale internationale et le droit international” (The International Criminal Court and International Law), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 81 ff. LANCIOTTI A., “Le pene comminabili dalla Corte penale internazionale” (The Penalties Imposed by the International Criminal Court), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 405 ff. LAURENTI S., “Il principio di irretroattività e la giurisdizione della Corte penale internazionale sui crimini a carattere permanente” (The Principle of Non-retroactivity and the Jurisdiction of the International Criminal Court on Permanent Crimes), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 193 ff. LEONETTI C., “La contribution des organisations non gouvernementales dans la création du Statut de Rome” (The Contribution of Non-Governmental Organizations in the Drafting of the Rome Statute of the International Criminal Court), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 141 ff. LOLLINI A., “Les processus de judiciarisation de la résolution des conflits: les alternatives” (The Process of Jurisditionalisation of Dispute Settlement: The Alternatives), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 312 ff. MANACORDA S., “Les peines dans la pratique du Tribunal pénal international pour l’ex-Yougoslavie: l’affaiblissement des principes et la quête de contrepoids” (The Penalties in the Practice of the International Criminal Tribunal for the Former Yugoslavia: The Weakening of Principles and the Absence of Counterbalances), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 169 ff. MANTOVANI F., “The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer”, JICJ, 2003, p. 26 ff. MARINI G., “La responsabilité pénale individuelle devant les juridictions pénales internationales: aspects introductifs” (Individual Criminal Responsibility before International Criminal Tribunals: Introductory Remarks), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 142 ff.

364

BIBLIOGRAPHIES

MASSIDDA P., “Appello e revisione” (Appeal and Revision), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 381 ff. MATTONE M.C., “Aperçus sur les règles du statut au sujet de la coopération internationale et l’assistance judiciaire” (Remarks on the Rules of the Rome Statute on International Cooperation and Judicial Assistance), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 131 ff. MAUGERI A.M., “La responsabilité des supérieurs hiérarchiques et l’effet d’exonération de l’ordre supérieur dans le Statut de la Cour pénale internationale” (The Responsibility of the Hierarchical Superior and the Superior Order Rule in the Statute of the International Criminal Court), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 295 ff. MORI P., “Gli accordi di esenzione ex art. 98 dello Statuto della Corte penale internazionale” (Exemption Agreements under Article 98 of the Statute of the International Criminal Court), RDI, 2003, p. 1000 ff. NIGRO R., “Corte Penale Internazionale e accordi bilaterali diretti a precludere agli Stati parti la consegna di presunti criminali” (The International Criminal Court and Bilateral Agreements Aiming at Precluding State Parties from Delivering Suspected Criminals), CI, 2003, p. 619 ff. PALOMBINO F.M., “Les crimes de guerre dans l’évolution du droit international des conﬂits armes et la jurisprudence du Tribunal pénal international pour l’ex-Yougoslavie” (Crimes of War in the Evolution of International Law of Armed Conﬂicts and the Case-law of the International Criminal Tribunal for the Former Yugoslavia), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 82 ff. PALOMBINO F.M., “The Overlapping between War Crimes and Crimes Against Humanity in International Criminal Law”, IYIL, 2002, p. 123 ff. PINESCHI L., “Mandati di cattura dei tribunali penali ad hoc delle Nazioni Unite e norme costituzionali a tutela dei diritti umani: il caso Seromba” (Warrant of Arrest of the Ad Hoc UN International Criminal Tribunals and Constitutional Norms on the Protection of Human Rights: The Seromba case) , in D’ALOIA A. (ed.), Diritti e Costituzione (Rights and Constitution), Milano, 2003, p. 285 ff. PORCHIA O., “Les relations entre la Cour pénale internationale et l’Organisation des Nations Unies” (The Relationship between the International Criminal Court and the United Nations), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 113 ff. QUATTROCOLO S., “Le rôle du Procureur à la Cour pénale internationale: quelques brèves réﬂexions” (The Role of the Prosecutor at the International Criminal Court: Some Brief Remarks), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 353 ff. RIGO E., “De la ‘guerre juste’ à la ‘justice à travers la guerre’: réflexions sur le rapport entre guerre et droit” (From “Just War” to “Justice through War”: Remarks

ITALIAN BIBLIOGRAPHICAL INDEX 2003

365

on the Relationship between War and Law), in FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 342 ff. RIVELLO E., “Les principes généraux de droit et le droit international pénal” (The General Principles of Law and International Criminal Law), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir (International Criminal Justice between Past and Future), Milano, 2003, p. 89 ff. RIVELLO P.P., “Le ‘risposte’ nazionali ai crimini di guerra: analisi di una serie di incertezze e lacune” (National Responses to War Crimes: Remarks on Some Uncertainties and Lacks), CI, 2003, p. 47 ff. ROMANO C.P.R. and BOUTRUCHE T., “Tribunaux pénaux internationalisés: état des lieux d’une justice ‘hybride’” (Internationalised Criminal Tribunals: The State of an “Hybrid” Justice), RGDIP, 2003, p. 109 ff. ROMANO C.P.R., “Mixed Jurisdictions for East Timor, Kosovo, Sierra Leone and Cambodia: The Coming of Age of Internazionalized Criminal Bodies?”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 97 ff. RONZITTI N., “L’estradizione nelle convenzioni sulla repressione dei crimini internazionali” (Extradition in the Conventions on the Repression of International Crimes), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p. 37 ff. SCALIOTTI M., “Mens Rea” (Mens Rea), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 305 ff. SCOMPARIN L., “La victime du crime et la juridiction pénale internationale” (Victims of Crimes and International Criminal Jurisdiction), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 335 ff. SICURELLA R., “Le principe nulla poena sine culpa dans le Statut de la Cour pénale internationale” (The Principle nulla poena sine culpa in the Statute of the International Criminal Court), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p. 259 ff. STARITA M., Processi di riconciliazione nazionale e diritto internazionale (Processes of National Reconciliation and International Law), Napoli, 2003, pp. 333. ZAPPALÀ S., “The Reactions of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422(2002) and Article 98 Agreements”, JICJ, 2003, p. 114 ff. ZAPPALÀ S., “Are Some Peacekeepers Better Than Others? UN Security Council Resolution 1497(2003) and the ICC”, JICJ, 2003, p. 671 ff. ZAPPALÀ S., “Le droit international humanitaire devant les tribunaux internationaux des Nations Unies pour l’ex-Yougoslavie et le Rwanda” (International

366

BIBLIOGRAPHIES

Humanitarian Law before the International Criminal Tribunals for the Former Yugoslavia and for Rwanda), in FLAUSS J. (ed.), Les nouvelles frontières du droit international humanitaire (The New Frontiers of International Humanitarian Law), Bruxelles, 2003, p. 89 ff.

XIII. INTERNATIONAL RESPONSIBILITY DORIGO S., “Quale responsabilità della Libia per il caso Lockerbie?” (What Title for Libya’s Responsibility in the Lockerbie Case?), RDI, 2003, p. 1102 ff. GAJA G., “Is a State Specially Affected when its National’s Human Rights are Infringed?”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y., FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/ London, 2003, p. 373 ff.

XIV. INTERNATIONAL DISPUTE SETTLEMENT DEL VECCHIO A., Giurisdizione internazionale e globalizzazione. I tribunali internazionali tra globalizzazione e frammentazione (International Jurisdiction and Globalization: The International Tribunals between Globalization and Fragmentation), Milano, 2003, pp. 242. FORLATI S., “La sentenza della Corte internazionale di giustizia in merito alla richiesta di revisione della pronuncia sulla giurisdizione resa fra Bosnia e Iugoslavia” (The Judgement of the International Court of Justice Concerning the Application for Revision of the Judgement on Jurisdiction between Bosnia and Herzegovina and Yugoslavia), RDI, 2003, p. 426 ff. GAETA P., “Inherent Powers of International Courts and Tribunals”, in VOHRAH L. C., POCAR F., FEATHERSTONE Y., FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/London, 2003, p. 353 ff. NEGRI S., I principi generali del processo internazionale nella giurisprudenza della Corte internazionale di giustizia (General Principles of International Justice in the Case-law of the International Court of Justice), Napoli, 2002, pp. 201. PALCHETTI P., “La protection des intérêts d’Etats tiers par la Cour internationale de Justice: l’affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigeria” (Protection of Third States’ Interests by the International Court of Justice: The Case concerning the Land and Maritime Boundary between Cameroon and Nigeria), RGDIP, 2003, p. 865 ff. PALCHETTI P., “Opening the International Court of Justice to Third States: Intervention and Beyond”, Max Planck UNYB, 2002, p. 139 ff. SACERDOTI G., “La soluzione delle controversie che coinvolgono Stati e imprese

ITALIAN BIBLIOGRAPHICAL INDEX 2003

367

nell’economia globalizzata: procedure interstatali e arbitrati diretti” (Settlement of Disputes which Involve States and Enterprises in the Global Economy: Interstate Procedures and Arbitral Awards), in SIDI, L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale (Internationalisation of Media and State Sovereignty), Napoli, 2003, p. 97 ff. SCAPARRO F., “Mediazione e soggetti mediatori nel diritto internazionale” (Mediation and Mediators in International Law), RCGI, 15/2003, p. 85 ff.

XV. COOPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIOECONOMIC MATTERS 1. JUDICIAL AND LEGAL CO-OPERATION BARBERINI R. and BELLELLI G. R., Codice delle convenzioni internazionali e della legislazione italiana sul terrorismo ed altri strumenti collegati (Code of International Conventions and Italian Legislation on Terrorism and Other Related Instruments), Napoli, 2003, pp. 1186. CATALDI G., “Il caso Baraldini tra diritto interno e diritto internazionale” (The Baraldini Case between Domestic and International Law), Rassegna di diritto pubblico europeo, 2003, p. 219 ff. CIAMPI A., L’assunzione di prove all’estero in materia penale (The Collection of Evidence Abroad in Criminal Matters), Padova, 2003, pp. 669. FRIGO M. and FUMAGALLI L., L’assistenza giudiziaria internazionale in materia civile (International Judicial Assistance in Civil Matters), Padova, 2003, pp. 389.

2. MILITARY AND SECURITY MATTERS BARBERINI R., “Terrorismo e movimenti di liberazione nazionale: la Convenzione globale contro il terrorismo” (Terrorism and National Liberation Movements: The Global Convention against Terrorism), in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 97 ff. BARBERINI R., “La Convenzione delle Nazioni Unite contro il crimine organizzato transnazionale” (The United Nations Convention Against Transnational Organized Crime), CI, 2003, p. 395 ff. BARGIACCHI P., “Some Reflections about the Annan Plan for Cyprus”, RCGI, 15/ 2003, p. 36 ff. DE ROSE M.G., “La missione degli Alpini in Afghanistan” (The Mission of the Alpini in Afghanistan), Studi senesi, 2003, p. 500 ff. FULCINITI A., “The Rambouillet Conference between Negotiation and Imposition”, RCGI, 13/2003, p. 118 ff.

368

BIBLIOGRAPHIES

PINESCHI L., “Esportazione, importazione e transito di materiale di armamento: un’ambigua liberalizzazione del mercato delle armi nei rapporti tra l’Italia e gli Stati membri dell’Unione Europea e della NATO” (Export, Import and Transit of Weapons: An Ambigous Liberalization of the Market of Weapons Among Italy and the Member States of the European Union and of the NATO), CI, 2003, p. 601 ff.

XVI. INTERNATIONAL TRADE LAW ACCONCI P., “La Corporate Social Responsibility quale strumento di contrasto della corruzione” (Corporate Social Responsibility as an Instrument Against Corruption), in SACERDOTI G. (ed.), Responsabilità d’impresa e strumenti internazionali anticorruzione (Corporate Responsibility and International Instruments against Corruption), Milano, 2003, p. 277 ff. ACCONCI P., “Responsabilità sociale d’impresa, imprese multinazionali e diritto internazionale” (Corporate Social Responsibility, Multinational Corporations and International Law), Notizie di politeia, 2003, p. 71 ff. ALEMANNO A., “Gli accordi di reciproco riconoscimento di conformità dei prodotti tra regole OMC ed esperienza europea” (The Agreements of Reciprocal Recognition of Products Conformity between WTO Law and the European Experience), DCI, 2003, p. 379 ff. BACCAGLINI S., “Profili evolutivi dell’Accounting Rate System: dal regime dell’UIT al sistema dell’OMC” (Evolution of the Accounting Rate System: From the UIT to the WTO), DCI, 2003, p. 705 ff. BARONCINI E., “L’apertura alla società civile del sistema di risoluzione delle controversie dell’OMC: gli Amici Curiae” (The Opening to the Civil Society of the Dispute Settlement System of the WTO: The Amici Curiae), DCSI, 2003, p. 115 ff. BARONCINI E., “The WTO Appellate Body and Amicus Curiae Briefs”, The Global Community – Yearbook of International Law & Jurisprudence, 2002, p. 181 ff. BORIO G.F., L’arbitrato commerciale internazionale (International Commercial Arbitration), Milano, 2003, pp. 159. CARBONE S.M., “Globalizzazione dell’economia, responsabilità dell’impresa e attività di progettazione” (Globalization of the Economy, Responsibiltiy of Companies and Planning Activity), DCI, 2003, p. 639 ff. COMBA A., “Gli strumenti di pagamento: l’ipotesi del dualismo monetario” (Payment Instruments: The Hypotesis of Monetary Dualism), in SIDI, L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale, Napoli, 2003, p. 111 ff. DRAETTA U., “The OECD Convention on Bribery of Foreign Public Officials and the Bribes Paid by Foreign Subsidiaries”, DCI, 2003, p. 649.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

369

LATINO A., “L’accordo sull’agricoltura e il Vertice di Cancun” (The Agreement on Agriculture and the Cancun Conference), CI, 2003, p. 431 ff. LENZERINI F. and MONTINI M., “The Activity of the World Trade Organization (2002)”, IYIL, 2002, p. 243 ff. MALAGUTI M.C., Crisi dei mercati ﬁnanziari e diritto internazionale (The Crisis of Financial Markets and International Law), Milano, 2003, pp. 378. MAURO M.R., Gli accordi bilaterali sulla promozione e la protezione degli investimenti (Bilateral Agreements on the Promotion and Protection of Investments), Torino, 2003, pp. 418. SACERDOTI G. (ed.), Responsabilità d’impresa e strumenti internazionali anticorruzione (Corporate Responsibility and International Instruments Against Corruption), Milano, 2003, pp. 357. VENTURINI G., “Le prospettive di elaborazione di un quadro giuridico multilaterale in materia di concorrenza” (The Perspectives for the Elaboration of a Multilateral Framework on Competition), in SIDI, L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale, Napoli, 2003, p. 145 ff.

XVII. INTERNATIONAL ORGANIZATIONS 1. GENERAL BONVICINI G. and TOSATO G.L. (eds.), Le relazioni internazionali dell’Unione europea dopo i Trattati di Amsterdam e Nizza (The External Relations of the European Union after the Treaties of Amsterdam and Nice), Torino, 2003, pp. 266. PENNETTA P., Il regionalismo multipolare asiatico. Contributo al diritto della cooperazione istituzionalizzata fra Stati (Asian Multipolar Regionalism. Contribution to Institutionalized Cooperation Among States), Torino, 2003, pp. 487. SAULLE M.R., Lezioni di organizzazione internazionale (Lectures on International Organization Law), 2nd ed., Napoli, 2003, pp. 422. SPATAFORA E., “Il ruolo delle organizzazioni regionali nel processo di globalizzazione” (The Role of Regional Organizations in the Globalization Process), in ROMAGNOLI G.C. (ed.), Sovranità nazionale e regionalizzazione: saggi in memoria di Massimo Finoia (National Sovereignty and Regionalization: Essays in Memory of Massimo Finoia), Milano, 2003, p. 170 ff. SPATAFORA E. and CADIN R., Il codice delle organizzazioni internazionali a carattere universale (Code of International Organizations of Universal Character), Piacenza, 2003, pp. 610. 2. UNITED NATIONS ARANGIO-RUIZ G., “The ICJ Statute, the Charter and Forms of Legality Review of Security Council Decisions”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y.,

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FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese, The Hague/Boston/London, 2003, p. 41 ff. DE GUTTRY A., “Il ruolo delle Nazioni Unite in Afghanistan dal ritiro sovietico alla pax Americana” (The Role of the United Nations in Afghanistan from the Soviet Union Withdrawal to the American pax), in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 139 ff. INGRAVALLO I., “L’ammissione della Svizzera all’ONU e la questione della neutralità permanente” (The Admission of Switzerland to the United Nations and the Problem of Permanent Neutrality), CI, 2003, p. 265 ff. MILANO E., “Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status”, EJIL, 2003, p. 999 ff.

3. NATO BARATTA R., “La protezione della Turchia in base all’art. 4 del Trattato NATO” (The Protection of Turkey under Article 4 of the NATO Treaty), RDI, 2003, p. 174 ff. GAZZINI T., “NATO’s Role in the Collective Security System”, Journal of Conflict & Security Law, 2003, p. 231 ff.

4. OTHER INTERNATIONAL AGENCIES CONFORTI B., DOMINICÉ C. and RESS G., “Les obligations des Etats membres d’une organisation internationale à l’égard du système de pensions du personnel notamment en cas de dissolution de l’organisation ou de retrait d’un Etat membre – le cas du CERN” (The Obligations of the Member States of an International Organization with regard to the Retirement System for the Personnel Especially in the Event of Extinction of the Organization or the Withdrawal of a Member State: The Case of CERN), RGDIP, 2003, p. 801 ff. PANELLA L., La privatizzazione delle organizzazioni internazionali di telecomunicazioni via satellite (The Privatization of International Organizations for Satellite Telecommunication), Milano, 2003, pp. 259.

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW ARANGIO-RUIZ G., “Dualism Revisited. International Law and Interindividual Law”, RDI, 2003, p. 909 ff.

ITALIAN BIBLIOGRAPHICAL INDEX 2003

371

MAZZIOTTI DI CELSO M., “Sulla compatibilità dello Statuto della Corte penale internazionale con la Costituzione italiana” (On the Compatibility of the Statute of the International Criminal Court with the Italian Constitution), CI, 2003, p. 3 ff. SICO L., “L’esecuzione degli atti comunitari ed internazionali da parte dello Stato e delle regioni” (The Implementation of European Community and International Legal Acts by the State and the Regions”, in GAMBINO S. (ed.), Il nuovo ordinamento regionale: competenze e diritti (The New Regional Legal Order: Competences and Rights), Milano, 2003, p. 137 ff.

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING Diplomazia preventiva e uso della forza nel nuovo scenario della sicurezza internazionale (Preventive Diplomacy and Use of Force in the New Scenario of International Security), Napoli, 2003, pp. 140. BERNARDINI A., “Iraq: illecita occupazione, resistenza popolare, autodeterminazione irakena” (Iraq: Illegal Occupation, Popular Resistence, Iraqi Self-determination), RCGI, 14/2003, p. 29 ff. BRECCIA A. and MANFREDI M., “La partecipazione italiana alla missione ISAF: inizia una nuova era nella gestione delle operazioni militari all’estero?” (The Italian Participation to the ISAF Mission: A New Era in the Management of Military Operations Abroad?), in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 245 ff. FOCARELLI C., “Integrazione europea e difesa comune” (European Integration and Common Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 159 ff. MAROTTA G., “La missione Nibbio in Afghanistan” (The Italian Mission “Nibbio” in Afghanistan), RDI, 2003, p. 449 ff. SCORDINO G., “The European Contribution to ISAF: Why Did the EU Miss Its First Peacekeeping Operation?”, in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 201 ff. VILLANI U., “The Security Council’s Authorization of Enforcement Action by Regional Organizations”, Max Planck UNYB, 2002, p. 535 ff.

XX.WAR, NEUTRALITY, AND DISARMAMENT 1. GENERAL ANNIBALE S., “La seconda Guerra, questa volta di aggressione, nei confronti dell’Iraq” (The Second War, a War of Aggression, against Iraq), RCGI, 14/ 2003, p. 67 ff.

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BIBLIOGRAPHIES

CALORE A. (ed.), “Guerra ingiusta”? Le metamorfosi di un concetto antico (“Unjust War”? The Metamorphosis of an Ancient Concept), Milano, 2003, pp. 388. CONFORTI B., “The Doctrine of ‘Just War’ and Contemporary International Law”, IYIL, 2002, p. 3 ff. CONFORTI B., “Guerra giusta e diritto internazionale contemporaneo” (Just War and Contemporary International Law), in Studi per Giovanni Motzo (Essays in Honour of Giovanni Motzo), Milano, 2003, p. 83 ff. CANNIZZARO E., “La dottrina della guerra preventiva e la disciplina internazionale sull’uso della forza” (The Doctrine of Preventive War and the International Rules on the Use of Force), RDI, 2003, p. 171 ff. DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre (Beyond Reaction: Complexity and Limits to International Terrorism after September 11), Pisa, 2003, pp. 393. DI BLASE A., “Guerra al terrorismo e guerra preventiva nel diritto internazionale” (War against Terrorism and Preventive War in International Law), in BIMBI L. (ed.), Not in my name. Guerra e diritto (Not in My Name: War and Law), Roma, 2003, p. 134 ff. GAJA G., “Immunità squilibrate dalla giurisdizione penale in relazione all’intervento armato in Liberia” (Unbalanced Immunities for Criminal Jurisdiction with regard to Armed Intervention in Liberia), RDI, 2003, p. 762 ff. GREPPI E., “Verso un nuovo diritto internazionale?” (Towards a New International Law?), in D’ORSI A. (ed.), Guerre globali: capire i conﬂitti del 21° secolo (Global Wars: Understanding the XXI Century Conﬂicts), Roma, 2003, p. 71 ff. PALMISANO G., “L’ammissibilità del ricorso alla forza armata a fini umanitari e la guerra del Kosovo” (The Admissibility of the Use of Force for Humanitarian Reasons and the Kosovo War), CI, 2003, p. 17 ff. PALMISANO G., “La guerra ‘umanitaria’. Il caso del Kosovo” (“Humanitarian” War: The Case of Kosovo), in BIMBI L. (ed.), Not in my name. Guerra e diritto, Roma, 2003, p. 158 ff. PANEBIANCO M., Global Peace e guerre d’Oriente (Global Peace and Eastern Wars), Torino, 2003, pp. 115. PICONE P., “La guerra contro l’Iraq e le degenerazioni dell’unilateralismo” (War against Iraq and Degenerations of Unilateralism), RDI, 2003, p. 329 ff. VILLANI U., “Attuazione dei trattati che riguardano la mutua difesa e prevedono l’uso della forza” (Implementation of Treaties on Mutual Defence and the Use of Force), RCGI, 13/2003, p. 11 ff. VITERBO A., “A Monetary Interpretation of the Iraqi War”, CI, 2003, p. 639 ff.

2. HUMANITARIAN LAW DEL VECCHIO A.M., “Problematiche di protezione della persona umana in situazioni di conﬂittualità e terrorismo” (Protection of the Human Being in Situations

ITALIAN BIBLIOGRAPHICAL INDEX 2003

373

of Conﬂicts and Terrorism), RIDU, 2003, p. 22 ff. FRULLI M., “When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law? The Markovic Case”, JICJ, 2003, p. 406 ff. GATTINI A., Le riparazioni di guerra nel diritto internazionale (The Reparations of War in International Law), Padova, 2003, pp. 722. GATTINI A., “To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individual’s Claims for War Damage?”, JICJ, 2003, p. 348 ff. GREPPI E. and VENTURINI G., Codice di diritto internazionale umanitario (Code of International Humanitarian Law), Padova, 2003, pp. 424. PISILLO MAZZESCHI R., “Reparations Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview”, JICJ, 2003, p. 339 ff. RONZITTI N., “Compensation for Violations of the Law of War and Individual Claims”, IYIL, 2002, p. 39 ff. ROSCINI M., Le zone denuclearizzate (Nuclear-free Zones), Torino, 2003, pp. 448. SALBERINI G., DELLA FINA V., FERRARO N., RASPADORI F. and DINUZZI R., “Correspondent’s Reports – Italy”, YIHL, 2001, p. 557 ff. SARTINI S., “Emergenza umanitaria in Africa: la crisi dei Grandi Laghi” (Humanitarian Emergency in Africa: The Great Lakes Crisis), CI, 2003, p. 317 ff. SCISO E., “La condizione dei detenuti di Guantanamo fra diritto umanitario e garanzie dei diritti umani fondamentali” (The Status of Detainees in Guantanamo Between International Humanitarian Law and International Guarantees for the Protection of Fundamental Human Rights), RDI, 2003, p. 111 ff. SOMMARIO E., “Legal Status and Treatment under International Humanitarian Law of Individuals Apprehended in the Course of Operation Enduring Freedom”, in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 323 ff. VIERUCCI L., “Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to Which Guantanamo Bay Detainees Are Entitled”, JICJ, 2003, p. 284 ff.

3. DISARMAMENT Il disarmo dell’Iraq tra guerra e diritto (The Disarmament of Iraq between War and Law), Bari, 2003, pp. 88.

REVIEW OF BOOKS

MANUEL DÍEZ DE VELASCO, Instituciones de derecho internacional público (Principles of Public International Law), 14th ed., Madrid, Editorial Tecnos S.A., 2003, pp. 1024; JULIO D. GONZÁLEZ CAMPOS, LUIS I. SÁNCHEZ RODRÍGUEZ and PAZ ANDRÉS SÁENZ DE SANTA MARÍA, Curso de derecho internacional público (Course of Public International Law), 3rd ed., Madrid, Civitas Ediciones S.L., 2003, pp. 1035. These are two classic textbooks on international law. They are classic, not only because they have become well established over time (especially the work by Professor Díez de Velasco is at its fourteenth edition), but also because – notwithstanding full updating and revision – they retain a classic structure and style. Particularly worth of note is the thorough knowledge by the authors of the relevant literature in all main scientiﬁc languages, which is a rare quality nowadays, especially among Anglo-American writers, who often discover thesis already illustrated and discussed to a large extent by European continental scholars. The methodology used by the authors is similar to that prevailing in Italy, namely a careful consideration of practice, whose developments are however used also with a view to theoretical argumentation. The structure of the two works is rather similar (with some exceptions) and, as said, follows a classic scheme in the presentation of the subject. Following an introductory analysis of the salient features of the international community and of the foundations of the binding character of international law, the sources of the law are widely discussed: custom, treaties, acts of international organizations, and unilateral acts. In this respect, a systematic difference in these textbooks relates to general principles of law, the analysis of which is included by Díez de Velasco within the sources (quite rightly, in my opinion), while González Campos et al. prefer to examine them as a general character of the international legal order. Similarly, unilateral acts are widely treated within the sources of law in both works, but, while in González Campos et al. they are the subject of a speciﬁc chapter, in Díez de Velasco they are questionably included within the chapter dealing with custom. The remaining parts of the volumes are devoted to the topics of: the implementation (“reception” for Díez de Velasco, “integration” for González Campos et al.) of international law within the domestic legal order, both in its general aspects and in Spanish law; the subjects of international law, which treatment in González Campos et al. is preceded by the theory of responsibility for wrongful acts, while the latter is more appropriately illustrated by Díez de Velasco after the analysis of substantive international law; the State organs competent for international relations; substantive international law (territory, law of the sea, treatment of aliens, etc.), a subject analysed according to the theory of competence (the history of this

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theory is accounted for in a magisterial way by Díez de Velasco, starting from the celebrated 1905 article by Radnitzky); international co-operation and the protection of the environment; and international justice. Since these works are of a general character, it is not necessary to go into detail, nor to examine the solutions retained with respect to each speciﬁc sector. Sufﬁce it to say that these solutions always appear duly documented, well-argued and balanced. Whoever undertakes research in international law will greatly beneﬁt from reading both books. BENEDETTO CONFORTI*

MARIA ROSARIA MAURO, Gli accordi bilaterali sulla promozione e la protezione degli investimenti (Bilateral Agreements on the Promotion and Protection of Investments), Torino, Giappichelli, 2003, pp. 416. This book, which expands considerably on the author’s PhD thesis undertaken at the University of Rome “La Sapienza” under the guidance of Prof. Andrea Giardina, ﬁlls a vacuum in Italian legal literature. Although Italy is among the most active industrialized countries among BIT (Bilateral Investment Treaties) signatories, and several ICSID cases have involved Italian investors, there has so far been a lack of up-to-date literature either covering the subject matter in general, or focusing on the Italian treaty practice in particular. The book covers all the various aspects of BITs systematically, putting them in an evolving perspective – from customary protection of foreign property to the failed attempts to establish a multilateral regime. The six central chapters deal accordingly with BIT scope of application, admission, treatment, transfer of capital and revenues, protection against non-commercial risks (i.e. basically against expropriation), and dispute settlement. Although BITs tend to be drafted in a repetitive structure, their provisions are not identical, which poses problems when trying to derive from them common principles in certain matters, or when considering their provisions as an example of broadly recognized principles. The number of awards based on BITs and applying their various provisions adds to these difﬁculties. On the other hand, Dr. Mauro does not shy away from this challenge. She considers that BITs are relevant practice in order to ascertain customary law, although this does not mean that they are per se evidence of opinio juris. They contribute undoubtedly to its progressive development and may facilitate the inclusion of accepted rules in future multilateral conventions (p. 29). A typical hurdle when approaching the matter of BIT disciplines in comparative systematic terms, is the need to consider also sectoral or regional multilateral agreements. The author appears to fully master this challenge. Thus, when dealing with admission, she accurately takes into account the *

Of the Board of Editors.

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various domestic legislative approaches (promotion, control, screening, restrictions, performance requirements), regional liberalisation, encouragement (World Bank Guidelines). She then goes on to compare the traditional BIT approach of safeguarding the competence of the host State with the “liberal” approach of the US treaties that includes an element of liberalization of market access for Foreign Direct Investment (FDI). The conclusion is that BITs do not attribute to foreign investors a right to invest; they restrict only marginally the freedom that host States enjoy traditionally in this respect. In Dr. Mauro’s opinion, national treatment and international protection of competition freedom would be more effective in the perspective of equalizing conditions of operation for companies irrespective of national origin (p. 142). In this review, we would like to focus on issues where BITs rely heavily on customary concepts, putting arbitration tribunals before difﬁcult choices when applying them to speciﬁc cases. We refer foremost to the issue of “fair and equitable” treatment, to which the author devotes several pages (pp. 181-193). In Mauro’s view this standard is not a restatement of a pre-existing international standard but requires from the host State a higher and more objective level of protection. The basic question is then to determine a BIT’s content, the obligations that are thereby undertaken by the host State. Such just and equitable treatment cannot be determined in the abstract. It must be determined on a case-by-case basis, taking into account the kind of treatment extended de facto by the host country to nationals and to foreigners. In view of the purpose and object of BITs, such treatment must not hinder the promotion and protection of foreign investment; they are independent from other contingent standards but may in a given case coincide with some of them. BITs thus have an absolute and a relative dimension. Finally the fair and equitable standard, being independent from other speciﬁc treaty regulations, informs all the standards, thus becoming the minimum standard that BIT signatories must afford to the foreign investor in all respects. The present reviewer is not convinced that “fair and equitable” is not derived from general international law, as a speciﬁcation of the type of treatment currently expected in favour of foreign investors generally. This standard may be of special relevance to test the legality of discretionary measures of public authorities affecting foreign investment, that do not breach other general standards or speciﬁc obligations. The idea however that the object and purpose of BITs increase the expectations under the standard seems appropriate; the same for the indirect implication that this relative standard has in part to be tested against the national regulatory framework so that it may impose different obligations upon different countries in different contexts. Similar difﬁcult questions have been raised as to indirect expropriation and the borderline between taking and regulation as to the obligation to indemnify the affected foreign investor. Dr. Mauro refers to the criteria of effect and of purpose, noting that the type of effect (the level of impact on the right of property) on foreign investment seems to be relied upon in arbitral case-law. In general she is of

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the opinion that the standard of protection against indirect expropriation mandated by BITs is indeed high, irrespective of the type of public purpose that motivates the host State’s initiative. Also worth noting is the accurate treatment of the different methods of evaluation of expropriated property, an item that international lawyers prefer generally to leave to other specialists (market value, discounted cash ﬂow, replacement value, book value, liquidation value). These technical standards are tested in the light of various wordings used in BITs and of the indications derived from other instruments. According to Dr. Mauro, except for deﬁnite treaty language, more than one method may be admissible in a given case to ensure an indemniﬁcation corresponding to a genuine, fair, market value of the assets taken. This book not only provides precious up-to-date information on the “state of the art” in the area covered; it also excels in forming balanced, well-grounded conclusions as to issues hotly debated at present in ICSID, NAFTA and other fora, as well as in the current debate on the function and content of BITs. GIORGIO SACERDOTI*

PIA ACCONCI, Il collegamento tra Stato e società in materia di investimenti stranieri (The Link between the State and Companies regarding Foreign Investments), Padova, Cedam, 2002, pp. 391. The author, an associate professor of international and European law at the University of Teramo, addresses in this book one of the major issues concerning diplomatic protection of companies and the regulation of foreign investment generally. Notwithstanding an impressive number of scholarly contributions, and an extensive account of judicial, treaty and other practice since the Barcelona Traction case, increased regulation of foreign investment in light of the changing political and economic environment has not reduced conﬂicting views and solutions, so that the issue remains of critical interest. Prof. Acconci reviews developments in this ﬁeld by commencing the introductory chapter with an analysis of the 1970 International Court of Justice (ICJ) judgement based on customary international law. She shares the dominant view that the Court upheld a genuine nationality-link test for companies, referring to domestic law as the source of relevant criteria, thereby connecting a corporate entity, as a rule, to the State that has endowed it with distinct legal personality (in casu incorporation in Canada). The author considers however that the dominance of multinational enterprises, especially as a vehicle for foreign investment in the form of closely connected groups of companies incorporated in different jurisdictions,

*

Of the Board of Editors.

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renders the formalistic criterion of the ICJ unsatisfactory and ineffective. Her analysis in the ﬁrst chapter focuses on the domestic regulation of groups of companies in selected jurisdictions which has developed and evolved substantially in the last forty years. The conclusion is that, while the group is generally not recognized as such, the fact that a company belongs to a group as a result of the control exercised by another operative or holding company, is relevant for the purpose of attributing rights and duties to the controlling parent in several key areas. Unitary management or dominant inﬂuence appear to be the relevant criterion: they indicate the existence of a “single economic entity”, a concept which is pivotal in the regulation of corporate activities by the European Community. In essence this means the parent cannot escape responsibility for activities decided by it even if such actions may be carried out by subsidiaries. On the other hand the separate legal existence of the individual company is not discarded altogether. Chapters II to IV go on to analyse the coverage of the issue of the relevant link between a company operating and investing abroad and a given “national” State in subsequent international regulation and judicial practice. Treaty developments include the International Centre for the Settlement of Investment Disputes (ICSID) and Multilateral Investment Guarantee Agency (MIGA) conventions, General Agreement on Trade in Services (GATS) and the European Energy Charter, as well as free trade agreements, such as the North American Free Trade Agreement (NAFTA) and the Common Market of the South (Mercosur), and, ﬁnally, Bilateral Investment Treaties (BITs). The study highlights different regulations depending also on the scope of the various instruments. A common feature is however that the link with the country of incorporation or establishment is supplemented by making the “real” or controlling investor relevant. The corporate veil is thereby pierced, by relying instead on a genuine economic link between such investor and a given foreign State as a condition for granting the agreed rights and for legitimizing diplomatic protection, or conversely for denying them where such a genuine economic connection between the investor and the State of incorporation is lacking. The analysis of a number of non-binding instruments such as the OECD Guidelines for Multinational Enterprises of 1976 shows the relevance attributed to the international grouping of companies subject to the “signiﬁcant inﬂuence” of a parent company for the purpose of the regulation of foreign controlled companies (Ch. III). The practice of ICSID Tribunals and ad hoc Committees as well the Iran-US Claims Tribunal as to the nationality of aggrieved investors is covered in detail in Chapter IV. Art. 25(2)(b) of the ICSID Convention recognises control where companies or nationals of other Contracting States have made an investment through a locally incorporated entity and the foreign nature of the investment has been recognized by the parties. This provision has by no means resolved the issue, as evidenced by the many decisions concerning the nationality of the investor as a prerequisite to determining jurisdiction. A common denominator, notwithstanding the variety of situations discussed in the case law, is ownership of the majority of the company’s capital. However tribunals have for some time investigated the deci-

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sion-making structure to ascertain whether the claimant was indeed controlled by an investor of a member State, in addition to majority ownership (Cable Television) or notwithstanding minority ownership (Vivendi). As to the practice of the US-Iran Tribunal (which the author examines in parallel with the UN Compensation Commission), the US-Iran Declaration gives relevance both to incorporation in either country and to majority ownership by nationals of that country. As to “indirect claims” by US controlling parents of Iranian expropriated companies, the author carefully reviews the equivocal case law on “actual control”. It is a challenging task for a scholar to draw conclusions as to the state of international law in a given area, when, as here, the evolution of treaty making and practice has been massive but not fully coherent. This is natural in the decentralized community of States, especially where divergent interests and approaches have prevented the making of multilateral instruments of general application. Still, we would share the author’s conclusions based on her detailed, impressive (and highly useful) review of all available sources including, in the Italian tradition, accurate consideration of doctrinal contributions (p. 357 ff.); namely, that practice tends to rely on substance rather than just formal incorporation in order to link a corporate investor to the State to which it “belongs”, both for jurisdictional purposes and in order to claim an agreed treatment. “Effective control” replaces in Pia Acconci’s view the “close and permanent connection” based on incorporation relied upon by the ICJ in the Barcelona Traction decision. “Effective control” can be viewed as having a double function: ﬁrst in order to pierce the corporate veil of the direct local investor in order to consider as effective foreign investor the parent company that exercises control thanks to majority shareholding but also through management direction. The second question concerns the link between the real, ultimate corporate investor and its own State. In this respect too the connection must be both juridical (incorporation) and genuine in an economic sense; the latter predominantly as a minimum requirement, a kind of safeguard clause, possibly in order to disregard any “incorporation of convenience”. Applying these tests to the recent ICSID case Tokios Tokelés v. Ukraine of 2004, the dissenting opinion of the Chairman of the Tribunal Prof. Prosper Weil, denying jurisdiction in a dispute brought against Ukraine by a Lithuanian company fully owned by Ukrainian investors, should probably be preferred to the contrary holding of the majority of the arbitrators. Pia Acconci does not satisfy herself with only a technical analysis: she relates this approach to the needs of the globalized economy, where host countries have actively sought private foreign investment and have ceased raising objections in principle. On the other hand, as she highlights in her recent paper in English on the same subject (“Determining the Internationally Relevant Link between a State and a Corporate Investor – Recent Trends concerning the Application of the ‘Genuine Link’ Test”, Journal of World Investment & Trade, 2004, p. 139 ff.), the ongoing process of global deregulation and integration makes it difﬁcult to always identify such a genuine economic link between a corporate group and a given national economy. The legal dimension of such a link, extended to the

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group of companies when a multinational entity is involved, therefore retains its value in our view. This book is to be praised ﬁrst of all for the accurate research and the systematic approach to covering the subject matter in its multifaceted aspects. Most of all it presents convincing conclusions as to the function of the various criteria which treaty drafters select and the practice has resorted to, highlighting the variable mix that leads to optimum pursuance of objectives and to balancing conﬂicting interests in case of disputes. GIORGIO SACERDOTI*

*

Of the Board of Editors.

BOOKS RECEIVED CHIARA BLENGINO, Il lavoro infantile e la disciplina del commercio internazionale, Milano, Giuffrè, 2003, pp. 270. CRISTINA CAMPIGLIO, Procreazione assistita e famiglia nel diritto internazionale, Padova, Cedam, 2003, pp. 347. MASSIMO CONDINANZI, ALESSANDRA LANG and BRUNO NASCIMBENE, Cittadinanza dell’Unione e libera circolazione delle persone, Milano, Giuffrè, 2003, pp. 287. NICOLAS DE SADELEER and CHARLES-HUBERT BORN, Droit international et communautaire de la biodiversité, Paris, Dalloz, 2004, pp. 780. PIERRE-MARIE DUPUY, L’unité de l’ordre juridique international, Cours général de droit international public, Leiden, Martinus Nijhoff, 2003, pp. 496 (Recueil des cours de l’Académie de droit international de La Haye, Vol. 297). ALESSANDRO FODELLA, Il movimento transfrontaliero di riﬁuti pericolosi nel diritto internazionale, Torino, Giappichelli, 2004, pp. 427. ROBERTA GARABELLO, La Convenzione UNESCO sulla protezione del patrimonio culturale subacqueo, Milano, Giuffrè, 2004, pp. 484. ALESSANDRA GIANELLI, Unione Europea e diritto internazionale consuetudinario, Torino, Giappichelli, 2004, pp. 295. MARIA LUISA PADELLETTI, La tutela della proprietà nella Convenzione europea dei diritti dell’uomo, Milano, Giuffrè, 2003, pp. 286. RICCARDO PAVONI, Biodiversità e biotecnologie nel diritto internazionale e comunitario, Milano, Giuffrè, 2004, pp. 526. PIERO PENNETTA, Il regionalismo multipolare asiatico. Contributo al diritto della cooperazione istituzionalizzata fra Stati, Torino, Giappichelli, 2003, pp. 487. PAOLA ANNA PILLITU, La tutela dei diritti dell’uomo e dei principi democratici nelle relazioni della Comunità e dell’Unione europea con gli Stati ACP, Torino, Giappichelli, 2003, pp. 307.

384

BIBLIOGRAPHIES

RICCARDO PISILLO MAZZESCHI, Esaurimento dei ricorsi interni e diritti umani, Torino, Giappichelli, 2004, pp. 295. MASSIMO STARITA, Processi di riconciliazione nazionale e diritto internazionale, Napoli, Editoriale Scientiﬁca, 2003, pp. 333. NEIL WALKER (ed.), Sovereignty in Transition, Oxford/Portland, Hart Publishing, 2003, pp. 556.

INDEX*

African Union (AU)/Organization of African Unity (OAU), 17, 18, 21, 23, 24, 26, 28, 29, 30, 33 Charter of the AU, 25 Aliens, treatment of, 44 see also Italy illegal immigration, 276-278 Antarctic Treaty System Madrid Protocol on Environmental Protection, 147, 154 Secretariat, establishment of, 147 ff.

Charter of the United Nations, 12, 99, 281, 282 see also Self-defence admission to the UN, 28 Article 103, 188 Chapter VII, 26, 28, 33, 62, 63, 72, 80, 82 fundamental principles, 29 threat to the peace under Article 39, 63, 72 Common heritage of humankind, 132133, 187 Convention on Climate Change, 154

Arab League, 21 Asylum and refugees see also Italy Geneva Convention on the Status of Refugees, 268, 269 non refoulement, 269 Central European Initiative (CEI), 338-339

Convention on Wetlands of International Importance, 217 Council of Europe, 100, 209, 210 Declaration on Cultural Diversity, 97, 113 Steering Committee for Human Rights, 208

* This Index has been compiled by Riccardo Pavoni. The most signiﬁcant judicial cases and legal instruments cited throughout the volume have also been included.

386

INDEX

Crimes against humanity/war crimes, 23, 31, 77, 78, 89 special nature, 85 universal jurisdiction, 142 Cultural property, international protection see also European Parliament; European Union (EU)/European Community (EC); United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO) Agreement on the Importation of Educational, Scientiﬁc and Cultural Materials (Florence Agreement), 102, 103 cultural diversity, 97 ff., 142, 144

Customary/general international law, 82, 83-85, 88, 90, 91, 92, 93, 144, 145, 159, 173, 174, 175, 187, 188, 262, 377 cooperation in the protection of the marine environment, 163165 intentional destruction of cultural heritage, prohibition of, 132140 jurisdictional immunity of foreign States, 229, 230 North Sea Continental Cases, 134

Shelf

par in parem non habet jurisdictionem, 226

cultural industries, concept, 111112, 120-121

Dayton Peace Agreement, 83

Hague Convention for the Protection of Cultural Property in the Event of Armed Conﬂict, 133, 136

Diplomatic protection, 39 see also International Law Commission

individual criminal responsibility, 142

Barcelona Traction case, 173, 174, 267, 378-379, 380

intentional destruction, 131 ff.

exhaustion of local remedies, 175177, 267

Roerich Pact, 132

legal persons, 173-177

Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conﬂict, 138

nationality, 173-175, 267

State responsibility, 142 Underwater Cultural Convention, 133

Heritage

World Cultural and Natural Heritage Convention, 133, 134

ships crew, 267 Dispute settlement, 187 see also United Nations Convention on the Law of the Sea (UNCLOS) competing jurisdictions, 167-168, 208-210 Domestic jurisdiction, 144

INDEX

387

East Timor Panels, 88

right to individual application, 207-208

Environment, international protection of, 44, 162-163 see also European Court of Human Rights; International Law Commission; Precautionary principle; Sustainable development

right to liberty and security, 211

European Commission of Human Rights, 4, 83, 251 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 211 European Convention on Human Rights see also European Union (EU)/European Community (EC); Municipal law, relation to international law death penalty, 212-213 exhaustion of domestic remedies, 248

right to life, 3-5, 215, 238-241 right to property, 235-237, 241245 right to respect for private and family life, 3, 5, 6, 216-219, 233-234 European Convention on Mutual Assistance in Criminal Matters, 257258 European Court of Human Rights, 87 A. v. UK case, 5, 213 Bankoviü case, 215 Cordova v. Italy No. 1 and No. 2 cases, 213-214 effects of judgments in domestic legal systems, 244, 245-246, 248-252 environmental cases, 216-220

inhuman and degrading treatment, prohibition, 3, 5, 6, 212

Hatton case, 217-220

jurisdictional scope, 211

Kyrtatos case, 216-217

just satisfaction, non-pecuniary damages, 250-251

L.C.B. v. UK case, 6

length of legal proceedings, Italy, 207, 245-252 Protocol No. 6, 212 Protocol No. 11, 207 right of access to a court, 213-214, 215 right to a fair trial, 212 right to an effective remedy, 219

Kiliç v. Turkey case, 5, 6

Lopez Ostra case, 217 margin of appreciation, 218, 238, 251 Markoviü case, 215-216 Mastromatteo case, 7 Öcalan case, 210-213 positive obligations, 3 ff., 220

388

INDEX

European Court of Human Rights (cont.)

communication on cultural diversity, 97 ff.

proportionality, 214, 236, 240, 241

Cotonou Agreement with African, Caribbean and Paciﬁc (ACP) States, 100-101, 286

Senator Lines case, 55

countermeasures, 53-54

Stocke case, 83

Culture 2000 Programme, 100

Tugar v. Italy case, 7 X and Y v. The Netherlands case, 5

death penalty, 270, 286 defence industry, 311-313

European Court of Justice, 109, 166, 167, 169, 208, 209, 235, 236, 237

Draft Treaty Establishing a Constitution for Europe, 99, 103, 115, 116, 129

European Energy Charter, 379

embargoes, 312 Estai case, 46

European Parliament, 122 Resolution on Cultural Diversity, 121-122 Resolution on Cultural Industries, 119-121 Resolution on the Television without Frontiers Directive, 117-118 European Union (EU)/European Community (EC), 59, 128, 268, 294, 313, 379 see also International organizations Area of freedom, security and justice, 296 Charter of Fundamental Rights, 99, 208-209, 233, 234 Common Commercial (CCP), 103

Policy

Common Foreign and Security Policy (CFSP), 312

European Convention on Human Rights, relation to, 55, 208210, 236-237, 239-240 immigration, 277-278 Joint Declaration on EU-UN cooperation in crisis management, 284 law of the sea competences, 48, 166 ff. legal nature, 40-43 Malta’s accession, 296-298 MEDIA PLUS Programme, 100 mixed agreements, 49, 51-52 privacy and security, 274-275 reaction to the US Helms-Burton Act, 44 reservations to treaties, 50-52 Schengen Agreements, 258, 259, 277, 297 sharing of competences with Member States, 43 ff., 166 ff.

INDEX

Treaty Establishing the European Coal and Steel Community, 98, 116, 129 treaty-making power, 54, 272-273 White Paper on Governance, 106, 115

389

Humanitarian law, 23, 279, 289 Protocols to the Geneva Conventions, 136, 215 serious violations, 77

General Assembly of the United Nations, 157, 172, 284

Human rights, 23, 77, 78, 80, 82, 90, 175, 267, 269, 279 see also European Convention on Human Rights; Italy

representation of States, 24, 25

conditionalities, 275-276, 286

request of an ICJ advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, 285

egregious/gross violations, 81, 8788, 91, 92, 276

resolution on aggression, 68-69

freedom of expression, 276

equal treatment between women and men, 336 freedom of religion, 276

General principles of law, 259 acta sunt servanda, 180 estoppel, 180 ex iniuria ius non oritur, 77 expressio unius est exclusio alterius, 110, 115 pacta sunt servanda, 180 Genocide, 77, 89 Group of Eight Major Industrialised Countries (G8), 97, 108 Hague Convention IV on land warfare, 135 Hague Convention IX on naval bombardment, 135

inhuman and degrading treatment, 275 minorities, 276 non-derogability, 213, 238 privacy, 231-234, 273-275 Immunity, jurisdictional immunity of foreign States, 225-231 see also Customary/general international law Institute of International Law Resolution on the extinction of States, 19, 20 Intergovernmental Authority for Development (IGAD), 25, 27, 33 International Council of Monuments and Sites (ICOMOS), 135

390

INDEX

International Court of Justice, 67, 68, 69, 86, 168 see also Customary/ general international law; Diplomatic protection; General Assembly of the United Nations; International organizations; Responsibility Fisheries (Spain/Canada) case, 46 Military and Paramilitary Activities in and against Nicaragua case, 68, 70, 71 International Covenant on Civil and Political Rights, 103, 233, 234

duty to cooperate, 82, 86 enforcement of judgments, 253256 Jokiü case (Dubrovnik), 137 jurisdiction over illegally seized accused, 77 ff. Kordic and Cerkez case, 137 legal effect of decisions, 89-90 legal nature, 80, 82-83 Nikoliü case, 77 ff. primacy over national courts, 86 Statute, 81, 82, 83, 86, 136, 138 Tadic case, 138

International Covenant on Economic, Social and Cultural Rights, 103, 112-113, 118 International Criminal Court (ICC), 88, 90, 91 compensation for unlawful arrest, 88, 91, 92 European Union position, 279 Statute, 137, 138 International Criminal Tribunal for Rwanda (ICTR), 88, 89 see also Italy Barayagwiza case, 80, 87 Statute, 138

International Labour Organization, 103, 128 International Law Commission diplomatic protection, 173-177, 266-267 Draft Articles on State Responsibility, 3, 9-10, 66-67, 79, 171, 172 Draft Code of Crimes Against the Peace and Security of Mankind, 136 ﬁfty-ﬁfth session, 171 ff. fragmentation of law, 187-188

international

Aleksovski case, 89

international liability for injurious consequences arising out of acts not prohibited by international law, 177-179, 186, 270-271

appeals, rules on, 80-81

reservations, 181-186, 265-266

International Criminal Tribunal for the Former Yugoslavia (ICTY)

INDEX

responsibility of international organizations, 171-173, 271273 shared natural resources, 186-187

391

Southern Blueﬁn Tuna cases, 158, 160, 161 International watercourses, 187

unilateral acts, 179-181 Investments, 175 International Monetary Fund, Poverty Reduction and Growth Facility, 339 International Network for Cultural Diversity (INCD), Draft Convention on Cultural Diversity, 97, 124, 125 International organizations see also International Law Commission legal personality, 38-40, 148, 149, 172 Reparation for Injuries advisory opinion, 39 sui generis nature of the European Union, 272-273 International Telecommunication Union (ITU), World Summit on the Information Society, 97

Bilateral Investment (BITs), 376-378

Treaties

bilateral treaty between Argentina and Italy, 227 International Centre for the Settlement of Investment Disputes (ICSID), 378, 379, 380 Iran/US Claims Tribunal, 379 Italy see also European Convention on Human Rights; Investments; Municipal law, relation to international law Agreement with the United Nations on the enforcement of judgments of the International Criminal Tribunal for the Former Yugoslavia, 253 asylum law, 268-269

International Tribunal for the Law of the Sea, 157 ff.

committees of Italian citizens residing abroad, 328-329

Land Reclamation by Singapore in and around the Straits of Johor case, 158-166, 169

entry quotas for immigrants, 331333

Mox Plant case, 159, 160, 162, 163, 164, 166-169 provisional measures, 161-162, 168-169 Saiga No. 2 case, 158

environment, allocation of competences between the State and the Regions, 324-325 illegal immigration by sea, 334 International Criminal Tribunal for Rwanda, co-operation with, 254-255

392

INDEX

Italy (cont.) international missions, participation, 341-343 Italian Space Agency, 326-327 Lateran Treaty between Italy and the Holy See, 228-229 participation to the Multinational Force in Iraq, 290-292 right to vote of Italian citizens residing abroad, 329-330 slavery, 337 structure of the Ministry of Foreign Affairs, 323 treaty-making power of Regions, 260-263 Jurisdiction see also European Convention on Human Rights; International Criminal Tribunal for the Former Yugoslavia (ICTY); United Nations Convention on the Law of the Sea (UNCLOS) acts of war, 215

Mercosur, 379 Montevideo Convention on the Rights and Duties of States, 18-19 Multilateral Investment Agency (MIGA), 379

Guarantee

Municipal law, relation to international law European Convention on Human Rights, 216, 236, 237, 239241 priority of international law, 258259 self-executing rules, 236, 237, 247 treaties and the Italian legal order, 239-240 UN sanctions, implementation in Italy, 312 NATO Stabilisation Force (SFOR), 78, 81, 82

Jus cogens, 50, 188 Law of the sea, 46-48 see also European Union (EU)/European Community (EC) freedom of the high seas, 47 Straddling Stocks and Highly Migratory Fish Stocks Agreement, 51 Lex specialis, 175, 187, 188

North American Free Trade Agreement (NAFTA), 379 cultural industries exception, 120 North Atlantic Fishing Organization (NAFO), 46 North Atlantic Treaty Organization (NATO), 60, 266, 287, 288, 313 see also Sovereignty bombings in Yugoslavia, 215

INDEX

393

North Atlantic Council, 287

causation/causality, principle of, 4, 8-10

transformation, 293-294

countermeasures, 70 Nuremberg Military Tribunal, 135

Diplomatic and Consular Staff in Tehran case, 67

Organization for Economic Co-operation and Development (OECD), Guidelines for Multinational Enterprises, 379

erga omnes obligations, 144, 188 Military and Paramilitary Activities in and against Nicaragua case, 67 peace-keeping forces, 272

Organisation Internationale de la Francophonie, 97 Organization (OAS), 60

of American

States

Organization of the Islamic Conference, 21 Outer Space, 178 Peace-keeping, 26

primary and secondary rules, distinction, 10 reparation, 9, 83 restitutio in integrum, 86 Rogatory letters, 257-259 Secretary-General of the United Nations, 17, 24, 26, 27, 279, 280, 284, 291 position on the Iraqi crisis, 292293

Multinational Force and Observers, 317-318

report on the follow-up to the Millennium Declaration, 282

Permanent Court of International Justice see Sovereignty

Sectoral Advisory Group on International Trade (SAGIT), Report on Cultural Diversity, 97, 124, 125, 127

Precautionary principle, 162, 164 Responsibility, 77, 177, 179, 218 see also Cultural property, international protection; European Union (EU)/ European Community (EC); International Law Commission attribution, 10, 61-69, 79-80, 81, 82, 172, 272

Security Council of the United Nations, 17, 70, 80, 82, 83, 279, 280, 290, 291, 317, 342 see also Selfdefence ad hoc criminal tribunals, 31, 253 collective security, 33, 73-74

394

INDEX

Security Council of the United Nations (cont.)

NATO military bases, 266

Iraqi crisis, resolutions, 288-293

seizure of criminals, 78, 80, 81, 82-86, 211

reform, 282-284

temporary suspension, 33

relationship with non-members, 281

theoretical foundation, 36-38

relationship with other organs of the UN, 282 relationship with regional organizations, 281-282 Somalia, 24, 25, 26, 28, 31

Special Court for Sierra Leone, 88, 90, 138 Statehood elements, 18-21, 37 extinction, 19-21

Self-defence armed attack under Article 51 of UN Charter, notion, 61, 66, 68, 69-71 pre-emptive self-defence, 74 Security Council resolutions, 5960, 62-63, 70, 72 September 11 attacks, 59 ff. time factor, 73-74 Self-determination, right to, 32 Sovereignty, 61, 229, 230, 231, 285, 290 Antarctica, 153 Austria-Germany Customs Regime case, 37 divided sovereignty, 40-43 exercise of, 20, 22, 23, 24

failed States, 11 ff. recognition, 15-16, 22, 30, 179180 Sambiaggio case, 19 State succession, 44 suspended animation, 28 ff. Sustainable development, 99, 107, 108 Terrorism, 61, 70, 73, 213, 274-275, 344 Treaties, 271 see also European Union (EU)/European Community (EC); Italy; Vienna Convention(s) on the Law of Treaties Treaty on the total ban of nuclear experiments, 344

inviolability, 92 Island of Palmas case, 37 monitoring of elections, 286-287

UN Commission on Human Rights, 128, 270

INDEX

UN Human Rights Committee, 87 United Nations, 21, 23, 24, 29, 30, 40, 77, 92, 123, 293

395

Universal Declaration on Cultural Diversity, 97, 102, 103, 104, 108, 113, 125, 133

Financial Regulations, 158

Universal Declaration Rights, 103, 104

intervention in Somalia, 17-18, 26, 27

UN Trusteeship system, 12

post-conﬂict peace operations, 279-280 sanctions, 282, 312 Sanctions Committees, 282

of

Human

Use of force/war, 177 see also General Assembly of the United Nations; Self-defence; United Nations aggression, 68

United Nations Compensation Commission (UNCC), 380

indirect aggression, 69 ff. Iraq, intervention, 287-294

United Nations Convention on the Law of the Sea (UNCLOS), 267 dispute settlement, 157-158 jurisdiction of the Annex VII tribunal, 159-161 United Nations Educational, Scientiﬁc and Cultural Organization (UNESCO), 99, 104, 110, 111, 115, 124, 126, 127, 128, 135 see also Cultural property, international protection Convention for the Safeguarding of the Intangible Cultural Heritage, 107, 114 Declaration concerning the Intentional Destruction of Cultural Heritage, 131 ff. Director-General, 131

Vienna Convention(s) on the Law of Treaties, 126, 182, 183, 184, 186, 262, 265, 272 see also International Law Commission interpretation, 230, 255, 257, 259 provisional application of treaties, 318 World Health Organization, SARS emergency, 340-341 World Intellectual Property Organization (WIPO), 101, 115, 125 Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore/Traditional Cultural Expressions, 101

396

INDEX

World Trade Organization (WTO), 101, 102, 106, 108, 124, 125, 128, 273

Anti-dumping Agreement, 192193, 194 Apples case, 196-199

access to essential medicines/ Decision on the implementation of paragraph 6 of the Doha Declaration on the TRIPs Agreement and public health, 199-205

Canada – Periodicals case, 113

Agreement Establishing the WTO (WTO Agreement), 100, 192

dispute settlement, 103, 189 ff.

Agreement on Agriculture, 191192 Agreement on Safeguards, 194195 Agreement on Subsidies and Countervailing Measures, 191, 192 Agreement on the Application of Sanitary and Phytosanitary Measures, 196-199

Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, 126 Dispute Settlement Body, 126, 127 Doha Round, 107 Fifth Ministerial Conference, 189 General Agreement on Tariffs and Trade, 112, 192, 194, 195 General Agreement on Trade in Services, 379 TRIPs Agreement, 115, 126, 199 ff.

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