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THE ITALIAN YEARBOOK OF
INTERNATIONAL LAW
Volume XIV
2004
BOARD OF EDITORS
ISBN 90 04 15027 7
http://www.brill.nl
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Website: http://www.unisi.it/iyil
CONTENTS
LIST OF ABBREVIATIONS XVII
ARTICLES
THE REPORT OF THE HIGH-LEVEL PANEL ON THREATS, CHALLENGES
AND CHANGE, THE USE OF FORCE AND THE REFORM OF THE UNITED
NATIONS 3
Natalino Ronzitti
THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2004) 289
Tullio Treves
JUDICIAL DECISIONS
(edited by Giuseppe Cataldi and Massimo Iovane)
Extradition Coercive measures Articles 314 and 714 of the code of criminal
procedure Compensation for unfair detention Absence of conditions favour-
ing an extradition order Law No. 81 of 16 February 1987 of delegation for
enacting the code Implementation of international treaties European Con-
CONTENTS XI
LEGISLATION
(edited by Pia Acconci, with the co-operation of Chiara Battistini, Federico
Lenzerini, Massimiliano Montini and Gianluca Rubagotti)
BIBLIOGRAPHIES
ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW
2004 455
(edited by Giulio Bartolini, Alessandro Chechi, Federico Lenzerini and
Massimiliano Montini)
CONTENTS XV
UK MINISTRY OF DEFENCE (ed.), The Manual of the Law of Armed Conict, Oxford,
Oxford University Press, 2004 (Natalino Ronzitti); BRIGITTE STERN and HLNE
RUIZ FABRI (eds.), La jurisprudence de lOMC/The Case-Law of the WTO, 1996-
1997, Leiden/Boston, Martinus Nijhoff Publishers, 2004 (Giorgio Sacerdoti);
ANTONIO CASSESE, International Criminal Law, Oxford, Oxford University Press,
2003 (Silvia DAscoli): YORAM DINSTEIN, The Conduct of Hostilities under the Law
of International Armed Conict, Cambridge, Cambridge University Press, 2004
(Marina Mancini).
INDEX 509
LIST OF ABBREVIATIONS
Periodicals*
*
The present list covers only the most frequently cited periodicals.
XVIII LIST OF ABBREVIATIONS
ITALIAN COURTS
NATALINO RONZITTI*
1. INTRODUCTION
In his speech before the 58th United Nations General Assembly (GA), in
September 2003, the Secretary General (SG) drew Members attention to the func-
tioning of the United Nations (UN) and the need for its reform if the organisation is
to survive. The Iraqi war and the subsequent US-UK occupation have marginalized
the UN and international institutions. Indeed, the war in Afghanistan against the
Taliban regime and the subsequent invasion of Iraq were a triumph of unilateral-
ism and ad hoc alliances at the expense of multilateralism. Reform of the UN can
no longer be postponed, given that the global organisations current structure no
longer matches reality. In November 2003, the SG appointed a panel of 16 emi-
nent persons to study the current threats to international peace and security and
to formulate appropriate recommendations.1 The High-Level Panel on Threats,
Challenges and Change, as it was named, concluded its work toward the end of
2004, after intensive consultations and a number of regional seminars. Its Report
was submitted to SG Ko Annan on 1 December 2004. The Report deals with
some extremely interesting issues and its developments will have to be followed
closely,2 since it is, in fact, a necessary premise for any reform of the UN system
that may be undertaken in 2005, the year of the organisations 60th anniversary.
As decided by GA Resolution 59/145, the UN summit in New York from 14 to 16
September 2005 will gather the leaders of 191 member States to see if a reform of
the UN, repeatedly advocated, can be put into effect or at least its premises set into
motion. In the meantime, private consultations with permanent representatives
of member States are going on and the SG produced a Report in March 2005 that,
as will be seen later, relies on the High-Level Panel Report (HLP Report), as far as
security and related issues are concerned. States are also grouping to evaluate the
Panel Report.3
*
Of the Board of Editors.
1
See the Note by the SG transmitting the Panel Report to the GA, which also contains the
names of Panel members: A/59/565.
2
See A More Secure World: Our Shared Responsibility, available at http://www.un.org/
secureworld.
3
See for instance the statement by the Group of Friends for the Reform of the UN: GAOR
A/59/705 (18 February 2005).
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 3-22
4 ARTICLES
The subject that raises the most interest is undoubtedly reform of the Security
Council (SC), increasing its membership and setting up a new class of permanent
non-veto members. But there are also other matters of exceptional interest that need
to be reconsidered to avoid the marginalisation of the UN. Above all, the use of
force, peace-keeping and peace-enforcement issues that are interconnected since
only a fully operational and legitimate SC can aspire to carrying out its primary
function, that of maintaining international peace and security. The same is true for
disarmament and non-proliferation, sanctions under Article 41 of the UN Charter
and measures aimed at ghting international terrorism. Moreover, the continuing
interest shown by the international community, or at least by some member States,
in the protection of human rights not only prompted the Panel to revisit the doctrine
of humanitarian intervention, but also induced it to make proposals for a reform
of the Commission on Human Rights. All these items are object of comment here,
with the exception of the reform of SC membership, which has already been widely
tackled in newspapers and journals.4 The thrust of the Panels work is on security
and human rights seen from a security perspective. This is understandable, since
the Panel started to work soon after the Iraqi war, which generated much contro-
versy in the UN and among SC members.
The Report conrms the traditional interpretation of rules on the use of force
and its exceptions. On the one hand, it states that the threat or the use of force are
prohibited under Article 2(4) of the UN Charter. The Report does not support the
opinion that continuous violation of this provision has undermined its cogency. On
the other hand, it does conrm that there are two exceptions to the prohibition of
the use of force: individual and collective self-defence and the use of force author-
ised by the SC (authorisation that can be vested upon a State, a group of States or a
regional organisation). In order to authorise, the SC has to adopt a resolution under
4
The HLP did not reach an agreement and was obliged to indicate two ways for expanding
the SCs membership from the current 15 members (5 permanent veto members and 10 two-year
non permanent members). The two proposals agree that the total number of SC members should
be 24. However they differ in that model a) envisages 6 new permanent seats with no veto power
and three more two-year non-renewable seats; while model b) calls for no new permanent seats,
but rather a new category of 8 four-year renewable seats and one new two-year non permanent
and non-renewable seat. The Panel also proposes that the composition of the SC be reviewed in
2020. It was easy to predict that the reform of the SC would be the major source of contention.
For instance, the African Union, in its common position of 8 March 2005, claimed at least two
permanent seats with veto power for Africa. Expansion of SC membership makes the body more
democratically representative, but also makes its decision-making more difcult, in particular
when the SC has to authorise the use of force. It is not clear whether the expansion of SC mem-
bership is considered a sine qua non condition for the other UN reforms envisaged by the HLP.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 5
Chapter VII of the UN Charter (Chapter VIII in the case of a regional organisa-
tion).
The Report rejects the idea that security can be preserved by a balance of power
or by any single superpower. Here, the reference to the United States is transpar-
ent. Translated into legal rules, it means that entrusting the United States with the
planets collective security would create a specic legal order under the aegis and
hegemony of the superpower. This would call for a derogation of the principle of
the sovereign equality of States, one of the basic principles of the UN. While all
States are bound by an absolute prohibition on the use of force, the United States
would be able to resort to it to ensure global security. In other words, this would
lead to the development of a hegemonic law something already criticised by
scholars of international law5 and implicitly rejected by the Panel.
2.1. Self-defence
Self-defence is, as mentioned, one of the exceptions to the use of force. This
exception has been established by customary law and is set down in Article 51 of the
UN Charter. Its provisions restrict self-defence to response to an armed attack. But
there are two interpretations: the rst is that self-defence is possible only once the at-
tack has actually taken place; the second allows for the reaction when the attack is im-
minent (missiles do not necessarily have to hit the attacked States territory; the State
can react if preparations for their launching are underway). The Report supports the
latter interpretation embodied in the theory of anticipatory self-defence.6 However,
it rejects the doctrine of pre-emption theorised by US President George W. Bush
in the 2002 US National Security Strategy document.7 According to the Report, the
existence of a mere threat to security is not sufcient to legitimate an armed reaction.
The attack has to be imminent. Thus, the acquisition of weapons of mass destruction
by one State, while constituting a threat to security, does not give another State the
right to react in self-defence. Therefore, the Report rejects the pre-emptive self-
defence theorised by President Bush which makes it possible to take action against
rogue States, terrorists and States possessing weapons of mass destruction.
The Report specically states that Article 51 of the UN Charter must be nei-
ther rewritten nor re-interpreted. However it does interpret Article 51 in a way that
5
See, for instance, VAGTS, Hegemonic International Law, AJIL, 2001, pp. 843-848.
6
In his address to the 41st Munich Conference on Security Policy, the UN SG took a more
cautious approach to the question of anticipatory self-defence. He endorsed the Panel proposal
not to amend Article 51, but only said that most lawyers recognize that this [Article 51] includes
the right to take pre-emptive action against an imminent danger, 005 M2 Communications LTD,
M2 Presswire, 14 February 2005, p. 3 ff.
7
See Chapter V of The National Security Strategy of the United States of America, 2002,
available at http:/www.whitehouse.gov.
6 ARTICLES
UN bodies have been loath to do until now. For example, the International Law
Commission has avoided taking a position on the legality of anticipatory self-
defence. The same can be said for the International Court of Justice, which has
never pronounced itself on the subject, even though it has now passed judgement
on numerous controversies involving the use of force and self-defence.
It should be noted that the theory of anticipatory self-defence is advocated
mainly by the common law countries and Israel. On the European continent, schol-
ars of international law prefer the interpretation by which self-defence is lawful
only after the State has suffered an armed attack. The Report, de facto, extends the
possibility of resorting to self-defence. The States will have to take a stance on this,
taking into account that the narrow interpretation of the right of self-defence no
longer matches present reality.
The other exception to the prohibition on the use of force is recourse to armed
force authorised by the UN SC. But in what cases can the SC authorise it? The
Report gives two cases:
1) When one State poses a threat to another;
2) When there is the threat of genocide. In this case, it asserts the responsi-
bility to protect, derived from an emerging norm of international law. The typi-
cal case is that of a humanitarian catastrophe with the territorial State unwilling
or unable to end the genocide. The notion of responsibility to protect is not
claried in the Report. Who is responsible? The members of the international
community or the SC? If the SC were responsible, it should be recalled that it can
only authorise States to intervene but cannot oblige them at least, this has been
the practice to date and the Report does nothing to clarify the matter. In effect
there is no need to construe an emerging norm of international law allowing
SC intervention in case of genocide. A widespread violation of human rights and
mass killing may be construed as a threat to peace, demanding SC interven-
tion under Chapter VII. The thesis of responsibility to protect is an ideological
stance, stressing the urgency of SC intervention rather than a necessary premise
for securing SC action.
In both cases 1) and 2) recourse to the use of force is lawful as long as the fol-
lowing ve criteria are addressed:
seriousness of threat;
proper purpose (intervention must be aimed at countering the threat and not
other purposes);
last resort (attempts must be made to solve the question by peaceful
means);
proportional means;
balance of the consequences (action must be better than inertia).
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 7
8
Immediacy, as a requirement for self-defence, was added by Roberto Ago in his Eighth
Report on State Responsibility. The reaction by the victim State often cannot be immediate,
since it has to organise its reaction and select the entity responsible, as happened for Operation
Enduring Freedom against Afghanistan conducted by the US and its allies after 9/11. Immediacy,
as a requirement for self-defence has been endorsed by neither the ICJ (see the Nicaragua and
Oil Platform cases and the Advisory Opinion on Nuclear Weapons) nor the ILC Draft Articles on
State Responsibility and the appended commentary.
9
GLENNON, A Stronger SC Is No Solution, Financial Times (London Edition), 13
December 2004. He also says that in case of genocide an authorization is not necessary.
10
In his address to the Munich Security Policy Conference, cit. supra note 6, he stated:
However, as the Panel points out, in todays world we may also face threats that are not im-
minent, but which could become actual with little or no warning, and might culminate in night-
mare scenarios if left unaddressed. The SC is fully empowered by the Charter to deal with such
threats.
8 ARTICLES
forces in the eld), peace-enforcement is, on the contrary, the opposite: a coercive
operation undertaken against the State in which the operation takes place.
The Report asserts that both peace-keeping and peace-enforcement must be
authorised by the SC. But this would be a limitation on States freedom. Peace-
keeping, based as it is on the consent of the State in which it takes place, does not in
principle require any SC authorisation. True, some operations may serve multiple
functions since a peace-keeping operation could turn into peace-enforcement. But
this practical fact cannot distort concepts that are well founded in theory. In addi-
tion, because of the often conicting relations between members of the SC, it could
be more convenient to undertake peace-keeping operations without having to seek
SC authorisation. What if one of the States involved did not want the operation to
be ltered through the SC? Finally, such a peace-keeping/SC nexus would make
it obligatory for operations to be carried out under the aegis of the UN and for the
intervening States to report back to it.
The weak point of peace-keeping/peace-enforcement is the chronic lack of
personnel, even though Article 43 of the UN Charter sets out that member States
should enter into agreements with the SC for putting military contingents at its dis-
posal. The Report completely ignores Article 43 and evidently considers it dead let-
ter. Yet it does not go so far as to suggest its abrogation, as it does instead for other
provisions such as the one on establishing the Military Staff Committee composed
of SC permanent members.
In order to make up for the lack of personnel and to be able to undertake opera-
tions that require rapid action, the Report suggests that the States (either individually
or through international organisations) make available readily deployable person-
nel. Mention is made in this context of the European Unions decision to establish
standby high readiness, self-sufcient battalions that can reinforce UN missions.11
11
Para. 219.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 9
The Report points out that NATO, while it cannot be considered a regional
organisation under Chapter VIII of the UN Charter, has nevertheless carried out
a number of out-of-area missions and is not only an organisation that ensures
the defence of its members, but has become an organisation that preserves col-
lective security. Such missions are considered positively in that they contribute to
maintaining international peace and security. But the Report states that they should
be approved by the SC and that NATO, when undertaking out-of-area operations,
should be accountable to the SC for such operations. This is an implicit criticism of
the NATO operation undertaken against the Federal Republic of Yugoslavia (1999),
which was not however criticised by the UN SG at the time and was legalised with
the adoption of SC Resolution 1244(1999).
Curiously, in examining peace-enforcement, the Report does not refer to the use
of force undertaken directly by the SC. Peace-enforcement is construed exclusively
as an action taken by States with SC authorisation. It is true that the hypothesis of
direct action on the part of the SC is purely theoretical, but this was nevertheless
the original intention of the UN Charter. The Panel evidently considers it dead let-
ter. For peace-keeping as well, the accent is not put on operations headed by the SG
under delegation by the SC, of which there have been many especially in the past.
Furthermore, in the Report peace-keeping and peace-enforcement are not clearly
distinguished and tend to be blurred. The Panel seems to see the SC as merely an
authorising body operations in the eld are undertaken by States upon SC authori-
sation while the Charters intention was for it to be operational. Article 42 of the
UN Charter states that the SC may undertake operations with air, naval and ground
forces to maintain or restore international peace and security.12 Moreover, the kind of
action the SC should take in case of aggression is not adequately considered. True,
in this case the States do not require authorisation in that they are acting in collective
self-defence, should they decide to intervene in favour of a State that has suffered ag-
gression. But action in self-defence is limited in time in that it should cease when the
SC has taken adequate measures to restore international peace and security.
3. POST-CONFLICT PEACE-BUILDING
12
Cf. CONFORTI, The Law and Practice of the UN, 3rd rev. ed., The Hague, 2005, pp. 207-
208.
10 ARTICLES
for the reconstruction of countries wracked by civil war and, generally, those de-
ned as failed States. Often peace-keeping or peace-enforcement actions, which
provoke a quick reaction by the SC to a crisis situation, are not followed by a real
post-conict strategy allowing the SC to continue to follow the situation after
the end of the conict. The Panel proposes setting up a body a Peace-building
Commission charged with managing post-conict peace-building. This small
body would be an emanation of the SC and would not require amendments to the
UN Charter, as the Charter allows the SC to set up subsidiary bodies (Article 29).
Thus, the SC might continue to operate and supervise the post-conict situation.
Post-conict peace-building is not only a problem of institutional organisation, it
involves such important matters as pacication and rebuilding the economy and the
institutional fabric, as well as nding the funds for these tasks.
4. NO ROLE FOR THE GENERAL ASSEMBLY UNDER THE UNITING FOR PEACE
RESOLUTION
The SC is the only body charged with maintaining international peace and se-
curity. Even though most UN Charter experts feel that this falls within the exclusive
competence of the SC, it is worth asking whether the GA could be entrusted with
some tasks, starting out from the premise (not generally shared by scholars of inter-
national law) that the SC has a primary role and the Assembly a subsidiary one.
In the 1950s, faced with the Soviet veto, attempts were made during the Korean
war to charge the GA with tasks not provided for in the UN Charter. A resolution,
known as Uniting for Peace (Res. 377 A-V), was passed, authorising the States
that had intervened and were operating under unied US command to y the UN
ag. Pursuant to this resolution, the functions of maintaining international peace
and security could be exercised by the GA when the SC was paralysed and unable
to take decisions because of the veto of one of the permanent members. Uniting
for Peace was a classic Cold War product, passed by Western countries when
they had the majority in the GA. Since the completion of decolonisation, they no
longer have that majority. Uniting for Peace could have been successfully re-
vived for the NATO intervention in Kosovo, but preference was given to justifying
military operations with the theory of humanitarian intervention. The Panel does
not resuscitate the 1950 resolution and concentrates on the competences of the SC
in the maintenance of world peace and security. Even the Report by the SG, to be
examined later, does not mention the Uniting for Peace resolution and evidently
considers it dead letter.13
13
Resolution 377 A(V) has been recently resurrected by the International Court of Justice
in another context: ICJ, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion of 9 July 2004, paras. 30-31.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 11
5. SANCTIONS
14
See Independent Inquiry Committee into the UN Oil-for-Food Programme, Interim
Report, 3 February 2005, available at www.iic-offp.org. A second Interim Report was released
on 29 March 2005: ibidem.
12 ARTICLES
The attempts to outlaw sanctions which create grave harm to the population
are not new. The Draft Articles of the International Law Commission on State
Responsibility, in its Article 50, outlaws countermeasures violating obligations for
the protection of fundamental human rights (however, the ILC Draft deals only
with countermeasures by States and not with sanctions by the SC). Article 1(2) of
the two 1966 Human Rights Covenants states that in no case may a people be de-
prived of its own means of subsistence. GA Resolution 51/242 has recommended
that sanctions should take into account individuals fundamental rights and General
Comment No. 8(1997) of the Committee on Economic, Social and Cultural Rights
reiterates the same concept. The approach by the HLP is not a legalistic one and
the question of sanctions is seen under a humanitarian perspective. Comprehensive
sanctions, though far less harmful than war, often have severe humanitarian con-
sequences. Depending on circumstances, they are the only way to avoid armed
action.
and really assure non-nuclear weapons States, given the SCs lack of a nuclear
deterrent. Other proposals suggest establishing nuclear-weapon-free zones in the
Middle East and South Asia, negotiating a cut-off treaty to stop the production of
nuclear material and setting up a better verication process. The danger represented
by the acquisition of nuclear material by terrorists and other non State entities is
also addressed. In this respect, the Panel praises the recent initiatives aimed at
impeding the transfer of nuclear material, such as the Non-Proliferation Security
Initiative (PSI),15 or current negotiations under IMO auspices for a revision of
the 1988 Rome Maritime Terrorist Convention, which should prohibit and crimi-
nalise the transportation by sea of unauthorised nuclear material. SC Resolution
1540(2004) is another step in the right direction to curb proliferation and impede
shipment of nuclear technology to non State actors.16
Even though Libya and the diplomatic pressure exerted to induce this State
to dismantle its nuclear program is a success story, the positive elements do not
overcome the negative ones. The Panel fears that the possibility of a collapse of the
NPT regime is real and not exaggerated. But the Panel fails to address a number
of important points: why do non-nuclear States want to become nuclear? Do they
want to conduct an aggressive policy or do they feel threatened? How can the non
declared nuclear States (India, Israel and Pakistan) be brought into the non prolif-
eration regime? Are the NWS really progressing toward universal and veriable
nuclear disarmament as advocated by Article VI of the NPT and pointed out by the
ICJ in its advisory opinion on the legality of the threat or use of nuclear weapons?17
It seems that the NWS are not willing to keep in step with the principles and ob-
jectives on nuclear non-proliferation and disarmament laid down at the 1995 NPT
extension and review Conference and the 13 steps for nuclear disarmament adopted
by the 2000 Review Conference.18 While the US-Russia bilateral programme to
reduce their stocks of nuclear weapons has progressed, recent reversals should
also be taken into account. For instance, the United States is doing research for
the construction of bunker-busting nuclear weapons, which would limit nuclear
fallout and collateral damages and would thus be easier to use.19 Ageing warheads
are being repaired or replaced instead of destroyed. As was pointed out during a
seminar in preparation for the Panel Report, you cannot declare a particular type
15
On the content of which, see BYERS, Policing the High Seas: The Proliferation Security
Initiative, AJIL, 2004, pp. 526-545.
16
See generally SUR, La rsolution 1540 du Conseil de Scurit (28 avril 2004): entre
la prolifration des armes de destruction massives, le terrorisme et les acteurs non tatiques,
RGDIP, 2004, pp. 855-882.
17
ICJ Reports, 1996, pp. 263-264, paras. 98-99.
18
See both documents in GRAHAM and LA VERA, Cornerstones of Security. Arms Control
Treaties in the Nuclear Era, Seattle, 2003, pp.113-116 and 131-132.
19
GROTTO, Nuclear Bunker-Busters and Article VI of the Non-Proliferation Treaty, ASIL
Insight, February 2005.
14 ARTICLES
of weapon to be illegal and then have states base their national security on that very
weapon.20
7. HUMAN RIGHTS
Global human rights have long become a central issue for UN action and
policy. The UN has not only drafted several legal instruments for protecting them,
but has also established organs for monitoring human rights enforcement within
member States. Human rights are no longer a concern only of the GA and the
Economic and Social Council (ECOSOC), but have also become a matter for SC
action, especially when their disregard threatens international peace and security.
Massive human rights violations now fall under Article 39 of the UN Charter and
allow the SC to take action.
For several years after its foundation in 1946, the Commission on Human
Rights did commendable work both in drafting instruments on human rights and
monitoring human rights enforcement worldwide. In recent years, the Commission
has lost its long-standing positive record and among its 53 member States are some
whose record on human rights protection is extremely poor, since human rights
abuse and even torture are their usual practice. Those States have been elected by
the ECOSOC not to advocate the cause of human rights, but to impede that the
Human Rights Commission can adopt resolutions against them. The Commission
has been chaired by Libya in 2003. Its current membership includes China, Saudi
Arabia and Sudan (the latter is implicated in mass killings and was the object of
a Panel nominated by the UN SG, which recommended that the SC charge the
International Criminal Court with initiating criminal proceedings against those re-
sponsible for the atrocities).21 Cuba, too, has been a member of the Human Rights
Commission.
It is therefore understandable that the Report focused its attention on the
Commission and made proposals for restoring its past record. Three proposals
were submitted:
The membership of the Commission should become universal, in the sense
that it should be composed of all UN members;
The delegation should be led by prominent human rights gures;
An advisory council or panel of 15 independent experts should be estab-
lished to help the Commission work.
20
The Stanley Foundation, Capturing the 21st Century Security Agenda: Prospects for
Collective Responses, 2004, see under the Chapter Rethinking the International System, p. 19 ff.
21
Report of the International Commission of Inquiry on Darfur to the UN SG, Pursuant to
SC Resolution 1564 of 18 September 2004, Geneva, 25 January 2005. The Panel recommenda-
tion has been endorsed by SC Resolution 1593 of 31 March 2005 which deferred the question of
the Sudanese international criminals to the ICC. Sudan is not an ICC member.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 15
In the long term, the Panel proposes to enhance the status of the Commission
by transforming it from an auxiliary organ of the ECOSOC into a full body. The
Commission should become a Human Rights Council.
The Panel also proposes strengthening the role of the High Commissioner for
Human Rights (HCHR), tasking him/her with reporting on the situation on hu-
man rights worldwide something the HCHR already does but which the Panel
evidently thinks should be augmented. More interaction between the SC and the
HCHR is also suggested, assigning, for instance, the HCHR the duty to control
implementation of SC resolutions containing human rights provisions.
It is a shame that the Panel does not mention the work of NGOs in addressing
human rights. NGOs have become indispensable, as independent organisations, in
watching human rights implementation, denouncing human rights violations and
prompting governments to abide by human rights standards.
The proposal to increase the membership of the Commission has been criticised,
mainly because it already has little time to perform its work (only six sessions per
year) and a larger Commission will be more time-consuming. Probably, the Panels
intention was to allow for the creation of a bloc of democratic nations.22
Whether or not one agrees with the Panels proposals, it goes without saying
that the Commission on Human Rights has lost its importance and action is needed
to restore its original prominence.
8. TERRORISM
22
BAKER, UN Member States Need to Set Aside Self-interest, Bangkok Post, 11 January
2005.
16 ARTICLES
The Panel tries to avoid the circularity contained in Resolution 1566 which
denes terrorism as a criminal act committed with the purpose to provoke a state
23
Even if the 1999 International Convention for the Suppression of the Financing of
Terrorism tries to give a denition of terrorism in its Article 2(1)(b).
24
Subsequent to the HLP Report the GA adopted the International Convention for the
Suppression of Acts of Nuclear Terrorism, that will be opened for signature on 14 September
2005: A/59/766.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 17
of terror. The purpose (or dolus specicus) in the Panels denition being to in-
timidate a population or compel a Government or other international entity to
do or to abstain from doing something. The material act in the crime of terrorism is
an action aimed at causing death or serious bodily harm to civilians or non-combat-
ants (two categories of persons who deserve to be specied, if it is assumed that
they do not coincide).
Even so, the Panels denition is not exempt from criticism. It gives a narrow
denition of terrorism since it encompasses only those acts which are intended to
hit human beings. According to the Panels denition, a blow or explosion which
causes the destruction of an unoccupied building is not an act of terrorism, unless
it falls under one of the 12 conventions dedicated to specic aspects of terrorism.
The same is true for other assets, such as aircraft and ships. What about blowing
up a building without any intention of hitting the civilian population? Unless such
acts fall under the scope of a specic anti terrorism convention, they would not
be considered as an act of terrorism. The value of the denition on terrorism pro-
posed by the Panel is awed by the fact that it is not entirely new and is without
autonomy. It is in addition to the already existing conventions and UN resolutions,
which were drafted during a considerable time frame and are sometimes conicting
each other.25
25
See the comment by BETHLEHEM, ASIL Newsletter, January/February 2005. pp. 6-7.
26
UN Doc. A/59/2005: In larger freedom: towards development, security and human rights
for all. See the rst comments by States and international institutions in SFDI, Dossier spe-
cial de Sentinelle, No. 2, 25 March 2005, ibidem, 3 April 2005 (common statement by Brazil,
Germany, India and Japan), available at http:www.sfdi.org/actualites/rapport Annan/index.htm.
18 ARTICLES
27
Supra note 6.
28
For instance the United States immediately expressed a negative stance on a SC resolution
on the use of force, see The Washington Times, 22 March 2005.
29
The SG is not able to make a single proposal for SC composition either. He afrms that the
SC should be enlarged. However, he limits himself to endorsing the two proposals put forward
by the HLG.
30
The SG afrms that [] the Commissions capacity to perform its tasks has been in-
creasingly undermined by its declining credibility and professionalism. In particular, States have
sought membership of the Commission not to strengthen human rights but to protect themselves
against criticism or to criticize others. As a result, a credibility decit has developed, which casts
a shadow on the reputation of the UN system as a whole, para. 182.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 19
31
In April 2005 work on UN reform speeded up. Informal consultations were held within the
GA (6-8 April) and on 6 April the SG appointed four international envoys (former Heads of State
and foreign ministers) to visit world capitals to back UN reform. Moreover, the GA President rec-
ommended that the GA informal consultations be followed by thematic consultations on the main
20 ARTICLES
10. CONCLUSION
What are the points in the HLP Report and the subsequent SG Report that, from
a security angle, touch on the collective security and the national interest of mem-
ber States? There are many from both perspectives because both Reports point to
the central role of the SC but at the same time consider it an authorising body and
consequently give particular importance to the role of States. The most important
points can be summarised as follows:
i) The notion of self-defence. Almost all continental doctrine is rooted in the
theory that self-defence can be exercised only when a State has suffered an armed
attack. The HLP Report comes out in favour of the thesis by which self-defence
can also be exercised when an attack is imminent. The concept of imminence is
interpreted in the traditional sense and not extended, as is done in the Bush doctrine
on pre-emption.32 States are called upon to take a stance on this point: the HLP
Reports interpretation of the notion of self-defence can be shared in light of the de-
velopment of new weapons and new threats. It would be absurd to permit reaction
only once a missile has already hit the territory of the attacked State and not at the
time when preparations for its launching are unequivocally beginning. But note:
the two interpretations of self-defence have much in common and if States take a
stance on this point it will contribute to the development of international law.
The HLP Report does not clarify whether an armed attack, the prerequisite for
exercising legitimate self-defence, has to come from a State or can be carried out
by a non-State entity such as a terrorist organisation. This has to be cleared up. SC
Resolutions 1368(2001) and 1373(2001) passed in the aftermath of the September
11 terrorist strike support, at least in the preamble, that a State victim of a terror-
ist attack is entitled to react in self-defence. However, the ICJ Advisory Opinion
on the Construction of a Wall in the Occupied Palestinian Territory states that an
armed attack has to be attributable to a State in order to fall under the law of self-
defence.33
ii) The SG Report proposes to entrust the SC with the task of codifying the
existing rules on the use of force. This serves the cause of efciency, less the cause
subjects contained in the SG Report. These will be conducted by ten facilitators during the
month of April with a view to identifying possible elements of agreement and preparing a draft
document in June to be submitted to the September Meeting of Heads of State and Government.
32
Cf. supra, note 7. According to the US President doctrine on preventive war, the updated
notion of imminence, which would allow the US to react in self-defence, encompasses the new
threats, constituted by the possession of WMD by States ready to use them and by terrorists
movements. Deterrence does not work against the new threats. In the past the imminence of at-
tack was much more visible, since it consisted in the mobilization of army, navy and air forces.
Nowadays, terrorist movements operate underground, and rogue States are not deterred by NWS,
lawfully detaining nuclear weapons.
33
Cit. supra note 13, para. 139. This statement has rightly been criticized by Judge Rosalyn
Higgins in her Separate Opinion, ibidem, para. 33.
THE REPORT OF THE HIGH-LEVEL PANEL AND THE UN REFORM 21
34
It deals with that question under the item Protecting Civilians (Part. XII, paras. 231-
238), where it also recommends that all member States should ratify all treaties relating to the
protection of civilians, including the Statute of the International Criminal Court.
35
EVANS, Change for a Stronger UN, Australian, 13 January 2003.
22 ARTICLES
vii) Neither the HLP nor the SG Report addresses the case of a stalemated SC
facing a threat which is not imminent. This is a major aw. What do States have to
do: wait for the threat to become imminent? (This would allow them to take action
in self-defence, according to the HLPs interpretation of Article 51). Between a
latent threat and an imminent attack lies a grey area that should be addressed.
viii) With the exception of the instance of self-defence, the use of armed force
remains a last resort. This position is commendable from the perspective of
global peace. But it is not always in the interest of justice and humanity. In case
of threat of genocide, early intervention can save lives, while painful negotiations
diluting time and modalities of intervention often mean a licence for bloodshed. It
seems that third world countries and at least one SC permanent member (China)
have already expressed a negative opinion on the part of the HLP Report dedicated
to humanitarian intervention and the responsibility to protect. Undermining the role
of the SC in this connection opens the door to unilateral intervention by individual
States or by regional organisations.
ix) According to the HLP, the role of the SC is inversely proportionate to the
immediacy of the threat.36 If the danger is actual or imminent, a State may intervene
in self-defence without any SC authorisation; on the contrary, if the threat is latent,
force should be authorised by the SC. This model is tailored to the interests of the
most powerful States and to the remaining superpower, which have the capability
to react. It serves less the needs of weaker States, which have to rely on an effective
collective security system in case of aggression.
36
This last observation was made by SCOWCROFT during his presentation to the Panel on
Threat, Challenges and Change: The Secretary-General HLP, 99th ASIL Annual Meeting, 2005.
General Brent Scowcroft was a member of the HLP.
CORPORATIONS AS INTERNATIONAL ACTORS
AND INTERNATIONAL LAW MAKERS
VAUGHAN LOWE*
1. INTRODUCTION
Throughout most of the twentieth century the traditional view was, as it was
put in early editions of Oppenheims International Law, that public international
law is a law between States only and exclusively.1 If that was ever true,2 it is
plainly no longer true. Behind the formalities of cases brought in the names of
States, in the WTO dispute settlement process and in the ITLOS, for example, the
reality is that it is often the interests of specic companies that are the casus belli,
as it were, and that it is the companies that effectively shape and control the char-
acter of the litigation. But the face behind the mask is a constant in international
life, and in some ways not the most important aspect of this matter. More important
are those circumstances in which companies are the overt actors within the inter-
national legal system.
As far as their fundamental role within the system as participants in the mak-
ing and development of international law is concerned, there are two mechanisms
by which they exercise a direct and very signicant inuence. The rst, already
evident in the middle of the twentieth century, is through the making of agree-
ments with States, governed (at least in part) by international law, under which
the company has in the event of a breach of the agreement, the right to litigate
against the State Party on a footing of judicial equality. A century ago, if a for-
eign investor was mistreated, its national State would bring an international claim
against the alleged wrongdoing State. Under concession agreements, the foreign
investor may bring such claims before a tribunal in its own name. The massive
growth in bilateral investment treaties (BITs), which now number over 2,000, has
*
Chichele Professor of Public International Law, University of Oxford. This paper was
originally delivered as a lecture at the session on Linterdipendenza globale e il diritto inter-
nazionale contemporaneo: aspetti chiave di un mutamento di paradigma in atto. Il ruolo delle
corporations nel law-making internazionale, e gli standards emergenti di natura solidaristica
che incombono alle corporations in materia di responsabilit sociale (Global Interdependency
and Contemporary International Law: Key Aspects of a Changing Paradigm. The Role of
Corporations in the International Law-Making Process and the Emergence of Standards of
Solidarity Nature for Corporations in Matters of Social Responsibility), at the XIth Giornata
Gentiliana in San Ginesio, September 2004.
1
See, e.g. OPPENHEIM, International Law A Treatise, 4th ed., Vol. 1, 1928.
2
Which I doubt. Non-sovereign entities have always participated in international legal re-
lations. See, for example, the list of Contracting Parties to the 1899 Hague Convention on the
Pacic Settlement of International Disputes.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 23-38
24 ARTICLES
3
Published at www.itlos.org. See TREVES, The International Tribunal for the Law of the
Sea (2003), IYIL, 2003, p. 157 ff., p. 158 ff.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 25
4
Government-imposed obligations may, of course, inuence or even determine what the
industry practice is.
26 ARTICLES
2. HUMAN RIGHTS
There are two aspects of human rights law to consider. In one, concerned with
the role of corporations in securing human rights, they behave like States. In the
other, concerned with corporations as possessors of human rights, they are more
like human beings.
Corporations control much of our lives. When we ask what actually matters to
us, and what impacts most directly upon our everyday lives, access to food, water,
electricity, communications, fuel, and so on must rank very high up the list. For the
most part, the conditions of access to these basic necessities of life, and to employ-
ment and the very opportunity to earn a decent living, are controlled by corpora-
tions. On a more localised scale, corporate projects such as dam building and oil
exploration may have massive impacts upon the local populations, upon the envi-
ronment, and upon national trade and prosperity. All of these matters may directly
and signicantly affect the quality of life of very large numbers of human beings.
Corporations and States act together in such projects, often as parties to con-
cession agreements or development plans; yet under the traditional conception of
international law it is only the State that bears any responsibility under interna-
tional law for enforcing or securing human rights. That position is, however, now
changing.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 27
The accompanying commentary makes plain that these obligations extend be-
yond simple compliance with the laws of the host State. Corporations are expected
to act as partners with governments. Thus, the Commentary to that General Policy
states that:
Also in 2000, the UN launched the Global Compact, based upon a proposal
made the previous year by Secretary-General Ko Annan at the Davos Economic
summit.6 The Compact consists of ten7 principles, including the following:
5
See DAFFE/IME/WPG(2000)15/FINAL, 15 October 2001, http://www.olis.oecd.org/olis/
2000doc.nsf/LinkTo/daffe-ime-wpg(2000)15-nal.
6
See http://www.un.org/News/Press/docs/1999/19990201.sgsm6881.html.
7
Originally nine.
28 ARTICLES
8
Cf. http://www.unglobalcompact.org/Portal.
9
See http://www.state.gov/g/drl/rls/2931.htm.
10
See generally the study by Human Rights Watch, Corporations and Human Rights, avail-
able at http://www.hrw.org/about/initiatives/corp.html.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 29
11
For an account of allegations of human rights violations in this context, see the Human
Rights Watch paper, The Price of Oil. Corporate Responsibility and Human Rights Violations
in Nigerias Oil Producing Communities, 1999, http://www.hrw.org/reports/1999/nigeria/
index.htm.
12
See UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, http://www.unhchr.ch/
huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En?Opendocument.
13
See the ILO study, Corporate Codes of Conduct, http://www.itcilo.it/english/actrav/
telearn/global/ilo/code/main.htm, and the collection of codes at http://www1.umn.edu/humanrts/
links/conduct.html. Cf. the US Council for International Business study, Corporate Codes of
Conduct: A Review of Recent Initiatives, 1999, http://www.uscib.org/index.asp?documentID=
1357.
30 ARTICLES
reinforces the effect of the code as a mechanism for securing the implementation
of human rights norms.14
To this extent, it is evident that international law is developing so as to establish
an expectation, if not as yet a legal obligation on corporations, that they will exer-
cise their powers and inuence in such a manner as to promote the implementation
of human rights. The potential value of corporations as partners of governments in
securing human rights is clearly recognized.
In other respects, however, corporations are still in a position very different
from that of governments. A corporation is not responsible under international law
if it simply fails to exercise whatever powers it might have to prevent an infringe-
ment of international law. Even in cases where the corporation acts in a manner
that is inconsistent with international human rights norms, there is no direct legal
redress against the corporation under international law for individuals who suffer
as a result. The individual must seek his or her remedy from national courts under
national law.15
In some circumstances there are, however, procedures by which pressure can
be indirectly applied to the corporation. For example, it may be possible to resort to
World Bank Inspection Panels16 and similar procedures,17 with a view to persuading
those who fund corporate activity to cut off funds for particular projects as was
done when the World Bank withdrew from the Arun III Hydroelectric Project in
Nepal following a report indicating that the project would be incompatible with the
environmental and human rights policies of the Bank.18
A similar effect can be achieved in some jurisdictions by legal challenges to
decisions of national export guarantee and insurance agencies to support a par-
ticular project. Such agencies (for example, OPIC in the USA, SACE in Italy, and
the ECGD in the UK) may be required by their constitutions or operating rules to
14
For a critical account see SIMONS, Corporate Voluntarism and Human Rights: the
Adequacy and Effectiveness of Voluntary Self-Regulation Regimes, Relations Industrielles/
Industrial Relations, 2004, pp. 101-141.
15
In some States international law may have a status in the domestic law which makes it
possible to make a claim under national law for a breach of standards and obligations established
in international law. See, e.g., Doe I, et al. v. Unocal Corp., et al., Nos. 00-56603, 00-57197, 00-
56628 and 00-57195, United States Court of Appeals for the Ninth Circuit, 18 September 2002,
http://caselaw.lp.ndlaw.com/data2/circs/9th/0056603p.pdf. The Burmese plaintiffs claimed that
Unocal was liable for violations of their human rights by the Myanmar military. The claim was
settled by Unocal in December 2004.
16
See http://wbln0018.worldbank.org/ipn/ipnweb.nsf.
17
See, e.g., the Inter-American Banks Independent Investigation Mechanism, http://
www.iadb.org/cont/poli/mecanism.pdf and http://www.adb.org/Documents/Policies/Inspection/
insp100.asp, and further materials at http://www.bicusa.org/bicusa/issues/idb_independent_in-
vestigation_mechanism/index.php.
18
The reports are published on the website at http://wbln0018.worldbank.org/ipn/ipnweb.nsf.
See also GOWLAND GUALTIERI, The Environmental Accountability of the World Bank to Non-
State Actors: Insights from the Inspection Panel, BYIL, 2001, pp. 213-254.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 31
support only activities that are consistent with basic human rights and environ-
mental norms. Furthermore, it may be argued that support for projects that are
patently inconsistent with such norms would engage the international responsibil-
ity of the supporting State for complicity in the violations of international law by
the State in which the activities would be supported.19 It may be expected that in
time corporations will, as a matter of routine, check all proposed projects for their
consistency with basic norms of international law, and in particular human rights
and environmental norms, in order to ensure eligibility for governmental support.
Such a development would deepen the involvement of corporations in the process
of implementing those norms.
Other possible developments could have a more dramatic effect. At present, the
provisions of bilateral investment treaties (BITs) give extensive protection to the
economic interests of investors. There is growing concern that BITs are one-sided
agreements and that it is necessary to redress the balance. One way of doing so
would be to include in them an obligation on the investor to comply with basic hu-
man rights and other specied international norms. Were that done, not only would
the investor have an additional reason to promote those norms, but a failure to do so
might render the investor liable to proceedings under the dispute settlement provi-
sions in the BIT. Whether or not this were possible would, of course, depend on the
wording of the BIT; but the prospect of such a development is not fanciful.
19
See Article 16 of the ILC Articles on State Responsibility, http://www.un.org/law/ilc/texts/
State_responsibility/responsibilityfra.htm.
32 ARTICLES
be able entirely to escape the constraints of the law. Corporations, however, may
differ dramatically in their size and economic power; and the largest among them
may each wield immense power. Those differences between human beings and cor-
porations must be recognized, and may entail differences in the way that human
rights are applied to them. This is so even though human beings are the ultimate
controllers and beneciaries of corporations, because the nature of the individual
interest in a corporation is ultimately nancial, and any injury to that interest is ac-
cordingly compensable.
For example, the right to a fair trial includes a right to a trial without undue de-
lay. But whereas human beings have a nite life span, and the normal course of their
lives may effectively be suspended while litigation takes its course, corporations are
immortal and at least the larger of them can consign litigation to specialist depart-
ments or external lawyers and spend many years in litigation.20 Similarly, if a human
beings home is taken his or her life may be fundamentally disrupted, and if family
heirlooms or other possessions are taken they may be wholly irreplaceable. In the
case of a corporations property, however, the interest of its human owners is by
denition limited to a nancial interest a share in its value.21 Arguably, therefore,
the only relevant interest is in compensation. Takings of corporate and of individual
property can, therefore, be distinguished within international human rights law.
In these respects, corporations are persons sui generis within the international
legal system, neither the same as States nor the same as human beings, neither
wholly subject nor wholly object.
3. STATE RESPONSIBILITY
20
The Barcelona Traction saga is one example of protracted litigation.
21
I put to one side the individual interest in participation in a small corporation or partner-
ship.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 33
22
The answer to this question would no doubt be of interest to shareholders in Enron (or at
least those of them who are nationals of States that have BITs with the US) and other corporations
that suffer unexpected collapses.
34 ARTICLES
4. DIPLOMATIC PROTECTION
23
See ICJ Reports, 1970, p. 3 ff.
24
See ICJ Reports, 1955, p. 4 ff.
25
Barcelona Traction case, cit. supra note 23, p. 46, paragraph 88.
26
Elettronica Sicula SpA (ELSI) (USA v. Italy), ICJ Reports, 1989, p. 15 ff.
27
Barcelona Traction case, cit. supra note 23, p. 48, paragraph 92. See also JONES, Claims
on Behalf of Nationals Who Are Shareholders in Foreign Companies, BYIL, 1949, pp. 225-
258; and see the United Kingdom Rules Regarding the Taking Up of International Claims by
Her Majestys Government, Rule VI: Where a UK national has an interest, as a shareholder or
otherwise, in a company incorporated in another State and of which it is therefore a national, and
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 35
Traction court did not decide whether that is good law; and the ELSI court did not
rely upon that theory to support its assertion of jurisdiction. It seems that the juris-
dictional basis upon which the ELSI claim was decided is another ground, which
was recognized by the Barcelona Traction court as an exception to the principle
that in cases where a wrong is done to a corporation it is the corporations national
State that must bring the claim. The exception, which once stated seems a matter of
incontrovertible logical necessity, is that where the wrong is done not to the corpo-
ration but to the direct rights of its shareholders as such, the shareholders national
State(s) may bring the claim.28
In the ELSI case the compulsory liquidation of the Italian corporation was al-
leged to be an interference with the shareholders rights to control the management
of the corporation. But on that basis, practically any interference with a company
can be said to entail an interference with shareholders rights. Indeed, it seems that
it was only an accident of pleading that prevented reliance upon that argument to
found jurisdiction in the Barcelona Traction case.29 If the Barcelona Traction prin-
ciple is not to be wholly eclipsed, there must be some limitation upon the notion of
shareholders rights: some rights must be regarded as attaching to the corporation
alone. But which?
This is a complex question. It is not even altogether clear what legal system
would govern the question of the content of shareholders rights. In ELSI three pos-
sibilities were contemplated: the law of the place of incorporation (the lex societa-
tis), the provisions of any applicable treaty, and what Judge Oda called the general
principles of law concerning companies.30 In principle, shareholders ought not to
be able to complain that there has been a violation of their rights under international
law unless there has been some interference with a right that they possess under
the lex societatis, although it is possible that some matters might be determined by
other laws. For instance, shareholders rights at meetings of the company might
be determined by the law of the place where the meeting is held. It may also be
the case that shareholders are given wider rights under an applicable treaty. A BIT
might, for example, give a wider right to repatriate dividend income than exists
under national law. It is also possible that some rights, such as the right to attend
general meetings of the company and vote, might be regarded as general princi-
ples of law governing companies, even if not spelled out in national law. But there
is still much uncertainty concerning the distinction between the rights of a corpora-
that State injures the company, [the British Government] may intervene to protect the interests
of that UK national: BYIL, 1983, p. 500 ff. at p. 501. For a treaty-based example, see Article 6
of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 1993:
BYIL, 1994, p. 666 ff. A comparable position can be achieved under Article 25(2)(b) of the 1965
ICSID Convention.
28
Barcelona Traction case, cit. supra note 23, p. 36, paragraph 47.
29
Ibidem, p. 37, paragraph 49.
30
ELSI case, cit. supra note 26, pp. 87-88.
36 ARTICLES
tion and the rights of its shareholders. The position of corporations in international
law is still far from clear.
The second problem concerning the treatment of corporations under interna-
tional law is that of corporate groups. This is exemplied by the pair of arbitrations
launched against the Czech Republic, one in the name of Mr Ronald Lauder, under
the Czech Republic-US BIT, and one in the name of CME, a Dutch company owned
by Mr Lauder, under the Netherlands-Czech Republic BIT. It was said that the Czech
Republic had violated its duties towards CME, and the claims made under the two
BITs concerned precisely the same alleged wrongdoing. The twin actions were pos-
sible because BITs typically protect both direct and indirect investments, and in con-
sequence shareholders in the corporate chain leading to the ultimate investment can
all bring claims in respect of the same wrong. For instance, if a corporation in State A
is expropriated, and its shares31 are held by a corporation in State B, which is in turn
owned by a corporation in State C, and so on, claims might be brought in respect of
an injury to the corporation in State A under BITs between A and B, A and C, etc.
This creates two difculties. First, the claims will not necessarily be resolved
consistently. The two Czech cases were, indeed, resolved in diametrically opposed
ways; the action under the Dutch BIT failed, while the later award in the action un-
der the US BIT was in favour of Mr Lauder.32 Radical inconsistency of this kind is
highly undesirable in any legal system. Second, the positions of the parties become
fundamentally unequal. A respondent State must win every case if it is to escape
liability: the claimant corporation and its shareholders need only win one of the
cases in order to succeed.33
This, too, is a difcult problem. If it is said that investors must be limited to one
action, and must choose which of the corporations in the chain of ownership is to
be the claimant, they may be deprived of advantages that exist under the different
BITs, some of which may provide wider or different protection than that provided
by others. Moreover, limiting the action to a single claim would threaten to deprive
minority shareholders of their right of action. If, in the example above, the claim
were launched under the BIT between States A and C, a minority shareholder in the
State B corporation would de deprived of a remedy.
The situation is a mess; and the confusion cannot be resolved by treating corpo-
rations as if they were like human beings. It is necessary to recognize that they are
entities sui generis, and that the rules applicable to them must reect the functions
that they perform.
31
In the Czech cases there were majority shareholdings in the chain connecting Mr Lauder to
the ultimate investment. Logically, there seems to be no reason why a minority shareholder might
not bring such a claim, albeit only in respect of his or her share.
32
The cases are published at http://www.cetv-net.com/arbitration.asp.
33
Again, if the shareholdings in the chain of ownership are less than 100%, there will be a
corresponding reduction in recovery of any damages awarded in respect of injury to the ultimate
investment.
CORPORATIONS AS INTERNATIONAL ACTORS AND LAW MAKERS 37
5. JURISDICTION
Finally, let me turn to jurisdiction. Human beings are present in one place at
any given moment. Corporations are present nowhere. Their activities, through
their agents, may be present everywhere; and the location of those activities may
change almost instantaneously. Bank accounts may be moved to different jurisdic-
tions; tele-sales departments may be moved from the USA or the UK to India;
and so on. This creates problems in relation to the principles of international law
concerning jurisdiction.
For instance, if a US corporation is forbidden by US law to trade with, say,
Russia, at a time when French corporations are not so forbidden by French law, the
US corporation may decide to act through a French subsidiary, or even establish a
French subsidiary for that purpose.34 May the French subsidiary trade with Russia?
If a US bank is forbidden by US law to pay monies out of a frozen account of the
Libyan Government, may a branch (not being a separate corporate person) of the
bank in London refuse to pay out of the account even if English law contains no
such prohibition and the banks contract under English law with its Libyan client
obliges it to pay?35
Jurisdictional questions involving human beings can always be approached
from the principle that the primary obligation to obey the law is owed to the law of
the place where the individual is at the time the primacy of territorial jurisdiction.
Jurisdictional questions involving corporations cannot. Corporations can clone
and divide themselves, almost spontaneously appearing in different jurisdictions.
When they do so, they may be subject to different, conicting laws. Equally, they
may avoid the inconvenience of laws imposing, say, export bans or high taxes by
relocating their activities in a foreign afliate. How should international law deal
with this?
Again, the answer seems to me to lie in recognizing that corporations can-
not simply be assimilated to human beings but must be recognized as entities sui
generis. The core question is plainly not whether they are subject to the jurisdiction
of a particular State. They may be indisputably subject to more than one jurisdic-
tion (as, indeed, may human beings, who are typically subject to the territorial ju-
risdiction and also to their national law). The question is, to what extent may each
State exercise its jurisdiction in respect of the corporation? The priorities between
claims to exercise jurisdiction should then, in my view,36 be established in the light
of the consequences of the corporations activities for the regulating States. That
34
See the account of the Pipeline dispute in GYIL, 1985, pp. 37-108.
35
See Libyan Arab Foreign Bank v. Bankers Trust, All England Law Reports, 1989, p. 252
ff.
36
See LOWE, Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a
Solution, ICLQ, 1985, p. 724 ff.
38 ARTICLES
is, however, no easy task; and international law has yet to establish a satisfactory
system for resolving jurisdictional disputes of this kind.
6. CONCLUSION
The main point that I have tried to make is that corporations are neither subjects
nor objects, neither States nor persons like human beings, to use the traditional poles
of the classications in international law. They have features of both, but need to be
treated as entities sui generis. It is not possible simply to apply to corporations rules
that emerged to regulate the position of human beings. Nor should corporations be
regarded simply as passive objects of international law, without any responsibilities
for the application and implementation of international law. We must have regard to
their special needs, and to their special capabilities to contribute to the development
of international law and of the international legal system, for the benet of the hu-
man beings who are the ultimate constituents of all social organizations.
THE MARGINAL ROLE OF THE INDIVIDUAL IN THE
ILCS ARTICLES ON STATE RESPONSIBILITY
1. INTRODUCTION
*
Professor of International Law, University of Siena.
1
See TAMS, Alls Well That Ends Well, ZARV, 2002, p. 760 ff.
2
This point is especially underlined by BROWN WEISS, Invoking State Responsibility in
the Twenty-First Century, AJIL, 2002, p. 798 ff., passim. See also TAMS, cit. supra note 1, pp.
762-763.
3
On these developments see PISILLO MAZZESCHI, Esaurimento dei ricorsi interni e diritti
umani, Torino, 2004, pp.16-36.
4
This progressive overcoming is largely due to the inuence of the international protection
of human rights. On this point see SIMMA, International Human Rights and General International
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 39-51
40 ARTICLES
role of the individual (natural or legal person) and of other non-State entities; and
therefore the progressive overcoming of the strictly interstate character of tradi-
tional international law and of the statist approach to that law. It should be noted
that international literature, which easily recognizes the former phenomenon, is on
the contrary rather divided about the latter.5 This cautious doctrinal approach has
had an inuence on the ILC Draft Articles also, as we shall see.
Law: A Comparative Analysis, Collected Courses of the Academy of European Law, Vol. IV,
Book 2, The Hague-Boston-London, 1995, p.153 ff., espec. pp. 167-173.
5
See PISILLO MAZZESCHI, cit. supra note 3, pp. 18-36.
6
As it is well known, the international crimes of States are now described by the Draft
Articles as serious breaches of obligations under peremptory norms of general international
law (see Chapter III of the Draft).
7
On the contrary, some writers maintain that the ILC Draft Articles on State Responsibility
constitute a development in favour of human rights and of the individual insofar as they
deal with the protection of community interests. See SIMMA, Staatenverantwortlichkeit und
Menschenrechte im ILC-Entwurf 2001, in FROWEIN ET AL. (Hrsg.), Verhandeln fr den
Frieden/Negotiating for Peace: Liber amicorum Tono Eitel, Berlin, 2003, p. 423 ff., passim.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 41
in international law. One may think of the importance that was given to the above-
mentioned concepts of jus cogens, of obligations erga omnes and of international
crimes of States in the work of the ILC,8 even though some of these terms have
been deleted from the 2001 Draft. In this regard, the most important norms of the
Draft are Articles 40 and 41, which deal with serious violations of obligations aris-
ing from peremptory norms; and hence take up again the concepts of jus cogens
and of international crimes of States, albeit with a different terminology. Articles 48
and 54 are also important: they deal, respectively, with the invocation of responsi-
bility and with the measures that can be taken by States other than the injured State;
and thus reect the concepts of obligations erga omnes and of measures of reaction
against international crimes of States, even if only implicitly.
However, one should also admit that the protection of community interests has
attained only partial and limited results in the Draft Articles; and accordingly fell
short of expectations. This failure does not derive so much from the fact that the
Draft Articles have nally abandoned the terminology of international crimes of
States (in truth they have maintained the substance of that concept);9 but rather
from the fact that they are very limited with regard to the consequences of serious
violations of peremptory norms (Art. 41). Most of all, the Draft Articles have re-
mained very vague on the legitimate measures that may be taken by States other
than the injured State that may invoke the responsibility (Art. 54).10
One should note again that these uncertainties in the Draft Articles may also
have negative effects on matters of great indirect interest for the individual, such
as reactions by third States against serious violations of human rights and hu-
manitarian law,11 or of international rules on environmental protection. Therefore,
even from the point of view of the individual, a clearer and more courageous pro-
tection of the interests of the international community would have been desirable.
8
On this point see the papers of various writers (P.-M. DUPUY, NOLTE, SPINEDI, SICILIANOS,
WYLER, TAMS, GATTINI, SCOBBIE, ALLAND, KLEIN) collected in Symposium: Assessing the
Work of the International Law Commission on State Responsibility, EJIL, 2002, p. 1053 ff.
9
See PELLET, The New Draft Articles of the International Law Commission on the
Responsibility of States for Internationally Wrongful Acts: A Requiem for States Crimes?,
NYIL, 2001, p. 55 ff., espec. pp. 61-67; WYLER, From State Crime to Responsibility for
Serious Breaches of Obligations under Peremptory Norms of General International Law, in
Symposium, cit. supra note 8, p. 1147 ff.
10
On the theoretical problems brought forth by the distinction between injured States and
States other than an injured State see, recently, STERN, Et si on utilisait le concept de prju-
dice juridique? Retour sur une notion dlaisse loccasion de la n des travaux de la CDI sur
la responsabilit des Etats, AFDI, 2001, p. 3 ff., espec. p. 19 ff. On this topic see also, with
a more favourable position for the Draft Articles, KOSKENNIEMI, Solidarity Measures: State
Responsibility As a New International Order?, BYIL, 2001, p. 337 ff.
11
This is recognized also by SIMMA, cit. supra note 7, pp. 446-447. On this point see also
PILLITU, Le sanzioni dellUnione e della Comunit europea nei confronti dello Zimbabwe e di
esponenti del suo Governo per gravi violazioni dei diritti umani e dei principi democratici, RDI,
2003, p. 55 ff., pp. 96-97.
42 ARTICLES
As I said before, the overall outcome of the Draft Articles is even less satisfac-
tory with regard to the second general phenomenon of progressive development in
contemporary international law mentioned above: the one relating to the new role
of the individual and of other non-State entities. In my opinion, this development
is very important because it involves the actual structure of the traditional inter-
national legal order. As I have tried to demonstrate elsewhere, one can maintain
leaving aside the rather sterile doctrinal debate on the international personality
of the individual that nowadays there are some specic (primary, secondary and
tertiary) international norms which are directly addressed to the individual and
confer on him true rights or duties. This means that international law now regulates
some relationships between States and individuals in a formal manner (and not
only in a substantive one).12
This view, which is not new in the literature13 but is still a minority one, nds re-
cent and important conrmation in international case-law. One may cite the famous
judgements LaGrand14 and Avena15 of the ICJ and the less known, but important,
opinion of 1 October 1999 of the Inter-American Court of Human Rights.16 These
decisions recognize that certain international norms immediately and directly cre-
ate rights for the individual. The ILC Draft Articles on Diplomatic Protection go in
the same direction, even with regard to tertiary international norms. In fact, Article
17 of the Draft approved at rst reading recognizes that individuals have the right
to resort to actions or procedures under international law other than diplomatic
12
PISILLO MAZZESCHI, cit. supra note 3, pp. 24-35. See also ID., La dottrina pura del
diritto di Kelsen e la realt del diritto internazionale contemporaneo, Diritto e cultura, 1994,
p. 43 ff., espec. pp. 58-64. This latter article (reproducing a paper given at a conference on
philosophy of law) has recently been the object of a very burning, but not impartial, criticism
by ARANGIO-RUIZ, Dualism Revisited. International Law and Interindividual Law, RDI,
2003, p. 909 ff., p. 966, note 92. The distinguished writer defends his radical dualism and
especially his famous and often expounded theory on the State internationally conceived as a
de facto collective entity (or as a real person or as a power). In order to better perform
this defense, he attributes to me certain opinions (espousal tout court of the monistic theory)
and afrmations (no difference between the concept of the State as a legal person and as a real
one) I never expressed.
13
See, for an examination of the several doctrinal views, DOMINIC, Lmergence de
lindividu en droit international public, Annales dtudes internationales, 1988, p. 1 ff.
14
LaGrand Case (Germany v. USA), Merits, 27 June 2001, ICJ Reports, 2001, p. 466 ff. and
reproduced in ILM, 2001, p. 1069 ff.
15
Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), 31 March 2004,
reproduced in ILM, 2004, p. 581 ff.
16
The Right to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Inter-American
Yearbook on Human Rights, 1999, Vol. 4, p. 4364 ff.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 43
A rst interesting element of the Draft Articles concerns the concept of inter-
national community, which is formulated in such a way as to allow for expansive
interpretation. In fact, Article 33, which denes the scope of the international
obligations of the responsible State with regard to Part II of the Draft, establishes
that such obligations may be owed to another State, to several States or to the
international community as a whole (Art. 33.1). One may infer from the work of
the ILC that the Commission did not want to adopt the more traditional expression
international community of States, in order to signify that nowadays the interna-
tional community may be understood, with wider meaning, to include individuals
and non-State entities.18
The concept of international community is then reiterated, in the same terms, in
Article 48, dealing with the invocation of responsibility by a State other than an in-
jured one. Para. 1.b of this rule establishes that any State other than an injured State
is entitled to invoke the responsibility of another State if, inter alia, the obligation
breached is owed to the international community as a whole.
In my opinion, this expansive concept of international community is rather
promising; but could have been developed with greater clarity. The ILC could have
17
International Law Commission, Fifty-sixth session, A/CN.4/L.647, 24 May 2004, pp. 6-7.
See also the Statement of the Chairman of the Drafting Committee, Mr. Rodriguez-Cedeo, pp.
25-27, available at http://www.un.org/law/ilc.
18
On this point see also CRAWFORD, The ILCs Articles on Responsibility of States for
Internationally Wrongful Acts: A Retrospect, AJIL, 2002, p. 874 ff., p. 888; BROWN WEISS, cit.
supra note 2, p. 804; SIMMA, cit. supra note 7, p. 432.
44 ARTICLES
3.2. Reparation
The idea that some international secondary norms may nowadays be addressed
directly to the individual and may confer upon him certain true rights at the interna-
tional level should have found full expression in the Draft Articles on the legal con-
sequences of an internationally wrongful act (Articles 28-31) also, and especially
in the norms concerning reparation (Articles 31 and 34-39). In fact, these rules are
formulated only from the limited perspective of the obligations of the responsible
State and do not tell us anything about the persons to whom these obligations are
owed; thus, about the persons entitled to claim reparation. This restricted approach
compels one to think that the obligations of the responsible State are owed only to
other States and that reparation may also be claimed only by the latter.
Nonetheless, still with regard to reparation an interesting but not adequately
developed point may be found in the Chapter of the Draft Articles on invocation of
responsibility. Article 48.2.b states that any State other than an injured one may
claim from the responsible State [...] performance of the obligation of reparation
[...] in the interest of the injured State or of the beneciaries of the obligation
breached. One might think that, by means of this rule, the beneciaries of repara-
tion could also be individuals who are victims of, for instance, a violation of hu-
man rights or of humanitarian law.19 However, the term beneciaries is an old
and traditional one: it causes one to think of the individual as a de facto beneciary
of norms addressed only to States and not as a true holder of rights. Hence, this
terminology still reects a traditional and strictly interstate or statist approach
to international law.
Moreover, Article 48.2.b strangely has a very restricted scope of applica-
tion, because it deals only with the breach of collective or community obligations.
This is also conrmed by Article 54 (measures taken by States other than an injured
State), which reiterates the concept of beneciaries of the obligation breached.
19
See Commentary to Article 33, para. 4 (in Report of the ILC, Fifty-third session, UN
GAOR, Fifty-sixth session, Supp. No. 10 (A/56/10), p. 234 ff.), where it is stated: In cases
where the primary obligation is owed to a non-State entity, it may be that some procedure is
available whereby that entity can invoke the responsibility on its own account and without the
intermediation of any State. This is true, for example, under human rights treaties which provide
a right of petition to a court or some other body for individuals affected. It is also true in the case
of rights under bilateral or regional investment protection agreements. See also BROWN WEISS,
cit. supra note 2, p. 815.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 45
The restricted scope of application of these two norms would induce one to think,
through an interpretation a contrariis, that according to the ILC the individual
could not even be a de facto beneciary of an obligation breached in the (dif-
ferent) case of bilateral and reciprocal obligations between States. For instance, in
the eld of diplomatic protection, the foreign citizen who has been the victim of
a breach by the State on whose territory he nds himself could not even have the
position of de facto beneciary of the international obligation breached. Neither
could he have a right to reparation, separate from that owed to his national State.
This approach once again reects a too traditional and by now obsolete conception
of diplomatic protection.20
In my opinion, the Draft Articles should instead have taken a much clearer
position with regard to the topic of reparation, especially considering the great
practical importance this topic assumes for the individual who has been the victim
of certain breaches of international law. The Draft, in the pertinent Articles and in
the Commentary, should have developed the view that the obligation of reparation
by the responsible State now creates, in some elds of contemporary international
law, a double series of holders of the corresponding right to receive reparation:
individual victims and other States (injured or otherwise entitled to react). This
is especially true for violations of human rights;21 but in certain cases also for
breaches of international norms protecting individual interests in other elds, such
as humanitarian law, aliens treatment and environmental protection.
As a matter of fact, one can nd in many conventional systems of human rights
protection an international State obligation of reparation toward individuals, as
well as a corresponding international right of individuals to obtain reparation.
Moreover, it is interesting to note that the practice of international judicial and
quasi-judicial organs on human rights applies, with regard to reparation toward
individuals, concepts and standards which are similar, but not identical, to those
adopted with regard to reparation toward States.22 Unfortunately, there is no refer-
ence to such practice in the Commentary of the Draft Articles, however.
Lastly, one should reafrm that a similar situation can be found outside the
eld of human rights. As I said, an international right of the individual to obtain
20
See ORREGO VICUA, Interim Report on The Changing Law of Nationality of Claims,
ILA, Report of the Sixty-Ninth Conference, London, 2000, p. 631 ff., espec. pp. 632-634.
21
Let me take the liberty of citing the following articles: PISILLO MAZZESCHI, International
Obligations to Provide for Reparation Claims?, in RANDELZHOFER and TOMUSCHAT (eds.),
State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human
Rights, The Hague-London-Boston, 1999, p. 149 ff., espec. p. 152 ff., p. 157 ff. and p. 165 ff.;
ID., La riparazione per violazione dei diritti umani nel diritto internazionale e nella Convenzione
europea, CI, 1998, p. 215 ff., espec. p. 218 ff., p. 224 ff. and p. 230 ff.; ID., Reparation Claims
by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview, JICJ,
2003, p. 339 ff.
22
See BARTOLINI, La riparazione per violazione dei diritti umani nellordinamento interna-
zionale (Ph.d. thesis), Roma, 2004, espec. pp. 296-317.
46 ARTICLES
reparation exists, albeit in a lesser degree, with regard to some serious breaches of
humanitarian law23 and some breaches of international rules on aliens treatment
and environmental protection.
The right of the individual to obtain reparation for violations of human rights
and of humanitarian law is now also reinforced by the developing trend of effec-
tively enforcing this right at the level of procedural guarantees by denying sover-
eign immunity to States (and functional immunity to State organs) in relation to
serious violations. One may cite, for instance, the well known and recent Ferrini
judgment of the Italian Supreme Court.24
The idea that there are cases of international responsibility of the State toward
the individual could have found room not only among the legal consequences of
the wrongful act, such as reparation; but, in a more general way, also in the part
of the Draft Articles dealing with general principles on the content of international
responsibility (Articles 28-33) and in the part dealing with the invocation of re-
sponsibility (Articles 42-48).
In truth, there is a norm among the general principles which, at rst sight, seems
to be very important in this respect: para. 2 of Article 33, according to which the
section of the Draft Articles on the content of responsibility is without prejudice to
any right, arising from the international responsibility of a State, which may accrue
directly to any person or entity other than a State. One might think that, by means
of this phrase, the ILC means to recognize that individuals (and other non-State enti-
ties) may be holders of true rights deriving from international secondary norms.
23
See PISILLO MAZZESCHI, Reparation Claims, cit. supra note 21. On this topic see
also, recently, FRULLI, When Are States Liable Towards Individuals for Serious Violations
of Humanitarian Law? The Markovi Case, JICJ, 2003, p. 406 ff., espec. pp. 422-427; BEN-
NAFTALI and MICHAELI, Justice-Ability: A Critique of the Alleged Non-Justiciability of Israels
Policy of Targeted Killings, ibidem, p. 368 ff.; and, for a different view, GATTINI, To What
Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals Claims for War
Damages?, ibidem, p. 348 ff., pp. 350-351; ID., Le riparazioni di guerra nel diritto internazio-
nale, Padova, 2003, p. 625 ff. and pp. 667-668.
24
Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044, Ferrini v. Federal
Republic of Germany, reproduced in RDI, 2004, p. 539 ff. Cf. infra in this volume IOVANE,
The Ferrini Judgment of the Italian Supreme Court: Opening Up Domestic Courts to Claims of
Reparation for Victims of Serious Violations of Fundamental Human Rights. See also Judgment
No. 11/2000 of the Greek Supreme Court (Areios Pagos) of 4 May 2000, Prefecture of Voiotia v.
Federal Republic of Germany, reproduced (in the Greek version) in Nomiko Vima, Vol. 49, 2001,
p. 212 ff.; and the rst comments by MICHA, YIHL, Vol. 3, 2000, p. 511 ff.; and by GAVOUNELI
and BANTEKAS, AJIL, 2001, p. 198 ff. More in general, on the law suits following the Distomo
massacre, see GATTINI, To What Extent, cit. supra note 23, pp. 356-362.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 47
However, on closer scrutiny one understands that Article 33.2 has only the
limited goal of creating a saving clause.25 In fact, the ILC Commentary on Article
33 clearly states that the Articles of the Draft do not deal with the possibility of the
invocation of responsibility by persons or entities other than States.26 In order to
justify this gap, the Commentary afrms that the responsibility of a State towards
an individual is a matter pertaining to primary rules.27 But this explanation is not
convincing; since, as I said before, that responsibility is in fact a matter relating to
secondary rules. One may underline that Special Rapporteur Crawford has himself
recently conrmed the latter view, since he has admitted that a detailed regulation
of the ways in which state responsibility may be invoked by nonstate entities [...]
could have been brought within the scope of the project, which covered the respon-
sibility of states and was not conned to their responsibility to other states; but
that this approach was not followed, because such an issue raises novel and dif-
cult questions, and could have given rise to signicant controversy and because
the acceptability of the text as a whole might have been put in question.28
Instead, in my opinion, the Draft could and should have inserted among the
general principles on the content of responsibility (Articles 28-33) an explicit norm
(and not a mere saving clause), stating that the responsible State undertakes inter-
national responsibility also towards individuals (and other non-State entities) when
the international obligation breached by the State is owed also to the latter.29 In
other words, individuals and other non-State entities can be holders of true rights
deriving from secondary norms of international law.
Besides, the more specic norms of the Draft Articles on the invocation of
responsibility (Articles 42-48) also could and should have taken into account the
by now rather frequent cases of individual access to international judicial or
quasi-judicial remedies against the responsible State. As is well known, and as
the Commentary of the Draft itself recognizes, there are by now many elds of
international law (human rights, investments, environment, European Community
law) which provide for such remedies30 and which, therefore, contemplate the pos-
sibility of the individual invoking the international responsibility of a State. In my
25
Another saving clause that according to some writers (BROWN WEISS, cit. supra note 2, pp.
815-816) could work in order to save the topic of State responsibility towards the individual is
Article 55, according to which the Draft Articles do not apply when the international responsibil-
ity of a State is governed by special rules of international law.
26
Commentary to Art. 33, para. 4, cit. supra note 19.
27
Ibidem. See also CRAWFORD, cit. supra note 18, p. 888 ff.
28
CRAWFORD, ibidem.
29
For a similar, but more elaborate proposal, see BROWN WEISS, cit. supra note 2, p. 816 ff.
See also, recently, DOMINIC, La prtention de la personne prive dans le systme de la respon-
sabilit internationale des Etats, in Studi di diritto internazionale in onore di Gaetano Arangio-
Ruiz, Vol. II, Napoli, 2004, p. 729 ff., espec. p. 734 ff.
30
See PISILLO MAZZESCHI, La dottrina pura, cit. supra note 12, pp. 59-63; ID., cit. supra
note 3, pp. 28-30; BROWN WEISS, cit. supra note 2, p. 909 ff.
48 ARTICLES
opinion, this means that individuals and other non-State entities can be holders of
true rights deriving also from tertiary norms of international law. But Chapter I of
Part III of the Draft Articles is very far from this idea, because it deals only with the
invocation of responsibility by States.
Still with regard to the invocation of responsibility, the rule of prior exhaus-
tion of domestic remedies has great importance. In fact, this rule has always had a
fundamental role both in the eld of State responsibility and that of co-ordination
between domestic and international procedures of dispute settlement.31 Moreover,
the rule is useful to explain and clarify the complex relationships between State
responsibility in domestic and in international law. Furthermore, it represents very
well a moment of balance (and a point of agreement) between the interests of States
and those of individuals in international law. Lastly, the rule applies nowadays not
only in the eld of diplomatic protection of aliens, but also in other elds of inter-
national law that concern the individual, especially in the area of human rights.32
The ILC thus had many valid reasons to go into this issue in more depth and
to formulate an elaborate norm on exhaustion of domestic remedies, in the manner
Special Rapporteur Ago had formerly tried to do.33
In fact, Special Rapporteur Crawford and the ILC decided to simplify the topic
considerably; and the nal outcome of the Draft Articles is very disappointing.
Article 44.b of the Draft is a very elementary norm that tells us very little about the
rather complex and debated rule of exhaustion of domestic remedies. The justica-
tion given by Crawford and by the ILC is seemingly based on their choice not to
deepen the content of the rule in the Draft on State Responsibility, in view of the
fact that the ILC Draft on diplomatic protection was going to deal with the same
rule.
31
More precisely, the writers who are in favour of the substantive nature of the rule prefer its
systematic arrangement in the framework of State responsibility, while the writers in favour of
the procedural nature of the rule prefer its collocation in the eld of settlement of disputes.
32
See, e.g., Art. 35.1 of the European Convention on Human Rights; Art. 41.1.c of the
International Covenant on Civil and Political Rights; Arts. 2 and 5.2.b of its Optional Protocol;
Arts. 11.3 and 14.7 of the International Convention on the Elimination of All Forms of Racial
Discrimination; Arts. 46.1.a and 46.2 of the American Convention on Human Rights; Arts. 50
and 56.5 of the African Charter on Human and Peoples Rights; Arts. 21.1.c and 22.5.b of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
See also, in general and for the case-law, PISILLO MAZZESCHI, cit. supra note 3, passim.
33
I do not agree with the substantive theory on the nature of the rule maintained by Special
Rapporteur Ago, however. See PISILLO MAZZESCHI, cit. supra note 3, espec. Chap. II; ID.,
Exhaustion of Domestic Remedies and State Responsibility for Violation of Human Rights,
IYIL, Vol. X, 2000, p. 17 ff.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 49
This choice is, in my opinion, a serious mistake, simply because the rule on
exhaustion of domestic remedies has, in contemporary international law, a much
larger scope of application than the eld of diplomatic protection. The rule of
prior exhaustion should therefore have been examined and deepened in the Draft
on State Responsibility, as it has a broader scope of application than the Draft on
diplomatic protection.
Besides, the rule should have been analysed and formulated not only from
the (limited) point of view of interstate responsibility, but also from the wider
perspective of the international responsibility of States toward individuals.34 In
other words, the rule should also have been studied from the point of view of the
relationships between the State and the individual, which are now formally and di-
rectly regulated by international law (as I said before); and therefore also from the
perspective of the international rights of the individual toward the State.
If the ILC had adopted this approach it could have come, rst of all, to for-
mulate a more elaborate and complete rule in the text and Commentary of Article
44.b. Secondly, it could nally have adopted, in an explicit way, the procedural
theory about the nature of the rule.35 Thirdly, the ILC could have afrmed not only
the non-applicability of the rule in case of ineffective domestic remedies (and in
many other cases) but also, in an opposite and corresponding way, the right of the
individual to obtain effective domestic remedies on the basis of international law.
There is a nal issue that, from the point of view of the role of the individual,
should have been developed in the Draft: the international criminal responsibility
of the State organ. In fact, this responsibility may not only be added to the respon-
sibility of the State, but may also constitute an element of the content of the latter;
that is, one of the legal consequences of the wrongful act of the State.
It is true that the Draft Articles deal with the international responsibility of the
State and not with that of the individual; and that this choice nds conrmation
in another saving clause of the Draft Article 5836 according to which the Draft
Articles are without prejudice to any question of the individual responsibility
34
For violation both of norms on human rights and of contemporary norms on aliens pro-
tection.
35
According to which the rule of exhaustion of domestic remedies must be considered a rule
of procedure; that is, a condition for exercising the right to resort to international procedures of
dispute settlement. Actually, the collocation of Article 44.b in the Chapter on the invocation of
responsibility (and the criticism by the last Special Rapporteur, Crawford, of the theory of the
rst Rapporteur, Ago, who was in favour of the substantive nature of the rule) cause one to think
that the nal Draft is implicitly in favour of the procedural theory on the nature of the rule.
36
Entitled Individual responsibility.
50 ARTICLES
under international law of any person acting on behalf of a State. However, one
should underline that, especially in the practice of international organs supervising
the protection of human rights, the punishment by the responsible State (by means
of its domestic law) of its organs guilty of violations is considered an appropriate
form of reparation (satisfaction), especially for the most serious violations. This
point had been rightly caught by a provision on the legal consequences of the
wrongful act contained in the 1996 Draft Articles.37 But unfortunately the 2001
Draft has deleted the provision. This omission constitutes, in my opinion, a true
shortcoming of the Draft.
Moreover, the 2001 Draft also could and should have taken into account in a
more incisive way,38 at least with regard to serious breaches of peremptory norms,
the important development of contemporary international law relating to the inter-
national criminal responsibility of individuals responsible of international crimes.
This is a eld in which a clear separation of the responsibility of States and the
individual responsibility of State organs is rather unnatural, especially with regard
to international crimes committed by political leaders.39
4. CONCLUSION
37
Article 45.2.d of the Draft approved in 1996 (in UN Doc. A/51/10, YILC, 1996, II.2, p.
63) established that satisfaction may take the form of disciplinary action against, or punishment
of, those responsible, when the internationally wrongful act arose from the serious misconduct of
ofcials, or from the criminal conduct of ofcials or private parties.
38
And not only through the above-mentioned saving clause of Article 58.
39
See PELLET, cit. supra note 9, p. 77, who rightly speaks of the principle of transparency
of the State, which can entail criminal consequences when the leaders of a state responsible
for an internationally wrongful act are brought before a criminal court, either national or interna-
tional, to account for their acts. See also ID., Remarques sur une rvolution inacheve: le projet
darticles de la CDI sur la responsabilit des tats, AFDI, 1996, p. 25 ff.
THE INDIVIDUAL IN THE ILCS ARTICLES ON STATE RESPONSIBILITY 51
Therefore, the view of some writers according to whom the ILC Draft takes
adequately into account the role of the individual and the international protection
of human rights appears to be quite optimistic; even more so because this view is
based primarily on the norms of the Draft that concern community interests and not
on those which regard the individual more directly.40 On the contrary, the admission
of Special Rapporteur Crawford,41 according to which the ILC has not expressly
dealt with the problem of the international responsibility of the State toward non-
State persons or entities because of the fear of facing a new and difcult issue which
would have much postponed the approval of the Draft, seems more realistic. This
afrmation is perhaps, in its turn, a pessimistic one, however, because I believe that
the above-mentioned gaps in the Draft could have been lled in reasonable time,
without too much undermining a rapid conclusion.
One might think, perhaps, that States would have received a more courageous
and innovative Draft with less favour. However, I may object that the ILC has the
duty not only to codify, but also to progressively develop international law; and that
its inuence in this latter respect may, in the long run, also have important effects
on State behaviour.
40
See, for instance, SIMMA, cit. supra note 7, passim. This writer, at that time a member
of the ILC, even maintained that the protection of human rights had constituted a lighthouse
which had always led ILC work on State responsibility, in an oral intervention at the Conference
on Breaches of Obligations under Peremptory Norms of General International Law and the
International Responsibility of States (EUI and EJIL, Florence, 7-8 December 2001).
41
See supra note 28.
ISLAMIC LAW ON PRISONERS OF WAR AND ITS RELATIONSHIP
WITH INTERNATIONAL HUMANITARIAN LAW
1. INTRODUCTION
The dilemma of how to deal with prisoners of war (POWs) is not new, and
even the Quran and the Old Testament call for humane treatment of those captured
in the course of armed conict.1 The issue has assumed signicant contemporary
relevance as a result of the consequences of recent armed conicts in Iraq and
Afghanistan. The rights of POWs/detainees during armed conict are governed
by the law of armed conict (formerly referred to as the laws of war), or what is
probably better known today as international humanitarian law (IHL). There is an
obligation on all States and armed forces to ensure that IHL is upheld. This branch
of international law has always come under pressure during armed conict, and the
recent armed conicts in Iraq and Afghanistan are no exception.
In ancient times the concept of POWs was unknown. Captives were regarded
as part of the spoils of victory, and they were frequently killed or enslaved.2 Not
surprisingly, POWs have traditionally been among the most vulnerable groups in
*
Senior Public Prosecutor, Ofce of the Prosecutor General, Egyptian Ministry of Justice;
LLB & Police Sciences (Cairo, 1993); LL.M. (International Human Rights-Irish Centre for
Human Rights, Galway Ireland, 2001); LL.M. (Public Law, Cairo, 1999); Ph.D. (cand.). I am
grateful to Judge Khaled Gazy (Egyptian Ministry of Justice) for his comments on an earlier
draft, and Judges Cherif Atlam (Head of the ICRC Advisory Service, Cairo delegation), and
Mohamed Maher (ICRC Legal Advisor, Cairo delegation) for allowing me to access the ICRC
library.
**
Senior Lecturer in Law, Irish Centre for Human Rights, National University of Ireland,
Galway; BA, LL.B. (NUI Galway), M. Litt. (Dublin), Ph.D. (Nottingham), Dip. Arb. Law,
Barrister-at-Law.
1
KINGS, 6:21, 22 and MALEKIAN, Concept of Islamic International Criminal Law:
Comparative Study, London, 1994, p. 6; KHADDURI, Islam and the Modern Law of Nations,
AJIL, 1956, p. 358 ff., p. 359.
2
On account of the developments of this practice, see GREWE (ed.), Fontes Historiae
Iuris Gentium: Sources Relating to the History of the Law of Nations, Vol. 1, BC-1493, Berlin,
New York, 1995, pp. 131-133; LE BOHEC, The Imperial Roman Army, London, 2000, p. 145;
GOLDSWORTHY, The Roman Army at War: I00 BC-AD 200, Oxford, 1998, pp. 259-260; KEEN,
Studies in Political History: The Laws of War in the Late Middle Ages, London, 1965, p. 156;
WALKER, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia
1648, Vol. I, Cambridge, 1899, pp. 317-318; BLACK, European Warfare: 1660-1815, London,
1994, p. 231; GIVEN-WILSON and BERIAC, Edward IIIs Prisoners of War: The Battle of Poitiers
and Its Context, The English Historical Review, 2001, p. 802 ff., pp. 804, 808; LEVIE, Penal
Sanctions for Maltreatment of Prisoners of War, AJIL, 1962, p. 433 ff., p. 434.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 53-81
54 ARTICLES
situations of armed conict. Their treatment is a question with which the laws of
war have been particularly concerned. Their detention is a form of permissible
internment, and it should come as no surprise to learn that that the laws governing
armed conict lay down detailed rules for their protection.
The recent conicts in Afghanistan and Iraq have been characterized by pre-
dominantly non-Muslim States ghting Islamic States or Muslim groups within
such States. Prior to this the major conict in the Gulf Region occurred between
two Islamic States, Iran and Iraq. Owing to the special protection and privileges ac-
corded to POWs, the question of recognition of POWs status in current situations
of armed conict is often contentious. Not all persons captured in the course of
armed conict are entitled to the status of POWs and its consequent legal protec-
tions. Generally only persons recognized as combatants under the 1949 Geneva
Convention III and the 1977 Additional Protocol I are entitled to treatment as
POWs upon capture by an adverse party in armed conict. According to the com-
mentary on the Convention, any difference arising between two States and leading
to the intervention of members of the armed forces is an armed conict within the
meaning of Article 2, even if one of the parties denies the existence of a state of
war.3
If both parties deny the existence of a state of war,4 a question that arises is do
the Conventions apply?5 On a literal reading, it may be argued that Article 2 fails
to address the issue. An examination of the purpose of the Geneva Conventions
suggests, however, that even in such a case States could not, by tacit agreement,
prevent the applicability of the Conventions. It must be remembered that the
3
DE PREUX et al., Commentary on Convention III Relative to the Treatment of Prisoners of
War, Geneva, 1960, Art. 2, p. 23 ff. [hereinafter Commentary]; see also Prosecutor v. Tadic Case
No. IT-94-1-AR72, 2 October 1995, para. 70, where the Appeals Chamber stated: an armed
conict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups
within a State, ibidem; Prosecutor v. Zejnil Delalic` et al. Case No. IT-96-21-T, 16 November
1998, para. 204, where the Prosecution quoted the aforementioned ICRC Commentary on Article
2, and thus, argued that Bosnia and Herzegovina and its armed forces were one of the parties to
this international conict and the other parties were, rst, the SFRY and its army, the JNA, and
then the FRY and its army, the VJ, along with the SRBH (becoming the RS) and its army, the
VSRBH (becoming, and here referred to as the VRS). It contends that the military involvement of
the SFRY and FRY in Bosnia and Herzegovina and the existence of de facto hostilities between
them, along with the SRBH/RS whom they controlled, and the state of Bosnia and Herzegovina,
was thus sufcient to render the conict international, ibidem.
4
Geneva Convention III, Art. 2; Gasser argues that even if a state of war is not recognized
by all parties to the conict, the Conventions still apply. The only criterion is the circum-
stances of an armed conict, GASSER, International Humanitarian Law, in HANS HAUG (ed.),
Humanity For All: The International Red Cross and Red Crescent Movement, Vienna, 1993, pp.
510-511.
5
This problem as well has been raised in the commentary. See Commentary on Art. 2, p. 23;
YINGLING and GINNANE, The Geneva Conventions of 1949, AJIL, 1952, p. 393 ff., p. 394.
ISLAMIC LAW ON PRISONERS OF WAR 55
Conventions, like the relevant provisions of Islamic law, were drafted to protect
individuals and not to serve State interests, even if the existence of a state of war
is disputed. It is noteworthy that the issue of the Conventions applicability arose
during the Falklands/Malvinas conict, when neither side formally declared war.6
However, the conict was classied as an armed conict within the meaning of
Article 2, and thus, the provisions of the Conventions applied.7
There may be instances where there is doubt regarding the status of persons
who have fallen into the hands of the enemy. However, the Convention is clear
in one respect. According to Article 5 such persons shall enjoy the protection of
the Convention until a competent tribunal determines their status.8 The current
controversy regarding the status of those in the custody of the United States and
held at Guantanamo Bay in Cuba highlights the problems that can arise regarding
recognition of POWs status during armed conict. It also provides an example
of the application of Geneva Convention III by a non-Muslim State in respect of
Muslim POWs. If a captive is denied POW status, then as the current situation
shows, evading the protections and responsibilities provided under IHL is all too
easily achieved.9
The basic standard of treatment is set out in Article 13 of Geneva Convention
III, which states that prisoners of war must at all times be humanely treated.10
According to the Commentary, the word treated must be construed in a wide
sense as applying to all aspects of life. This is predicated on the assumption that
each individual is desirous of the treatment corresponding to his or her status, and
this should therefore determine and judge the most suitable way to treat a fellow
human being.11 Accordingly, POWs must not be unlawfully killed or endangered,
6
MEYER, Liability of Prisoners of War for Offences Committed Prior to Capture: The Astiz
Affair, ICLQ, 1983, p. 948 ff., p. 957.
7
Ibidem.
8
As to the application of Article 5, see Public Prosecutor v. OIE HEE KOI, A.C., 1968, p.
829, ILR, 1971, Vol. 42, p. 441; see also Prosecutor v. Zejnil Delalic et. al., Case No. IT-96-21-T,
16 November 1998, para. 242, where the Prosecution argued that some of the detainees were civil-
ians while the others were POWs. Should any doubt exist regarding their status, Article 5 of the
Third Geneva Convention applies, ibidem. The Trial Chamber upheld this view and concluded that
While there may [...] have been a duty upon the Bosnian forces controlling the Celebici prison
camp to treat some of the detainees as protected by the Third Geneva Convention until their status
was properly determined and thus treat them with appropriate humanity, the Trial Chamber has
found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under
the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence
of grave breaches of the Geneva Conventions on this latter Convention, ibidem, para. 273.
9
MURPHY, Prisoner of War Status and the Question of the Guantanamo Bay Detainees,
Human Rights Law Review, 2003, p. 257 ff., pp. 257-278.
10
Geneva Convention III, Art. 13; LEVIE, cit. supra note 2, pp. 446-448.
11
Ibidem. It should be noted, however, that a POW is precluded by Article 7 of the 1949
Convention III from renouncing the rights conferred by the Convention and any additional spe-
cial agreements that may have been entered into for the benet of POWs.
56 ARTICLES
12
LEVIE, cit. supra note 2, p. 448 ff. These acts took place during the World War II against
POWs by the German captors. See for example Trials of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10, Vol. II (The Medical Case), p. 181 ff.
With the out break of World War II criminal medical experiments on non-German nationals, both
prisoners of war and civilians, including Jews and asocial persons, were carried out on a large
scale in Germany and the occupied countries. These experiments were not the isolated and casual
acts of individual doctors and scientists working solely on their own responsibility, but were the
product of coordinated policy-making and planning at high governmental, military, and Nazi
Party levels, conducted as an integral part of the total war effort, ibidem. See also Law Reports
of Trials of War Criminals, Vol. XIV, 1949, pp. 1-2, 7. (Trial of Takashi Sakai). In its judgment,
the IMT also made reference to the experimental work that took place during the preparation of
bacteriological warfare. The Court observed that In July 1943, experimental work was begun in
preparation for a campaign of bacteriological warfare; Soviet POWs were used in these medical
experiments, which more often than not proved fatal, IMT Judgment, p. 228.
13
1949 Geneva Convention III, Art. 13; see also MCCOUBREY, International Humanitarian
Law: Modern Developments in the Limitation of Warfare, 2nd ed., England, 1998, p. 148. Article
13 should be read in conjunction with Article 130 of the Convention, for the latter considers such
acts listed under the former as grave breaches. Reprisals have been dened as an act illegal in
itself but permissible in reasonable proportion and with proper safeguards as a response to illegal
acts already committed by the enemy and as a deterrent to their recurrence, DIXON et al. (eds.),
Archbold: International Criminal Courts Practice, Procedure and Evidence, London, 2003, p.
351, quoting BEST, War & Law since 1945, p. 192. However, reprisals are also prohibited against
the civilian population or civilians and civilian objects under articles 51 (6), 52 (1) of Protocol I
Additional to the Geneva Conventions. It is moreover covered by article 3 of the ICTY Statute,
and has been examined under Rule 61 hearing, and not at trial. Thus, in the Martic Case (review
of the indictment pursuant to Rule 61), the Trial Chamber said: The prohibition against attack-
ing the civilian population as such as well as individual civilians must be respected in all circum-
stances regardless of the behavior of the other party. The opinion of the great majority of legal
authorities permits the trial Chamber to assert that no circumstances would legitimise an attack
against civilians even if it were a response proportionate to a similar violation perpetrated by the
other party. The exclusion of the application of the principle of reprisals in the case of such fun-
damental humanitarian norms is conrmed by Article 1 Common to all Geneva Conventions.
Prosecutor v. Martic, para. 15, quoted in DIXON et al., ibidem, p. 351 ff.
14
Conduct of the Persian Gulf War: Final Report to Congress Pursuant to Title V of the
Persian Gulf Conict Supplemental Authorization and Personnel Benets Act of 1991 (P.L. 102-
25), Appendix O, April 1992, pp. 1-19 [hereinafter Conduct of the Persian Gulf War].
15
Ibidem. These atrocities appeared also during the Bosnia and Herzegovina conict. In
the evening, groups from outside the camp would appear, would call out particular POWs from
their rooms and attack them with a variety of sticks, iron bars or lengths of heavy electric cable.
Sometimes these weapons would have nails embedded in them so as to pierce the skin, see also
Prosecutor v. Tadic, Case No. IT-94-1, T. Ch.II, 7 May 1997, para. 164.
ISLAMIC LAW ON PRISONERS OF WAR 57
16
MCCOUBREY, cit. supra note 13, pp. 148-149. Protection against insult and public cu-
riosity became a matter of serious concern in the 1990-1991 Gulf Conict; captured coalition
air force personnel were shown on Iraqi television with the marks of brutal treatment, reciting
clearly involuntarily statements of Baath party propaganda.
17
On the status of the Guantanamo Bay detainees under IHL, see PAUST, Post-9/11
Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons,
Treatment, Judicial Review of Detention, and Due Process in Military Commissions, Notre
Dame Law Review, 2004, p. 1335 ff., pp. 1348-1361; MURPHY, cit. supra note 9.
58 ARTICLES
Sources of Islamic law are called adillah in Arabic terminology, i.e. proofs
of the law.18 Islamic law of war (siyar) is based on the same legal sources as
any other branch of Islamic jurisprudence. Therefore, sharia is also the source
of normative relations between Muslim States and other States, which applies
universally to all circumstances and all human beings.19 Islamic law like other
branches of sharia is based primarily on two fundamental sources: the Quranic
revelations (Quran), and traditions of Mohammad (Sunnah).20 They are the only
authoritative Holy enactments of Islamic jurisprudence. The secondary sources
are based on opinion (ray),21 consisting of consensus of opinion (Ijma) and
analogy (Qiyas). These sources are not unlike the sources of the modern law of
nations. The Quran represents the authoritative source of laws where traditions
are equivalent to customs. Here, the opinions of the caliphs and jurists, based
on legal deduction and analogy, may be regarded as reason. Both sources are
explored in this chapter.
Quran
18
MAHMASSANI, The Principles of International Law in the Light of Islamic Doctrine,
RCADI, 1966, Vol. 117, p. 201 ff., p. 231.
19
MALEKIAN, cit. supra note 1, p. 6; KHADDURI, cit. supra note 1, p. 359.
20
BASSIOUNI and BADR, The Shariah: Sources, Interpretation, and Rule-Making, UCLA
Journal of Islamic and Near Eastern Law, 2002, p. 135 ff., pp. 138-139; MALEKIAN, cit. supra
note 1, p. 2.
21
MALEKIAN, cit. supra note 1, p. 230.
22
QUR AN, 75: 17.
23
TABANDEH, A Muslim Commentary on the Universal Declaration of Human Rights,
Guildford, 1970, p. 94.
24
MAHMASSANI, cit. supra note 18, p. 229.
25
MALEKIAN, cit. supra note 1, p. 6.
ISLAMIC LAW ON PRISONERS OF WAR 59
Sunnah
Ijma
The secondary source of Islam, Ijma, stands for the unanimous agreement of
Muslim jurists in any particular age on a juridical rule not already covered by a holy
26
AL QARADAWI, Introduction To Know Islam, 1995, p. 312.
27
Ibidem.
28
GHAZI, The Shorter Book on Muslim International Law, Islamic Research Institute, 1998,
p. 3.
29
MUSLIM WOMENS LEAGUE, Intellectual Background: Islamic Sources of Information
and Their Development Into Islamic Law, available at http://www.mwlusa.org/pub_book_
sources.html (hereinafter MWL).
30
HAMIDULLAH, Muslim Conduct of State, 2nd ed., Lahor, 1945, p. 21.
31
BASSIOUNI (ed.), The Islamic Criminal Justice System, London, 1982, p. xiii; see also
ABD AL ATI, Islam in Focus, 3rd ed., Saudi Arabia, 1999, p. 21.
32
HAMIDULLAH, cit. supra note 30, pp. 22-23.
33
KHADDURI, War and Peace in the Law of Islam, Baltimore, 1955, p. 126.
60 ARTICLES
Qiyas or Analogy
Qiyas is the application of a certain legal rule set for a specic situation or
case to a new one on the ground of a common effective cause (illat), which is
identical in both cases.41 Abu Hanifa who was an advocate of analogy (Qiyas)
considered it as a source of law.42 However, it should be noted that custom and
reason played a more important role in the development of Islamic law than other
sources.43 Because the initial classical legal theory adopted a strict analogy which
caused injustice, a liberal form of reasoning emerged on the basis of Istihsan (seek-
ing the most fair and reasonable solution or the least harmful) or Istislah by pro-
34
MAHMASSANI, cit. supra note 18, p. 230.
35
Ibidem.
36
MWL, cit. supra note 29.
37
Ibidem.
38
HAMIDULLAH, cit. supra note 30, p. 24.
39
Ibidem, pp. 23-24.
40
QUR AN., 3:159.
41
MAHMASSANI, cit. supra note 18, p. 231; COULSON, Conicts and Tensions in Islamic
Jurisprudence, Chicago, 1969, p. 6.
42
KHADDURI, Nature and Sources of Islamic Law, in EDGE (ed.), Islamic Law and Legal
Theory, Aldershot. Singapore, Sydney, 1996, p. 96 (hereinafter Nature); KHADDURI, The
Islamic Law of Nations, Baltimore, 1966, p. 29 (hereinafter Law of Nations).
43
KHADDURI, Law of Nations, cit. supra, p. 9. The secondary sources could be expanded
to include: 1) Orthodox practice of the early Caliphs; 2) Treaties, pacts and other covenants; 3)
Ofcial instructions to commanders, admirals, ambassadors and other State ofcials; 4) The in-
ternal legislation for conduct regarding foreigners and foreign relations; Custom; 5) Reason and
equity (such as, Istihsan, Al-Masalih al-Mursalah, Istidlal).
ISLAMIC LAW ON PRISONERS OF WAR 61
viding the best solution for the general interest.44 The provisions provided by the
Islamic law for the protection of captured personnel emerged from these sources.
The Islamic concept of humanitarian law differs in two ways from the classic
theory of the law of war, which long prevailed in positive international law. First,
Islamic humanitarian law does not require the existence of a war in the traditional
sense of the term. Thus, apart from the actual use of weapons, there is an implicit
obligation of a declaration of war between two or more parties.45 According to the
classic theory of the law of war a state of war exists despite none of the parties had
recourse to arms.46 By contrast, the Islamic conception applies humanitarian norms
once weapons have been used, and armed forces have been deployed, even with-
out a declaration of war.47 Thus, every able-bodied man that joined the armed
forces or engaged in hostility is considered a potential combatant and, accord-
ingly, if captured, attains the status of POW.48
In addition the Islamic concept of humanitarian law, unlike the classical theory
of IHL, does not differentiate between the different categories of armed conicts.
Hence, the general treatment of POWs is similar. Under the classic theory, ap-
plication of the rules was conditional on the existence of an international conict
between States. In the event of conict within a single State, these rules could not
apply unless the nature of the conict was that of civil war, and even then required
the condition that the insurgent party was recognized as the belligerent [force].49
This situation changed with the adoption of the four Geneva Conventions of
1949, which applied these rules to all armed conicts.50 The reason for the lack of
distinction under Islamic law between international and non-international armed
conicts is probably due to the fact that when Islam came into being, the very no-
tion of a State was unknown, or at least was insufciently dened. Consequently,
44
COULSON, cit. supra note 41, p. 7; see also KHADDURI, Nature, cit. supra note 42, p. 96;
BASSIOUNI and BADR, cit. supra note 20, p. 141.
45
EL-DAKKAK, International Humanitarian Law Lies between the Islamic Concept and
Positive International Law, International Review of the Red Cross, 1990, p. 101 ff., pp. 102-
103.
46
Ibidem.
47
Ibidem.
48
HAMIDULLAH, Muslim Conduct of State, 6th ed., Lahor, 1973, p. 383.
49
EL-DAKKAK, cit. supra note 45, pp. 103-104.
50
Such as: all cases of declared war or of any other conict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by one
of them (Common Article 2 of the Geneva Conventions) and in the case of armed conict not
of an international character occurring in the territory of one of the High Contracting Parties
(Common Article 3).
62 ARTICLES
51
EL-DAKKAK, cit. supra note 45, pp. 103-104.
52
QUR AN, 9:5. This verse emphasizes that the unbelievers must be killed in the battle, and
those who are not killed, may be taken as POWs.
53
Ibidem, 47: 4.
54
MAHMOUD, Hemaiet Dahaia Al Nezaat almosallahah Fee Al Kanoon Al Dowaly Al
Insany Wa Al Shariah Al Islamiah (The Protection of Victims of Armed Conicts in International
Humanitarian Law and Islamic Sharia), Cairo, 2000, p. 36.
55
Ibidem.
56
Geneva Convention III, Art. 12. Prisoners of war are in the hands of the enemy Power,
but not of the individuals or military units who have captured them. Ibidem.
57
BEN ASHOOR, Islam and International Humanitarian Law, International Review of the
Red Cross, 1980, p. 61 ff., p. 64; MAHMASSANI, cit. supra note 18, p. 303.
58
Ibidem.
59
EL-DAKKAK, cit. supra note 45, p. 110.
60
BEN ASHOOR, cit. supra note 57, p. 64.
ISLAMIC LAW ON PRISONERS OF WAR 63
should not experience the heat of the day in addition to the heat of their weapons.61
This is clear from the Prophets say: [F]ree them from enclosure until they render
cold.62 Furthermore, the Prophet is said to have ordered his fellow warriors: Take
heed of the recommendation to treat the prisoners fairly.63 The latter hadith is of
general application and covers all aspects of humane treatment of POWs.
The practices of the orthodox Caliphs may be a good reference to demonstrate
the observance of humanity. Chaybani, one of the famous scholars, reports in his
siyar that Caliph Abu Bakr condemned the practices of mutilation, torture and
drowning of combatants, whether they are engaged in the battle or as POWs.64 It is
reported that he told the commander of his army: You will nd people who claim
that they are safe because they stay inside the mosques. Let them be []. I give you
ten orders: do not kill children, women or old people; [] do not be tyrannical to-
wards captives and do not put them in irons.65 By the end of the eleventh century,
Salah Al-Din Al-Ayyubi (Saladin), who conquered Baital-Maqdis (Jerusalem), fol-
lowed the Islamic religious orders and thus authorized the hospitallers of St. John
of Jerusalem to enter his camp to aid wounded captive Crusaders.66
61
Ibidem. The battle of Badr was the rst battle in which the Prophet of Islam personally
took part against indels.
62
EL FAR, Asra Al Harb (Prisoners of War), Cairo, 1975, p. 194.
63
HAMIDULLAH, cit. supra note 48, p. 221.
64
BEN ASHOOR, cit. supra note 57, p. 65. Caliph Abu Bakr was the rst Caliph after the
death of the Prophet.
65
EL-DAKKAK, cit. supra note 45, p. 111. The hadith is referring to the human methods of
capturing the enemy combatants, thus, prohibiting manacling of captives with iron. However, one
commentator argues that Islamic Law of War does not distinguish between combatants and non-
combatants. Thus, he drew an analogy to the prevailing practice in western Europe until the 16th
century, which permitted inicting severe pain even on fellow humans, OSIEL, Obeying
Orders: Atrocity, Military Discipline, and the Law of War, California Law Review, 1998, p. 939
ff., p. 1011. Nevertheless, one may counter argue that the previously mentioned practice of the
Prophet and the Caliph Abu Bakr evinces that this argument has no merit.
66
BOISARD, On the Probable Influence of Islam on Western Public and International Law,
11 Journal of Middle East Studies, 1980, p. 429 ff., p. 444.
67
MAHMOUD, cit. supra note 54, p. 36.
64 ARTICLES
68
QUR AN, 17:70. In this context the phrase children of Adam refers to all human be-
ings.
69
AL DAHOOL, The Protection of Victims of Armed Conicts: Comparative Study between
the Rules of International Humanitarian Law and the Islamic Sharia, Cairo, 1998, p. 390.
70
QUR AN, 76:8. This verse is a clear message to Muslims, which emphasizes the priority of
POWs to be fed; see also MAHMASSANI, cit. supra note 18, p. 308 (supporting this view).
71
HAMIDULLAH, The Battleelds of the Prophet Muhammad: A Contribution to Muslim
Military History, Hyderabad, 1973, p. 21.
72
AL-ANSARY, A Collection of the Quranic Rule, Vol. 19, 1967, p. 129; see also
HAMIDULLAH, cit. supra note 48, p. 222. The word Ibn means son.
73
AL-SHAFIA, The Book of the Nation: El Ohm (The Mother), Vol. 4, 1968, p. 169; see also
AL DAHOOL, cit. supra note 69, p. 391.
74
Ibidem.
75
Geneva Convention III, Art. 16. Article 16 reads: Taking into consideration the provi-
sions of the present Convention relating to rank and sex, and subject to any privileged treatment
which may be accorded to them by reason of their state of health, age or professional qualica-
tions, all prisoners of war shall be treated alike by the Detaining Power, without any adverse
ISLAMIC LAW ON PRISONERS OF WAR 65
Islamic law grants POWs the same, if not a greater degree of protection against un-
justied discrimination.76 The primary authoritative source of Islamic law (Quran)
expresses this view on equality in the following verse: O! Mankind, be conscious
of your sustainer, who has created you out of one living entity, and out of it created
its mate, and out of the two spread abroad a multitude of men and women.77 Jurists
argue that this verse expresses the view that human beings are created out of one
nafs (living entity).78 Accordingly, no one being is superior to another.
Furthermore, the Sunnah played an indispensable complementary role in this
respect. The Prophet in his farewell sermon adopted this view, when he said: O
people! Your lord is only one; your father is only one, all of you emanated from
Adam and Adam emanated from earth, it is only piety, which distinguishes Arab
from non-Arab and a red from a white.79 In this context, the reference to the word
piety implies the appropriate interpretation of the text and demonstrates that the
only distinctions drawn between human beings should be those based strictly on
their piety. Thus, by analogy, piety is equivalent to rank,80 or state of health as set
out in the Convention. Under comparable circumstances, all acts of discrimination
are barred.
The Islamic law is clear regarding POWs who are subjected to any act of tor-
ture or reprisal. In the sphere of Arabia, there was a custom of mutilating the bod-
ies of enemy combatants as a reprisal.81 On occasion, women participated in these
sinister practices, sometimes devouring the enemys liver to avenge a husband
or brother killed in battle.82 This practice was reected in the battle of Uhud, where
Hind, mother of the future Caliph Muawia, indulged in this kind of mutilation of
enemy corpses.83 In particular, Hind concentrated on Hamza, the Prophets uncle,
distinction based on race, nationality, religious belief or political opinions, or any other distinc-
tion founded on similar criteria.
76
See infra note 77.
77
QUR AN, 4:1.
78
The word nafs can mean soul, spirit, mind, human being, etc.
79
ALI, Womens Human Rights in Islam: Towards a Theoretical Framework, in COOK
(ed.), Human Rights of Women: National and International Perspectives, Philadelphia, 1994,
p. 123; see also GAAFAR, The Political Rights of Women in Islam: Concept and Contemporary
Legislation, Egypt, 1997, p. 15.
80
See, e.g., 1949 Geneva Convention III, Art. 45, which provides that: [] Prisoners of
war of equivalent status shall be treated with the regard due to their rank and age []
81
STAFRAKI, The Human Concept in Islamic International Law, International Review of
the Red Cross, 1991, p. 33 ff., p. 39; BEN ASHOOR, cit. supra note 57, p. 64.
82
BEN ASHOOR, cit. supra note 57, p. 64.
83
Ibidem.
66 ARTICLES
by eviscerating him and crushing his liver.84 When the enemy retreated and
the Moslems returned to search for their dead, the Prophet, who had considerable
affection for Hamza found his uncle lying on the battleeld. Suggesting an inten-
tion to take revenge, the Prophet exclaimed: By God, if God gives us victory over
them, I shall punish them as no Arab has ever done.85 However, the interpreters of
the Quran explain that, at this point, the following verses were revealed:
Let thy punishment bet the crime thou hast suffered, but thou
woudst do well nonetheless to arm thyself with patience. Therefore
be patient, thy patience will be possible only with the help of God.
Grieve not because of them, and let not their plot cause anguish in
thee. God is with those who are kind and who fear him.86 And the
recompense of an evil is an evil equal to it, but whoever forgives and
seeks reconciliation, his reward is with God. Surely He does not love
the evildoers.87
Based on these texts, the Sunnite scholars condemn acts of reprisal including,
inter alia, mutilation and torture, whether the POWs are dead or alive. Such is the
standpoint of Imam Chafi.88
In addition, another practice at the time consisted of beheading and sending the
head to the authorities. When Caliph Abu Bakr was informed of enemy behaviour
of this nature, he is reported to have said: Are we going to follow in the footsteps
of the Persians and Byzantines?89 The same principle of non-retaliation was ad-
hered to later by Saladin who conquered Baital-Maqdis (Jerusalem). In his book
La civilisation des Arabes, Gustave Le Bon, the French historian mentioned that
when the British King Richard Lion Heart ordered his soldiers to kill 3,000 Muslim
POWs after he had sworn to secure them a safe life, Saladin followed the tenets of
Islam and refused to apply the law of retaliation.90 These precedents suggest that
Islamic law condemns various forms of inhuman acts and bars collective punish-
ment, relying instead on individual criminal responsibility.
84
Ibidem.
85
Ibidem, pp. 64-65.
86
QUR AN, 16: 126-127-128.
87
Ibidem, 42:40.
88
STAFRAKI, cit. supra note 81, p. 39; see also BEN ASHOOR, cit. supra note 57, p. 65.
89
BEN ASHOOR, cit. supra note 57, p. 65.
90
LE BON, La civilisation des Arabes: Livres III (Lempire des Arabes), Paris, 1884, p.
184, an electronic version is available at www.uqac.uquebec.ca/zone30/Classiques_des_scien-
ces_sociales/classiques/le_bon_gustave/civilisation_des_arabes/Arabes_livre_3.doc. (Richard
Cur de Lion continua les actes de sauvagerie par lesquels staient signals les premiers croi-
ss. Il commena par faire massacrer en face du camp des musulmans trois mille prisonniers qui
staient rendus, et auxquels il avait jur la vie sauve, et se livra toutes sortes de meurtres et de
pillages. On conoit leffet que durent produire des actes pareils sur le chevaleresque Saladin, qui
ISLAMIC LAW ON PRISONERS OF WAR 67
According to the Islamic law regulations, the killing of POWs and their re-
lease are two topics that are linked and should be studied in conjunction. Islamic
norms prohibit unjustied killing of POWs. This view is stressed in provisions
of the laws of Islam that are quoted from the Glorious Quran and the practices
of the Orthodox Caliphs. The Quran dened the way in which POWs must be
treated in Sura Mohammad: So when you meet the unbelievers in battle, smite
their necks, then, when you have overcome them, take them as POWs, until the
war lays down its burdens, then you may set them free, either by grace or by ran-
som [].94 This text from the Quran is categorical in limiting the fate of POWs
to gratuitous release (grace) or release by ransom. Accordingly, a prisoner may
not be killed. Ibn Rushd records a consensus of the Companions of the Prophet to
avait si gnreusement pargn les habitants chrtiens de Jrusalem, et pendant une maladie de
Philippe Auguste et de Richard Cur de Lion leur avait envoy des provisions et des rafrachis-
sements. Il entrevit labme qui sparait alors la faon de penser et de sentir dun homme civilis
de celle dun barbare, et comprit quon ne pouvait traiter de semblables forcens que comme des
animaux sauvages, ibidem. In 1187 Saladin led his army and captured Jerusalem. As a result,
Philip Augustus of France, Richard I of England, and Emperor Fredrick Barbarossa marched to
a Third Crusade (1189-1192). Despite the fact that Richard captured Acre, he failed, however,
to re-capture Jerusalem. In this respect, see DAVIS, Encyclopedia of Invasions and Conquests:
From Ancient Times to the Present, Oxford, 1998, p. 78; see also DE TAUBE, tudes sur le dvel-
oppement historique du droit international dans lEurope Orientale, RCADI, 1926, Vol. 11, p.
341 ff., p. 394 (noting that in the middle ages, where Europe had barbaric practices such as the
Byzantium regime which killed 15,000 Bulgarian prisoners of war who were Christians as well,
Islam contributed to the humanization of humanity to a wider extent than in Europe).
91
Geneva Convention III, Art. 91.
92
Ibidem, Art. 92.
93
HAMIDULLAH, cit. supra note 48, pp. 444-445.
94
QUR AN, 47:4.
68 ARTICLES
the same effect.95 However, during the time of the Prophet the practice of execu-
tion was permitted on occasion. Some legal experts conclude that, according to
the Sunnah, execution of captives was a possible option.96
Based on the latter opinion, it might be argued that the execution of captives is
inconsistent with Article 130 of the Third Geneva Convention. But the Convention
prohibits only acts of killing which are not legally justied. Likewise, Islamic law
permits executions and does not preclude the trial and punishment of POWs for
crimes beyond acts of belligerency. This is proscribed by the high authority of the
practice of the Prophet97 when Ibn Gharra was the only POW captured at the battle
of Uhud. The Prophet released him on promise (without ransom). However, this
was on the condition that he would not speak calumnies regarding Mohammad.98
Yet upon returning to Mecca, Ibn Gharra broke his word. The Prophet ordered his
arrest and execution as a punishment for breaking the commitment made. Thus,
an examination of the provisions of the Third Geneva Convention suggests that a
prisoner who is released on parole or who promises and subsequently breaches his
promise, may be tried and sentenced according to the laws of the Detaining Power.
Similarly, the practice of the Prophet sustains the same view.
Furthermore, the practices of Orthodox Caliphs are another example of how the
killing of POWs is prohibited unless there is evidence of criminal acts beyond bel-
ligerency. It is said that Al-Hadjadj brought one of his captives to the Caliph Omars
son and asked him to execute the man.99 Omars son replied that such acts are con-
trary to divine precepts that require that a POW either to be released for ransom
or unconditionally.100
This process enshrines two practices: release for the payment of a sum of mon-
ey or release by exchange of POWs (reciprocity).101 It is clear from practice that
95
HAMIDULLAH, cit. supra note 48, p. 441; cf. EL DAKKAK, Genocide from the Perspective
of International and Islamic Law, in ABDEL HALEM et al. (eds.), Criminal Justice in Islam:
Judicial Procedure in the Sharia, London/New York, 2003, p. 140.
96
EL-DAKKAK, cit. supra note 45, p. 109. Indeed, based on an early Quranic verse that says
It is not for any Prophet to have captives until he slaughters in the land, Abu Hanifa argues that
captives should be either killed or enslaved, but never set free or ransomed. However, the majority of
jurists rely on the verse cited above in the text and concluded that the Chief of the Islamic State may
choose according to his judgment one of ve course. Killing of male captives (children and women
however cannot be killed), enslavement, exchange for a Muslim prisoner, redemption by ransom, and
the benevolent release (mann). In this respect, see MAHMASSANI, cit. supra note 18, pp. 306-307.
97
EL-DAKKAK, cit. supra note 45, p. 110.
98
Ibidem.
99
Ibidem, p. 109.
100
Ibidem.
101
Ibidem.
ISLAMIC LAW ON PRISONERS OF WAR 69
the Head of the Muslim State may require payment of a special amount of money
to the treasury, which can differ from case to case. This practice appeared during
the battle of Badr, where the Prophet xed four thousands drachmas as the rate for
ordinary POWs. Even the Prophets relatives were not exempted. This process,
however, was applied humanely. For example, when ransom could not be paid,
the Prophet would ask those literate among the POWs to teach ten Moslem boys
reading and writing.102 There are many examples in the life of the Prophet of such
practices. Later, this principle developed into a complicated institution involving
the release of thousands of POWs at a time.103 This practice seems to be compatible
with the provisions of the Third Geneva Convention.
102
HAMIDULLAH, cit. supra note 71, p. 21.
103
HAMIDULLAH, cit. supra note 48, p. 455.
104
Ibidem.
105
Ibidem, p. 456.
106
Ibidem. Mahmassani observed that cessation of hostilities is one of the causes in
Islamic Law for the termination of war, MAHMASSANI, cit. supra note 18, p. 295.
70 ARTICLES
them free, either by grace or by ransom.107 Thus, this Quranic verse is consistent
with the provision of Article 118(1) of the Third Geneva Convention. However, it
might be argued that Article 118(1)108 should apply at the close of actual warfare.
Furthermore, no delay is justied by the continuation of the legal state of war, which
is not claried in the Quranic verse. Despite this argument, the Prophets prece-
dents and practices prove the contrary. During this period, the Islamic State was in a
continuous state of war against the indels (starting with the battle of Badr and end-
ing with the conquest of Mecca). Thus, the Prophets release of POWs subsequent to
the battle of Badr suggests that the main criterion in this respect is the close of actual
warfare (cessation of re), and not the continuation of the legal state of war.
There were few occasions during the life of the Prophet when gratuitous re-
lease (release without anything in exchange) took place. As narrated by Anas Ibn
Malik, the Treaty of Huddaibiah mirrors one of those rare cases. Eighty indel
soldiers from the Eltanaim Mountains attempted to attack the Prophet.109 Although
they were arrested, the Prophet freed them and received nothing in exchange.110
After Mecca was conquered, the Prophet famously proclaimed to his POWs: Go
your way, you are free!111
The practices of Saladin provide the best examples of such methods of release.
Subsequent to the conquest of Baital-Maqdis (Jerusalem), many enemy combatants
were taken as POWs. POWs families, especially women, urged Saladin to release
those captured due to the fact that women and children would suffer as result of
loosing their husbands support. In response, Saladin ordered that all husbands,
sons and fathers of those women be released.112 This not only conrms the practice
of gratuitous release, but also demonstrates the humanity of treatment provided by
the norms of Islamic law.
107
QUR AN, 47:4.
108
MERON, The Humanization of Humanitarian Law, AJIL, 2000, p. 239 ff., p. 254.
109
AL DAHOOL, cit. supra note 69, p. 398.
110
Ibidem. Imam Al Bukhari narrated that after the battle of Hunayn (A.D. 631) the Prophet
ordered the unconditional release of 6,000 POWs captured from the Hawazin tribe. Moreover, Al-
Tabari reported that the Prophet ordered the unconditional release of more than one hundered families
of the Bani Mustaliq Tribe who were captured, BENNOUNE, As-Salamu Alaykum? Humanitarian
Law in Islamic Jurisprudence, Michigan Journal of International Law, 1994, p. 605 ff., p. 634.
111
EL-DAKKAK, cit. supra note 45, pp. 109-110. All captives were set free by the order of
the Prophet without anything in exchange.
112
See ZAHOOR, Morality in War, at http://users.erols.com/gmqm/sibai6.html.
ISLAMIC LAW ON PRISONERS OF WAR 71
Then his soul prompted him to kill his brother and he killed him,
and became among the losers. Then God sent a crow scratching into
the earth to show him how to bury the corpse of his brother. He said,
Woe is me, am I unable to do as this crow, and so bury my brother?
And he became among the remorseful.113
The verses clarify the required treatment of the dead. Specically, the verses
signify that all deceased beings should be buried after death. Furthermore, in Sura
(Abasa), God emphasized the same meaning in the following verses: Perish man-
kind! How ungrateful he is! Of what did He create him? From a small quantity of
liquid, God fashioned him in due proportion and ordained his fate. Then He makes
his path smooth for him; Then He causes him to die, and buries him.114 Thus, the
aforementioned verses reveal the general rule to be followed in treating all de-
ceased persons, including POWs.
The practice concerning treatment of the deceased emerged after the battle of
Badr, where all Muslim and enemy dead were given proper burials. Mutilation
or any other dishonor was strictly prohibited.115 This raises a question regarding
the cremation of dead bodies in accordance with Article 120 of the Third Geneva
Convention. The Convention permits cremation only for imperative reasons of
hygiene, the religion of the deceased or in accordance with his express wishes.116
However, under Islamic law, cremation appears to be prohibited. Caliph Aliy Ibn
Abi Talib is reported to have ordered his troops: When you defeat them, do not kill
their wounded [] do not mutilate their dead.117 In this context, it is submitted that
acts of cremation and mutilation should be treated the same.
Finally, according to Islamic principles, POWs have the right to draw up wills
for their property at home. Obviously, this process would be communicated to en-
emy authorities through a proper channel.118
From the outset, it should be noted that all Islamic States are parties to the
1949 Geneva Conventions. Thus, they are bound by the norms enshrined in those
conventions. The same applies with regard to Islamic law. Islamic States are bound
113
QUR AN, 5: 30-31.
114
Ibidem, 80: 17-21.
115
HAMIDULLAH, cit. supra note 71, p. 21.
116
Geneva Convention III, Art. 120(5).
117
HAMIDULLAH, cit. supra note 48, p. 360.
118
Ibidem, p. 441.
72 ARTICLES
by the law of God, which is the common constitution of the Islamic community
of States. Thus, there is a clear hierarchy that always gives precedence to Islamic
law.119 It follows that, from the outset, all Islamic countries engaged in an armed
conict are bound by the relevant norms of Islamic law. To a certain extent, Islamic
law, however, does not preclude the possibility of applying positive laws such as
the Geneva Conventions. In this context, both IHL and Islamic law are likely to be
applied in a conict involving an Islamic State, subject to the consistency of those
international norms (positive law provisions) with the principles of the Islamic
Sharia as enshrined in the Quran, and the Sunnah.120 A common way of applying
both laws is to ensure the full compliance of the relevant positive law with the prin-
ciples of the Islamic Sharia. As a result, both laws can apply simultaneously.
It should be noted however that the rules emanating from the main sources of
Islam have a similar status under Islamic law as a jus cogens norm under inter-
national law.121 It follows from this conclusion that any treaty or a provision that
does not conform to the principles of the Islamic Sharia is null and void.122 In this
respect, it is only the inconsistent provision and not the entire treaty (as is the case
119
See for example Said Hassaneen v. Prime Minister, President of the Peoples Assembly,
Egyptian Supreme Constitutional Court, Case No. 5, Constitutional Judicial Year No. 8, 6
January 1996 (noting that there is a prohibition when a provision set out in positive law (enact-
ment) contradicts the main rules and principles of the Islamic Sharia).
120
The Egyptian Supreme Constitutional Court claried the idea behind the principles of
the sharia as it conrmed that no provision set out in any law may contradict or deviate from
the general principles and the immutable sources of the Islamic sharia as they are not open to
interpretation and cannot not be changed, Egyptian Supreme Constitutional Court, Appeal No.
7, Judicial Year No. 8, 15 May 1993. In a later decision, the Egyptian Supreme Administrative
Court held the same view when it concluded that: The principles of the Islamic sharia are the
major source of legislation. This imposes a limitation curtailing both the legislative and executive
power, through which they are obliged that whatever laws or decrees they enact, no provision
contained in them may contradict the provisions of Islamic law which are denite in terms of
their immutability and their meaning. Because these priciples [] are not accessible to [ijtihd] as
they represent the general principles and immutable sources of the Islamic sharia which are not
open to interpretation and cannot be changed []. It is[therefore] not permitted to deviate from
them or to depart from their meaning. Whatever legislative enactment contravenes them must be
declared null and void, quoted in BLZ, Human Rights, the Rule of Law and the Construction
of Tradition: The Egyptian Supreme Administrative Court and Female Circumcision (Appeal no.
5257/43, 28 December 1997), quoted in COTRAN and YAMANI, The Rule of Law in the Middle
East and the Islamic World: Human Rights and the Judicial Process, London, 2000, p. 35 ff., p.
39; also Asmaa Ali v. President, Prime Minister, Egyptian Supreme Constitutional Court, Appeal
No. 6, Constitutional Judicial Year No. 9, 18 March 1995; Atef Ibrahim v. Prime Minister, Minister
of Justice, Egyptian Supreme Constitutional Court, Appeal No. 4, Constitutional Judicial Year
No. 15, 6 July 1996; AUDA, El Tashriaa El Jenaai Al Islami Moukaranan Bel Kanoun Al Wadai
(Islamic Criminal Legislation: A Comparison with Positive Law), Cairo, 1984, Vol. I, p. 223.
121
ABOULWAFA, Kitab Elilam Bekawaeid Al Kanoun Al Dewaly Wa Al Elakat Al Dewaliah
(A Book for Information on the Rules of International Law and International Relations in the
Islamic Sharia), Cairo, 2001, Vol. I, p. 16.
122
AUDA, cit. supra note 120, pp. 223-237.
ISLAMIC LAW ON PRISONERS OF WAR 73
under Article 53 of the Vienna Convention) that will be rendered null and void.123
It is submitted that in essence Geneva Convention III provisions appear consistent
with Islamic law. Moreover, had any inconsistencies been evident, Islamic States
would either not have ratied the Geneva Conventions, or made reservations based
on the inconsistent provision.124
The armed conict that started between Iran and Iraq in 1980 presented an
opportunity to assess how Islamic solidarity might affect each partys conduct dur-
ing hostilities.125 Public statements and documents indicated that both States were
willing to respect the principles of IHL in the conduct of hostilities.126 However, as
is often the case in situations of armed conict, the reality of State practice proved
different. Iran looked to Islamic norms, while Iraq looked to international law.127
Nevertheless, the Iraqi High Command justied its deliberate targeting of civilians
on the basis that this was a war of survival, and that it was legitimate to target
Iranian civilians to reduce their support for the Iraqi non-Muslim Bathist blas-
phemer (Saddam Hussein) and his military policy.128 In contrast, the Iranian leader-
ship adopted the notion of a peoples war. In so doing military planners aimed to
do away with conventional warfare methods, in favour of Islamic warfare.129 In
time the Islamic system and IHL were perceived to be in competition.130
The issue of the treatment of POWs by Iran and Iraq was contentious. In
response to requests from both States, the United Nations Secretary-General de-
cided, in the light of his humanitarian responsibility under the Charter of the United
123
Ibidem, p. 237. In this respect, it has been recorded that the Prophet said Every require-
ment or condition that is not emanated from the book of God is void (emphasis added), in
ABOULWAFA, cit. supra note 121, p. 169, n. 259; see also the Vienna Convention on the Law of
Treaties, 23 May 1969, Art. 53.
124
Only thee Islamic States have entered reservations to the Third Geneva Convention
(Islamic Republic of Iran, Pakistan, and Yemen). However, none of these reservations reects any
clear inconsistency between the Convention and the Islamic Sharia, available at www.icrc.org.
125
COCKAYNE, Islam and International Humanitarian Law: From a Clash to a Conversation
between Civilizations, International Review of the Red Cross, 2002, p. 597 ff., p. 617.
126
See Letter dated 28 June 1984 from the Deputy Permanent Representative of Iraq to
the United Nations Addressed to the Secretary-General, UN Doc. S/16649, 28 June 1984; and
Statement dated 17 July 1989 by the Foreign Ministry of the Islamic Republic of Iran, UN Doc.
S/20470, 19 July 1989, Annex.
127
COCKAYNE, cit. supra note 125, p. 618.
128
KELSAY, Islam and the Distinction between Combatants and Non-Combatants, in
JOHNSON and KELSAY (eds.), Cross, Crescent, and Sword: The Justication and Limitation of
War in Western and Islamic Tradition, Westport, 1990, pp. 197 ff., pp. 207-208.
129
Ibidem, pp. 215-216.
130
COCKAYNE, cit. supra note 125, p. 619.
74 ARTICLES
Nations, to dispatch a special mission to Iran and Iraq.131 Its task was to endeavor to
ascertain the facts and enquire into the concerns expressed by both governments re-
garding the treatment of POWs with a view to ensuring observance of the relevant
rules of IHL. During the conict there was no Protecting Power, and both sides
denied or hindered the ICRC access to POWs camps. The report of the mission pro-
vides one of the few impartial sources of information on the treatment of POWs by
two Islamic States. The members of the mission were mindful of the need not only
to apply norms of a universal character such as the Third Geneva Convention, but
also to have regard to the prevailing cultural and religious traditions and character-
istics of the region.132 It was their considered judgment that, based on the conditions
observed and statements repeatedly heard, they were able to obtain a representative
and reliable picture.133
5.1. General Information and Policies of the Islamic Republic of Iran Concerning
POWs
The view of the Iranian authorities was that, according to the precepts of Islam,
the POWs were guests of the Iranian authorities and enemies of yesterday become
friends of today. According to the law of Islam, POWs are treated as human beings
who have legal and spiritual rights and those in charge of POWs must apply Islamic
law. In accordance with Islam, they cannot mistreat a POW, and no abuse or physi-
cal pressure is permitted.134
The Iranian authorities considered that the Geneva Conventions were adhered
to a greater extent in Iran than elsewhere in the world. All POWs were said to be on
the same footing and to have the same facilities as Iranian soldiers. The camp au-
thorities tried to create a good atmosphere and living conditions, both physical and
mental. It was claimed that at the time the living conditions of POWs were superior
to eighty ve per cent of the Iranian population.
The mission found that most of the POWs it met said they were treated as
guests of the Iranian Government, that they had no complaints and that there was
no reason to investigate their situation. Food, accommodation and health condi-
131
See Report of the Mission Dispatched by the Secretary-General on the Situation of
Prisoners of War in the Islamic Republic of Iran and Iraq, Security Council Doc. S/20147, 29
August 1988 (hereinafter UN Iran/Iraq POW Report), p. 1 ff. An earlier mission in 1985 had
found numerous violations of the Third Geneva Convention by both sides, see Prisoners of
War in Iran and Iraq: The Report of a Mission Dispatched by the Secretary-General, UN Doc.
S/16962, 22 February 1985.
132
The members were Maj-Gen. R. Bats (Belgium), Prof. W. Karl (University of Salzburg,
Austria), and Prof. T. Opsahl (University of Oslo, Norway).
133
UN Iran/Iraq POW Report, cit. supra note 131, pp. 9-10.
134
Ibidem, p. 11.
ISLAMIC LAW ON PRISONERS OF WAR 75
135
Ibidem, para. 41.
136
Ibidem, para. 47.
76 ARTICLES
Iran and Iraq to give information about those captured as required by the Third
Geneva Convention.137
The mission did not see any direct evidence of atrocities, torture, or beating.
However, it noted that from the conversations with some POWs, allegations that
such acts occurred could not be dismissed.138 Furthermore, although the Iranian
authorities claimed to adhere strictly to the Geneva Conventions, they did not seem
to have a full understanding of the independence of the ICRC and the way in which
it had to carry out its role.
In general, the material conditions of the POWs whom the mission could meet
were acceptable, although in some instances improvements were necessary. There
was evidence of ill-treatment as a consequence of guard violence. POWs were also
suffering from psychological pressure, though long-term captivity contributed to
this. There was, however, no proof of systematic indoctrination.
The Iraqi authorities had reserved the right to resort to measures of reprisal as
a result of the alleged failure of Iran to abide by its obligations under the Geneva
Conventions.139 The mission stated that such policies were clearly erroneous in the
context of humanitarian issues where reprisals are strictly forbidden under interna-
tional law.
In some of the camps visited the mission found overcrowding and poor morale
among the POWs. However, the non-registration of POWs and the decision to halt
ICRC registration activities was a serious problem. By so doing the intention of the
Iraqi government was to put pressure on the Iranians to account fully for the POWs
in its custody. This was inconsistent with both, the obligations under Article 113
of the Third Geneva Convention, and the norms of Islamic law, which prohibits
measures of reprisals against POWs. In addition, it was not legitimate to insist on
conditions of reciprocity or reprisals.
Iran had claimed that Iraq was holding tens of thousands Iranian civilians, both
as civilian internees and as POWs in camps under miserable conditions.140 The
mission found the situation of the Iranian Kurds more akin to internees than that
of refugees. Their primary concern was the issue of asylum and repatriation. The
mission also found evidence of Iraqi deportations of civilians from border areas
under Iraqi occupation. Their primary concern was the uncertainty over the future.
The mission could reach no conclusions in relation to the allegations of murder
and massacre. However, it did nd that while it could not exclude the fact that such
137
Ibidem, paras. 81-83.
138
Ibidem, para. 63.
139
Ibidem, para. 88.
140
Ibidem, para. 109.
ISLAMIC LAW ON PRISONERS OF WAR 77
practices may have existed in the past, there was reasonable ground to conclude
that the situation had improved.141
5.3. Repatriation
It was argued by some that Security Council Resolution 598 (1987) had intro-
duced an element of uncertainty into what would otherwise be a clear obligation
to release and repatriate POWs without delay.142 While the resolution did call for
the release of POWs without delay after the cessation of active hostilities, this
was made in paragraph three of the resolution. Paragraph one, on the other hand,
demanded as a rst step towards a negotiated settlement, Iran and Iraq observe an
immediate ceasere, discontinue all military actions [] and withdraw all forces to
internationally recognized boundaries without delay.143 Relying on this, Iran took
the position that a release of POWs should be considered only as part of a package
arrangement that would include Iraqs withdrawal from Iranian territory, and that
the requirements of paragraph one be fullled before those of paragraph three. Iraq
disputed this interpretation.
Article 118 of the Third Geneva Convention requires that POWs be released
and repatriated upon the cessation of hostilities.144 It is not contingent on the con-
clusion of a peace treaty, withdrawal from occupied territories, or any reciprocal
arrangement with the other State or States involved. During hostilities, Iran and
Iraq released similar numbers of wounded, sick and elderly POWs. However, both
States later suspended the repatriation of POWs. Each blamed the other for not
abiding by agreements made. Iran claimed that some POWs did not want to be
repatriated, but this was impossible to conrm, as the ICRC was not granted access
to the POWs.145 Article 118 does not specically address the issue of the wishes of
the POW, however, State practice since 1949 indicates that their wishes are taken
into account.146
The Secretary-Generals mission of 1988 noted that those POWs unwilling
to register and be repatriated represented a signicant problem. It recommended
consideration of special procedures to assist the ICRC, but that these not be forced
141
Ibidem, para. 118.
142
Security Council Resolution 598 of 20 July 1987; UN Doc. S/Res/598 (1987). See
QUIGLEY, Recent Developments in International Organizations Iran and Iraq and the
Obligations to Release and Repatriate Prisoners of War After the Close of Hostilities, American
University Journal of International Law and Policy, 1989-1990, p. 73 ff., p. 76.
143
Ibidem.
144
Commentary on Article 118, p. 54 ff.; LEVIE, The Nature and Scope of the Armistice
Agreement, AJIL, 1956, p. 880 ff., p. 898; MERON, cit. supra note 108, p. 254.
145
QUIGLEY, cit. supra note 142, p. 79.
146
Ibidem, p. 83.
78 ARTICLES
in any way. This was especially so given that the prevailing attitude among the
Iraqis in the camps in Iran could make cooperation with such POWs difcult.147 It
also recommended that procedures and guarantees be put in place to protect against
forced repatriation, and noted that it was essential to reduce the fears of some
POWs of reprisals against their families if they opposed repatriation. At the same
time it was acknowledged that it was important to make sure that any process put
in place did not favour non-repatriation, as this could be open to abuse. A matter of
real concern to the mission was the evidence obtained from independent sources
that both sides seemed to have taken more POWs than they were ready to account
for.148 This made determining the whereabouts of the missing POWs, which was
of major concern to both governments, more problematic. It was a source of some
satisfaction to the mission that with the co-operation of the Iranian authorities,
they were able to provide some information about the whereabouts of over seven
thousand missing POWs.
6. CONCLUSION
The Islamic concept of humanitarian law, while not identical to that of IHL, is
not inconsistent with it. Indeed, the principles of Islamic law often coincide with
those of IHL. However, occasionally, they diverge on specic points. For example,
the provisions of the Third Geneva Convention149 relating to the determination of
combatant and POW status are complex and can give rise to varying interpreta-
tions. As the policy of the United States indicates, determining the status of those
participating in contemporary armed conicts is problematic.
Determining the status of partisan or guerrilla ghters in accordance with IHL
is difcult. In contrast, the Islamic law avoids much of the complexity of IHL and
is more exible in this respect. Thus, every able-bodied individual taking part in
the armed forces or in acts of aggression may be considered a potential combatant
and acquires the status of POW if captured. It must be borne in mind that the ulti-
mate purpose of IHL and relevant Islamic law norms is to ensure that humanitarian
principles are upheld in situations of armed conict. IHL aims to ensure that the
categories of persons in need of protection can be identied and afforded the ap-
propriate status and treatment in accordance with the relevant Convention.
Moreover, the rules contained in the Geneva Conventions apply according to
common Article 2150 either in cases of declared war or other armed conict, which
may arise between two or more States. In contrast, the Islamic law approach avoids
147
UN Iran/Iraq POW Report, cit. supra. note 131, para. 139.
148
Ibidem, para. 150.
149
Geneva Convention III, Art. 4.
150
Ibidem, Art. 2.
ISLAMIC LAW ON PRISONERS OF WAR 79
151
ARABI, Studies in Modern Islamic Law and Jurisprudence, The Hague, 2001, pp. 198-200.
152
Ibidem, p. 200.
153
Ibidem, p. 202.
80 ARTICLES
War, and the Persian Gulf War when Iraq violated both the Islamic and the inter-
national precepts. However, the monitoring responsibility was placed upon the
Islamic community, which failed to react appropriately.
ii) Problems arise in the implementation of IHL. Despite the broad scope of
IHL, which consists of more than six hundred rules, the reality is that these treaties,
even if accepted by States, could well remain dead letters unless domestic legal
and practical measures are taken to guarantee their application.154 The mechanisms
for the implementation of IHL are comprehensive and varied. In practice, they are
often not applied, because of a lack of a willingness on the part of the States to
respect and ensure respect155 for the relevant treaties in all circumstances. This is
evident from the conduct of Iraqi captors during the First Gulf War, the Persian Gulf
Conict, and that of the United States in relation to the Guantanamo Bay detainees.
iii) During the Persian Gulf Conict, and the Iran-Iraq War, the ICRC partially
demonstrated its failure to protect POWs. This failure occurred even though the
ICRC had the right to take any humanitarian initiative in accordance with its role
as an independent and neutral institution.156 Despite the ICRCs commitment as a
154
For an excellent discussion regarding the monitoring process, see generally DRZEWICKI,
National Legislation as a Measure of International Humanitarian Law, in KALSHOVEN and
SANDOZ (eds.), Implementation of International Humanitarian Law, Dordrecht, 1989, pp.
109-131; see also SUOMINEN, Grave Breaches, Universal Jurisdiction and Internal Armed
Conict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed
Conicts?, Journal of Conict and Security Law, 2000, p. 63 ff., p. 69.
155
DRZEWICKI, ibid., pp. 110-111. For a thorough discussion regarding the duty to respect
and ensure respect, see KARLSHOVEN, The Undertaking to Respect and Ensure Respect in All
Circumstances: From Tiny Seed to Ripening Fruit, YIHL, 1999, p. 3 ff.; KESSLER, The Duty
to Ensure Respect Under Common Article 1 of the Geneva Conventions: Its Implications on
International and Non-International Armed Conicts, GYIL, 2001, p. 498 ff. See also Case
Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US),
ICJ Reports, 1986, para. 218. The Court stated: [T]here is an obligation on the United States
Government, in the terms of Article 1 of the Geneva Conventions, to respect the Conventions and
even to ensure respect for them in all circumstances [], ibidem. Thus, each State has a duty
to make an effort to ensure that violations of the provisions of the Convention do not take place.
Moreover, Meron has highlighted the danger that might result from a failure to respect and comply
with the provisions of the Conventions when he said: If states fail to observe the provisions of
the Geneva Conventions in conicts in which they are involved or resort to numerous reservations
having a signicant adverse impact on the actual observance of the norms in the Conventions,
the claims of the Conventions to customary law status will naturally be weakened. Taken cumu-
latively, frequent evasions by states of those norms by reliance on the specic circumstances of
particular situations (sui generis claims) can only erode the position of the Conventions as crucial
instruments of humanitarian law and as claimants to customary and a fortiori to jus cogens status:
see MERON, The Geneva Conventions as Customary Law, AJIL, 1987, p. 348 ff., p. 370.
156
SASSOLI et al., How Does Law Protect in War?, Geneva, 1999, p. 275. Article 5(3) of
the Statute of the ICRC reads: [T]he ICRC may take any humanitarian initiative which comes
within its role as a specically neutral and independent institution and intermediate, and may
consider any question requiring examination by such an institution (ibidem).
ISLAMIC LAW ON PRISONERS OF WAR 81
Protecting Power to ensure and monitor the application of IHL through its activi-
ties in the eld, it failed to comply with the provisions of Article 126 of the Third
Geneva Convention with regard to visiting all locations of POW internment. In
effect, Iraq succeeded in hiding some locations where POWs were being interned.
Perhaps attempts to create a system of international supervision similar to other
treaties by requiring periodic reports might assist in overcoming this quandary.
HUMAN GENETICS, REPRODUCTIVE TECHNOLOGY
AND FUNDAMENTAL RIGHTS
CRISTINA CAMPIGLIO*
Among the topics that a possible universal code of bioethics should deal
with, according to the Report published in June 2003 by the International Bioethics
Committee (IBC) of UNESCO, are reproduction and human genetics.1 In particu-
lar, the Report mentions, on the one hand, control over reproduction made possible
today by medical techniques aimed at preventing unwanted pregnancies, obtaining
otherwise impossible pregnancies, and selecting healthy embryos or foetuses; and,
on the other hand, the development of gene therapy and genetic engineering. The
Report states:
Less than two months earlier (April 2003), the IBC had published a Report
specically devoted to Pre-implantation Genetic Diagnosis and Germ-line
Intervention.2 Also, on 16 October 2003 the General Conference of UNESCO
adopted the International Declaration on Human Genetic Data, in which it ac-
knowledges that [h]uman genetic data have a special status because [] they
may have a signicant impact on the family, including offspring, extending over
generations (Article 4(a)).
Actually, already in 1995, on the occasion of the Report on Human Rights
and Scientic and Technological Developments. Human Rights and Bioethics,3
*
Professor of International Law, University of Pavia.
1
See UNESCO, Report of the IBC on the Possibility of Elaborating a Universal Instrument
on Bioethics, (rapporteurs G. Berlinguer and L. De Castro), 13 June 2003, SHS/EST/02/CIB-9/5
(Rev. 3), pp. 19-20.
2
See UNESCO, Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line
Intervention, (rapporteur H. Galjaard), 24 April 2003, SHS/EST/02/CIB-9/2 (Rev. 3).
3
UN Doc. E/CN.4/1995/74, sec. 1. Among the rights protected by the International Covenant
on Civil and Political Rights of 1966 those most threatened would be the right to life (Art. 6), the
right not to be subjected to medical or scientic experimentation without ones free consent (Art.
7), the right to security of person (Art. 9), and the right not to be subject to arbitrary or unlawful
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 83-120
84 ARTICLES
the Secretary-General of the United Nations4 had stressed the need to ensure that
scientic progress benets individuals and develops in a manner respectful of fun-
damental human rights and pointed out possible abuses in the use of new repro-
ductive techniques, such as the unrestrained handling of human embryos, the modi-
cation of human cells, cloning, and the creation of chimeras or of hybrid beings.5
No less alarming were the remarks of the Commission on Human Rights which,
in its Resolutions of 2001 and 2003 on Human Rights and Bioethics, expressed
the concern that the rapid development of the life sciences opens up tremendous
prospects for the improvement of the health of individuals and mankind as a whole,
but also that certain practices may pose dangers to the integrity and dignity of the
individual.6 As a matter of fact, the same concerns were shared by the General
Assembly, which in 2001 entrusted an ad hoc committee (the ad hoc Committee on
an International Convention against the Reproductive Cloning of Human Beings)
with the task of drafting a convention text that would prohibit human cloning.7
interference with privacy, family, home or correspondence (Art. 17) (ibidem, sec. 21). The
very idea of human rights arguably rests on a certain conception of what it means to be human,
on a reverence for life and for autonomy, all of which could conceivably be undermined if the
production, maintenance, manipulation and termination of embryos became commonplace, and
particularly if this activity were carried on to a considerable extent for prot (ibid., sec. 22). On
the subject, see in general FURKEL and JUNG (eds.), Bioethik und Menschenrechte Biothique
et Droits de lHomme, Kln/Berlin/Bonn/Mnchen, 1993; WEERAMANTRY (ed.), The Impact of
Technology on Human Rights: Global Case-Studies, Hong Kong, 1993; LENOIR and MATHIEU,
Les normes internationales de la biothique, Paris, 1998; and more recently SICILIANOS and
GAVOUNELI (eds.), Scientic and Technological Developments and Human Rights, Athens, 2001.
On the nature of international law in the eld of bioethics, see BYK, Le droit international de la
biothique: jus gentium ou lex mercatoria?, JDI, 1997, p. 913 ff.
4
Following the International Conference on Human Rights held in Teheran, the Secretary
General was entrusted with the mission of monitoring the effects of scientic and technological
developments on the enjoyment of human rights and of drafting periodical reports on the subject
matter.
5
UN Doc. E/CN.4/1995/74, sec. 112. The terminology employed chimeras and hybrid
beings is quite generic and alludes to different phenomena, according to its application. In gen-
eral, chimera means an organism characterized by tissues and organs not genetically identical,
while a hybrid being is the result of a crossbreeding between organisms not genetically homoge-
neous. In the context of assisted reproduction, the two terms are normally given specic mean-
ings. I quote the denitions employed by the Swiss legislator (Art. 2 of the law on reproductive
medicine of 1998): making of chimeras: a union of totipotent cells coming from two or more
genetically different embryos so as to obtain a cellular complex. A totipotent cell means a cell of
the embryonal state that possesses the ability to change into any specic cell whatsoever: making
of hybrid beings: introduction of a non-human spermatozoon in a human oocyte or of a human
spermatozoon in a non-human oocyte.
6
Commission on Human Rights, Resolutions 2001/71 and 2003/69, Human Rights and
Bioethics. See also the Report of the Secretary-General submitted pursuant to Commission reso-
lution 2001/71, 10 February 2003 (Annex: Report of the Expert Consultation on Human Rights
and Biotechnology, 24-25 January 2002): E/CN.4/2003/98.
7
International Convention Against the Reproductive Cloning of Human Beings, A/RES/
56/93, 12 December 2001. The work of the Committee, begun in 2002, has been hindered by
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 85
The close connection between reproductive techniques and genetics had al-
ready been acknowledged at the end of the 1980s by the European Communities.
I will limit myself to mentioning, among others, the resolutions of the European
Parliament of 1989 dealing with the ethical and legal issues of genetic manipula-
tion, and with in vivo and in vitro fertilization,8 as well as the more recent resolu-
tions on the cloning of human embryos (1993) and of human beings (1997).
Presently, though, we owe the most interesting initiatives in this eld to
the Council of Europe.9 In 1983 the Committee of Ministers set up an ad hoc
Committee on Genetic Manipulation which transformed itself initially into the
ad hoc Committee of Experts on Ethical and Legal Issues of Human Genetics
(CAHGE) and then into the ad hoc Committee of Experts on Progress in the
Biomedical Sciences (CAHBI, since 1992 substituted in its turn by the Steering
Committee on Bioethics (CDBI)). In 1989, CAHBI drafted a valuable Report
on Human Articial Procreation: among the twenty-one principles set out in that
Report, some are devoted specically to Acts and procedures carried out on em-
bryos (Principles 1621), and in particular to diagnostic and therapeutic interven-
tions on embryos.10 Among the many other initiatives promoted by the Council of
disagreements among the States on the approach to be followed. Some countries, such as the
United Kingdom and France, believe that the Committee should follow the instructions of the
General Assembly and so prohibit only reproductive cloning; other countries, such as the United
States, instead uphold the necessity of forbidding any kind of human cloning whatsoever, de-
spite its goals, whether reproductive or therapeutic (that is, for the creation of embryos intended
for research or the production of stem cells). Given the time required for the drafting of the
Convention, a group of scientists, lawyers and human rights activists asked the Secretary General
to urge the General Assembly to apply to the International Court of Justice for an advisory opin-
ion declaring cloning a crime against humanity: since the issue is only theoretical, and not re-
lated to an actual case, the request is likely to be rejected. See the draft Declaration on Human
Cloning introduced by Italy to the Sixth Committee (A/C.6/59/L.26, 17 November 2004): this
draft resolution replaces two earlier texts aimed at a treaty, one proposed by Costa Rica and the
other by Belgium.
8
The two resolutions, both dated 16 March 1989, are published in OJ EC C 96 of 17 April
1989, p. 171. Both documents reverse the classic approach by focusing on the child and protect-
ing human life (the zygote) from fertilization. The Resolutions are connected since, on the one
hand, testing of embryos is often intended to improve the procedures of in vitro fertilization and,
on the other, these same procedures supply abundant material for testing (both by creating em-
bryos for the sole purpose of testing and by making redundant embryos available).
9
More recently, the ethical implications of new medical technologies have also been taken
into account by the Organization of African Unity. On 10 July 1996 the Assembly of the Heads
of State and Government adopted a Resolution on bioethics, reafrming several universally ac-
cepted principles: the inviolability of the human body and of the genetic inheritance of the hu-
man species; the prohibition against commercial exploitation of the human body and its parts,
and in particular of genes; the prohibition against procedures for embryo selection according to
sex or with a view to eugenic purposes in the eld of medically assisted reproduction. See Doc.
AHG/Res. 254 (XXXII).
10
The Report came out a few years after the preliminary project of a recommendation on the
issues raised by articial human reproduction drafted by CAHGE (doc. CAHGE (85) 2), in the
86 ARTICLES
Europe,11 it is worth mentioning the adoption of the Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the Application of
Biology and Medicine (Convention on Human Rights and Biomedicine),12 signed
at Oviedo on 4 April 1997, and in force since 1 December 1999. This Convention
draws upon the conviction that the misuse of biology and medicine may lead
to acts endangering human dignity and that progress in biology and medicine
should be used for the benet of present and future generations (Preamble, recitals
10 and 11); it devotes a Chapter (IV) specically to the protection of the Human
Genome (Articles 11-14). To the additional protocols originally envisaged con-
cerning Transplantation of Organs and Tissues of Human Origin,13 and Biomedical
Research14 in 1993 the Committee of Ministers added two further Protocols con-
cerning the Protection of the Human Embryo and Foetus, and Human Genetics; an
wake of the project of a recommendation on articial insemination with sperm from an anony-
mous donor, dated 5 March 1979.
11
During the European Ministerial Conference on human rights held in Vienna on 19-20
March 1985, Resolution No. 3 on human rights and scientic development in the elds of biolo-
gy, medicine, and biochemistry was adopted, while at the 17th Conference of European Ministers
of Justice, held in Istanbul on 5-7 June 1990, Resolution No. 3 on bioethics was drafted. For an
analysis of the activity of the Council of Europe, see ROGERS and DURAND DE BOUSINGEN, Une
biothique pour lEurope, Conseil de lEurope, Strasbourg, 1995.
12
Canada, the United States, Japan, as well as the Holy See and the European Community
took part in the drafting of the Convention. The text of the Convention was adopted on 19
November 1996: Doc. DIR/JUR (96) 14 of the Directorate General of Legal Affairs of the
Council of Europe. Unlike the Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950, it is worth stressing that the 1997 Convention grants the European Court
of Human Rights the competence to issue advisory opinions on legal questions concerning the
interpretation of the Convention (Art. 29), while it reserves to the individual States the determi-
nation of the appropriate sanctions in case of violation of the provisions of the Convention (Art.
25). Such a solution looks odd, to say the least, not only because it does not make the most of the
potential of the European Court, but also because it hints at a dangerous resort to the principle of
reciprocity, while the traditional principle inadimplenti non est adimplendum should not be ap-
plied in the eld of rights States cannot freely dispose of. (For further remarks on this issue I refer
to COLARD, Le principe de lindivisibilit des droits et des devoirs de lhomme, in MEYER-
BISCH (eds.), Les devoirs de lhomme. De la rciprocit dans les droits de lhomme, Les Actes du
V Colloque interdisciplinaire de Fribourg 1987, Fribourg/Paris, 1989, p. 17, and to my Il princi-
pio di reciprocit nel diritto dei trattati, Padova, 1995, pp. 124 and 293). The Explanatory Report
to the Convention limits itself to clarifying that States, in their reactions, must take into account
certain criteria, such as necessity and proportionality: [a]s a result, in order to measure the ex-
pediency and determine the nature and scope of the sanction, the domestic law must pay special
attention to the content and importance of the provision to be complied with, the seriousness of
the offence and the extent of its possible repercussions for the individual and for society.
13
On 24 January 2002, the Additional Protocol Concerning Transplantation of Organs and
Tissues of Human Origin was opened for signature.
14
On 25 January 2005 the Additional Protocol concerning Biomedical Research was opened
for signature. The Protocol deals with research on embryos in vivo also, but does not concern
embryos in vitro (Art. 2.2).
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 87
The idea of selecting the best elements of society dates back to antiquity. It is
well known that in Sparta it was customary to throw from a cliff infants that were ill
or too weak; likewise, the ideal society imagined by Plato is governed by a superior
15
Up to January 2005, the Convention of 1997 has been ratied by nineteen States, while
the Additional Protocol of 1998 on the Prohibition of Cloning Human Beings has been ratied by
fteen: neither of them has been ratied by Italy yet, even though in 2001 Parliament passed the
law authorizing ratication (Law No. 145 of 28 March 2001, GU No. 95 of 24 April 2001).
16
Steering Committee on Bioethics (CDBI), Working Party on Human Genetics (CDBI-CO-
GT4), DIR/JUR (97) 13 bis, 27 October 1997.
17
Working Party on Human Genetics (CDBI-CO-GT4), Working Document on the
Applications of Genetics for Health Purposes, CDBI/INF (2003), 7 February 2003, p. 3. See also
Explanatory note, CDBI/INF (2003), p. 4.
18
Working Party on the Protection of the Human Embryo and Fetus (CDBI-CO-GT3), The
Protection of the Human Embryo In Vitro, CDBI-CO-GT3 (2003) 13, 19 June 2003.
88 ARTICLES
class that is created and maintained thanks to controls over reproduction.19 It is only
in the nineteenth century, however, that eugenics emerges as an ethical-scientic
line of thought which champions the improvement of the human species through
the social control of reproduction, or better, the selection of individuals deemed
best-suited for procreation.
Although Charles Darwin already aired the possibility of human selection in
his theory of evolution,20 the father of eugenics is considered to be Francis Galton,
Darwins cousin. It was Galton who after having maintained that everyone had
the power, but also the duty, to put his own gifts at the service of future genera-
tions21 in 1883 worked out a theory (that he himself named eugenics, from the
Greek eugens, ugood and gnosrace) aimed at providing, on a scientic basis,
the more suitable races or strains of blood a better chance of prevailing speedily
over the less suitable than they otherwise would have had.22 Later, this theory
was realized in two different programmes: that of positive eugenics, based on the
improvement of the race through the reproduction of socially useful individu-
als; and that of negative eugenics, based on the purication of society through the
forced sterilization of socially inadequate individuals.23
From 1907 onwards, scientic and medical associations began to spring up,
rst in the United Kingdom and then in other countries (from France to Brazil, from
Cuba to New Zealand). These associations carried out research on eugenics on the
one hand and, on the other, awakened the public to the problems of so-called social
medicine. In the same period, the United States adopted the rst statutes forbidding
the marriage of genetically inferior individuals (including immigrants from Eastern
Europe and from the southern US states, who were thought to threaten the purity
of American blood) and providing for the sterilization of criminals (epileptics and
19
The good must be paired with the good, and the bad with the bad, and the offspring of
the one must be reared, and of the other destroyed [] and by an ingenious system of lots the
rulers will contrive that the brave and the fair come together, and that those of inferior breed are
paired with inferiors the latter will ascribe to chance what is really the invention of the rulers.
And when children are born, the offspring of the brave and fair will be carried to an enclosure in
a certain part of the city, and there attended by suitable nurses; the rest will be hurried away to
places unknown: PLATO, The Republic, Book V, paras. 459-460.
20
DARWIN, On the Origin of Species, London, 1859; The Descent of Man and Selection in
Relation to Sex, London, 1871 (especially pp. 402-403).
21
I conclude that each generation has enormous power over the natural gifts of those that
follow, and maintain that it is a duty we owe to humanity to investigate the range of that power,
and to exercise it in a way that, without being unwise towards ourselves, shall be most advanta-
geous to future inhabitants of the earth: GALTON, Hereditary Genius I, London, 1869, p. 57.
22
The quotation from GALTON (Inquiries Into Human Faculty and Its Development) comes
from Eugenic Articial Insemination: A Cure for Mediocrity?, Harvard Law Review, 1981, p.
1850 ff., p. 1852.
23
Actually, at least at the very beginning, given the limited knowledge in the eld of genet-
ics, eugenics was based most of all on the idea of race and ethnos.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 89
maladjusted persons were later added).24 In 1927 the US Supreme Court upheld
a Virginia statute providing for the sterilization of hospitalized patients suffering
from hereditary forms of illness or mental deciency.25 Two years later a long
list was drafted containing categories of the socially inadequate (the so-called
social parasites): persons who would undergo forced sterilization, among whom
were alcoholics, drug addicts, the blind, the deaf, those with tuberculosis, syphilis
or a deformity, as well as orphans, homeless and the indigent.26 In this way ap-
proximately 50,000 people were sterilized between 1907 and 1949: California had
the highest rate of sterilization, mostly to the detriment of immigrants and blacks.
Leaving aside any other considerations, it goes without saying that present-day
science cannot but judge groundless the assumptions on which such programmes
relied and which attributed to genetic factors and therefore to Mendels laws of
heredity pathologies exclusively of an infectious nature or situations of hardship
connected purely with behavioural or environmental factors.
It was in keeping with experiences overseas that German eugenic societies
exploiting the widespread sense of frustration in the country following the out-
come of the First World War and the severe economic crisis in its wake advanced
the theory of racial hygiene, proposing the adoption of all measures necessary
for the protection and perpetuation of the Aryan race. On 14 July 1933, and thanks
to the active support of eugenicists from California,27 a statute was passed for the
prevention of hereditary diseased offspring (the so-called statute on sterilization),
which provided for the forced sterilization of certain categories of individuals, in-
cluding the blind, the deaf, those with congenital mental illness, schizophrenia or
24
In the 1920s and 1930s, twenty-four American states passed eugenic laws that remained in
force till the end of the 1970s. The American Eugenics Society, organized in twenty-eight states,
counted famous jurists, academics, and Nobel prize holders among its members. For an analysis
of the American situation between the two World Wars, see KEVLES, In the Name of Eugenics:
Genetics and the Uses of Human Heredity, New York, 1985, p. 96 ff. Similar laws were passed
almost simultaneously in Canada: the law of the province of Alberta was repealed only in 1972.
25
Buck v. Bell, 274 US 200, 1927: We have seen more than once that the public welfare may
call upon the best citizens for their lives. It would be strange if it could not call upon those who
already sap the strength of the State for these lesser sacrices [] in order to prevent our being
swamped with incompetence. It is better for the world, if instead of waiting to execute degenerate
offspring for crime, or to let them starve for their imbecility, society can prevent those who are
manifestly unt from continuing their kind. The principle that sustains compulsory vaccination
is broad enough to cover cutting the Fallopian tubes [] Three generations of imbeciles are
enough (p. 207). For an analysis of American regulations, see, e.g., BURGDORF and BURGDORF,
The Wicked Witch is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons,
Temple Law Quarterly, 1977, p. 995 ff., especially p. 998; SMITH II, Human Rights and
Biomedicine, The Hague/London/Boston, 2000, p. 118 ff.
26
LAUGHLIN, The Legal Status of Eugenical Sterilization: History and Analysis of Litigation
under the Virginia Sterilization Statute, Chicago, 1930, p. 65 ff.; REILLY, The Surgical Solution:
A History of Involuntary Sterilization in the United States, Baltimore, 1991, p. 34 ff.
27
KLINE, Building a Better Race: Gender, Sexuality and Eugenics from the Turn of the
Century to the Baby Boom, Berkeley, 2001, pp. 103-104.
90 ARTICLES
epilepsy, as well as chronic alcoholics. It is estimated that in the rst two years after
the statute came into force between 200,000 to 250,000 people were sterilized. In
1935 the statute on the protection of German blood forbade marriage and sexual
relations between Germans and individuals belonging to other races (above all
Jews); while the statute on the protection of the genetic heritage of the German
people prevented nuptials with carriers of a hereditary or mental illness. In 1939
the Nazi regime launched a programme of euthanasia (Gnadentod) for persons
whose lives are not worth living, called Aktion T4 (after the building located
in Berlin at Tiergartenstrasse No. 4 from which the operation was coordinated).
Originally intended for mentally impaired children and adults, the programme was
later extended to Jews and to all those who did not belong to the German race, most
of all after the conquest of Poland. The programme was ofcially suspended in
1941, after the death of approximately 70,000 people. From 1941, elimination of
the (mentally or otherwise) ill continued in the concentration camps, based either
upon medical criteria or on the anti-social and potentially criminal nature of
the individual or, nally, because of the uselessness of certain individuals.28
In the years following the end of the Second World War, if the extremes to
which eugenics lent itself during the Nazi regime led Germany to champion at all
(medical, political and legal) levels a particularly cautious and restrictive approach,
and to break off from the very beginning any policy suspected of (even indirectly)
encouraging selection of human beings, other European29 and non-European30 coun-
28
See ROGERS and DURAND DE BOUSINGEN, Une biothique pour lEurope, cit. supra note
11, p. 17 (where further bibliographic references can be found).
29
With a view to ethnic eugenics, Roma have been victims of forced sterilization due to
their high rate of crime and life style. It is worth mentioning the policies adopted in Norway and
above all in Czechoslovakia, where an ordinance of 1988 (repealed in 1990) promoted steriliza-
tion by offering a reward, but without providing any information on the irreversible character of
the process. As far as the Norwegian situation is concerned, see the second Report on Norway
adopted by the European Commission against racism and intolerance on 10 December 1999, and
made public on 27 June 2000 (CRI (2000) 33, sec. 41). The discrimination against Roma women
is denounced also by Recommendation on general policy 3 (Combating racism and intolerance
against Roma/Gypsies) issued by the same Commission against racism and intolerance.
30
Policies of ethnic eugenics have been adopted in Vietnam and Peru (see the nal obser-
vations of the Human Rights Committee of 15 November 2000, during the examination of the
report presented by Peru, CCPR/CO/70/PER, sec. 21). The Japanese law on eugenics protection
of 1948, repealed only in 1996, is also worth pointing out as it aimed at preventing so-called
reverse natural selection (gyaku-tota): the government had learned that families with a certain
level of education, belonging to the upper middle class, made use of contraceptives, while lower
class families continued to have children; and as a consequence the population of inferior qual-
ity was on the rise. The law of 1948 allowed medical doctors to sterilize by force individuals
suffering from physical and mental handicaps identied by the law itself (handicaps that to a
great extent are not at all hereditary). Between 1949 and 1995 approximately 17,000 people were
sterilized; the government denies them any kind of indemnity whatsoever. Eugenics practised
in Singapore is based on socio-economic factors. In the 1980s the government launched two
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 91
tries showed themselves much more open toward eugenic policies justied through
various means (for reasons of race, demographics, health or simply economics). I
will limit myself to pointing out the eugenic programmes promoted, in the name of
social progress, by the Scandinavian countries31 who, during the drafting process
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950, opposed an amendment whose goal was to include forced steri-
lization in the list of acts contrary to the right to security (Article 5).32
It is worth mentioning the particular situation of China. Dating back to 1950,
the statute on marriage prevented people aficted with serious illnesses, venereal
diseases, mental impairment or leprosy from getting married.33 The reform enacted
in 1981 conrmed the prohibition, which was extended to other groups of individu-
als in 1986 by regulations issued by the Ministers of Health and Civilian Affairs.34
different programs of positive and negative eugenics. The former (Graduate Mums Scheme: 1983)
aims to encourage the reproduction of educated women by favouring marriage between public
servants and university graduates; the latter (1984) provides economic incentives for steriliza-
tion of individuals whose income is lower than one thousand ve hundred dollars (the incentive
amounts to ten thousand dollars). The former program, subject to much criticism, was already
suspended in 1985, while the latter is virtually not in force, owing to a lack of applications. With
a view to crime prevention and reduction, numerous American states have adopted laws allowing
chemical or surgical castration of individuals found guilty of sexual crimes, in exchange for a
sentence reduction: the Californian law in force since 1997 is illustrative of the model.
31
Between 1935 and 1949 more than 20,000 people were sterilized: 75% of them women.
In Sweden the practice of forced sterilization continued until 1975 and involved 63,000 individu-
als. Since 1999 they can claim damages from the government (see HOCKING, Confronting the
Possible Eugenics of the Past Through Modern Pressures for Compensation, Nordic Journal of
International Law, 2000, p. 509 ff.
32
See BYK, Les progrs de la mdicine et de la biologie au regard de la Convention euro-
penne des droits de lhomme, Strasbourg, 1994, p. 54.
33
In the 1970s, the Beijing government rst ordered (1973) that every family could have no
more than two children separated by at least four years, and later (1979) adopted the policy of
one child per family, condemned by the Special Rapporteur of the United Nations on violence
toward women. Indeed, the policy limiting to one the number of children violates a womans
right to physical integrity and security of person, and the right of both parents freely to determine
the timing and spacing of their children: UN Doc. E/CN.4/1996/53, sec. 95, which continues,
Additionally, in a culture where son preference is widespread, this policy encourages and, ul-
timately, sanctions sex-selective abortions of female foetuses and female infanticide. Actually,
such a practice is widespread in other Asian countries, too (see KRUGMAN, Being Female Can
Be Fatal: An Examination of Indias Ban on Pre-Natal Gender Testing, Cardozo Journal of
International and Comparative Law, 1998, p. 217 ff.); anyway, in case of the birth of a daughter,
parents often decide not to register her (it is estimated that at present more than one million
Chinese women have not been registered). In spite of this policy, it is anticipated that between
1990 and 2030 the Chinese population will increase by 490 million individuals.
34
It is worth mentioning also the Gansu Peoples Congress Regulations Concerning
Prohibiting Reproduction by Intellectually Impaired Persons, that in a single year led to the steri-
lization of a thousand women: in reality, the pathologies affecting the population of this region
are caused by a lack of iodine.
92 ARTICLES
35
DICKSON, Concern Grows over Chinas Plans to Reduce Number of Inferior Births,
Nature, Vol. 367, 1994, p. 3 ff.
36
Chinese demographic policy is rooted in Confucian culture, according to which only the
individual enjoying a healthy birth (yousheng) performs Tao (Xun Zi, 300237 BC). Therefore,
on the one hand, abortion is morally and socially acceptable since life begins with the birth (the
fetus is not regarded as a human being); and, on the other, congenital diseases and malformations
are thought to be the evidence of sins committed by the parents or by their ancestors in previ-
ous lives. On the relationship between yousheng and eugenics, see WANG, A Call for a New
Denition of Eugenics, Eubios Journal of Asian International Bioethics, 1999, p. 73 ff.
37
Order of the President of the Peoples Republic of China no. 33. Law of the Peoples
Republic of China on maternal and infant health care. Legislative Affairs Commission, Standing
Committee of the National Peoples Congress, Peoples Republic of China, 27 October 1994.
38
These are the words of New China News Agency, reported in NGO Bulletin, Information
Service (27 January 1995), 3. See PENG, Population Policy and Program in China: Challenge
and Prospective, Texas ILJ, 2000, p. 51 ff. Art. 25 of the Chinese Constitution and Art. 12 of
the law on marriage provide that the couple is obliged to put into practice family planning. As a
matter of fact, reproductive choices made by individuals must meet State directives in the eld
of economic and social development.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 93
The Chinese experience shows that the purication of society can still be
pursued by the selection of individuals deemed best-suited for procreation that is,
thanks to a policy of deliberate sterilization41 or to a ban on marriage for those who
39
On the contrary, it is forbidden to identify the sex of the foetus, unless this is necessary for
medical reasons (Art. 32). In other words, the law tries to stem the custom to favour the birth of
males that has caused a reduction in the female population (see supra note 33).
40
Information Ofce of the State Council of the Peoples Republic of China, Family
Planning in China, Beijing, 1995, p. 34. See the remarks by ERIKSSON, Reproductive Freedom: In
the Context of International Human Rights and Humanitarian Law, The Hague/Boston/London,
2000, p. 257, as well as the wide-ranging study by DIKTTER, Imperfect Conceptions, Medical
Knowledge, Birth Defects, and Eugenics in China, New York, 1998.
41
For a picture of the present policy of forced sterilization in the United States, see SMITH
II, Human Rights, cit. supra note 25, p. 119. It is worth mentioning LITTLE, Non-Consensual
Sterilisation of the Intellectually Disabled in the Australian Context: Potential for Human Rights
Abuse and the Need for Reform, Australian Yearbook of International Law, 1993, p. 203 ff.,
p. 205 (who claries the situation in common law countries). As far as the sterilization of the
94 ARTICLES
are thought socially inadequate easily identiable today through simple screen-
ing (preconception diagnosis of genetic or infectious pathologies).42 As we have
seen, the same result may be attained by taking steps after conception by getting
rid of foetuses suffering from pathologies, or to be precise, through the selection of
individuals deemed best-suited to be born. If in China such a selection is compul-
sory, in the rest of the world it takes place on a voluntary basis. As a matter of fact,
it is quite common today to resort to prenatal diagnostics in order to verify whether
the foetus suffers from genetic pathologies (e.g. cystic brosis, beta-thalassaemia,
etc.), infectious diseases (e.g. AIDS, hepatitis, etc.), or congenital diseases (e.g.
hydrocephaly, spina bida, etc.), and to decide, if necessary, to interrupt the preg-
nancy (the so-called therapeutic abortion).43 Therapeutic abortion is considered to
be a form of negative eugenics. In reality, it is necessary to specify that, in light
of present-day scientic knowledge, the word eugenics should be used to mean a
selection based solely on genetic characteristics (i.e., elimination of genetically
originated diseases or steps taken to foster the birth of individuals carrying favour-
able genetic characteristics), and not as it commonly happens in reference to
selection based on congenital characteristics, regardless of their origin (a dened
genetic cause, a defect in the development of the embryo, the consequence of an
infection or a trauma).
Even more sophisticated interventions are technically possible where procrea-
tion is medically assisted. A few years ago, an American scientist came up with
the appellation of reprogenetics to refer to the combination of new genetic and
mentally handicapped in France is concerned, one can recall the law of 4 July 2001 n. 588: this
law, supposedly inspired by the need to prevent individuals unable to take care of their offspring
from having children, has caused bitter controversy.
42
In general, prenuptial genetic diagnosis is employed in two cases: in communities in
which a high incidence of the mutation of a certain gene is recorded, and in families which often
give birth to individuals suffering from a certain genetic disease. The case of Cyprus provides
a good example, where beta-thalassaemia (see infra, note 47) affects approximately 15% of the
population (so that 1 out of 158 could be suffering from that disease). Genetic screening, which
initially (1972-1976) concerned only families with a member suffering from beta-thalassaemia,
later (1977-1983) was extended to all pregnant women, as well as to couples that were about to
get married. As relating to the latter, the Cypriot Orthodox Church has accepted to subordinate
the release of pre-nuptial certicates to the enforcement of genetic screening. At present, the
diagnosis is already made at school age, and it is accompanied by a serious health information
campaign, which is intended to allow interested individuals to decide about their reproduction
in a conscious and responsible way. It is well known that beta-thalassaemia is very common in
Sardinia too, where it affects about 12.5% of the population: since 1977 a campaign of informa-
tion and prenatal diagnosis has been launched, which has resulted in terminations of pregnancy
in approximately 99% of the cases (almost 2,000) in which thalassaemia has been diagnosed. See
ROGERS and DURAND DE BOUSINGEN, Une biothique, cit. supra note 11, p. 119 ff.
43
It is worth pointing out the thin line dividing mass screening from classic eugenics, if one
takes into account that the advice that accompanies the tests and most of all genetic tests can
actually be a way to impose on the aspiring parents the interests and the priorities of the com-
munity and therefore to orient the evolution of future generations.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 95
44
SILVER, Remaking Eden: How Genetic Engineering and Cloning Will Transform the
American Family, New York, 1998.
45
SILVER, Reprogenetics: Third Millennium Speculation, EMBO (European Molecular
Biology Organization) Reports, 2000, p. 375 ff., p. 376.
46
Diseases linked to chromosomal abnormalities depend on the loss or the addition of whole
chromosomes and cause serious physical and intellectual handicaps. The frequency of such dis-
eases increases with the age of the mother. The most common example is Downs syndrome,
which affects 1 child out of 800. Monogenic diseases depend instead on the mutation of a single
gene. There are more than 5,000 kinds of monogenic diseases, which can be divided into three
sub-categories: dominant autosomal diseases (the parents appear healthy, but they transmit the
disease: for instance familial hypercholesterolaemia, Huntingtons chorea, neurobromatosis);
recessive autosomal diseases (they are transmitted only if both parents are carriers of an impaired
gene: for instance, cystic brosis, Tays-Sachs disease, beta-thalassaemia see supra note 42);
and diseases linked to the sex chromosomes (especially to the X chromosome: for example,
haemophilia). Differing from the other genetic diseases, polygenic and multifactorial diseases
do not follow the Mendelian method of transmission, but are caused by the impact of numerous
genes or by the interaction of numerous environmental factors with several genes. They are the
most frequent and least known diseases: and include, for instance, diabetes mellitus, congenital
malformations and heart defects. Moreover, it is also possible to ascribe to the category of mul-
tifactorial diseases somatic-cell diseases in which the genetic anomalies occur not in all of the
organisms cells (including the germ cells) but only in specic somatic cells. Most cancers can
be classied in this category. Somatic-cell diseases are not transmitted according to Mendels
laws, but are genetically inuenced. Mitochondrial diseases suggest anomalies in mitochondrial
DNA; they are hereditary, but also often appear spontaneously. Alzheimers disease, for instance,
belongs to this category. Finally, diseases involving infectious agents are actually non-genetic
diseases, but often inuenced by genetic factors. Some individuals have genes that determine a
special sensitivity to certain infectious diseases (e.g. HIV and Creutzfeld-Jacob disease).
96 ARTICLES
following a simple Mendelian heredity, i.e., those that descend from combinations
of the alleles of a single gene (among which the most common illnesses with poly-
genic and multifactorial origins cannot be safely numbered).
On the contrary, no medical goal can be ascribed to reproduction by cloning,
a technique by which an individual could perpetuate himself or herself in one or
more genetically similar clones. For that reason, but also because reproductive
cloning is not yet feasible from a technical point of view, this essay will not deal
with the subject.
47
According to SILVER, Reprogenetics, cit. supra note 45, p. 377, in theory it could be pos-
sible to think of providing the unborn child with a genotype substantially equivalent to one that
people receive naturally (for instance, mutation that provides absolute resistance to HIV infec-
tion or cancer protection) or even with a genotype that no human being receives naturally. These
would be interventions of positive eugenics, the former of which is substantially equivalent to
the one that is already performed through in vitro fertilization (as opposed to the manipulation
of gametes) with gametes from donors having pre-determined characteristics, nowadays easy
to nd even online. The eld has been partially harmonized by the Directive 2004/23/EC of
the European Parliament and of the Council, of 31 March 2004, on setting standards of quality
and safety for the donation, procurement, testing, processing, preservation, storage and distribu-
tion of human tissues and cells (in OJ EU, L 102 of 7 April 2004, p. 48 ff.). The idea of using
(male) gametes from genetically superior donors for articial insemination dates directly back
to 1935, when the American Herbert Brewer coined the term eutelegenesis to describe in
words the above-mentioned phenomenon: BREWER, Eutelegenesis, Eugenics Review, 1935,
p. 121 ff., p. 123. Actually, Brewer himself acknowledged that he had taken up the term from a
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 97
The mere prospect of implementing germinal gene therapy has given rise
to great alarm in Europe.48 As far back as 1989, the Resolution of the European
Parliament concerning the ethical and legal issues of genetic manipulation men-
tioned above prohibited any kind of genetic engineering on the human germinal
line, considering that a partial recombination of genes (modication of the geno-
type) alters the identity of the individual: this alteration is both irresponsible and
unjustiable because a highly personal good is involved (sec. 30).49 It is therefore
not surprising to nd in European Community Directive 98/44 on the legal protec-
tion of biotechnological inventions, the express exclusion of the patentability of
processes for modifying the germ line genetic identity of human beings (Article
6.2(b)). It is worth pointing out that in Common Position (EC) No. 4/94 the prohi-
bition concerned more generally the processes for modifying the genetic identity
certain Marion Piddington, who in 1916 had spoken of eutelegenesis as a means of populating
Australia, and creating a race combining high moral worth with sound physical development
(at 126). More recently, on the same topic see GALTON, Eugenic Articial Insemination, cit.
supra note 22, p. 1850. In the United States a sperm bank (Repository for Germinal Choice) col-
lecting gametes from rst-rate donors for the fertilization of women selected according to their
IQ has been active for more than twenty years (BROAD, A Bank for Nobel Sperm, Science,
Vol. 207, 1980, p. 1326 ff.). On this subject see also BEJIN, Du choix des procrateurs au choix
des gamtes. Sur quelques avatars de leugnisme, in HUBER and JALBERT (eds.), Lheure du
doute. Insmination articielle: enjeux et problmes thiques, Paris, 1994, p. 155 ff.; GLOVER,
Eugenics and Human Rights, in BURLEY (ed.), The Genetic Revolution and Human Rights,
Oxford, 1998, p. 101 ff., and RYAN, Eugenics and Genetic Manipulation, ibidem, p. 125 ff.
The case-law of the European Court leads to considering legitimate the intent of fostering the
integration of the child into his family (Marchx v. Belgium, 13 June 1979, Series A No. 31, para.
31; Keegan v. Ireland, 26 May 1994, Series A No. 290, para. 50; Kroon et al. v. the Netherlands,
27 October 1994, Series A No. 297-C, para. 32), so that it could be accepted that, in case of het-
erologous fertilization, a couple selects a donor with racial ethnic, and physical characteristics
similar to their own (of course, integration into the family does not justify aberrant choices such
as those made by couples suffering from deafness or dwarsm, who, after having resorted to
IVF, have requested the selection and the implantation of embryos affected by their own genetic
disease. See DENNIS, Deaf by Design, Nature, Vol. 431, 2004, p. 894 ff.). The techniques of
assisted procreation should not be exploited with a view to obtaining particular characteristics
in the unborn child, since they are not really in the name of his better integration into the family
but for the desire to have a made to order child. Actually, almost no State explicitly forbids
resorting to gametes from specic donors, since that does not imply any technical intervention
on the genome (SMITH II, Human Rights, cit. supra note 25, p. 124), making this rough eugenic
method rather attractive.
48
An analysis from a comparative law standpoint can be found in the national reports col-
lected in the volume by MEULDERS-KLEIN, DEECH and VLAARDINGERBROEK (eds.), Biomedicine,
the Family and Human Rights, The Hague/London/New York, 2002.
49
An author notes that germinal gene therapy is not in itself contrary to the dignity of the
person concerned, but does create risks for the human species (see MATHIEU, Gnome humain
et droits fondamentaux, Paris, 2000, p. 94). In January 2001, the European Parliament estab-
lished a temporary Commission on human genetics and other new technologies in the eld of
modern medicine; the Commission has set up a website for a dialogue with EU citizens (http:
//www.europarl.eu.int/comparl/tempcom/genetics/intro_it.htm).
98 ARTICLES
of the human body [] contrary to human dignity, whereby the expression hu-
man body lent itself to interpretation as its body, that is, single tissues or single
cells. Consequently, on the one hand, the prohibition would apply only insofar as
the process at stake was deemed contrary to human dignity; on the other, even so-
matic gene therapy that is, therapy which repairs genetic diseases by introducing
non-hereditary alterations could have been excluded from being patented. The
margin of discretion inherent in the evaluation of whether a process is contrary to
human dignity according to subjective ethical standards met with a negative reac-
tion in Parliament and resulted in the rewriting of the rule. As far as germinal gene
therapy is concerned, the wording of Article 6.2(b) of the Directive today does not
leave any room for discretion (while not taking any express position on the issue of
somatic gene therapy).50
Naturally, the Council of Europe is the European organization most atten-
tive to attempted attacks on human dignity. The Parliamentary Assembly, in
Recommendation 934 (1982) on genetic engineering and in Recommendation
1046 (1986) on the use of human embryos and foetuses for diagnostic, therapeutic,
scientic, industrial and commercial purposes,51 stated that the right to life and to
human dignity guaranteed by Articles 2 and 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 1950 imply the right
to inherit a genetic pattern which has not been articially changed52 and invited
the Committee of Ministers to take steps so as to have this right expressly recog-
nized in the context of the Convention.53
The suggestion was not accepted, but it probably forms the basis of Article
13 of the Convention on Human Rights and Biomedicine (1997) with which the
Council of Europe meant to prevent the risk of intentional modication of the
human genome so as to produce individuals or entire groups endowed with par-
ticular characteristics and required qualities.54 Article 13 allows interventions in
the human genome only for preventive, diagnostic or therapeutic purposes, and
50
See GAL,Le droit communautaire en matire de procds de clonage et de brevetabilit
des inventions portant sur le gnome et certaines cellules de ltre humain, RMUE, 2000, p. 834
ff. See infra, note 59.
51
Also worth noting is recommendation of the Committee of Ministers R (84) 16 con-
cerning the notication of work that implies the use of recombinant DNA that takes back and
extends to the members of the Council of Europe what is provided for in recommendation CEE
of the Council of 30 June 1982 (82/472) relative to the registration of work which requires the
use of recombined DNA. On this topic see also SERUSCLAT, Les sciences de la vie et les droits
de lhomme, Paris, 1992, p. 275 (also for an analysis of comparative law); ERIKSSON, The Legal
Position of the Unborn Child in International Law, GYIL, 1993, p. 86 ff., p. 113.
52
Sec. 4 i) of Recommendation 934 (1982).
53
Sec. 7 b) of Recommendation 934 (1982) and sec. 1 of Recommendation 1046 (1986),
which uphold therapeutic applications. Recommendation 934 (1982) hoped for the drafting of a
list of serious diseases that could be treated with gene therapy (sec. 7 c)).
54
Explanatory Report, sec. 89.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 99
55
An intervention seeking to modify the human genome may only be undertaken for pre-
ventive, diagnostic or therapeutic purposes and only if its aim is not to introduce any modica-
tion in the genome of any descendants. On the contrary, Article 11 of the UNESCO Universal
Declaration on the Human Genome and Human Rights does not explicitly deal with the topic,
limiting itself to prohibiting practices contrary to human dignity, such as reproductive cloning of
human beings. Finally, it is worth mentioning the draft of guidelines on bioethics prepared and
discussed by the Assembly of the World Health Organization in May 1999, which centred on the
implications of medical genetics and biotechnology for public health. The report accompanying
the draft emphasized that some techniques are morally unacceptable (human cloning and scission
of embryos for reproductive purposes), specifying that [a]t present, germ-line therapy is not ac-
ceptable, but this should be reviewed with advancing knowledge.
56
Explanatory Report, sec. 91.
57
CDBI/INF (2003) 3, 7 February 2003.
58
In this sense see principle 7 of the above-mentioned Report on Human Articial
Procreation issued by the Council of Europe in 1989.
59
See BYK, Biothique et Convention europenne des droits de lhomme, in PETTITI,
DECAUX and IMBERT (eds.), La Convention europenne des droits de lhomme. Commentaire
article par article, Paris, 1995, p. 101 ff., p. 112. It has also been suggested that the duty to
respect the identity of every child, according to the Convention on the Rights of the Child of
1989 (Art. 8) would include genetic identity too, and would therefore exclude any intervention
whatsoever that intended to modify it ab origine. The right of the child to his genetic identity
has been inferred also from principles 3 and 4 of the Declaration of the Rights of the Child of
100 ARTICLES
1959, which recognize, respectively, the right to a name and a nationality, and the right to grow
and develop in health. On the contrary, somatic gene therapy that is intended to repair genetic
disorders by causing permanent but non-hereditary alterations or to perform genetic engineering
in order to cure some diseases (for instance, tumours) would be lawful. Different from germinal
gene therapy, somatic gene therapy modies the genetic inheritance of a single individual with-
out being transmitted to descendants.
60
Human Rights and the Human Genome, A/RES/53/152, 9 December 1998.
61
Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention,
sec. 79.
62
See COHEN-JONATHAN, Progrs scientique et technique et droits de lhomme, in Droits
et liberts la n du XXe sicle: Inuence des donnes conomiques et technologiques. tudes
offertes Claude-Albert Colliard, Paris, 1984, p. 123 ff., p. 143.
63
The document of the Working Party on Human Genetics mentions the study by COHEN,
SCOTT, SCHIMMEL, LEVRON and WILLADSEN, Birth of Infant after Transfer of Anucleate Donor
Oocyte Cytoplasm Into Recipient Eggs, Lancet, Vol. 350, 1997.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 101
64
See HENDRIKS and NOWAK, Western European Case-Study: The Impact of Advanced
Methods of Medical Treatment on Human Rights, in WEERAMANTRY (ed.), cit. supra note 3, p.
243 ff., p. 264; and MATHIEU, cit. supra note 49, p. 73.
65
See the Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line
Intervention, sec. 97.
102 ARTICLES
interest of an individual already born (the embryo that is histocompatible with the
ill sibling is chosen from among the healthy ones).66
Pre-implantation genetic diagnosis represents a new approach to the early
diagnosis of genetic diseases; it implies the development of specially rened tech-
niques for the analysis of chromosomes and genes at the level of a single cell. The
rst applications of pre-implantation genetic diagnosis date back to the beginning
of the 1990s; and dealt with the majority of chromosome aberrations and approxi-
mately thirty single-gene disorders. An alternative procedure is the genetic analysis
of the polar body of the oocyte, ethically more comfortable (given that it does
not concern the embryo), but useful only to diagnose hereditary pathologies on the
maternal side.67
It is clear that only strict control over the access to pre-implantation diagnosis
and likewise to assisted procreation could, in part, limit the eugenic drift.
It was in this sense that in 1989 the European Parliament expressed itself in the
Resolution on in vivo and in vitro fertilization, in which it provides that in no case
is recourse to methods of extra-corporeal fertilization for the selection of certain
embryos allowed; and therefore requires the prohibition of any kind of genetic
test on embryos outside of the mothers body (sec. 7). The temporary Committee
on Human Genetics and Other New Technologies in Modern Medicine, set up by
the European Parliament, in its Report of 8 November 2001 likewise expressed
a negative judgement on pre-implantation genetic diagnosis, highlighting its eu-
genic uses; in any event, it must be said that the Report was totally rejected by the
Parliament.
While waiting for the adoption of the Additional Protocol to the Convention
on Human Rights and Biomedicine, on the Protection of the Human Embryo and
Foetus which is also supposed to govern interventions on embryos in vitro the
position taken by the Council of Europe in regards to embryo selection can be re-
constructed through some acts adopted since the 1980s.
66
It is a morally controversial procedure, assuming that la nalit de la procration nest
pas la naissance dun nouvel tre humain pour lui-mme, mais la sauvegarde dun autre enfant:
see MATHIEU, De la difcult dapphender lemploi des embryons humains en termes de droits
fondamentaux, RTDH, 2003, p. 387 ff., p. 400 (this author speaks of the creation of an enfant
mdicament). On the subject, see also the interesting Rexions sur lextension du diagnostic
pr-implantatoire in the interest of a third party, accompanying Opinion No. 72 of the French
Comit Consultatif National dEthique pour les sciences de la vie et de la sant (dated 4 July
2002), as well as the comment to a British case by BROWNSWORD, Reproductive Opportunities
and Regulatory Challenges, Modern Law Review, 2004, p. 304 ff.
67
The methodologies are presented briey by GIANAROLI, MAGLI and FERRARETTI, Pre-im-
plantation Genetic Diagnosis, in Current Practices and Controversies in Assisted Reproduction,
Report of a Meeting on Medical, Ethical and Social Aspects of Assisted Reproduction (WHO
Headquarters, Geneva, 2001), 2002, p. 210 ff. The probability of mechanically damaging the em-
bryo while taking samples of genetic material is less than 0.5%, while the probability of failing to
diagnose chromosomal or genetic alterations is a little higher (1% and 3%, respectively).
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 103
68
2. The techniques of human articial procreation must not be used for obtaining par-
ticular characteristics in the future child, in particular for the purpose of selecting the sex of the
child except where [] a serious hereditary disease linked with the sex is to be avoided. The
Report prohibits, inter alia, the transfer of an embryo from the uterus of a woman to that of an-
other (principle 12). On sex selection and its unlawfulness from an international point of view,
see ERIKSSON, Family Planning as a Human Right Issue, in EEKELAAR and AREVI (eds.),
Parenthood in Modern Society, The Hague/London/Boston, 1993, p. 191 ff., pp. 197-198. See
also supra note 33.
69
1. No act or procedure shall be permitted on any embryo in vitro other than those intended
for the benet of the embryo and for observational studies which do no harm to the embryo. 2.
When a State allows, in addition, investigative and experimental procedures other than those
mentioned in the preceding paragraph for a preventive, diagnostic or therapeutic purpose for
grave diseases of embryos, it shall require that the following conditions be fullled: a. the pur-
pose cannot be achieved by any other method; and b. the embryo shall not be used after fourteen
days from fertilisation, any period of storage by freezing or by any other means not included;
and c. the consent of the couple has been given according to paragraph 3 of Principle 8 and, if
the embryo has resulted from fertilisation in vitro using donors gametes, their consent shall also
be required; and d. a properly constituted multidisciplinary ethical committee has given its ap-
proval. 3. The splitting of the cells of an embryo may be allowed by member States only in order
to use a part of it for diagnostic purpose if it is designed to establish a serious illness or anomaly
in the future child and if conditions b, c and d mentioned in paragraph 2 above are satised. The
104 ARTICLES
of the embryo or, alternatively, to prevent or to treat a disease which has already
manifested itself or is likely to. Such procedures must of course be consistent with
the general principles of medical practice and ethics. The Report neither allows
nor forbids genetic manipulation of embryos in vitro, since at that point in time the
Committee was not in possession of the scientic data enabling it to proceed with
a sound evaluation of the issue.70
As far as the Convention on Human Rights and Biomedicine is concerned, it
limits itself to prohibiting recourse to techniques of medically assisted procreation
for the purpose of so-called embryo sexing i.e., for the purpose of choosing an
unborn childs sex while providing for a unique exception in the case of a seri-
ous hereditary disease linked with the sex (Article 14). Therefore, it is prohibited
to exploit new reproductive techniques for the sole purpose of selecting the sex
through the selection of the chromosomes of the fathers semen71 for religious,
social or legal reasons (such as those related to inheritance issues or to issues hav-
ing to do with the conveyance of titles of nobility) in the name of the principle of
non-discrimination between couples who can have children naturally and couples
who must resort to medical assistance to have children. The Convention does not
expressly take any side on sex-selection performed at the pre-implantation stage,
however, in case of recourse to in vitro fertilization for therapeutic reasons (such
as sterility or transmissibility of diseases); therefore, the selection of sex in the
context of an in vitro fertilization procedure motivated by therapeutic reasons
would not be expressly ruled out. In the eld of procedures for the selection of sex
justied by the aim of avoiding an unborn childs suffering from a disease linked
with that sex, the Explanatory Report makes it clear that the seriousness of such
diseases must be determined according to the procedures envisaged by national
law. Guidelines on the subject matter enacted by public authorities, national eth-
ics committees and professional bodies are already in force in some States; in any
text is not very clear, most of all as far as the difference between the procedures falling within
point 1 and those ones falling within point 2 are concerned: do the latter ones perhaps encompass
procedures performed on embryos in vivo? It must be added that even though some experts had
suggested the inclusion of research intended to prevent, diagnose and treat some particularly seri-
ous pathologies in adults (for instance, tumours), the ad hoc Committee did not want to authorize
forms of research other than those carried out in the interest of embryos themselves for ethical
reasons, therefore falling into line with what the European Parliament had hoped for in the reso-
lution on ethical and legal problems of genetic manipulation.
70
Report on Human Articial Procreation, p. 33. According to principle 18, [t]he in-
troduction into a womans uterus of a human embryo which has been subjected to any act or
procedure other than those mentioned in paragraphs 1 and 3 of the preceding principle that
is, research not directly targeted to the embryos health shall be prohibited. This is an ap-
plication of the precautionary principle, assuming that at present the long-term consequences
of the research techniques employed are not predictable. Once it has been implanted, an
embryo resulting from fertilisation in vitro shall not undergo experimentation in uterus:
principle 19.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 105
71
Such a practice has been performed for quite some time, and today has a high rate of suc-
cess (we are speaking of 75% for males and 90% for females).
72
According to Art. 12, [t]ests which are predictive of genetic diseases or which serve either
to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predis-
position or susceptibility to a disease may be performed only for health purposes or for scientic
research linked to health purposes, and subject to appropriate genetic counselling. The reference
is to sec. 83 of the Explanatory Report.
106 ARTICLES
are permitted, naturally taking into account the technical limits faced by diagnosis
on a few embryonic cells.73
Finally, in the previously cited IBC Report dedicated to Pre-implantation
Genetic Diagnosis and Germ-Line Intervention, pre-implantation genetic di-
agnosis is presented as an option additional (and not alternative) to prenatal di-
agnosis74 for parents showing a heightened risk of having a child suffering from
a disease or a deformity of genetic origin. As a matter of fact, pre-implantation
genetic diagnosis is still an experimental procedure (until now performed only in
a few thousands cases); it can identify as has been seen a still-limited number
of diseases and is highly specialized, which explains its elevated cost (between
$ 40,000 and $ 100,000, mostly borne by the parents). On the contrary, prenatal
diagnosis (amniocentesis, sampling chorial villosities, foetal blood sampling) can
reveal the presence of approximately 1,500 single-gene disorders in addition to
infectious diseases; moreover, it is a procedure that has been tested for thirty years
and is performed every year on hundreds of thousands of foetuses with relatively
low cost (varying between $ 580 and a few thousand dollars; in most industrialized
countries the national healthcare services bear such costs).
The IBC Report looks to the future, too. Many adult diseases (cancer, diabetes,
etc.) are caused by the interaction of numerous genes and environmental factors.
Given the high incidence and the social impact of these diseases, research is mov-
ing more and more toward the study of adult multifactorial diseases. According to
the IBC, it will perhaps soon be possible to diagnose at the embryonic level, prior
to implantation in the uterus, not only all monogenic diseases, but also the presence
73
This conclusion represents a sort of balance between the right to dignity of the embryo and
the right of the unborn child to enjoy the best possible state of health (based upon Art. 24 of the
Convention on the Rights of the Child).
74
Such diagnosis presents a certain risk of abortion and therefore should not be made
mandatory, even in the cases with the highest risk of pathologies. According to the paper of the
Working Party on Human Genetics (p. 15), in case parents refuse prenatal diagnosis and the
child is born ill, States should not be allowed to limit the enjoyment of social rights; instead,
it could perhaps be lawful to provide for an action for damages brought by the child against
his parents (in the United States and the United Kingdom the principle of damage to life has
sometimes been acknowledged). Leaving aside the economic aspects, it is necessary to leave
the parents free to decide whether to take a test only for the disease for which a high risk exists
or for a wider range of diseases. If the test is positive and the mother wants to carry on with the
pregnancy, it is necessary to respect such a choice, even if the child will represent a burden to
society. Which genetic defects can be looked for? Recommendation R (90) 13 of the Committee
of Ministers to member States of the Council of Europe on prenatal genetic screening, pre-
natal genetic diagnosis and associated genetic counselling excludes searching for character-
istics that are unrelated to genetic alterations presenting a serious risk of triggering a disease
(principle 2). One can seek out only incurable diseases or diseases whose therapeutic treatment
must begin as soon as possible even in uterus while the use of prenatal diagnosis for the
identication of genetic diseases whose treatment implies (only) burdensome limitation on the
interested person is controversial.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 107
75
Since features such as personality, weight and physical appearance as a whole are inu-
enced by large numbers of genes (that is, they are multifactorial), it is not possible to predeter-
mine them according to a genetic basis.
76
Report of the IBC on Pre-implantation Genetic Diagnosis and Germ-line Intervention,
sec. 91.
77
See MATHIEU, Force et faiblesse des droits fondamentaux comme instruments du droit de
la biothique: le principe de dignit et les interventions sur le gnome humain, Revue de droit
public, 1999, p. 93 ff., p. 107, and Gnome humain, cit. supra note 49, p. 71; and, with reference
to the above-mentioned Chinese law, PACKER, The Right To Reproductive Choice. A Study in
International Law, bo, 1996, p. 91.
78
With regard to this, see the preparatory works concerning Art. 2(d) of the Convention on
the Prevention and Punishment of the Crime of Genocide; for an application, see International
Criminal Tribunal for Rwanda, Akayesu, 2 September 1998, ICTR-96-4, para. 507. LEMKIN (in
Genocide as a Crime under International Law, AJIL, 1947, p. 145 ff., p. 148) denes such tech-
niques as sterotechnics, from the Greek words steiros (sterile) and steirosis (sterility). In ad-
dition to so-called biological genocide, there is also so-called physical genocide, which consists
of deliberately inicting on the group conditions of life calculated to bring about its physical
destruction in whole or in parts (Art. 2(c)).
108 ARTICLES
79
See ROBINSON, The Genocide Convention. A Commentary, New York, 1960, sub Art. 2,
pp. 57-58.
80
See supra section 2.
81
See also the corresponding rule of the Draft Code of Crimes against the Peace and Security
of Mankind of 1996 (Art. 18 Crimes against humanity).
82
On this issue, see the remarks made by the International Tribunal for the Former
Yugoslavia in Tadic, Judgment of 7 May 1997, IT-94-1-T, pp. 728-729.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 109
In this manner, even programmes of positive eugenics (as well as, in particular,
reproductive cloning)83 are placed within the scope of the Rome Statute.
83
See DELMAS-MARTY, Interdire et punir: le clonage reproductif humain, RTDH, 2003, p.
429 ff., p. 437. Likewise see LAHALLE, Clonages et dignit humaine, ibid., p. 441 ff., p. 478.
See supra note 7.
84
International regulations ne condamnent pas leugnisme, en tant quil conduit slec-
tionner des tres humains en fonction de leurs caractristiques gntiques, mais les pratiques
eugniques tendant lorganisation de la slection des personnes: MATHIEU, Gnome humain,
cit. supra note 49, p. 73.
85
In this sense also SILVER, Reprogenetics, cit. supra note 45, p. 376. But see infra the
nal remarks made in section 6.
86
Germ-line intervention and cloning are two cases in which, contrary to what usually hap-
pens, international law is ahead of science, prohibiting what is not yet technically feasible.
110 ARTICLES
aimed uniquely at delivering a child of a determined sex. What is more, the rule
does not deal with sex-selection in the context of in vitro fertilization motivated by
reasons of sterility.
The difculty of qualifying embryo selection from a legal point of view lies in
the lack of conict between individual reproductive freedom and the interest of so-
ciety to improve: the kind of conict that characterizes classic eugenics. Selection
is decided and implemented within the nuclear family on the assumption that birth
under optimal conditions is responsive also to the interests of the child; and that,
accordingly, in the presence of a disease diagnosed during the pre-implantation (or
prenatal) phase, the parents decision not to begin (or to interrupt) the pregnancy
does not in any way harm the unborn child, but can rather be promoted as an ex-
pression of good parenting.87 For the rest, even if things were different meaning
even if one could imagine an absolute right to life for the conceived88 it is not
87
On the issue and on French case law and legislation, I refer to the interesting remarks
by KIVILCIM-FORSMAN, Eugnisme et ses diverses formes, RTDH, 2003, p. 515 ff., pp.
530-531.
88
In contrast to the 1969 American Convention on Human Rights (Every person has the
right to have his life respected. This right shall be protected by law and, in general, from the mo-
ment of conception: Art. 4.1 (italics added)), the European Convention provides generically that
[e]veryones right to life shall be protected by law (Art. 2.1). Furthermore, the Convention on
Human Rights and Biomedicine of 1997, although it grants to everyone, without discrimination,
respect for their integrity and other rights and fundamental freedoms with regard to the applica-
tion of biology and medicine (Art. 1.1), does not dene the term everyone ([I]n the absence
of a unanimous agreement on the denition of these terms [everyone, in English; toute personne,
in French] among member States of the Council of Europe, it was decided to allow domestic law
to dene them for the purposes of the application of the present Convention: see the Explanatory
Report produced by the Directorate General of Legal Affairs at the Council of Europe, sec. 18).
Even in 2004, the European Court of Human Rights preferred not to take a position on the ap-
plicability of Art. 2 CEDU to the embryo/foetus; that is, on the delicate issue of whether an
unborn child enjoys the right to life, even though the case at issue did not in any way raise the
sensitive issue of voluntary termination of pregnancy (with the clashing interests of the foetus to
complete its development, on the one hand, and of the mother not to procreate, on the other). The
case, brought to the Grand Chamber, concerned a woman who had to undergo a therapeutic abor-
tion because of medical negligence; according to the woman, the absence of a criminal remedy
within the French legal system to punish the unintentional destruction of a foetus constituted a
failure on the part of the State to protect by law the right to life within the meaning of Art. 2 of
the Convention (Vo v. France [GC], Application No. 53924/00, Decision of 8 July 2004). The
Court, also in light of the European Commissions case law, ruled that the issue of when the
right to life begins comes within the margin of appreciation which the Court generally consid-
ers that States should enjoy in this sphere, notwithstanding an evolutive interpretation of the
Convention []. The reasons for that conclusion are, rstly, that the issue of such protection has
not been resolved within the majority of the Contracting States themselves, in France in particu-
lar, where it is the subject of debate [] and, secondly, that there is no European consensus on
the scientic and legal denition of the beginning of life (para. 82). The Court limited itself to
pointing out that it may be regarded as common ground between States that the embryo/foetus
belongs to the human race. The potentiality of that being and its capacity to become a person
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 111
clear owing to the uncertainty of its legal status89 whether, by whom and in what
way the interests of the embryo could be asserted.
enjoying protection under the civil law, moreover, in many States [] in the context of inher-
itance and gifts [] require protection in the name of human dignity, without making it a
person with the right to life for the purposes of Article 2 (para. 84). In other words the Court
was convinced that it is neither desirable, nor even possible as matters stand, to answer in the
abstract the question whether the unborn child is a person for the purposes of Article 2 of the
Convention []. However, in the circumstances of the [] case, the life of the foetus was inti-
mately connected with that of the mother and could be protected through her, especially as there
was no conict between the rights of the mother and the father or of the unborn child and the par-
ents, the loss of the foetus having been caused by the unintentional negligence of a third party
(para. 85 and para. 86). The Court could have stopped here, but drawing on an assuming that
argument already employed in almost all previous cases on the issue of the legal status of the
embryo (see nally Boso v. Italy, Application No. 50490/99, Decision of 5 September 2002) it
took the trouble to clarify that if, as in the case at stake, the infringement of the right to life or
to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to
set up an effective judicial system does not necessarily require the provision of a criminal-law
remedy in every case (para. 90), remedies in the civil courts and disciplinary measures being
deemed sufcient (see Mastromatteo v. Italy [GC], Application No. 37703/97, Decision of 24
October 2002, para. 90; Calvelli and Ciglio v. Italy [GC], Application No. 32967/96, Decision of
17 January 2002, para. 51). Hence the opinion, by fourteen votes to three, that, even assuming
that Article 2 was applicable in the instant case [] there has been no violation of Article 2 of the
Convention (para. 95). Probably, the reluctance of the Court to deal with the problems of who
is a person and when life begins in the framework of Art. 2 is due to a concern that the incidental
acknowledgment of the right to life of the embryo/foetus would be seen as automatically imply-
ing a protection of life before birth similar to the protection afforded to life after birth (with obvi-
ous consequences on the legality of national laws allowing voluntary terminations of pregnancy).
That does not hold true, since as the European Commission of Human Rights stated already in
1980 (X. v. the United Kingdom, Application No. 8416/79, Decision of 13 May 1980) [i]f one
assumes that [Art. 2] applies at the initial stage of the pregnancy, the abortion is covered by an
implied limitation, protecting the life and health of the woman at that stage, of the right to life
of the foetus (a similar position has been adopted by the American Commission regarding the
above-mentioned Art. 4 of the American Convention. See Resolution 23/81, Case 2141 (United
States), 6 March 1981). Moreover, in the past the European Commission itself pointed out that,
although the term everyone in several articles of the Convention could not apply prenatally,
such application in a rare case e.g. under Article 6, paragraph 1 cannot be excluded, and that
in certain circumstances the foetus may enjoy a certain protection under Art. 2 notwithstanding
that there is in the Contracting States a considerable divergence of views on whether or to what
extent Article 2 protects the unborn life (H. v. Norway, Application No. 17004/90, Decision of
19 May 1992). As some judges remarked in the Vo case (Separate Opinion of Judge Rozakis,
joined by Judges Caisch, Fischbach, Lorenzen and Thomassen), [b]y using the even assum-
ing formula as to the applicability of Article 2, and by linking the life of the foetus to the life of
the mother (the life of the foetus was intimately connected with that of the mother and could be
protected through her), the majority has surreptitiously brought Article 2 of the Convention to
the fore of the case. Yet, it is obvious from the case-law that reliance on the procedural guarantees
of Article 2 to determine whether or not there has been a violation presupposes the prima facie
applicability of that Article. Moreover, the Court should not avoid identify[ing] the notions
which may, if necessary, be the autonomous notions the Court has always been prepared to use
112 ARTICLES
At rst sight it would seem that the Charter of Fundamental Rights of the
European Union (2000) perceived the problem. As a matter of fact, it is in general
that correspond to the words or expressions in the relevant legal instruments [] even if we
are [] concerned with philosophical, not technical, concepts, all the more given that, as far as
Art. 2 is concerned, the Court has broadened the notions of the right to life and unlawful killing,
if not the notion of life itself (Separate Opinion of Judge Costa, joined by Judge Traja, para. 7
and para. 8, in which the conclusion reached by the Court that the mother has a right to life of her
unborn child is criticized (para. 9) and in which it is instead maintained that there is life before
birth, within the meaning of Article 2[;] [] the law must therefore protect such life, and []
if a national legislature considers that such protection cannot be absolute, then it should only
derogate from it, particularly as regards the voluntary termination of pregnancy, within a regu-
lated framework that limits the scope of the derogation (para. 17)). If the aim of the European
Convention on Human Rights is to provide extended protection, then the foetus may also enjoy
protection (as the Court itself states within the framework of Article 8.2 in the case of Odivre v.
France [GC], Application No. 42326/98, Decision of 13 February 2003, para. 45). As Judge Ress
underlines, the obligation to protect human life requires more extensive protection, particularly
in view of the techniques available for genetic manipulation and the unlimited production of em-
bryos for various purposes. The manner in which Article 2 is interpreted must evolve in accord-
ance with these developments and constraints and confront the real dangers now facing human
life (Dissenting Opinion, para. 5). Correctly, Ress maintains that [t]here can be no margin of
appreciation on the issue of the applicability of Article 2. A margin of appreciation may [] exist
to determine the measures that should be taken to discharge the positive obligation that arises
because Article 2 is applicable, but it is not possible to restrict the applicability of Article 2 by
reference to a margin of appreciation. The question of the interpretation or applicability of Article
2 (an absolute right) cannot depend on a margin of appreciation. If Article 2 is applicable, any
margin of appreciation will be conned to the effect thereof (para. 8).
89
The European Group on Ethics in Science and New Technologies of the European
Commission, in his opinion on the Ethical Aspects of Research Involving the Use of Human
Embryo in the context of the 5th framework programme (23 November 1998), reached the follow-
ing conclusions: (2.2) The human embryo, whatever the moral or legal status conferred upon it
in the different European cultures and ethical approaches, deserves legal protection. Even if tak-
ing into account the continuity of human life, this protection ought to be reinforced as the embryo
and the foetus develop. (2.3) The Treaty on European Union, which does not foresee legislative
competence in the elds of research and medicine, implies that such protection falls within the
competence of national legislation (as is the case for medically assisted procreation and voluntary
interruption of pregnancy). However, Community authorities should be concerned with ethical
questions resulting from medical practice or research dealing with early human development.
(2.4) However, when doing so, the said Community authorities have to address these ethical
questions taking into account the moral and philosophical differences, reected by the extreme
diversity of legal rules applicable to human embryo research, in the 15 Member States. It is not
only legally difcult to seek harmonisation of national laws at Community level, but because of
lack of consensus, it would be inappropriate to impose one exclusive moral code. As far as the
Report on the Protection of the Human Embryo In Vitro (2003) by the Working Party on the
Protection of the Human Embryo and Foetus (already examined) is concerned, even acknowledg-
ing the broad consensus on the need for the protection of the embryo in vitro, it is admitted that
the denition of the status of the embryo remains an area where fundamental differences are
encountered, based on strong arguments. These differences largely form the basis of most diver-
gences around the other issues related to the protection of the embryo in vitro. Nevertheless, even
if agreement cannot be reached on the status of the embryo, the possibility of re-examining
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 113
terms that Article 3.2 provides for the prohibition [i]n the elds of medicine and
biology [] of eugenic practices, in particular those aiming at the selection of per-
sons. However, in the Explanations relating to the complete text of the Charter one
may read: The reference to eugenic practices [] relates to possible situations in
which selection programmes are organised and implemented, involving campaigns
for sterilisation, forced pregnancy, compulsory ethnic marriage among others, acts
qualied by the Statute of the International Criminal Court as international crimes.
The reference, in other words, is to classic forms of eugenics.
It does not seem reasonable to me to deduce a prohibition on voluntary eugenic
practices from the general principle of non-discrimination, and in particular from
the principle of genetic non-discrimination expressly sanctioned besides the
same Charter of Fundamental Rights of the European Union (Article 21.1) by the
Convention on Human Rights and Biomedicine (Article 11).
It is rather the UNESCO Universal Declaration on the Human Genome and
Human Rights of 1997 (endorsed, as mentioned, by the General Assembly of the
United Nations in the resolution on Human Rights and the Human Genome of
1998) which furnishes some direction in respect of voluntary eugenic procedures.
In addition to forbidding any discrimination based on genetic characteristics
(Article 6), the Declaration afrms that the dignity of every human being makes
it imperative not to reduce individuals to their genetic characteristics and to respect
their uniqueness and diversity (Article 2(b)). Although formally devoid of any
binding force, these principles bear witness to a sense of respect for the unique-
ness and individuality of each human being, and for the protection of diversity. As
biological diversity (in the sense of the set of all possible combinations of genes
present in animal and plant species) represents the genetic repository necessary
to maintain life on earth that is, the best guarantee of the ability to adapt in the
future to dietary and environmental changes (so much so as to be dened by the
Convention of Rio de Janeiro in 1992 as a common concern of humankind) hu-
man diversity represents the potential salvation of our species. It is really for this
reason that the human genome, seen as the fundamental unity of all members of
the human family, but also as the recognition of their inherent [] diversity, is
symbolically the heritage of humanity (Art. 1).
The Universal Declaration on the Human Genome and Human Rights indi-
rectly condemns genetic pre-determination, genetic reductionism and therefore
any eugenic practice either positive or negative, of both the classic and the new
certain issues in the light of the latest developments in the biomedical eld and related potential
therapeutic advances could be considered. In this context, while acknowledging and respecting
the fundamental choices made by the different countries, it seems possible and desirable with
regard to the need to protect the embryo in vitro on which all countries have agreed, that common
approaches be identied to ensure proper conditions for the application of procedures involving
the creation and use of embryos in vitro (para. 37).
114 ARTICLES
type; it sanctions the principle of respect for diversity on the basis of ethical con-
siderations, but also (I dare say) on the basis of utilitarian considerations for the
self-preservation of the human species. Parents expectations can be satised inso-
far as they are consistent with general interests, understood as the interests of the
whole of human society90 (the interests of the embryo and the foetus instead have
a weight depending on their legal status, which is still uncertain). States (at least
the technologically advanced ones) are implicitly delegated to preserve the human
genome, in essence the heritage of humanity, since the Declaration neither provides
for the establishment of any international ad hoc authority, nor does it furnish other
directions on the point.
This is truly a question of management of a very delicate nature. On the one
hand, there is the risk that States, alleging motivation in the interests of human-
ity to select the best elements, will actually support parents expectations in the
search for an ideal perfection. On the other hand, there is the opposite risk that
States will adopt a set of generally prohibitive rules and in this way interfere in
the private sphere of procreation; something which is forbidden at the interna-
tional level (Article 16 of the Universal Declaration of Human Rights; Article 23
of the International Covenant on Civil and Political Rights; and Article 12 of the
European Convention on Human Rights).91 What is more, an absolute prohibition
such as, for example, the one present in the recent Italian law on medically as-
sisted procreation (Law No. 40 of 2004)92 would violate, in my opinion, the ob-
ligation of the State to promote the birth of healthy individuals and to watch over
prenatal health so as to allow timely interventions intended to reduce the incidence
of possible diseases. This is an obligation that appears to be recognized by a judge-
ment issued in 1998 by the European Court of Human Rights93 which if read
90
KIVILCIM-FORSMAN, Eugnisme, cit. supra note 87, p. 535.
91
I dealt with the topic in my Procreazione assistita e famiglia nel diritto internazionale,
Padova, 2003.
92
See infra in this volume, Legislation XI (Human Rights). The rst case in which Law
No. 40 of 2004 has been applied was decided by the Court of Catania which, with an order is-
sued on 3 May 2004 (reproduced in Famiglia e Diritto, 2004, p. 372), rejected a claim brought
by a (sterile) couple suffering from beta-thalassaemia, who requested permission to have their
embryos submitted to pre-implantation diagnosis and to exclude the implant of embryos found
ill (the couple has since raised the question of the legitimacy of the law in respect to the rules of
the Italian Constitution protecting the fundamental rights of individuals (Art. 2), the principle of
equality (Art. 3) and the right to health (Art. 32)).
93
L.C.B. v. United Kingdom, Application No. 23413/94, Decision of 9 June 1998. In short,
the circumstances of the case are the following. The applicant, who had been diagnosed with
leukaemia, was the daughter of a British serviceman who had taken part in some nuclear tests
performed by the British army. The applicant became aware of the fact that a high incidence of
cancers including leukaemia had been detected in the children of other veterans involved in the
same nuclear tests. The woman appealed to Strasbourg and complained that the State authorities
failure to adopt all necessary measures to prevent the effects of radiation on servicemen amount-
ed to a violation of some rights granted by the European Convention (specically the right to
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 115
from the perspective of assisted procreation seems to imply that those who risk
(on account of genetic or environmental reasons) transmitting to the child a serious
disease, somehow avoidable by the use of modern reproductive technology (such
as in vitro fertilization, pre-implantation genetic diagnosis or embryo selection),
must be able to use such technology, even when it is worth noting problems of
sterility or reduced fertility are not present.
From the observations above, I would conclude that in light of present inter-
national law norms, the straightforward way for States to limit selection is through
a rigorous regulation of access to (prenatal and) pre-implantation diagnosis and
to assisted procreation and, above all, regulation of its use.94 Any kind of genetic
test must aim exclusively at the prevention of the birth of individuals aficted with
serious diseases.95 Also, the task of deciding which pathologies are so serious as to
life, the prohibition of inhumane or degrading treatment, and the right to respect for private and
family life: Arts. 2, 3 and 8). In particular, the applicant complained that British authorities, not
having warned the servicemen about the possible effects on their health of exposure to radiation,
had indirectly damaged their children. According to the Court, the duty of information and pre-
vention would have existed only if it had appeared likely at that time that any such exposure of
her father to radiation might have engendered a real risk to health. Furthermore, the existence
of a causal link between the fathers exposure to radiation and the daughters disease should
have been proved; and it should have been established that monitoring of the applicants health
in utero and from birth would have allowed an earlier diagnosis and medical intervention so as
to diminish the severity of her disease. Failing such evidence, the Court found no violation of
the Convention.
94
In this sense see KIVILCIM-FORSMAN, Eugnisme, cit. supra note 87, pp. 532-534. It
is worth remembering that, like other services normally supplied on payment (Art. 50 of the
EC Treaty), medical services enjoy freedom of movement within the European Community, a
freedom which could be invoked in the most restrictive countries with a view to liberalization and
bring about migratory movements toward the countries where restrictions are fewer. At present,
the legal landscape in European countries is diversied. Some States explicitly authorize pre-
implantation diagnosis with more or less strict limitations: the strictest is the Swedish one, which
permits diagnosis only in case of serious hereditary and progressive diseases leading to premature
death and for which there is neither any treatment nor any chance of recovery (Law No. 115 of
14 March 1991, and directives issued in 1995 by the Department of Health and Social Affairs on
prenatal diagnosis and pre-implantation diagnosis). In contrast, other States explicitly outlaw this
type of diagnosis: this is the case of Austria (Law No. 275 of 1992 on reproductive medicine),
Germany (law on the protection of embryos of 1990), and Ireland (based on the eighth amendment
of 1983 to the Constitution). Finally, there are States where, in the absence of specic regula-
tions, pre-implantation diagnosis is allowed as a matter of fact: among these one can list Belgium,
Finland, Greece, the Netherlands and the United Kingdom. In Italy, the above-mentioned Law No.
40/2004 on medically assisted procreation forbids, on the one hand, any form of embryo selec-
tion for eugenics purposes (Art. 13(3)(b)), and, on the other, the suppression of embryos, leaving
intact what is provided for by Law No. 194 of 1978 on the termination of pregnancy (Art. 14(1)).
The guidelines issued by the Department of Health clarify that pre-implantation diagnosis is not
allowed, while it is legal to submit embryos to morphological tests (i.e. under a microscope), and
in case of an irreversible anomaly not to proceed with the implantation of the embryo.
95
See the remarks made in section 3.2 with reference to Art. 12 of the Convention on Human
Rights and Biomedicine.
116 ARTICLES
justify selection and of carrying out their responsibility as guardians of the herit-
age of humanity, a responsibility entrusted to them by UNESCO and by the United
Nations, is in the last analysis really to be left to States.
96
Obviously, the problem arises even when procreation takes place without medical assist-
ance and prevention occurs after the pregnancy has begun. As far as beta-thalassaemia is con-
cerned, Italy is among the countries where the disease has a relatively high incidence (see supra
note 42). The Italian law on termination of pregnancy (Law No. 194 of 22 May 1978) allows the
mother to undergo an abortion within the rst ninety days of the pregnancy in a list of cases in
which the pregnancy itself, the delivery or motherhood would involve a serious danger to her
physical or mental health; these cases include the anticipation of anomalies or deformities in
the unborn child (Art. 4). After the rst ninety days, voluntary termination of pregnancy is al-
lowed only in case of pathological processes, such as those related to anomalies or deformities
in the unborn child, that are likely to produce a serious danger to the physical or mental health of
the woman (Art. 6(b)). These rules have not been modied by Law No. 40 of 2004 on assisted
procreation, which, on the one hand, prohibits the suppression of embryos and the embryonic
reduction of multiple pregnancies, and, on the other, expressly upholds what is provided for
by Law No. 194 of 1978 (Art. 14(1)(4)). Therefore, the Court of Cagliari was right in admit-
ting the claim brought by a woman expecting a pair of twins, one of which was suffering from
beta-thalassaemia, in order to have the ill foetus terminated at the eleventh week of pregnancy
(Emergency Decree of 5 June 2004, reproduced in Famiglia e diritto, 2004, p. 500). Finally, it is
worth mentioning a ruling by the Italian Corte di Cassazione (21 June 2004, No. 11488, and 29
July 2004, No. 14488, reproduced in Foro It., 2004, I, p. 3327 ff. and p. 3328 ff.) according to
which the doctor who in an area where the rate of thalassaemic disease is high did not perform
on the husband of a woman with thalassaemia all the tests necessary to detect the presence of the
disease, in order to ascertain the danger of transmission to the unborn child, is responsible for
the damages caused by the denial of the possibility to make a choice in favour of the termina-
tion of pregnancy and the consequent birth of a thalassaemic baby girl. The doctor is responsible
toward both parents, but not toward the daughter, since in the Italian legal system the protection
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 117
In case of chronic, non-fatal diseases that are not economically unbearable but
which may be viewed as a burden for the family and society (for example, Downs
syndrome), the State should take a different course of action. The individual af-
fected by such a disease, and his family, are doomed indeed to a low quality of
life not so much on account of the disease itself as on account of the low level of
acceptance society shows toward most disabling diseases, and the little material
and economic support provided by the State. In other words, in these cases it is
society that de facto encourages the parents eugenic choice, a choice which as a
consequence is not completely free (exactly as in China and in India, where it is
society that pushes for the abortion of female foetuses).97 Therefore, in such cases
the State, rather than supporting an eugenic choice that is partially compulsory,
should discourage it by putting into effect restrictions even strong ones and at
the same time by committing itself to removing the social and economic factors
of coercion through interventions at both the personal and the social level: that is,
interventions designed to improve, on the one hand, the state of health of the ill and
disabled, and on the other, the environmental context in which they and their fami-
lies nd themselves living (education, social acceptance of the disease and social
assistance). With regard to this, we must remember that the UN Convention on the
Rights of the Child (20 November 1989) ratied by all States with the exception
of the United States and Somalia provides for the obligation to guarantee to the
mentally or physically disabled child the right to enjoy a full and decent life, in
conditions which ensure dignity, promote self-reliance and facilitate the childs
active participation in the community (Art. 23.1); the right to special care and
[] assistance (Art. 23.2) free of charge whenever possible; the right of access
to education, training, health care services, rehabilitation services, preparation
for employment and recreation opportunities in a manner conducive to the childs
of the unborn child consists (solely) in the acknowledgment of the right to be born, that is, it
consists in the right to receive all the treatments necessary to promote birth and health. As a mat-
ter of fact, the contract between a pregnant woman and her doctor is qualied as a contract with
protective effects in favour of a third party: Vertrag mit Schutzwirkung fr Dritte. However, there
is no space for the alleged right not to be born, if birth then implies a wrongful life, or a life
devoid of dignity by reason of serious personal limitations. In other words, there is no principle
of prenatal eugenesis or euthanasia, such as the principle supposedly recognized by the French
Code de la Sant Publique, which provides for the possibility to terminate pregnancy up till the
birth when there is a high probability that the unborn child will carry a very serious disease,
recognized as incurable at the moment of diagnosis (see new Art. L.2131-4, Bioethics Law No.
800 of 6 August 2004). Leaving aside that such a right, up till the birth, would lack a holder and,
after the birth, would vanish, a further problem could arise according to the Court of Cassation
as to determining the level of handicap required for exercising such a right. Furthermore, in the
face of such a right an obligation for the woman to terminate the pregnancy would begin to take
shape: so that, if she failed to do that, the child could sue his mother. In the case at issue, the lack
of information did not worsen the unborn childs state of health, since the disease was not treat-
able at the prenatal stage. See infra note 98.
97
See supra note 33.
118 ARTICLES
achieving the fullest possible social integration and individual development (Art.
23.3); all in the spirit of international cooperation (Art. 23.4).98
But there is a third category of diseases with which the State will have to cope
in the near future: not devastating diseases nor disabling ones, but potential
diseases, in other words those for which the unborn has a mere genetic predisposi-
tion and for which surgical and/or pharmacological therapies already exist in a few
cases. On this subject, some concerns are raised by the licence recently granted to
a UK clinic to subject embryos in vitro to pre-implantation tests intended to iden-
tify genetic mutations related to a couple of oncosuppressor genes responsible
for an hereditary predisposition to breast tumours.99 For one who writes, it seems
dangerous to support this kind of selection, since it is tied to risk factors evaluated
on the basis of uncertain statistics and can lead to a eugenic drift without limits.
It is easy to anticipate that the next step could involve a negative selection of sus-
ceptibility genes related to old age pathologies and eventually of characteristics,
even multifactorial, that are outside the medical sphere, but unwelcome by the
parents for example, genes inuencing the physical features or the intelligence of
the unborn child. In this way, the possibility for the child to be born would end up
depending on the availability of the right blend of susceptibility genes or favour-
able genes. It seems reasonable to demand that such a drift be halted, starting from
a strict set of rules on the use of predictive genetic tests.
98
Article 23 of the Convention on the Rights of the Child is the only universal human
rights provision concerning disabilities, since the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights do not contain provisions expressly relating to disabled persons. In
1994 the UN Committee on Economic, Social and Cultural Rights issued General Comment No.
5 on persons with disabilities, in which it was recognized that it is [] very widely accepted that
the human rights of persons with disabilities must be protected and promoted through general, as
well as specially designed laws, policies and programmes and that [c]hildren with disabilities
are especially vulnerable to exploitation, abuse and neglect and are, in accordance with Article
10.3 of the [International Covenant on Economic, Social and Cultural Rights] (reinforced by
the corresponding provisions of the Convention on the Rights of the Child), entitled to special
protection. It would be desirable for the UN General Assembly which has so far elaborated,
for the protection of disabled individuals, only soft law rules (Declaration on the Rights of
Mentally Retarded Persons, 1971; Declaration on the Rights of Disabled Persons, 1975; World
Programme of Action concerning Disabled Persons, 1982; Standard Rules on the Equalization of
Opportunities for Persons with Disabilities, 1993) to support the adoption of an ad hoc conven-
tion. The same holds true for the Council of Europe: the European human rights treaties, in fact,
protect only indirectly (through the case-law of the European Commission and of the European
Court of Human Rights) the rights of persons with disabilities. See the recent document prepared
by the Secretariat General, The Council of Europe and the Rights of Persons with Disabilities, 10
May 2004, DG II (2004) 11.
99
BMJ, 2004; 329:1061 (6 November 2004). Together, the genes at issue (Brca1 and Brca2)
are responsible for approximately 1 in 20 cases of breast tumours and raise the risk of developing
tumours by 80%. A proposal has been advanced to also follow a similar approach relative to the
predisposition to tumours of the intestine.
HUMAN GENETICS AND FUNDAMENTAL RIGHTS 119
100
The public understanding of disabilities, namely as illnesses or deformities to be
eradicated, is difcult to maintain when the eradication of difference through genetic manipula-
tion is within reach. This can be seen as an attempt to manipulate science to carry out a form
of disability cleansing. It reects a stereotyped conception of the perfect child, which itself
can be manipulated by the media and public opinion: UN Commission on Human Rights,
Sub-Commission on the Promotion and Protection of Human Rights, Human Rights and the
Human Genome, Preliminary Report submitted by the Special Rapporteur Motoc, UN Doc. E/
CN.4/Sub.2/2004/38 of 23 July 2004, paras. 38-39. See also Italian Corte di Cassazione, 29 July
2004, No. 14488, supra note 96. According to United Nations estimates, over 600 million people
(approximately 10% of the worlds population) have a disability and are united in one common
experience: being exposed to various forms of discrimination and social exclusion. The eugenics
drift risks making the situation even worse.
101
Provisions specically addressing the issue of disability are contained in the American
Convention on Human Rights (Art. 18.4) and its Additional Protocol in the Area of Economic,
Social and Cultural Rights (Art. 18) too. See supra note 98.
102
LIPPMAN, Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing
Inequities, American Journal of Law and Medicine, 1991, p. 15 ff.
120 ARTICLES
ual aptitudes (the phenotype) in which the genome expresses itself compete with
non-genetic factors internal and external to the organism, then efforts should not be
concentrated exclusively on the improvement of the set of genes of the individual.
Instead they should aim above all at the optimization of the environment in which
the individual is born and develops. It is desirable, therefore, for States to promote
a limited use of eugenics, and commit themselves as far as possible to ensure eu-
phenics (as coined by the Nobel Prize winner Joshua Lederberg, father of modern
genetics, to indicate the spread of prevention and treatment strategies intended to
bring about a healthy or less ill phenotype103) and euthenics (from the Greek word
euthna, that is, prosperity104), through the improvement of everyones quality of
life. This is the invitation UNESCO extended to States when in the Declaration
already mentioned (Article 3) it reminded them that the human genome, of which
they are the custodians, contains potentialities that are expressed differently ac-
cording to each individuals natural and social environment including the individu-
als state of health, living conditions, nutrition and education (emphasis added).
It is exactly this invitation that UNESCO should renew to States in the universal
code of bioethics it is preparing, especially with regard to the use of assisted
techniques of reproduction.
103
It seems that the word was used for the rst time in 1963 by LEDERBERG, Molecular
Biology, Eugenics and Euphenics, Nature, Vol. 198, 1963, p. 428 ff. (The emphasis on eugen-
ics as the point of application of molecular biology overlooks the most immediate prospects for
the understanding and then control of human development. To dramatize the antinomy, I propose
the term euphenics as the counterpart of eugenics, in the same sense that phenotype is op-
posed to genotype).
104
The combination of eugenics, euthenics, and euphenics is drawn from an online essay by
WOLBRING, research scientist at the University of Calgary, available at http://www.thalidomide.ca/
gwolbring/Eugenics,%20Euthanics,%20Euphenics.html. The reduction of the human being to his
genes is criticized also by ROCK, Genetic Norms, Eugenic Logic and UNESCOs International
Bioethics Committee, Eubios Journal of Asian International Bioethics, 1997, p. 108 ff.
LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL
IN THE OCCUPIED PALESTINIAN TERRITORY:
A MISSED OPPORTUNITY FOR
INTERNATIONAL HUMANITARIAN LAW?
MARCO PERTILE*
1. INTRODUCTION
On 9 July 2004 the International Court of Justice (ICJ) rendered its Advisory
Opinion on the legal consequences of the construction of what had been dened by
the UN General Assembly as a wall in the Occupied Palestinian Territory (OPT).1
The Court clearly sanctioned the illegality of the wall and identied various legal
consequences with respect to Israel, third States, the UN General Assembly and the
Security Council.2
The Opinion, which is giving rise to a heated debate, is divided into three
parts.3 In the rst the Court dealt with the preliminary issues of jurisdiction and
propriety, which required extensive discussion in view of the legal objections that
many participants in the proceedings had put forward.4 The second part concerns
the identication and application of the substantive norms considered relevant to
*
Ph.D., Research Fellow, Department of Legal Sciences, University of Trento,
pertile@jus.unitn.it.
1
See Resolution ES-10/13, 21 October 2003, and Resolution ES-10/14, 8 December 2003.
According to the different points of view of the commentators, the barrier which is being erected
in the West Bank has been termed Wall, Apartheid Wall, Separation Fence, Fence,
Obstacle, Barrier, Separation Barrier. For reasons of consistency with the Advisory
Opinion of the ICJ, in the present article the term wall will be used. Cf. SCOBBIE, Smoke,
Mirrors and Killer Whales: the International Courts Opinion on the Israeli Barrier Wall,
German Law Journal, 2004, p. 1107 ff., p. 1108, note 4.
2
The Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (hereinafter: Opinion), as well as the Separate Opinions, the
Written Statements and the Oral Pleadings of the participants in the proceedings, and the Dossier
prepared by the Secretary-General are available at: www.icj-cij.org.
3
See Resolution A/ES-10/ L.18/ Rev.1: the United Nations General Assembly voted over-
whelmingly (150 against, 6 with, 10 abstentions) in favour of a resolution calling upon Israel
to comply with the Opinion. For a comprehensive debate on the Advisory Opinion, see FISLER
DAMROSCH and OXMAN (eds.), Agora: ICJ Advisory Opinion on Construction of a Wall in
the Occupied Palestinian Territory, AJIL, 2005, pp. 1-141, with contributions by WATSON,
POMERANCE, FALK, WEDGWOOD, MURPHY, SCOBBIE, KRETZMER, IMSEIS and DENNIS.
4
For an overview of the jurisdictional arguments presented by the participants in the pro-
ceedings, see AKRAM and QUIGLEY, The International Court of Justice Advisory Opinion on
the Legality of Israels Wall in the Occupied Palestinian Territory, Annex 4, p. 24, available at
www.palestinecenter.org (last accessed on 23 April 2005).
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 121-161
122 ARTICLES
assess the legality of the construction of the wall. The legal consequences are quite
concisely stated in the last part.
Amongst the legal sources relied on by the Court, a major role is played by in-
ternational humanitarian law. The West Bank and East Jerusalem being considered
almost unanimously occupied territories, reliance on the law of war comes as no
surprise.5 Therefore, one can safely say that the Opinion of the Court was expected
to elucidate the possibility and scope of application of humanitarian law in this type
of cases.
Contrary to this expectation, the Court, as pointed out in Judge Higgins
Separate Opinion, has interpreted and applied the body of rules at hand in a light
way and a detailed analysis of the applicable norms has been avoided.6 In this
sense, the present Opinion might perhaps be considered a missed opportunity to
elaborate and develop international law.7
In view of this criticism, it is the purpose of the present article to focus on the
way the Court applied and interpreted international humanitarian law and, given
the brevity of some focal points of the Opinion, to suggest alternative and supple-
mentary lines of reasoning to support its conclusions. After briey describing the
factual background (section 2), we shall discuss the applicability of the relevant
instruments (section 3). Then, we shall proceed with the analysis of the substantive
issues connected to the illegality of the wall (section 4) and the legal consequences
arising from it (section 5). Some concluding remarks will follow (section 6).
2. THE BACKGROUND
2.1. The Main Features of the Wall and of Its Associated Legal Rgime
5
See infra section 3.
6
Separate Opinion of Judge Higgins, paras. 23-24.
7
Ibidem, para. 23.
8
WORLD BANK, The Impact of Israels Separation Barrier on Affected West Bank
Communities, Report of 4 May 2003 to the Humanitarian and Emergency Policy Group (HEPG)
and the Local Aid Coordination Committee (LACC) The Impact of Israels Separation Barrier
on Affected West Banks Communities, (hereinafter HEPG May 2003 Report), para. 6. See also
the description given by the ICJ, Opinion, para. 82.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 123
gunre.9 At times buffer zones of varying depths are established next to it. In some
areas, the main structure is accompanied by secondary barriers composed of ditch-
es and barbed wire and aimed at diverting the trafc to and from the Palestinian
towns and villages to a checkpoint.10
The nal location and the total length of the structure are not certain.11 The
route is the outcome of an ongoing bargaining process in which the decisions
of jurisdictional bodies are taken into account.12 The Israeli High Court issued a
number of injunctions concerning the route, prohibiting the completion of certain
sections.13 The route then underwent a major revision to address a decision of the
same Court afrming that the planned route contravened the principle of propor-
tionality as envisaged by international law and Israeli administrative law.14 It is not
to be excluded that also the international criticism raised by the present Advisory
Opinion may have been a factor in the Israeli Governments decision to re-deploy
part of the structure.
Apparently, the Report prepared by the Secretary-General pursuant to General
Assembly Resolution ES-10/13 constituted the main source for the Court in analys-
ing the facts of the issue. According to it, due to the winding nature of the route,
the total length of the structure would exceed 700 km, nearly twice as long as the
green line.15 As a result of the construction, more than 16 per cent of the West Bank
would come to lie between the structure and the green line.16 Reports on the aver-
9
Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-
10/13, A/ES-10/248 (hereafter Report), p. 4.
10
Ibidem, p. 10.
11
Updates available at the Seam Zone web-site of the Government of Israel:
www.seamzone.mod.gov.il.
12
See Preliminary Response on behalf of the Respondents, in Hamoked v. The Government
of Israel, Judgement of the Supreme Court of Israel sitting as the High Court of Justice, HCJ
9961/03, p. 10, available on line at http://www.hamoked.org/items/3827_eng.pdf (accessed on
18 September 2004).
13
See Report of the Special Rapporteur of the Commission on Human Rights, John Dugard,
on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967,
E/CN.4/2004/6. With regards to the temporary injunctions issued by the High Court before the
present decision, see Btselem, Changes to the Barrier Israeli and International Ruling Issued,
available at www.btselem.org/English/Special/040715_Barrier_Updates.asp (last accessed on 10
September 2004).
14
Beit Sourik Village Council v. The Government of Israel, Judgment of the Supreme
Court of Israel sitting as the High Court of Justice, HCJ 2056/04, available on line at http:
//elyon1.court.gov.il/eng/verdict/framesetSrch.html (last accessed on 20 September 2004).
15
The project was later revised on 30 June 2004 and on 25 February 2005. See UNITED
NATIONS OFFICE FOR THE COORDINATION OF THE HUMANITARIAN AFFAIRS, Preliminary
Analysis of the Humanitarian Implications of Latest Barrier Projections, 8 July 2004, available
on line at www.humanitarianinfo.org/opt/docs/UN/OCHAupdate3barrierprojections9July04_
maps.pdf (last accessed on 29 February 2005). The updated map of the route is available on-line
at www.seamzone.mod.gov.il (last accessed on 15 June 2005).
16
Report, para. 8.
124 ARTICLES
age width vary from 50 to 70 metres; and it has been maintained that it reaches
100 metres in some sectors.17 The route is located almost entirely in the occupied
territory and encompasses the most populous Israeli settlements. Had the structure
been completed as planned, around half of the Israeli settlers would reside between
it and the Green line.18 As a result of the twisting route, several Palestinian villages
are totally encircled; some of them are reachable only through a single road con-
trolled by a checkpoint.
The building of the wall requires appropriation of land in the OPT by the Israeli
authorities. Private land is requisitioned on the basis of military orders issued for
military needs (West Bank) or acts of the Ministry of Defence (East Jerusalem).19
The orders are temporary, their validity being limited to a period of three or ve
years, but are renewable without limits.20 Validity is not conditioned to deliverance
to the interested owners.
The part of the territory located between the green line and the structure is sub-
ject to a new legal rgime, being declared a closed zone.21 In order to be allowed
to stay, residents must obtain a permit from the Israeli authorities, which is issued
for a limited period.22 Entrance by Palestinian non-residents is possible through
a number of gates and is conditional on the possession of a personal permit.23
17
Ibidem, para. 9.
18
According to the Report, para. 8, 320,000 settlers (178,000 in East Jerusalem) would be
incorporated by the route of the Barrier.
19
Requisition orders in East Jerusalem are issued by the Ministry of Defense. Given the
annexation of the area by Israel, the military commander does not have the authority to issue
military orders there. Some orders of seizure are available on line at: www.hamoked.org (last
accessed on 24 September 2004). The orders do not explicitly bring about a change in the owner-
ship of the land, which is temporary requisitioned for a time of three or ve years. On the process
of seizure of the land, see HEPG May 2003 Report, paras. 34-45.
20
Ibidem. Orders of seizure are available on line at: www.hamoked.org (last accessed on 19
September 2004).
21
See Order Regarding Defense Regulations (Judea and Samaria) (No. 378), 5730 1970,
Regulations Regarding Crossing in the Seam Area, and Regulations Regarding Permits to
Enter and Stay in the Seam Area, available on line at: www.domino.un.org (last accessed on 16
September 2004). Cf. Preliminary Response, cit. supra note 12, p. 9.
22
The Israeli government maintained that the permit for residents in the closed area
is actually an identity card, but that does not seem to change the essence of the problem.
Terminological debates notwithstanding, residence on the territory is conditional on the posses-
sion of an authorisation released by the Israeli authorities, be it a permit or an identity card. Cf.
Report, Annex I, Summary Legal Position of the Government of Israel, para. 10. See Declaration
Concerning the Closure of Area Number s/2/03, 2 October 2003, Article 5(a), available at: http:
//domino.un.org/unispal (accessed on 16 September 2004).
23
It is reported that permits are valid for entrance through one of the gates only. See WORLD
BANK, The Impact of Israels Separation Barrier on Affected West Bank Communities, Follow Up
Report of 30 November 2003 (Update No. 3) to the Humanitarian and Emergency Policy Group
(HEPG) and the Local Aid Coordination Committee (LAAC) The Impact of Israels Separation
Barrier on Affected West Banks Communities (hereinafter HEPG Report November 2003), paras.
18-29.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 125
Palestinian landowners and farmers whose land is caught on the other side of the
structure, are subject to the same legal rgime. Israeli citizens, Israeli settlers, per-
sons fullling the conditions for immigration to Israel according to the law of re-
turn, and tourists with a regular visa do not need a permit to enter the closed area.
2.2. The Request of the General Assembly to the International Court of Justice
After an unsuccessful attempt to bring the matter before the Security Council,
the General Assembly rst addressed the legal issues arising from the construction
of the wall in its resumed tenth emergency special session.24 By adopting resolution
ES-10/13, the Assembly found that the wall contravened relevant international law
and demanded Israel to stop and reverse its construction activities in the OPT.25
The same resolution also instructed the Secretary-General to periodically report on
compliance by the Israeli authorities. The rst report afrmed that Israel had not
stopped or reversed construction activities.26 The General Assembly then adopted
resolution ES-10/14 and asked the ICJ to render an Advisory Opinion on the fol-
lowing question:
In its request for the Advisory Opinion, the General Assembly emphasised the
relevance of international humanitarian law. The question put to the Court quali-
ed the territory on which the wall is built as occupied and explicitly referred to
the Fourth Geneva Convention (IV GC). The preceding paragraphs of Resolution
ES-10/14 reafrmed the applicability of the Fourth Geneva Convention as well as
Additional Protocol I and recalled the Hague Regulations.
24
A draft resolution was vetoed by the United States on 14 October 2003, see UN Doc.
S/2003/980 (2003).
25
See UN Doc. A/RES/ES-10/13 (2003).
26
Report, para. 3.
27
Resolution ES-10/14 is reprinted in Opinion, pp. 5-7.
126 ARTICLES
The Court is not bound by those legal determinations, but, in any event, it took
a different approach as to the applicable sources of international humanitarian law.
The Court held that: the Hague Regulations are applicable by way of customary
law; the Fourth Geneva Convention is applicable de jure as a treaty ratied by
Israel and relevant to the Occupied Palestinian Territory of the West Bank and East
Jerusalem; no reference was made to the First Additional Protocol.
The starting point of the reasoning is the qualication of the territory on which
the wall is being built as occupied. That is a prerequisite for the application of
the law of occupation, a specic body of rules of international humanitarian law.
The Court referred to Article 42 of the Hague Regulations, which was said to re-
ect customary law, and dened occupation as a factual phenomenon: [T]erritory
is considered occupied when it is actually placed under the authority of the hostile
army, and the occupation extends only to the territory where such authority has
been established and can be exercised.28
Since the relevant territory (situated between the Green Line and the former
eastern boundary of Palestine under the Mandate) was occupied during the armed
conict between Israel and Jordan, Israel is to be considered the Occupying Power
under customary international law. Despite the negotiating process which has de-
veloped over the years and the number of agreements aimed at transferring part of
the administrative power to the Palestinian authorities, the status of occupation has
not changed since the end of the conict. According to the Court that process has
remained partial and limited.29
It is submitted that the nding is correct. Somewhat paradoxically, one might
think that the most striking evidence that Israel still holds the West Bank and East
Jerusalem as an Occupying Power is the wall itself.30 Construction activities re-
quire on-site studies, inspections by experts, seizure of property through an elabo-
rate procedure. Without the control of the territory, the erection of such a complex
structure would not be possible.
The Hague Regulations deal with military occupation in section III and are rele-
vant to the facts of the issue. Israel never ratied the Hague Convention to which the
regulations are annexed, but their customary nature is generally beyond doubt.31
28
Opinion, para. 78. On the factual nature of the test for military occupation, see ROBERTS,
What is a Military Occupation?, BYIL, 1984, p. 249 ff., p. 250.
29
Opinion, para. 77.
30
OXFORD PUBLIC INTEREST LAWYERS, Legal Consequences of Israels Construction of a
Separation Barrier in the Occupied Territory, University of Oxford, 2004, p. 21, para. 115.
31
GREENWOOD, Historical Development and Legal Basis, in FLECK (ed.), Handbook of
Humanitarian Law in Armed Conict, Oxford, 1999, p. 1 ff., pp. 24-25, para. 126.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 127
In the present Opinion the Court afrmed the customary nature of the Hague
Regulations relying on its Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons and on a decision of the International Military Tribunal.32 The
Court further noted that the point was recognised by all the participants in the pro-
ceedings.
The nding rests on solid grounds as State practice is clear.33 However, tak-
ing into account the Nuclear Weapons Opinion, the present determination by the
Court that the Hague Regulations have become part of customary law34 is no
statement of the obvious. Admittedly, in the Nuclear Weapons Opinion, the Hague
Convention (as well as the Fourth Geneva Convention) were placed amongst the
treaties which had acquired customary nature.35 Yet the question as to whether only
some fundamental norms, and in this case which ones, were to be regarded as cus-
tomary in nature was left open.36 On the contrary, in the present case the language
seems to determine that the whole body of rules of the Hague Regulations is part
of customary law.
32
Opinion, para. 89.
33
See, however, MERON, The Continuing Role of Custom in the Formation of International
Humanitarian Law, AJIL, 1996, p. 238 ff., pp. 239-240, on the tradition of relying mainly on
verbal evidence rather than operational practice in assessing customary humanitarian law.
34
Opinion, para. 89.
35
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996,
pp. 256-259.
36
In the Nuclear Weapons Opinion (ibidem, para. 79), the Court referred to a great many
rules of humanitarian law applicable in armed conict.
128 ARTICLES
37
See SHAMGAR, The Observance of International Law in the Administered Territories,
Israel Yearbook of International Law, 1971, p. 262 ff.; BLUM, The Missing Reversioner:
Reections on the Status of Judea and Samaria, Israel Law Review, 1968, p. 279 ff. The inter-
national community, in contrast, almost unanimously regards the Fourth Geneva Convention as
applicable to the occupied Palestinian territory, cf. ROBERTS, Prolonged Military Occupation:
The Israeli-Occupied Territories since 1967, AJIL, 1990, p. 49 ff., pp. 69-70.
38
According to ROBERTS, ibidem, p. 62, the distinction between de jure and de facto appli-
cability of the Fourth Geneva Convention was rst put forward at the beginning of the Seventies
by the then Attorney General of Israel, Meir Shamgar. See SHAMGAR, ibidem, p. 262 ff., p. 266.
As concerns the practical value of this approach, one may wonder what the non-humanitarian
provisions of an instrument that could be considered humanitarian in nature are. Cf. GASSER,
Protection of the Civilian Population, in FLECK (ed.), cit. supra note 31, p. 209 ff., p. 242,
para. 524. In this respect, it is to be noted that the Israeli authorities have never ofcially claried
which are the provisions of the Convention that they regard as humanitarian. Considering the law
of occupation in its entirety, one might afrm that the Hague regulations contain both humanitar-
ian provisions and provisions regarding the protection of the interests of the ousted sovereign. Cf.
BENVENISTI, The International Law of Occupation, Princeton, 1993, pp. 3-6. Yet it is clear that
the Fourth Geneva Convention seems to be exclusively concerned with the protection of civilians
and the validity of the humanitarian criterium to discriminate amongst its provisions is doubtful.
See Palestine Written Statement, para. 411.
39
Opinion, para. 94. Cf. IMSEIS, Critical Reections on the International Humanitarian Law
Aspects of the ICJ Wall Advisory Opinion, AJIL, 2005, p. 102 ff., pp. 103-105, who argues that
Israels position is more detailed than the Court relates.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 129
irrelevant. That war having been an armed conict between contracting parties, the
subsequent Israeli occupation is to be regulated by the Convention.
The approach is in line with the aim of the Convention. The Court recalled
that the intention of the drafters was to protect civilians who nd themselves,
in whatever way, in the hands of the occupying Power.40 Article 47 was said to
demonstrate the irrelevance of any question regarding the status of occupied ter-
ritories with respect to the protection of civilians. The intention of the drafters was
therefore considered in an objective way as mirrored by the text of the Convention.
Subsequently reference to the travaux prparatoires was made, but only to conrm
the interpretation already put forward.
While the interpretation of Article 2 provided by the Court is pellucid, the nal
part of the analysis is somewhat weak. The Court referred to a number of additional
elements to corroborate its nding. Several documents, declarations, and resolu-
tions in which the High Contracting Parties, the ICRC, the General Assembly, the
Security Council, and the Supreme Court of Israel afrmed the applicability of the
Fourth Geneva Convention to the Occupied Palestinian Territory were mentioned.
In view of the foregoing the Court concluded the Fourth Geneva Convention
is applicable in any occupied territory in the event of an armed conict arising be-
tween two or more High Contracting Parties.41
The legal qualication of those elements is not totally clear. The Court seemed
to treat them as judicial precedents and did not advance any explanation of their
legal value.42
It goes without saying that the mentioned documents the General Assembly
and the Security Council resolutions in particular can be interpreted as evidence
of a practice demonstrating the opinio juris of the international community on
the applicability of the Fourth Geneva Convention. Under certain conditions the
existence of a customary norm could be inferred from them.43 Yet one might
doubt whether such a norm could concern a single situation and simply oblige
a recalcitrant State to comply with a conventional body of rules.44 Admitting
40
Opinion, para. 95.
41
Ibidem, para. 101.
42
On the quasi judicial role of the Security Council and the General Assembly, see
Palestine Oral Pleading, p. 42, quoting SCHARFFER. As concerns the Courts attitude to rely
heavily on Security Council Resolutions, PELLET, Strengthening the Role of the ICJ, The Law
and Practice of International Courts and Tribunals, 2004, p. 159 ff., pp. 168-169.
43
On the intricacies which are inherent in treating UN Resolutions and votes in UN organs
as evidence of customary norms, see however ARANGIO RUIZ, The UN Declaration on Friendly
Relations and the System of the Sources of International Law, Alphen aan den Rjin, 1979, pp.
61-62.
44
It is of interest to note that the Court, dealing with the questions of jurisdiction and in par-
ticular with the evolution of the interpretation of Article 12 UN Charter, referred to the accepted
practice of the General Assembly. The acceptance of the practice was mentioned even if the evolu-
tion was considered consistent with Art. 12, paragraph 1, of the Charter. See Opinion, para. 28.
130 ARTICLES
that a customary norm, when not accepted by a party to a treaty, can modify the
conditions of applicability of that same treaty is problematic. In the context of
a multilateral treaty the relevance of an emerging customary norm, if not of a
peremptory character, is probably limited to the parties engaged in the relevant
practice or acquiescing to it.45 It follows that reference to the above mentioned
elements would add nothing to the result already reached by the textual and tele-
ological interpretation of Article 2. Perhaps one should better ascertain whether
a general rule extending the applicability of humanitarian or even also human
rights treaties has come into existence. From this perspective it is to be underlined
that the Court seemed to generalise the scope of its nding referring to any oc-
cupied territory.46
Nor could one easily consider the elements at stake even the decisions of
the contracting parties as part of a subsequent practice according to Article 31,
para. 3(b), of the Vienna Convention on the Law of Treaties.47 It is to be underlined
that the norm requires the practice to have probative value of the existence of an
agreement between the parties to a treaty. The travaux prparatoires demonstrate
that the active participation of all the parties is not needed.48 Nevertheless in order
for an agreement to be concluded all the parties should, at least tacitly, accept the
relevant practice. In view of the rm opposition of Israel to the de jure applicability
of the Convention, the existence of an agreement can be doubted. It is also doubtful
that the decisions of the Supreme Court, given that the Government has repeatedly
taken a different view at the international level, can be qualied as evidence that
Israel acquiesced to the practice.49
45
Article 68 of the 1964 ILC Draft on the Law of Treaties stated that a treaty can be modi-
ed by the subsequent emergence of a new rule of customary law relating to matters dealt with
in the treaty and binding upon all the parties. The matter was subsequently dropped mainly
because the Special Rapporteur Waldock regarded it as concerning acts done outside the treaty
and not in relation to it. Some governments and the Special Rapporteur however afrmed that
they doubted that the emergence of a new customary rule binding between the parties to a treaty
is necessarily to modify the particular relations between them. That could have defeated their
intention, which is most of the times to set up a special legal rgime. See Sixth Report on the
Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, Doc. A/CN.4/186, YILC, Vol.
II, 1966, pp. 90-91.
46
Opinion, para. 101.
47
Contra, see Palestine Written Statement, para. 392.
48
See Report of the International Law Commission on the Work of its Eighteenth Session,
YILC, 1966, Vol. II, p. 222 ff. On the role of acquiescence with reference to a srie of resolu-
tions, CONFORTI, Le rle de laccord dans le systme des Nations Unies, RCADI, 1974-II, p.
203 ff., pp. 246-250.
49
Explaining the position of Israel, the Court also referred to a single act of the Military
Commander adopted in 1967, which afrmed the applicability of the Fourth Geneva Convention
to the Occupied Territory. That is also incompatible with implicit acceptance of the practice,
simply because it was adopted at the beginning of the occupation, in a moment when the relevant
conduct had not yet emerged in the international community.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 131
To sum up, while the reasoning of the Court as concerns the textual and tele-
ological interpretation of Article 2 IV GC is clear and well established, the legal
qualication of the practice subsequently referred to is missing. It is therefore plau-
sible to think that the additional elements mentioned above only constitute subsidi-
ary means with regard to a legal result that was already determined.
The First Additional Protocol to the Geneva Conventions has not been ratied
by Israel. In the present case the Court never referred to it and did not address the
issue of its possible customary nature.50 In view of the Nuclear Weapons Opinion
one could think that the Court does not regard the Protocol as containing relevant
customary norms. In that occasion only the norms restating previously existing
principles were held to be customary in nature.51 The norm mirroring the Martens
clause as well as the principle of distinction and the principle prohibiting weapons
causing unnecessary suffering were mentioned.52
Nonetheless, in addition to the General Assembly Resolution ES-10/14, a
number of participants in the proceedings referred to Additional Protocol I.53 In the
abstract the Protocol contains a number of norms that could have been relevant to
qualify the facts before the Court. One could refer to Article 3(b), which could have
neutralised the one-year limit to the application of the whole body of norms of the
Fourth Geneva Convention,54 or to Article 11, concerning the protection of physical
health of persons who are within the power of the adverse party. Article 69 would
have extended and specied the duties of the Occupying Power with regard to the
basic needs of the civilian population.
It is also worth noting that Article 85, para. 4(a), qualies as a grave breach
the transfer of population of the Occupying Power to the occupied territory.
The conduct is prohibited by Article 49, para. 6, IV GC, but does not constitute
a grave breach according to Article 147 IV GC. Subsequently the Statute of the
International Criminal Court criminalised the prohibition, but its customary nature
50
On the point, see GREENWOOD, Customary Law Status of the 1977 Geneva Protocols,
in DELISSEN and TANJA (eds.), Humanitarian Law of Armed Conict Challenges Ahead,
Dordrecht, 1991, p. 93 ff.
51
Cf. ABI SAAB, The 1977 Additional Protocols and General International Law, in
DELISSEN and TANJA (eds.), ibidem, p. 115 ff., pp. 119-121, who argues that the main con-
tribution of the Protocols lies in reafrming pre-existing law. See also POCAR, Protocol I
Additional to the 1949 Geneva Conventions and Customary International Law, Israel Yearbook
on Human Rights, 2001, p. 145 ff.
52
Legality of the Threat or Use of Nuclear Weapons, cit. supra note 35, paras. 74-84.
53
See Jordan Written Statement, p. 63; Palestine Written Statement, para. 414.
54
See infra subsection 4.2.
132 ARTICLES
is still doubtful.55 Since the Court explicitly found that Israel breached Article 49,
para. 6, one might have expected the issue of criminalisation to come up for discus-
sion. However, no particular meaning can be attached to the decision not to address
the point. As it will be seen below, the Court openly chose to ignore issues of indi-
vidual criminal responsibility.56
With respect to the facts of the case, a distinction can be made between activi-
ties connected to the construction of the wall and their adverse consequences on
the affected population. That could simplify the analysis of the substantive aspects
of the decision.57
For the rst category, one might put into question the legality of the seizure and
the destruction of the land. Is the seizure of the land legal? Is the destruction of the
property in the seized land lawful? What are the norms applicable to those acts?
The evaluation of the facts does not seem difcult: one has to assess the activities
that are strictly connected to the erection of the structure.
Secondly, one may evaluate the consequences arising from the existence of the
wall and from the legal rgime associated to it in order to understand to what degree
the life of the population is affected. In the early stages of the construction of the
wall this kind of judgement is rather complicated in that it requires the assessment
of the situation in the future.
The Court followed the partition but addressed the facts in quite a curious
manner. As a rst step, it identied the relevant legal framework. As to the Hague
Regulations, Article 23(g) i.e. the main legal justication relied on by Israel for
the seizure of property 58 was considered not applicable on the basis of a contex-
tual argument. With regard to the Geneva Convention, the Court further noted that
Article 6 applied and that, more than one year having passed after the general close
of hostilities, only the provisions identied by the third paragraph could have been
relevant to the case at issue. Secondly, the Court identied some relevant provi-
sions of international humanitarian law and human rights law, as the two bodies of
norms are considered together. A number of provisions are merely listed and the
text of some of them is reproduced in its entirety. Articles 43, 46, 52 of the Hague
Regulations and Articles 47, 49, 52, 53, 59 of the Fourth Geneva Convention were
referred to.
55
See CASSESE, International Criminal Law, Oxford, 2003, pp. 59-60.
56
See infra subsection 5.3.
57
For the same approach see Palestine Oral Pleading, p. 49.
58
Report, Annex I, cit. supra note 22.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 133
A detailed factual description of the hardships that the wall imposes on the af-
fected population followed. Figures from different sources were quoted, examples
were given. But then again, without any further elaboration: [] the Court is of
the opinion that [] the construction of the wall and its associated legal rgime
impede the liberty of movement, the right to work, to health, to education and to an
adequate standard of living.60
All human rights violations were dealt with in the framework of the conven-
tional instruments for human rights protection. As for international humanitarian
law, the Court stated that the wall contravened Article 49, para. 6, IV GC, the prohi-
bition of transferring population of the Occupying Power to the occupied territory.
The issue of military necessity was concisely dealt with. The route chosen for the
wall was not considered to be necessary to attain Israels security objectives.
In the following sections, we shall try to assess the Courts ndings under in-
ternational humanitarian law. We shall also point out other possible violations that
were ignored by the Court.
As has been said above, in dealing with the activities strictly connected to the
erection of the wall, the Court found that destruction and seizure of property had
been carried out in breach of Articles 46 HR, 52 HR, and 53 IV GC. Article 23(g)
HR, in contrast, was not regarded applicable.
It is submitted that such ndings are legally tenable albeit incomplete.
As a rst step, Article 46 HR spells out the general rule on the status of private
property in the occupied territory. The provision explicitly requires respect for pri-
vate property and prohibits conscation. Derogation to the prohibition of destruc-
tion and appropriation of private property in the occupied territory is exceptional
in nature and is to be grounded in other specic provisions.61
59
Opinion, para. 132.
60
Ibidem, para. 134.
61
Cf. DAVID, Principes de droit des conits arms, Bruxelles, 2002, pp. 519-520.
134 ARTICLES
62
KOLB, Ius in Bello, Bruxelles, 2003, p. 121 ff.
63
Cf. DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conict,
Cambridge, 2004, pp. 218-219; DAVID, cit. supra note 61, pp. 268-269.
64
For a denition of non-international armed conict, see Article 1 of the Protocol II ad-
ditional to the Geneva Conventions. Compare the Tadic case, Prosecutor v. Tadic, Case No.
IT-94-1-AR72, Appeal on Jurisdiction, Judgment of 2 October 1995, para. 70. Both denitions
seem to revolve around the following elements: a) protracted armed violence; b) confronta-
tion between a State and (at least) one organised armed group; c) control over a part of terri-
tory by the organised group. Cf. JINKS, The Temporal Scope of Application of International
Humanitarian Law in Contemporary Conicts, Harvard Program on Humanitarian Policy and
Conict Research, pp. 4-6, available at www.ihlresearch.org (last accessed on 23 April 2005).
On the effect of hostilities on occupation, see ROBERTS, The End of Occupation: Iraq 2004,
International and Comparative Law Quarterly, 2005, p. 27 ff., pp. 33-35.
65
See Question of the Violation of Human Rights in the Occupied Arab Territories Report
of the Human Rights Enquiry Commission Established Pursuant to Commission Resolution S-5/1
of 19 October 2000, E/CN.4/2001/121, paras. 38-40. In general terms, the Inquiry Commission
seems to leave the question of the qualication of the present situation as an armed conict open.
The Commission however stated: [] there is enough doubt in the minds of the members of
the Commission as to the prevailing situation to place in question the assessment of the situation
as an armed conict by the IDF justifying its resort to military rather than police measures. Cf.
KRETZMER, The Advisory Opinion: The Light Treatment of International Humanitarian Law,
AJIL, 2005, p. 88 ff., p. 95.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 135
beginning of the second intifada, the complete control of the territory by Israel has
been rarely put into question.
It is also submitted that the different wording and the systematic position of
Article 53 IV GC and Article 23(g), both dealing with destruction of property, pre-
clude their contextual applicability in that a relationship of speciality would exist
between them. The purpose of Article 53 IV GC, which, in light of the peculiar
situation of occupied territories, was meant to specify and restrict the scope of
the general rule put forward in Article 23(g), would be frustrated by the concur-
rent applicability of the latter.66 In this respect, Article 53 IV GC, after stressing
the general prohibition of deliberate destruction of private property, permits such
destruction when carried out by the occupying power and rendered absolutely
necessary by military operations. The Article was meant to be framed more re-
strictively than Article 23(g), reinforcing its protection and extending its effects
on the occupied territory.67 In general terms, during combat, destruction might be
permitted provided that it is necessary for war. In activities carried out in the oc-
cupied territory, destruction must be linked to the necessities of military operations.
Both provisions recognise that under certain conditions the destruction of property
is inevitable and aim to link it with the activities connected to the overcoming of
the enemy forces.68
As directly concerns the destruction of property and Article 53 IV GC, the
central question is whether the destruction of the land for the purpose of building
the wall can be considered absolutely necessary for military operations. Before
examining the meaning of absolute necessity a preliminary question arises: can
the erection of the wall qualify as a military operation? A negative answer seems
unavoidable. The relationship between Articles 53 IV GC and 23(g) HR demon-
strates that the concept of military operations relates to combat activities and the
active operations that an army may have to carry out also in occupied territories.69
The construction of the wall, as a complex project, planned over a span of years
and substantially preventive in nature is quite different from the traditional concept
of military operations. A exible interpretation of the text of Article 53 IV GC
would be necessary in order to include the wall amongst military operations. Such
a solution however seems to be precluded by the wording of the Article which,
after stressing the overall prohibition of the destruction of property, recognises the
66
Cf. SCHWARZENBERGER, The Law of Armed Conict, London, 1968, p. 253, who states
that Article 23(g) could be applied to occupied territories only on the basis of analogy.
67
PICTET (ed.), IV Geneva Convention Commentary, Geneva, 1958, pp. 300-301.
68
DINSTEIN, cit. supra note 63, pp. 218-219; BOTHE, PARTSCH and SOLF, New Rules for
Victims of Armed Conicts, The Hague, 1982, p. 320 ff.
69
Cf. DINSTEIN, cit. supra note 63, pp. 218-219. See also SCOBBIE, The Wall and
International Humanitarian Law, Yearbook of Islamic and Middle Eastern Law, 2004, p. 495 ff.,
p. 504, arguing that the Commentary on Article 51(1) of Additional Protocol I demonstrates that
the concept of military operations is connected to violent activities.
136 ARTICLES
necessities of military operations in the form of a derogatory clause. As for all de-
rogatory clauses strict interpretation is required.
Even assuming that the wall could be considered a military operation, the
measure must be put to the test of necessity. The Courts approach to military
necessity will be commented upon in subsection 5.3. For the time being, it will
sufce to note that the minimum requirement to pass the test of necessity is that
the measure adopted be relevant (i.e. effective) to the objective sought. Necessity
being qualied by Article 53 as absolute, one may moreover think that a generic
military advantage would not be sufcient.
To sum up, as concerns the destruction of the land, the possibility of nding in
Article 53 IV GC a legal basis as well as the overall applicability of Article 23(g)
to the facts of the issue is to be excluded.
The legal basis of the appropriation of the land the other preliminary activity
for the building of the wall is uncertain as well. In contrast with Article 23(g) HR,
which explicitly deals with destruction and seizure, Article 53 IV GC does not men-
tion any form of appropriation of private property by the Occupying Power. A legal
tool with which the occupying power may gain possession of private property in the
occupied territory is provided for by Article 52 HR, which deals with requisitions
in kind and services for the needs of the army of occupation. The provision enti-
tles the Occupying Power to requisition private property on the condition that: they
are proportionate to the resources of the country; they are demanded on the authority
of the military commander of the area; and payment is given as soon as possible.
The application of Article 52 HR to the case at issue requires the preliminary
assessment of the concept of requisition in kind and the analysis of the scope of
the expression needs of the army.
First, it is to be considered whether the extensive appropriation of land carried
out to build the wall is compatible with the concept of requisition as envisaged by
the provision. Secondly it is to be assessed whether the needs of the army include
the building of the wall.
With regard to the rst question, two arguments cast serious doubts on the ap-
plicability of Article 52 HR to the seizure of the land on which the wall is located.
According to the travaux prparatoires the concept of requisition was meant to
be applicable only to the seizure of properties strictly connected to the maintenance
and the supplying of the occupying forces in the occupied territory. Goods such
as clothing and footwear, foodstuffs, attelage, and vehicles were referred to.70 The
70
MECHELYNK, La Convention de La Haye daprs les Actes et Documents des Confrences
de Bruxelles de 1874 et de La Haye de 1899 et 1907, Gand, 1915, p. 369 ff. Cf. the statement of
Baron Jolimini, representative of Russia at the Bruxelles Conference of 1874: quand larme
doccupation, par des ncessits de guerre, exige de la population locale des objects dappro-
visionnement, dhabillement, de chaussures et autres ncessaires son entretien, elle est tenue
ou dindemniser le personnes qui lui cdent leur proprit, ou de leur dlivrer des quittances
(emphasis added).
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 137
71
VON GLAHN, The Occupation of Enemy Territory A Commentary on the Law and
Practice of Belligerent Occupation, Minneapolis, 1957, p. 186 ff.; contra DINSTEIN, The
International Law of Belligerent Occupation and Human Rights, Israel Yearbook of Human
Rights, 1978, p. 104 ff., p. 134; cf. SCHWARZENBERGER, cit. supra note 66, pp. 268-288;
OPPENHEIM, International Law, 7th ed., London, 1952, Vol. 2, p. 405 ff., who admitted the (tem-
porary) quartering of soldiers and their horses on private property as a special form of requisition
not specically referred to by Article 52, but implied by it.
72
MECHELYINK, cit. supra note 70, pp. 373-374.
73
GASSER, cit. supra note 38, pp. 246-247, p. 261, paras. 532 and 558; SCOBBIE, Natural
Resources and Belligerent Occupation: Mutation through Permanent Sovereignty, in BOWEN
(ed.), Human Rights, Self-Determination and Political Change in the Occupied Palestinian
Territory, The Hague, 1997, pp. 229-230. At least formally, the Israeli High Court recognised
in its case law concerning the settlements that requisition of private land could only be carried
out on a temporary basis. See Ayyub v. Minister of Defense (the Beth El case), Judgement of the
Israel Supreme Court sitting as the High Court of Justice, excerpted in English in Israel Yearbook
of Human Rights, 1979, p. 345 ff.; Dwaikat and Others v. The State of Israel and Others, (the
Elon Moreh case), HC 390/79, Judgement of the Israel Supreme Court sitting as the High Court
of Justice, English translation in ZAMIR and ZYSBLAT (eds.), Public Law in Israel, Oxford, 1996,
p. 389 ff. In a case concerning the quartering of IDF soldiers on privately owned land (Goha v.
Military Commander of the Judea and Samaria Region, Judgement of the Supreme Court of
Israel sitting as the High Court, HCJ 290/1989, excerpted in Israel Yearbook of Human Rights,
1993, p. 323 ff.), the HCJ stressed that except in circumstances of continuing actual warfare, the
seizure must be limited to a dened period of time.
74
Cf. SCOBBIE, ibidem, p. 230; SCHWARZENBERGER, cit. supra note 66, p. 276.
138 ARTICLES
Applying the legal framework described above, the requisition of the land car-
ried out to build the wall seems incompatible with Article 52 HR. Although the
orders of requisition formally comply with the requirements of the provision, quali-
fying the extensive seizure of the land as a temporary requisition is very problemat-
ic.75 In particular, it is to be noted that after the seizure the land is completely trans-
formed and cultivation is permanently destroyed. The view might be taken that, in
light of such a permanent alteration of the land, the facts of the issue might be better
qualied as a de facto expropriation, which is incompatible with the temporary
nature of requisition.76 Furthermore, as has been said before, one should consider
that despite formal statements to the contrary the wall is inherently a long-term
measure, which precludes the future restitution of property. Historical precedents
have to be taken into account in this respect. The issuing of (formally) temporary
orders of requisition lies at the basis of the seizure of the land on which the Israeli
settlements have been located in the occupied territory.77 At present, the prospects
of future restitution of such requisitioned property seem to be minimised.78
Finally, with regard to the scope of the phrase needs of the army it is to be
recalled that the concept was conceived as connected to the logistical needs and the
practical necessities related to the maintenance of the army in the occupied terri-
tory.79 Neglecting the analysis of the historical framing of the provision, which is
not legally conclusive on the point, one might perhaps take the view that the needs
of the army are related to the functions of the military. Accordingly, since the rst
duty of the military is defending the country, one might therefore assume that an
allegedly defensive measure falls under the scope of the concept at issue. Again, it
has to be pointed out that the expression needs of the army constitutes an excep-
tion in a provision formulated as a prohibition. In such a case, strict interpretation
is to be preferred.
75
See supra subsection 2.1.
76
On de facto expropriation, cf. INTERNATIONAL COMMISSION OF JURISTS, Israels
Separation Barrier Challenges to the Rule of Law and Human Rights, pp. 40-42 available at
www.icj-cij.org (last accessed on 24 November 2004); Jordan Written Statement, pp. 134-138.
77
See LEIN, Land Grab: Israels Settlement Policy in the West Bank, BTselem Report, 2002,
p. 31 ff.; HEPG Report November 2003, para. 52. Cf. GASSER, cit. supra note 38, para. 558.
78
At present, in the West Bank, the expansion of the existing settlements is continuing stead-
ily, being authorised by the Government, see BENN, Israel still Expropriating Land to Expand
Settlements, (Haaretz article, 26 September 2004) available on line at: www.haaretz.com (last
accessed on 6 October 2004). Apparently up to 13 per cent of the territory of the West Bank is
undergoing a process of review possibly to be designated as State Land. After the Elon Moreh
case (cit. supra note 73), the designation of a land as State Land is the habitual method for the
Israeli authorities to appropriate the land where settlements might be established. In the same
context, illegal outposts are being established by the settlers. See SHRAGAI and HAREL, Court
Turns Down Petition Against Removal of Outposts, (Haaretz article, 27 September 2004) avail-
able on line at www.haaretz.com (last accessed on 1 October 2004).
79
Cf. League of Arab States Written Statement, para. 9.13.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 139
In such a legal framework and considering the facts before the Court, one fails
to understand why no reference was made to Article 55 HR, which could have bet-
ter claried the obligations of the Occupying Power with respect to real property
and natural resources. The norm is certainly relevant and sets the standard of the
usufructuary and administrator.80 Under the law of occupation, the seizing of
public land is thus strictly limited as the Occupying Power does not exercise any
form of sovereignty over the territory. Permanent changes in the destination of the
land, in particular, are by denition precluded to the usufructuary. It may be submit-
ted that in order to full its obligations under the law of occupation, the Occupying
Power might change the destination of some portion of public land, to restore ordre
public under Article 43 HR, for instance. A limited intervention of this kind would
be compatible with the role of the administrator who, for a legitimate purpose, and
with the interests of the administered territories in mind, changes the destination of
the land. Yet such an approach is highly questionable since it requires a non-literal
interpretation of the word usufructuary. The text of the Article is quite clear: the
Occupying Power must act as concerns public property only as administrator and
usufructuary. The role of the administrator is connected to the legal status of the
usufructuary and the Occupying Power must be administrator and usufructuary at
the same time. An administrator might bona de and in the interest of the adminis-
tered territories change the legal status of the land, but that would certainly be pre-
cluded to the usufructuary. Unless one does not regard reference to usufructus as a
mere indication of a general principle stating the necessity to minimise the changes
to the land, any alienation of public land is thus prohibited. The text seems to pre-
clude this interpretation since the nal phrase of paragraph 1 reinforces the need to
administer in accordance with the rules of usufruct. The explicit reference to the
rules of usufruct seems not to allow any doubts on this point.
At the very least, Article 55 IV GC, together with the other provisions of the Hague
Regulations and of the Fourth Geneva Convention mentioned above, can be regarded
as the expression of a principle underlying the law of occupation: changes of whatever
nature to the occupied territory by the Occupying Power must be kept to the mini-
mum.81 The rationale is grounded in the nature of the legal status of the Occupying
Power: occupation is an inherently temporary situation and the Occupying Power can-
not acquire sovereignty over the occupied territory through the lapse of time.82
80
Article 55 HR reads: The occupying State shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the
hostile State, and situated in the occupied country. It must safeguard the capital of these proper-
ties, and administer them in accordance with the rules of usufruct. See SCOBBIE, cit. supra note
73, p. 232 ff.
81
Cf. GASSER, cit. supra note 38, pp. 245-246, para. 530. Several provisions demonstrate
that the international law of occupation embodies a strong presumption against the legality of any
change to the legal order, to public life and to the physical features of the occupied territory. See,
inter alia, Articles 47 IV GC, 43 HR, 48 HR and 49 IV GC.
82
Cf. Palestine Written Statement, para. 431.
140 ARTICLES
4.2. The Consequences of the Wall and of Its Associated Legal Rgime
4.2.1. The Duty not to Transfer Parts of the Occupying Power Population to the
Occupied Territory: Article 49 para. 6 IV GC
The interpretation of Article 49, para. 6, IV GC has long since been a cardinal
question in the context of the Israeli-Palestinian conict. The provision reads: The
83
Opinion, para. 134.
84
On the one-year after provision, ROBERTS, Prolonged Military Occupation: The
Israeli-Occupied Territories 1967-1988, in PLAYFAIR, International Law and the Administration
of Occupied Territories, Oxford, 1992, p. 25 ff., pp. 55-56; DINSTEIN, The International Legal
Status of the West Bank and the Gaza Strip 1998, Israel Yearbook of Human Rights, 1998, p.
37 ff., pp. 42-45.
85
Both assumptions are debatable and the view may be taken that the Court should have
explained the point in more detail. With particular reference to the textual interpretation of
the phrase general close of hostilities, see IMSEIS, cit. supra note 39, pp. 105-109. See also
KRETZMER, cit. supra note 65, p. 91, note 23, stating that Israel, while not being a party to
Additional Protocol I, never relied on the one-year rule.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 141
Occupying Power shall not deport or transfer parts of its own civilian population
into the territory it occupies. It is clearly an absolute prohibition, which admits no
derogation whatsoever, not even under the concept of military necessity. Relying
mainly but not only on such provision, the establishment of the Israeli settlements
in the Occupied Palestinian Territory has been considered illegal by the interna-
tional community and by the majority of legal scholars.86 The settlement activity,
which dates back to the Seventies and has never ceased, has been strongly sup-
ported, funded and projected by the government of Israel.87
Quite interestingly the Court mainly dealt with the issue in its analysis of the right
of the Palestinian people to self-determination. The building of the wall was thus
placed in the wider context of questions connected to the demographic equilibrium in
the Occupied Territory. Measures altering the population balance to the detriment of
the Palestinian people or creating a fait accompli on the ground were said to impede
the right to self-determination. That does not imply that the constituting elements of
such a breach may not also qualify as a violation of international humanitarian law.
The reasoning is as follows. The settlements are illegal under international law and
breach Article 49, para. 6. Since the route of the wall may perpetuate their existence,
the wall itself constitutes a violation of the same provision.88 The combined existence
86
DREW, Self Determination, Population Transfer and the Middle East Peace Accord, in
BOWEN (ed.), cit. supra note 73, p. 119 ff., pp. 144-146; BENVENISTI, cit. supra note 38, pp. 140-
141; GASSER, cit. supra note 38, p. 530, note 33; KRETZMER, cit. supra note 65, p. 91. International
reactions to settlements mainly qualify them as a violation of international law, see, inter alia, SC
Resolution 452/1979, SC Resolution 465/1980; cf. ROBERTS, cit. supra note 84, pp. 85-86. It has
been maintained that in the Oslo process the settlements were considered as one of the issues that
should have been settled during the nal status negotiations. Apparently, Israel infers from the point
the existence of a conventional obligation between the parties to regard the status of the settlements
as not in principle illegal but subject to the negotiating process. Cf. Israel Written Statement, para.
3.49, para. 3.52. Yet this approach runs contrary to the explicit content of Article 47 IV GC, which
states that the protected persons shall not be deprived of their rights under the Convention nor in any
manner nor by any agreement concluded between the authorities of the occupied territories and
the Occupying Power. Cf. QUIGLEY, The PLO Israeli Interim Arrangements and the Geneva
Civilians Convention, in BOWEN (ed.), cit. supra note 73, p. 25 ff., pp. 27-28.
87
In the Sixties the Israeli Government and the World Zionist Organization established the
Government Settlement Division, whose activities were ofcially recognised in 1998. See COHEN,
PM Mulls Abolition of Govt Settlement Division (Haaretz article, 20 October 2004). The funding
of the settlements by the Israeli Interior Ministry is continuing also at present. See KHROMCHENKO,
Study: Settlements Get More Aid Money than Other Towns (Haaretz article, 20 October 2004),
available on line at www.haaretz.com (last accessed on 20 October 2004), stating that the inequal-
ity in funding persists also when towns on opposite sides of the green line are ranked on the same
socio-economic class. On the incentives to the settlers see BENVENISTI, cit. supra note 38, p. 136.
88
As noted by Judge Buergenthal in his Declaration appended to the Advisory Opinion of
the Court, every measure aimed at perpetuating the existence of the settlements, especially when
it is a permanent or long-term measure, is precluded. The sections of the Barrier built in order to
protect the settlements would be ipso facto forbidden as a direct consequence of the unlawfulness
of the settlements: Declaration of Judge Buergenthal, para. 9.
142 ARTICLES
of the settlements and the wall prejudices the future possibility of achieving self-de-
termination.
As will be demonstrated below, it is of particular interest for our purposes that
the Court seemed to establish the existence of a nalistic link between the wall and
the settlements. The route of the former would have been designed to perpetuate
the latter.89
In such a framework the wall qualies as a violation of Article 49, para. 6, IV
GC only in an indirect manner. It is thus fundamental to determine whether the
settlements contravene the provision at issue. The Court claried that the prohibi-
tion encompasses: [N]ot only deportations or forced transfers of population such
as those carried out during the Second World War, but also any measures taken by
an occupying Power in order to organise or encourage transfers of parts of its own
population into the occupied territory.90
The statement aims to dismiss the Israeli interpretation according to which
Article 49, para. 6, would cover only direct and forcible activities carried out by the
Occupying Power.91 A voluntary transfer of the occupying Powers population tol-
erated or merely assisted by the Occupying Power would be legal. The Court clear-
ly stated that not only coercive activities, but also organisation and encouragement
are precluded.92 Regrettably no corroborating legal arguments were provided.
Reference can be made to the teleological interpretation of the provision.93
The concept of transfer should be interpreted according to the objective of the
89
Opinion, para. 119: It is apparent from an examination of the map [] that the walls
sinuous route has been traced in such a way as to include the great majority of the Israeli set-
tlements [] (emphasis added). See also para. 121: [the Court] cannot remain indifferent to
certain fears expressed to it that the route of the wall will prejudice the future frontier between
Israel and Palestine, and the fear that Israel may integrate the settlements and their means of ac-
cess (emphasis added).
90
Opinion, para. 120.
91
The approach of the Court also scales down the debate on Article 8, para. 2(viii), of the
Rome Statute of the International Criminal Court, which criminalizes the transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian population into the territory it oc-
cupies []. The controversial points are the customary nature of the crime and the scope of the
phrase directly or indirectly. While the present Opinion leaves unprejudiced the rst point, the
position of the Court might offer some guidance as to the second. The insertion of directly and
indirectly might be considered simply as a clarication of a meaning already compatible with
the scope of Article 49, para. 6, IV GC. Contra DINSTEIN, cit. supra note 63, pp. 232-233. On the
point, see also: BOTHE, War Crimes, in CASSESE, GAETA and JONES (eds.), The Rome Statute
of the International Criminal Court: A Commentary, Oxford, 2002, p. 379 ff., p. 413.
92
The Court, however, stopped short of nding that also the mere toleration of the transfer is
prohibited and that the occupying Power has a general duty to prevent the transfer of parts of its
population to the occupied territory.
93
Arguing that the Government of Israel assisted and facilitated the population transfer
and that such a transfer would require both the consent of the transferees and of the indigenous
population in order to be dened voluntary, see DREW, cit. supra note 86, pp. 144-145; contra
DINSTEIN, cit. supra note 71, p. 124.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 143
94
On Article 49, para. 1, see DINSTEIN, The Israel Supreme Court and the Law of Belligerent
Occupation: Deportations, Israel Yearbook of Human Rights, 1993, p. 1 ff., pp. 12-24.
95
Opinion, para. 122.
96
Ibidem, para. 133.
97
Cf. PICTET (ed.), cit. supra note 67, p. 45 ff. The application ratione personae of the
Fourth Geneva Convention is dened by Article 4, which explicitly excludes nationals of the
occupying Power.
144 ARTICLES
the protected persons. International humanitarian law does not admit the balancing
between the two values.98
Having taken up the issue of the legality of the settlements, perhaps one
might have expected the Court to advance some additional reasoning of this kind.
Indeed, the point was made in general terms in the reasoning on the existence of
a state of necessity in the present case. While excluding that the conditions of any
circumstances precluding wrongfulness were fullled, the Court stated that Israel
has nonetheless the right, and indeed the duty, to respond in order to protect the
life of its citizens, but contextually noted that the measures taken must remain in
conformity with applicable international law.99
4.2.2. The Consequences of the Wall and of Its Associated Rgime as a Violation
of Protected Persons Human Rights
Several participants to the proceedings pointed out that the wall infringed upon
a number of rights of the local inhabitants.100 Leaving aside the right to property,
the possible infringement of which was analysed before, reference was made, inter
alia, to freedom of movement, right to work, the right to education, and the right to
an adequate standard of living. The limitation of the freedom of movement can be
considered as the starting point from which other human rights violations derive.101
The difculties that the inhabitants encounter in going from place to place give rise
to consequences connected to all the aspects of their life: work, education, medical
care, relationships.
As to this, reference can be made to two general provisions of the Hague
Regulations and of the Fourth Geneva Convention (Article 46 HR and Article 27
IV GC), deriving from their somewhat vague text the protection of some human
rights of the affected population.
The relevant part of Article 46 states that family honour and rights, the lives
of persons, and private property, as well as religious convictions and practice must
be respected.
Article 27, afrming the general principle of human treatment, supplements
and claries Article 46. Paragraph 1 reads: Protected persons are entitled, in all
circumstances, to respect for their persons, their honour, their family rights, their
religious convictions and practices, and their manners and customs.
98
Cf. OXFORD PUBLIC INTEREST LAWYERS, cit. supra note 30, para. 105; INTERNATIONAL
COMMISSION OF JURISTS, cit. supra note 76, p. 22.
99
Opinion, para. 141.
100
See for instance, South Africa Written Statement, para. 56; Ireland Written Statement,
para. 2.14; Lebanon Written Statement, para. 37.
101
See Palestine Written Statement, para. 495.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 145
The protection deriving from Article 27 is limited by the recognition in the last
paragraph that the Parties to the conict may take such measures of control and
security in regard to protected persons as may be necessary as a result of the war.
Both provisions are framed in general terms and, although it is clear from their
wording that they are meant to provide for a wide protection of human rights, the
specic rights protected are not clearly dened. However the phrase in all circum-
stances makes it clear that the rights deriving from the values spelled in Article 27,
para. 1, are to be considered absolute rights.102 The derogating clause introduced by
the last paragraph, in contrast, claries that freedom of movement is conceived as
a relative right, which is to be balanced with reasons of security.103
Articles 46 HR and 27 IV GC are not the only norms dealing with human
rights protection in the framework of international humanitarian law. The Fourth
Geneva Convention has been described as a bill of rights for the population of
occupied territories, since it contains a number of provisions dedicated to the
protection of human rights and stating in detail the obligations of the Occupying
Power.104 Some of them could have been considered relevant to the facts at hand.
In particular, Article 55 IV GC binds the Occupying Power to ensure food and
medical supplies to the population to the fullest extent of the means available to
it. Along the same line, Article 56 concerns the duty of ensuring and maintaining
the medical and hospital establishments and services, public health and hygiene
in the occupied territory. According to Article 50 the Occupying Power has the
duty to facilitate the proper working of all institutions devoted to the care and
education of children. As for all welfare rights, it is quite difcult to ascertain
precisely the minimum threshold under which a violation occurs. One could point
out that the degree of protection required is quite strict since two of the quoted
provisions are qualied by the phrase to the fullest extent of the means avail-
able.105 Nevertheless such a remark does not seem to be conclusive in that the re-
quirement of the fullest extent is limited by the arbitrary concept of availability
to the Occupying Power.
Notwithstanding the abstract relevance of the above mentioned norms, if one
assumes as the Court did that the present situation in the West Bank and East
Jerusalem is covered by Article 6 of the IV GC, the conclusion must be that Article
55, Article 50 and Article 56 are not applicable to the case at issue. While Article 27
IV GC is part of the norms regulating a situation of post belligerent occupation,
several provisions dealing specically with human rights protection are denied
applicability if occupation continues beyond one year after the general close of
hostilities.
102
PICTET (ed.), cit. supra note 67, pp. 204-205.
103
Ibidem, pp. 201-202; DAVID, cit. supra note 61, pp. 487-491.
104
GASSER, cit. supra note 38, p. 242, para. 524.
105
Article 55 IV GC and Article 56 IV GC.
146 ARTICLES
106
The majority of the legal scholars afrm the contextual applicability of human rights
treaties and humanitarian norms. See FROWEIN, The Relationship between Human Rights
Regimes and Regimes of Belligerent Occupation, Israel Yearbook of Human Rights, 1998, p.
1 ff.; POCAR, Human Rights under the International Covenant on Civil and Political Rights and
Armed Conicts, in CHAND VOHRAH, POCAR, FEATHERSTONE, FOURMY, GRAHAM, HOCKING
and ROBSON (eds.), Mans Inhumanity to Man Essays on International Law in Honour of
Antonio Cassese, The Hague, 2003, p. 729 ff.; HEINTZE, On the Relationship between Human
Rights Law Protection and International Humanitarian Law, International Review of the Red
Cross, 2004, p. 789 ff. With reference to the ICJ Nuclear Weapons Advisory Opinion, see
GARDAM, The Contribution of the International Court of Justice to International Humanitarian
Law, Leiden JIL, 2001, p. 349 ff., pp. 360-364. On the relationship between international hu-
manitarian law and human rights protection in the jurisprudence of the human rights monitor-
ing bodies, see MARTIN, Le droit international humanitaire devant les organes de contrle des
droits de lhomme, Droits fondamentaux, 2001, p. 121 ff. Contra: DENNIS, Application of
Human Rights Treaties Extraterritorially in Times of Armed Conict and Military Occupation,
AJIL, 2005, p. 119 ff.
107
Opinion, paras. 107-113. Amongst the international conventional instruments dealing
with human rights protection, Israel ratied: the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention
on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment. Israel, however, denies that human rights treaties might
involve extraterritorial application. For a comprehensive survey, see BEN NAFTALI and SHANY,
Living in Denial: The Application of Human Rights in the Occupied Territories, available at
www2.colman.ac.il/law/concord/ (last accessed on 22 October 2004), pp. 5-15.
108
Opinion, para. 134. The Court referred to the liberty of movement, and the rights to work,
to health to education and to an adequate standard of living.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 147
conventional instruments may well be more limited. Moreover, the Court might
have claried how those general norms interact with the more specic ones pro-
vided by human rights treaties. Hypothetically, the crux is the relationship between
the derogating clause put forward by Article 27, para. 4, IV GC and the relevant
conventional norms for human rights protection. It is however to be noted that, on
the basis of the Courts assessment of the facts, such a clause is irrelevant. The ap-
plicability is conditioned on the existence of a state of war, which is not the present
situation in the West Bank and East Jerusalem.
109
Jordan Written Statement, para. 5.164.
110
See JESCHECK, Collective Punishment, in BERNHARDT (ed.), Encyclopaedia of Public
International Law, Amsterdam, 1992-2003, p. 646 ff.
111
On the relationship between Article 33 IV GC and Article 50 HR, see MCDOUGAL and
FELICIANO, The International Law of War, New Haven, 1994, pp. 796-797; PICTET (ed.), cit.
supra note 67, p. 225.
112
See PICTET (ed.), cit. supra note 67, paras. 3054-3055, quoted in Jordan Written
Statement, para. 5.165.
148 ARTICLES
113
INTERNATIONAL COMMISSION OF JURISTS, cit. supra note 76, pp. 28-29.
114
On the problem of plurality of purpose in administrative action, see J. Landau in the
Elon Moreh case, cit. supra note 73, p. 389, who adopts the following test: What was the domi-
nant purpose for which the power was exercised? If the authority is seeking to achieve two or
more purposes when one is permitted, expressly or impliedly: the legality of the act is judged
according to the dominant purpose (emphasis added).
115
The Human Rights Committee regarded the demolition of houses in the Occupied
Territory as partly punitive and constituting a form of collective punishment. Cf. UN Human
Rights Committee, Concluding Observations: Israel, 21 August 2003, UN Doc CCPR/CO/78/
ISR, para. 16, quoted in OXFORD PUBLIC INTEREST LAWYERS, cit. supra note 30, para. 129.
116
Opinion, paras. 119, 121, 135.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 149
After having found that the wall infringed upon a number of provisions of inter-
national humanitarian law, the Court dealt with the possibility that abstract violations
could be justied on the grounds of military necessity. The reasoning is extremely
brief and is composed of three steps. As a rst step the Court noted that the relevant
international humanitarian law contains provisions taking into account military
exigencies. While some provisions admit no derogation whatsoever (amongst them
Articles 46 HR, 47 IV GC, and 49 para. 6 IV GC), Article 53 IV GC is referred to in
that it admits destruction of property when rendered absolutely necessary by mili-
tary operations. Then, as a second step, the Court stated in general terms that such
exigencies may be invoked even after the general close of the military operations
that lead to the occupation. The third step consists in nding that the destruction car-
ried out in the present case is not covered by the mentioned derogation clause. The
Court hardly elaborated on the point and stated that, on the material available:
[It] is not convinced that the specic course Israel has chosen for
the wall was necessary to attain its security objectives. The wall,
along the route chosen and its associated rgime gravely infringe a
number of rights of Palestinians residing in the territory [] and the
infringements resulting from that route cannot be justied by military
exigencies [].117
As regards the rst step, the reasoning of the Court is ordinary. Military neces-
sity is framed in a different form in the context of each norm of humanitarian law
and is always conceived as an exception to prohibitive norms. Since the Lieber
Code, the core meaning of military necessity is that all use of armed force, all de-
struction of life or property that is not necessary to achieve military goals is prohib-
ited.118 In modern international humanitarian law, that does not imply, however, the
admissibility of every conduct somehow related to military goals. Necessity cannot
be considered an authorising principle detached from single provisions.119 Every
117
Ibidem, para. 137.
118
Cf. Lieber Code, Article 14, quoted in CARNAHAN, Lincoln, Lieber and the Laws of War:
The Origins and Limits of the Principle of Military Necessity, AJIL, 1998, p. 215 ff. On the concept
of military necessity, see DINSTEIN, Military Necessity, in BERNHARDT (ed.), cit. supra note 110,
p. 395 ff.; DOWNEY, The Law of War and Military Necessity, AJIL, 1953, p. 251 ff.; MCDOUGAL
and FELICIANO, cit. supra note 111, pp. 521-530; VENTURINI, Necessit e proporzionalit nelluso
della forza militare in diritto internazionale, Milano, 1988, p. 123 ff.; GREENWOOD, cit. supra note
31, pp. 30-33, paras. 130-132; JAWORSKI, Military Necessity and Civilian Immunity: Where is
the Balance?, Chinese Journal of International Law, 2003, p. 175 ff.
119
The concept of kriegraison, as an authorising principle potentially derogating from all the
laws of war, is nowadays universally considered unacceptable. Cf., inter alia, DOWNEY, ibidem,
p. 253; VENTURINI, ibidem, pp. 123-125.
150 ARTICLES
provision is the outcome of a balancing process between the two conicting values
lying at the very basis of humanitarian law: humanity and military concerns.120
Military necessity can be dened as a principle underlying humanitarian law in
that all its provisions are drafted taking into account its existence. Nevertheless the
balancing of the opposing values is different according to the norms that come into
consideration. The scope of the admitted derogation varies with regards to elements
such as the degree of the necessity required, the nature of the circumstances from
which the necessity arises, and the objective pursued in derogating to the prohibi-
tion. Considering all the provisions referred to by the Court, one might realise that
each conceives military necessity in a different form.
Therefore, as the Court noted, provisions that do not admit explicitly a deroga-
tion clause are to be considered absolute and underogable. The violations of Article
46 HR and Article 49, para. 6, are unjustiable on grounds of military necessity.
One might perhaps wonder why the Court singled out Article 53 IV GC and did not
examine the scope of the derogation clause provided for by Article 52 HR. As has
been seen above, the latter concerns requisitions in kind in the occupied territory
and was found to be breached by the Court. Since the norm admits an exception
grounded on the needs of the army of occupation, one might have expected the
Court to analyse its scope while dealing with military exigencies.
The second step involves a general statement on the nature of the clauses ad-
mitting derogation from the norms concerning occupied territories. Stating that
they are applicable even after the general close of military operations that lead to
the occupation, the Court qualied the nature of military necessity. In this perspec-
tive, the latter would have a wider scope than the military activities carried out
in an occupied territory and strictly connected to the general conict continuing
elsewhere. The reasoning of the Court implies that military necessity can arise also
in situations taking place in the occupied territory. In that case the cessation of the
general hostilities is obviously irrelevant.
The third step consists in noting that the threshold of absolute necessity has
not been met in the present case. As the Court did not elaborate much on the point,
it is not entirely clear which reasons substantiate this nding. However, since
reference was contextually made to the specic trajectory of the wall and to the
infringements of the rights of the population, it is likely that the central argument
is proportionality.
In this respect, it is submitted that the proportionality of the route is the last of
a number of factors to be evaluated in the context of a judgement of necessity such
as the one provided by Article 53 IV GC. First, one should understand whether the
wall could qualify as a military operation. The text of the provision clearly links
the situation of necessity to the carrying out of military operations. Applicability is
therefore conditional on the possibility of dening as such the concrete activity that
120
DINSTEIN, cit. supra note 63, pp. 16-17.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 151
121
Effectiveness is dened relevance by some scholars: the minimum requirement is that
the measure be relevant. See MCDOUGAL and FELICIANO, cit. supra note 111, pp. 524-525; cf.
BOTHE, PARTSCH and SOLF, cit. supra note 68, p. 194, No. 7, arguing that the term relevant
should be substituted by indispensible when rules of limitation which expressly provide for
derogations from protective provisions for reason of urgent or imperative military necessity
are at issue.
122
BOTHE, PARTSCH and SOLF, ibidem, p. 194.
123
See supra subsection 4.1.
124
MCDOUGAL and FELICIANO, cit. supra note 111, p. 524-528; DINSTEIN, cit. supra note
63, pp. 16-17.
152 ARTICLES
of the wall in achieving security cannot be taken for granted. At least two different
perspectives could have been taken into account.
In the abstract, the Court could have evaluated whether the wall is the most
efcient measure to tackle the inltration of terrorists into Israel and the attacks on
the occupying forces. It might have been argued, for instance, that the strengthen-
ing of security checks could have more efciently prevented terrorist activities than
the building of a complex structure that will tie the majority of the armed forces
down to patrol it.
But the efciency of the wall could have been examined also with respect to its
actual features. As has been highlighted by independent studies, the view may be
taken that the particular trajectory chosen for the wall aggravates security concerns.
Members of the Council for Peace and Security an Israeli private association
composed of former ofcers of the IDF and the security services, retired diplomats,
and academics afrmed that the route should be distanced from Palestinians
homes and located near the border with Judea and Samaria.125 Running deep in-
side the occupied territories, the route chosen would render necessary the building
of gateways and passages thus diminishing security and increasing friction with the
local population. Being close to Palestinian villages instead, attacks on the forces
patrolling the wall would be more likely to occur. Moreover, the short distance
would render it difcult for the Israeli forces to distinguish between terrorists and
inhabitants not involved in terrorist activities. In general terms, planning the route
in order to gain topographical control of distant hilltops is to be considered useless
and counterproductive. The view may be taken that the route of the wall examined
by the Court is not apt to attain its goal: far from pursuing the interests of Israel it
will imperil the soldiers and the States security in general. A reasoning of this kind
would render irrelevant any consideration concerning the proportionality of the
route and the existence of less injurious measures.
It is not clear whether the Court went through these arguments in reaching the
conclusion that the destruction carried out to build the wall was not to be consid-
ered absolutely necessary for military operations. Setting aside their validity, it is to
be noted, however, that in this perspective a judicial body is called virtually to sub-
stitute itself for the administrative authorities in order to evaluate how they exer-
cised their discretion. A judgement of this kind is often considered to be beyond the
scope of judicial review, since it can be assumed that only administrative authori-
ties are in the condition to exercise their technical discretion in a proper way.126 It is
perhaps from this point of view that one could understand why the Court refrained
from any consideration concerning the effectiveness of the wall.
125
On the Council for Peace and Security, see www.peace-security.org.il/engbg.html (ac-
cessed on 4 September 2004). The text of one of the afdavits presented to the Israel High Court
in Beit Sourik Village Council v. The Government of Israel (cit. supra note 14) is available on
line in Hebrew.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 153
Dealing with the consequences of the illegality of the wall and of its associated
rgime, the Court distinguished between the positions of Israel, third States, and the
United Nations.131 Israel is said to be under an obligation to cease its illicit conduct
and to make reparation for all damage therefrom deriving. As a consequence of the
erga omnes character of Israels breaches, all States are under the obligations of
non-recognition, non-aid, and non-assistance. State parties to the Fourth Geneva
Convention have the additional obligation to ensure compliance by Israel with
126
With specic reference to the jurisdiction of the Israeli High Court in the occupied ter-
ritory, see BENVENISTI, Judicial Review of Administrative Action in the Territories Occupied
in 1967, in ZAMIR and ZYSBLAT, Public Law in Israel, cit. supra note 73, pp. 371 ff.; BEN-
NAFTALY and MICHAELI, Justice-Ability: A Critique of the Alleged Non-Justiciability of
Israels Policy of Targeted Killings, Journal of International Criminal Law, 2003, p. 368 ff., pp.
373-380.
127
Opinion, para. 119.
128
Ibidem, para. 121.
129
See supra subsection 4.2.1.
130
As pointed out by Judge Owada, the view may be taken that reluctance to state the il-
legality of the objective pursued depends upon the lack of factual sources of Israeli origin. Israel
decided to challenge the request for the Advisory Opinion mainly on grounds of jurisdiction and
propriety and did not provide the Court with specic information explaining why and how the
construction of the wall as it is actually planned and implemented is necessary and appropriate.
See Separate Opinion of Judge Owada, paras. 21-24. Cf. Israel Written Statement.
131
Opinion, para. 143 ff.
154 ARTICLES
Considering that no such reference was present in the famous dictum of the
Barcelona Traction case, the qualication by the ICJ of certain principles of inter-
national humanitarian law as erga omnes obligations is certainly one of the most
relevant developments arising from the present Opinion.134 As it is well known, in a
paragraph of the Nuclear Weapons Opinion, the Court further held: [That] a great
many rules of international humanitarian law applicable in armed conict are so
fundamental to the respect of the human person and elementary considerations of
humanity [] that they are to be observed by all States whether or not they have
ratied the conventions that contain them, because they constitute intrasgressible
principles of customary law.135
Nonetheless it stopped short of afrming clearly either their jus cogens status
or their erga omnes character.136
After quoting at length the above mentioned paragraph, the Court, in the present
Opinion, simply afrmed that: [I]n the Courts view, these rules incorporate ob-
132
Ibidem, dispositif, para. E.
133
Ibidem, para. 157.
134
On the erga omnes character of international humanitarian law, the jurisprudence of the
ICTY has been more vigorous, see CONDORELLI, Responsabilit tatique et responsabilit in-
dividuelle pour violations graves du droit international humanitaire, in CHAND VOHRAH, POCAR,
FEATHERSTONE, FOURMY, GRAHAM, HOCKING and ROBSON, cit. supra note 106, p. 211 ff.
135
Cit. supra note 35, para. 79 (emphasis added).
136
On the possible meaning of intrasgressible principles, CONDORELLI, Le droit interna-
tional humanitaire, ou de lexploration par la Cour dune terra a peu prs incognita pour elle,
in BOISSON DE CHAZOURNES and SANDS (eds.), International Law, the International Court of
Justice and Nuclear Weapons, Cambridge, 1998, p. 228 ff., pp. 234-235.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 155
ligations which are essentially of an erga omnes character.137 Since no new legal
argument was put forward to justify such a qualication, one is inclined to think
that the Courts statement is a reassessment of its previous position. In this perspec-
tive, the Court seemed to clarify that its previous determination that certain rules of
international humanitarian law are fundamental to the respect of the human person
and elementary reasons of humanity was meant to place those rules amongst those
generating obligations of general interest for the international community.
As to the legal signicance of the erga omnes qualication, it is to be under-
lined that the Court explicitly related the character of the violated norms to the
obligations arising for third States. The reasoning is essentially in line with Article
41 of the ILC Draft on State Responsibility. Exceptional are the decision to employ
the concept of erga omnes obligations rather than that of peremptory norms and the
seeming lack of any statement concerning the duty of co-operation.
The omission of any reference to jus cogens is understandable. Putting aside
any speculation on the hidden signicance of the terminological choices of the
Court, the already evident reluctance to employ such a concept is conrmed.138 The
fact remains that the present Opinion does not have the last word on the possible
jus cogens nature of some rules of international humanitarian law.139 As to the duty
of co-operation, one should consider that, as emerges from the ILC Commentary,
it is partly concerned with actions in the framework of competent international
organisations, in primis the United Nations.140 In this perspective, the obligation
for all States to co-operate may be partly subsumed by point E of the dispositif, by
which the Court found that the United Nations should consider what further action
is required to bring to an end the illegal situation.141 It is however worth noting that
non-institutionalised forms of cooperation are not mentioned and that the Courts
choice could perhaps be read as a rejection of unilateralism.142
On the other hand, a distinction seems to be introduced amongst the con-
sequences of erga omnes obligations according to the nature of the substantive
norm that has been contravened. In its reasoning the Court stated that a breach of
self-determination entails the obligation for all States [] to see to it that any
impediment [] to that right is brought to an end.143 The nding was not incor-
137
Opinion, para. 157.
138
CONDORELLI, cit. supra note 134, p. 217.
139
On the issue, see NIETO-NAVIA, International Peremptory Norms (Jus Cogens) and
International Humanitarian Law, in CHAND VOHRAH, POCAR, FEATHERSTONE, FOURMY,
GRAHAM, HOCKING and ROBSON, cit. supra note 106, pp. 627-640.
140
Commentaries to the Draft Articles on Responsibility of States for Internationally
Wrongful Acts, pp. 286-287.
141
Separate Opinion of Judge Kooijmans, para. 42.
142
Cf., with reference to the ILC Draft Articles, GATTINI, A Return Ticket to
Communitarisme, Please, EJIL, 2002, p. 1181 ff., pp. 1186-1187.
143
Opinion, para. 159, emphasis added.
156 ARTICLES
porated in the dispositif, but no such statement was made as concerns erga omnes
obligations arising from principles of international humanitarian law. As has been
seen, not even non-institutionalised cooperation was referred to in that case. While
no explanation was given on the material meaning of the duty to see that a breach
is brought to an end, it is, however, to be noted that the Court seemed to treat the
concept of erga omnes obligations as not having uniform consequences.144
One nal point regards the determination of the principles of international hu-
manitarian law incorporating erga omnes obligations. Although the vagueness of
the Nuclear Weapons statement was plainly reproduced, one may consider that the
norms of which the Court afrmed the violation could be relevant in this respect. It
is in fact to be noted that the Court established a clear connection between the erga
omnes nature of the substantive norms and the consequences resting on third States.
That would imply that the norms concerning the treatment of property and the pro-
hibition of transferring parts of the population of the Occupying Power should be
considered as norms incorporating erga omnes obligations.
5.2. The Obligation to Ensure Respect Arising from Article 1 of the Fourth
Geneva Convention
The content of Article 1 IV GC has been the subject of doctrinal debate and is
not very clear. It may be interpreted either as a redundant statement of the conse-
quences of entering a conventional obligation or as a transversal norm qualifying
the legal interest of the States parties in having the other norms of the Convention
respected.145 According to the second approach, all the obligations arising from
the Fourth Geneva Convention could be qualied as erga omnes contractantes.146
All contracting States would have a general legal interest in having them complied
with, setting aside all considerations regarding their participation in the armed con-
ict which gave rise to the violations. Although the travaux prparatoires demon-
strate that no such interpretation was envisaged at the time,147 the second option has
144
While increasing the fragmentation of international law, such an approach could be compat-
ible with the theory of the three circles. In classifying the cognate concepts of jus cogens, interna-
tional crimes and obligations erga omnes, the latter would identify the wider category of norms. It
seems reasonable that some differentiation can be drawn as to the legal content of the widest circle.
For a conceptualization: GAJA, Obligations Erga Omnes, International Crimes and Jus Cogens,
in WEILER, CASSESE and SPINEDI (eds.), International Crimes of States: A Critical Analysis of the
ILCs Draft Article 19 on State Responsibility, Berlin, 1989, p. 151 ff. See also ABI SAAB, The
Uses of Article 19, EJIL, 1999, p. 339 ff.; BYERS, Conceptualising the Relationship between Jus
Cogens and Erga Omnes Rules, Nordic Journal of International Law, 1997, p. 211 ff.
145
CASSESE, International Law, 2nd ed., Oxford, 2005, pp. 17-21, note 6.
146
Ibidem, p. 18.
147
KALSHOVEN, The Undertaking to Respect and Ensure Respect in All Circumstances:
From Tiny Seed to Ripening Fruit, YIHL, 1999, p. 1 ff., pp. 6-28.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 157
148
See BOISSON DE CHAZOURNES and CONDORELLI, Common Article 1 of the Geneva
Conventions Revisited: Protecting Collective Interests, Revue internationale de la Croix Rouge,
2000, pp. 67-87; ID., Quelques remarques sur lobligation des tats de respecter et faire respec-
ter le droit international humanitaire en toute circumstance, in SWINARSKI (ed.), Studies and
Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet,
Geneva, 1984, p. 17 ff.; KESSLER, The Duty to Ensure Respect Under Common Article 1 of the
Geneva Conventions: Its Implications on International and Non-International Armed Conicts,
GYIL, 2001, p. 498 ff.; BENVENUTI, Ensuring Observance of International Humanitarian Law,
Yearbook of the International Institute of Humanitarian Law, 1989-1990, p. 27 ff.
149
Cf. Prosecutor v. Zoran Kupreskic and Others, Case No. IT-95-16-T, ICTY Trial Chamber,
Judgement of 14 January 2000, p. 203, para. 519 available on line at: http://www.un.org/icty/
kupreskic/trialc2/judgement/kup-tj000114e.pdf (last accessed on 16 November 2004). The
ICTY, referring to international humanitarian norms, stated that they lay down obligations to-
wards the international community as a whole, with the consequence that each and every member
of the international community has a legal interest in their observance and consequently a legal
entitlement to demand respect for such obligations (emphasis added).
150
KOLB, cit. supra note 62, p. 241-243.
151
See Case concerning the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgement of 27 June 1986, ICJ Reports, 1986,
p. 114, para. 220.
152
Separate Opinion of Judge Kooijmans, para. 49.
153
Ibidem.
154
Opinion, dispositif, D.
155
On the point, see SCOBBIE, cit. supra note 1, p. 1118.
158 ARTICLES
was given as to what are the concrete actions that a contracting State could adopt in
line with the obligation to ensure respect.156
In light of the uncertainties regarding the issue, and especially the legal
entitlement/obligation divide, one may think that the Court should have devoted a
detailed legal analysis to the scope of Article 1 IV GC. Instead the point was simply
afrmed without providing legal arguments.
5.3. The Lack of Any Reference in the Dispositif to the Duty to Prosecute or
Extradite the Authors of Grave Breaches of the Fourth Geneva Convention
Some participants in the proceedings asked the Court to establish that States
parties to the Geneva Convention, Israel included, are under an obligation to
search, prosecute or extradite the authors of grave breaches according to Article
146, para. 2, IV GC.157 The Court explicitly recalled those arguments in the
reasoning,158 but ignored the question in the dispositif and never characterised
the violations of international humanitarian law committed by Israel as grave
breaches.159
The legal reasons of such an approach are strictly connected to the Courts
decision to apply the one-year rule under Article 6, para. 3, IV GC. Indeed, as a
matter of treaty law, Articles 146 and 147 IV GC (the provisions establishing the
grave-breaches system) are not applicable more than one year after the general
close of hostilities.160
Three explanatory points can be made in this respect. First, the decision to
neglect the issue has been conscious,161 and perhaps the Court wanted the commen-
tators to know that. That seems the most credible interpretation of why the Court
mentioned that some participants had referred to the grave-breaches argument and
then ignored the point with no further explanation. Second, one may argue that the
Court implicitly evaluated the seriousness of the violations of international hu-
manitarian law when establishing the consequences of the breach for third States.
Assuming that the Court had the Draft Articles on State Responsibility in mind, it
is to be underlined that only serious breaches of peremptory norms establish legal
156
See Separate Opinion of Judge Kooijmans, para. 50, who doubts what kind of positive
action, resulting from this obligation, may be expected for individual states. On the possible
dimensions of the ensure-respect obligation, see BOISSON DE CHAZOURNES and CONDORELLI,
cit. supra note 148, pp. 67-87.
157
League of Arab States Written Statement, p. 113; Malaysia Written Statement, p. 56.
158
Opinion, para. 146.
159
Cf. Separate Opinion of Judge Elaraby, para. 3.3.
160
IMSEIS, cit. supra note 39, p. 106.
161
SCOBBIE, cit. supra note 1, p. 1119.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 159
consequences for third States.162 One may thus think that, the Court having stated
that third States are under an obligation not to recognise and not to render aid or
assistance, it implicitly evaluated the intensity and the gravity of the breaches com-
mitted by Israel. Obviously, the concept of serious breaches in the context of the
general rules of State responsibility is not coincident with grave breaches under
the Geneva Convention.163 Yet, the fact remains that the Court assessed the serious-
ness of some violations of international humanitarian law and never took up the
question of the existence of grave breaches. Thirdly, examining the facts of the case
and the ndings of the Court on substantive issues of international humanitarian
law, it is very likely that some of the violations committed by Israel may qualify as
grave breaches. Leaving aside the transfer of population to the occupied territory,
for which a grave-breach status should be found under customary law,164 at least
two other possible grave breaches can be identied. Considering the magnitude of
the activities that are connected to the erection of the wall, as emerged from the
material before the Court, one could think that they qualify as extensive destruc-
tion and appropriation of property according to Article 147 IV GC. One may also
think that the pattern of human rights violations, although having been examined
by the Court mainly with reference to human rights instruments, when dealt with
according to the Fourth Geneva Convention, could have been qualied as inhu-
mane treatment of protected persons.165
In light of the assumptions formulated above, the view may be taken that the
Court simply did not want to deal with individual criminal responsibility. One can
only formulate some possible hypothesis concerning the reasons underlying this ap-
proach, and the most credible one refers to considerations of propriety.166 The Court
dismissed as a preliminary issue any indications that the Opinion should have been
discretionally declined on the grounds of being improper and inconsistent with the
Courts judicial function.167 It seems however that the political repercussions of
some possible ndings were on the mind of the Court also when dealing with
substantive issues such as the determination of the legal consequences. After all, in
the part of the Opinion devoted to judicial propriety, the Court stated:
162
Art. 40, para. 1, Draft Articles on State Responsibility for Internationally Wrongful Acts,
Report of the International Law Commission on the Work of its Fifty-third session, Ofcial
Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), Ch.IV.E.1.
163
Commentaries to the Draft Articles, Report of the International Law Commission on the
Work of its Fifty-third session, Ofcial Records of the General Assembly, Fifty-sixth session,
Supplement No. 10 (A/56/10), Ch.IV.E.1, p. 285.
164
See supra subsection 3.3.
165
On inhumane treatment, see WOLFRUM, Enforcement of International Humanitarian
Law, in FLECK (ed.), cit. supra note 31, p. 532, para. 1209.
166
On the issue, Israel Written Statement, p. 89 ff.
167
Opinion, paras. 43-65.
160 ARTICLES
The Court is indeed aware that the question of the wall is part of
a greater whole, and it would take this circumstance carefully into
account in any opinion it might give. [] [T]he question [] is con-
ned to the legal consequences of the construction of the wall, and the
Court would only examine other issues to the extent that they might
be necessary to its consideration of the question put to it.168
6. CONCLUDING REMARKS
It may be evident from the earlier comments that the premises and the results of
the reasoning of the Court are comprehensible. As for the results one is tempted to
note that other norms could have been relevant. Even more signicantly, it may be
argued that one cannot be sure of the legal signicance of reproducing the text of a
number of applicable provisions and then nding the violation of a limited group of
them, without any further explanation. Is one to assume that the relevant provisions
of which a violation has not been explicitly declared have been complied with? Or
should one conclude that the Court merely decided to give some examples of vari-
ous breaches committed by Israel?
The vagueness of some focal points of the Opinion may be ascribed to different
factors.
As to the substantive violations of international humanitarian law, an underly-
ing guiding principle of the Opinion seems to be parsimony. After having had to
deal with arguments concerning jurisdiction and propriety in some lengthy para-
graphs, the Court might have assumed that sketching some substantive breaches
was sufcient to determine the legal consequences of illegality. In some measure,
legal consequences can be clear even if all the norms that were violated are not pre-
cisely spelt out. Alternatively, although not always legally tenable, the indetermi-
nacy of the consequences can be partly read in light of the political implications of
certain ndings. One may assume that the Court was aware of the possible effects
on the negotiating process of the grave-breaches system. As to the duties deriving
from the violation of erga omnes obligations, it is worth noting that it is not up to
the Court to determine ex ante all the possible courses of action that the political
organs of the United Nations and member States should take. As has been recently
pointed out, methods of compliance with the Courts rulings are not necessarily to
be established at the judicial level.169
Overall, the most striking feature of the way international humanitarian law
was dealt with is that the Court was at times totally reticent on the legal reasoning
168
Ibidem, para. 54.
169
SCOBBIE, cit. supra note 1, pp. 1117-1118, who notes that even in contentious cases, the
Court is loathe to dictate courses of conduct to States when the methods of compliance with its
rulings are essentially at the parties discretion.
CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OPT 161
supporting its conclusions. The ndings on the scope of the duty to ensure-respect,
and the substantive issues concerning property in the occupied territory, were
simply asserted. In a similar vein, the treatment of military necessity seems at the
same time succinct and contradictory. In this respect one may argue that when legal
solutions are based solely on the authority of the Court, that same authority risks
being eroded.
Given the lack of legal reasoning on some fundamental points, it is unlikely
that the present Opinion will stand as a landmark for the subject. It is however to
be noted that in some paragraphs the Court reafrmed the essence of international
humanitarian law and its result-oriented nature. That is particularly manifest for
the interpretation of the wall as an indirect breach of the prohibition to transfer the
Occupying Powers population to the occupied territory.
NOTES AND COMMENTS
THE FERRINI JUDGMENT OF THE ITALIAN SUPREME COURT:
OPENING UP DOMESTIC COURTS TO CLAIMS OF REPARATION
FOR VICTIMS OF SERIOUS VIOLATIONS
OF FUNDAMENTAL HUMAN RIGHTS
MASSIMO IOVANE*
*
Professor of International Law, University of Napoli Federico II.
1
Corte di Cassazione (Sezioni Unite civili), 11 March 2004, No. 5044, Ferrini v. Repubblica
Federale di Germania. The Italian text of the judgment is published in RDI, 2004, p. 539 ff.
The judgment has already received extensive commentary by the Italian doctrine: RONZITTI,
Un cambio di orientamento della Cassazione che favorisce i risarcimenti delle vittime, Guida
al diritto, 10 April 2004, p. 38 ff.; SICO, Sulla immunit dalla giurisdizione italiana della
Repubblica Federale di Germania in rapporti alle conseguenze patrimoniali di atti compiuti dalle
forze armate tedesche in Italia nellanno 1944, Diritto e giurisprudenza, 2004, p. 505 ff.; DE
SENA, Immunit degli Stati dalla giurisdizione e violazioni dei diritti delluomo: la sentenza
della Cassazione italiana nel caso Ferrini, Giur. It., 2004, p. 264 ff.; BARATTA, Lesercizio
della giurisdizione civile sullo Stato straniero autore di un crimine di guerra, Giustizia civile,
2004, p. 1200 ff.; CIAMPI, Crimini internazionali e giurisdizione, Cassazione penale, 2004, pp.
2656-2670; GIANELLI, Crimini internazionali ed immunit degli Stati dalla giurisdizione nella
sentenza Ferrini, RDI, 2004, p. 643 ff.; DE SENA and DE VITTOR, State Immunity and Human
Rights: The Italian Supreme Court Decision on the Ferrini Case, EJIL, 2005, p. 89 ff.; GATTINI,
War Crimes and State Immunity in the Ferrini Decision, JICJ, 2005, p. 224 ff.; BIANCHI, AJIL,
2005, p. 242 ff.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 165-193
166 NOTES AND COMMENTS
loss sustained between 1944 and 1945 when he was captured by German troops
on Italian territory and forced to work in weapon factories located in the Kahla
concentration camp. The Tribunale, sitting as a judge of rst instance, rejected
the plaintiffs claim, holding that Germany was entitled to foreign State immunity
under general international law.
Ferrini then appealed the decision to the Court of Appeal of Florence, in an
attempt to have the rst judgment reversed. The Court of Appeal afrmed that the
specic activities which were the subject of the suit concerned governmental acts
performed by a foreign State in the exercise of its sovereignty. While not denying
that these acts amounted to a grave violation of fundamental human rights, the
Court nonetheless dismissed the appeal on grounds of State immunity. To hold the
contrary, the Court said, would constitute an infringement of a well-established rule
of customary international law.
Moreover, the Court of Appeal found that the Italian jurisdiction could not
be afrmed on the basis of the 1968 Brussels Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters.2 According to that
Court, the application of the Convention is excluded whenever the case concerns
the exercise of public law powers by State authorities. Nor, in the Courts opinion,
could the Italian jurisdiction in any way be inferred from Article 8 of the Universal
Declaration on Human Rights, which states that everyone has the right to an effec-
tive remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law. In effect, the Court went on, the
Declaration is a UN General Assembly resolution lacking any obligatory character
for United Nations members.3 At this point Ferrini challenged the ruling on juris-
diction before the Corte di Cassazione.
The Court completely reversed the judgments of the lower courts and afrmed
that Italy had jurisdiction to decide on the merits of the claim. The main argument
developed by the Cassazione is that the case concerned Germanys breach of inter-
national obligations concerning the protection of human rights. These obligations
are part of international jus cogens and must have priority over the rule granting
immunity from jurisdiction. In order to reach this conclusion, the Court referred
extensively to international law concepts. For this reason, this decision is to be con-
sidered one of the most important precedents in contemporary practice with regard
2
See Articles 2 to 6 bis of the 1968 Brussels Convention.
3
Tribunale di Arezzo, Judgment No. 1403/98 of 3 November 2000. This judgment has not
yet been published. The line of reasoning followed by the Tribunale is addressed by the Supreme
Court in the rst paragraphs of its judgment, paras. 1-1.3.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 167
to the exact denition of the legal regime of peremptory international law norms.
As regards this legal regime, the decision touches on a number of controversial
issues.
The rst issue concerns the way domestic or international courts reconstruct
peremptory norms of customary international law.
The second issue is about the effects of such a norm. How far may a well estab-
lished norm of international law be set aside in order to protect the values enshrined
in an international law of jus cogens? In other words, should the denial of immunity
to Germany in the present case be considered an internationally wrongful act on
the part of Italy?
Thirdly, and quite independently of any question of foreign sovereign immu-
nity, to what extent should States grant jurisdictional remedies to victims of gross
violations of human rights protected by peremptory norms of international law?
In order to answer these questions, it is important to examine in some detail the
different grounds upon which the Supreme Courts decision is based.
Before the Court of Appeal, the claimant had already invoked the application
of the Brussels Convention in support of the Italian jurisdiction. He contended that,
by rejecting this argument, the Court of Appeal had failed to recognise that, accord-
ing to the general principles enshrined in the Brussels Convention, the jurisdiction
of a Contracting State exists whenever both the plaintiff and the defendant are
domiciled in one of the Contracting States. More specically, Article 5, para. 3 of
the same Convention admits that a person domiciled in a Contracting State may, in
another Contracting State, be sued in matters relating to tort, delict or quasi-delict,
in the courts of the place where the harmful event occurred. In the claimants opin-
ion this holds true even though the event had occurred in a contracting State differ-
ent from the one where the defendant is domiciled.
There is another argument drawn from the Brussels Convention which, accord-
ing to Ferrini, the Court of Appeal had erroneously dismissed. Before declaring that
Italy lacked jurisdiction, the Florence Court should have requested a ruling on the
interpretation of the Convention to the European Court of Justice, as provided for
by the Protocol of 3 June 1971.
Thirdly, the claimant lamented that the Court of Appeal did not consider the ar-
gument that the criteria of the Brussels Convention establishing Italian jurisdiction
were to prevail as lex specialis over the principle of sovereign immunity.
In order to dismiss the defence based on the Brussels Convention, the Court
adopted an all-encompassing line of reasoning. It afrmed that the European Court
had many times claried that the 1968 Convention is wholly inapplicable in rela-
168 NOTES AND COMMENTS
tion to activities carried out by a State in the exercise of its sovereign powers. Being
inapplicable, it also follows that the 1968 Convention could not prevail over the
customary rule granting jurisdictional immunity to foreign States, as assumed by
the claimant.4 However, it may be reasonable to question whether the Court needed
to counter this particular argument. In effect, Ferrini understands the Convention
as establishing a sort of open space where anybody may sue and be sued in any
Contracting State provided that he or she is domiciled in another contracting State.
On the contrary, however, the Convention simply establishes as a general criterion
that persons domiciled in a Contracting State shall be sued in the courts of that
State, irrespective of their nationality. And the German State is certainly not domi-
ciled in Italy.
Having decided that the Brussels Convention was totally inapplicable to the
case in question, the Court did not take up a position on the argument drawn from
Article 5, para. 3, of the Convention. The Italian jurisdiction could not have been
determined on the basis of the place where the harmful event had occurred. In
fact, the prejudice for which the claimant was seeking redress had been caused in
Germany where Ferrini was forced to work in a concentration camp.
Finally, the Cassazione recalled that, according to Article 234 of the Treaty
Establishing the European Community, a court may request a preliminary ruling
to the Court of Justice on the interpretation of the Treaty, but is not obliged to do
so unless it is a court against whose decisions there is no judicial remedy under
national law. Therefore, it found that the Court of Appeal was correct when it con-
sidered it unnecessary to le such a request to the Luxembourg Court.5
As a second line of defence, the claimant tried to challenge the current exist-
ence of an international customary rule on the jurisdictional immunity of foreign
States.
The Cassazione was able to dismiss this contention without excessive dif-
culty. On this point it afrmed:
4
Paras. 2-3.
5
On this point, one may wonder why the Cassazione did not refer to the relevant provisions
of the 1971 Protocol to the Brussels Convention. It is this Protocol and not Article 234 of the EC
Treaty which regulates the competence of the Court to deal with questions of interpretation of
the Brussels Convention.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 169
The petitioner had also asked the Supreme Court to quash the appeal judgment
pertaining to the part where it had recognised that immunity should be granted
even for sovereign acts amounting to a violation of international jus cogens, and
in particular of those peremptory norms protecting human dignity and the most
fundamental human rights.
This second argument turned out to be decisive for the nal adjudication of
the case. The development of the argument based on jus cogens was the result of
a detailed interpretation and reconstruction of international norms. This is a rarity
in domestic judgments applying international law. Therefore, it is worthwhile to
describe the different steps of the Courts reasoning.
First of all, the Court had to overcome a formidable obstacle to afrming Italian
jurisdiction on the dispute. The facts for which Germany was held accountable oc-
curred while carrying out military operations. These are quintessential sovereign
activities for which States have always enjoyed immunity from jurisdiction when
sued before foreign courts. In this respect, the Court made reference to two recent
decisions where immunity was granted, although an alleged violation of human
rights by the foreign States in question was involved.
The rst case was decided by the Cassazione itself. In a 2000 judgment,7
the Italian Supreme Court did not hesitate in upholding a plea for immunity put
forward by the United States in relation to the tragic accident of 1998, where
twenty people were killed when a US Marine aircraft hit and severed the ropes
of a cable car during a low-level training mission. The claimants had argued that
these ights were contrary to the right to life, health and personal safety, consid-
ered as absolute, inalienable and indefeasible human rights. For this reason, they
thought the Italian court should afrm its jurisdiction and order that the training
ights ceased. Moreover, they contended that the right to an effective remedy for
acts that violate fundamental human rights was itself a human right, as stated by
Article 8 of the 1948 Universal Declaration. Even if the case involved the viola-
tion of human rights, the Corte di Cassazione found that the customary law on
jurisdictional immunity suffers no limitation in connection with military training
6
Para. 5.
7
Corte di Cassazione (Sezioni Unite), 3 August 2000, No. 530, Presidenza del Consiglio dei
Ministri and Others v. Italian Federation of Transport Workers and Others; The United States of
America v. Italian Federation of Transport Workers and Others, IYIL, 2000, p. 289 ff.
170 NOTES AND COMMENTS
necessary for the waging of war operations, dangerous as it may be for the safety
of individuals.
The second case had been decided in 1995 by the Irish Supreme Court.
This case originated from a border incident between the Republic of Ireland and
Northern Ireland at a United Kingdom permanent vehicle checkpoint. The ap-
plicant, McElhinney, had lodged an action against an individual soldier and the
British Government, claiming damages on the ground that the soldier had wrong-
fully assaulted him by pointing a loaded gun at him and pulling the trigger. He had
also argued that, even if the doctrine of State immunity applied, it should yield in
this case since there had been an infringement of the constitutionally protected
right to bodily integrity. The Court did not uphold the human right exception to
sovereign immunity. It afrmed that the soldier was acting within the sphere of
governmental or sovereign activity and the acts complained of must be regarded as
jure imperii. The Court also dismissed the argument that it was a near-universally
recognised principle of international that claims for personal injuries inicted in the
forum State by or on behalf of a foreign government constitute an exception to the
sovereign immunity principle.
After the Supreme Court decision, McElhinney brought the case before the
European Court of Human Rights. He complained that the Irish courts, by applying
the doctrine of sovereign immunity, had denied him the right to a judicial determi-
nation of his compensation claim in violation of Article 6, para. 1 of the European
Convention on Human Rights. The European Court held that recognition of foreign
sovereign immunity is a legitimate limitation to the right of access to justice. In the
same case, the Court had the opportunity to afrm that the acts of a soldier on for-
eign territory relate to the core area of State sovereignty. They are included in those
activities for which immunity must be granted because they involve sensitive is-
sues affecting diplomatic relations between States and national security.8
Thus, up to 2001, sovereign immunity seems to take priority over the protec-
tion of human rights in the judicial practice of domestic and international courts,
whenever the dispute involves the performance of military activities by foreign
States and their organs. On this point, we can witness the rst important innova-
tion by the Corte di Cassazione in the Ferrini case:
8
McElhinney v. Ireland, Application No. 31253/96, Judgment of 21 November 2001.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 171
The Court does not deny that international crimes fall within the category of
acta jure imperii. As we understand it, the real problem for the Court was to decide
whether the ratio of the rule on sovereign immunity still persists when the State
in question has violated universal human values. There is an echo in this assump-
tion of the scholarly opinion that this ratio does not rely solely on the maxim par
in parem non habet judicium any more. It is not just a question of abstract respect
for other States sovereignty. Modern law on jurisdictional immunities aims at the
protection of some specic governmental activities essential for the survival of a
State (armed defence, maintenance of public order, direction of national economy)
or for the regular course of its relations with other States (diplomatic, consular and
cultural relations). However, it nds that the ratio of the rule on sovereign immu-
nity does not persist any more when the State in question has violated universal
human values. Even public law activities of a foreign State which do not meet these
conditions are not automatically afforded protection under international law.
Having challenged the common belief that war operations are immune per se
under current international law, the Court had to face another problem connected
with the exercise of Italian jurisdiction in the present case. Immunity is to be seen
only as a procedural bar preventing potential claims from being brought to court.
Even if this obstacle is removed, a sort of act-of-State argument might preclude
subsequent assessment on the merits of the applicants substantive right to dam-
ages. In fact, the decision on the merits would require the court to declare invalid
or wrongful the ofcial act of a foreign sovereign or of the forum State. As far as
acts of war are concerned, judicial determination of their wrongfulness under in-
ternational law had already been excluded by the Corte di Cassazione in a recent
2002 order. In this case, relatives of Yugoslav victims of the air strikes carried out
by NATO against Yugoslavia in 1999 had led an application against the Italian
State. They sought redress for alleged violation of the First Additional Protocol of
1977 to the Geneva Convention of 1949. The Court decided that the Italian courts
lacked jurisdiction because the choice of the means of conducting war constitute
an expression of a political function. Political acts, said then the Court, are not
justiciable issues. Individuals have no vested right to claim that this action be car-
ried out within given legal parameters.10
9
Para. 7.
10
Corte di Cassazione (Sezioni Unite), 5 June 2002, No. 8157 (order), Presidenza del
Consiglio dei Ministri v. Markovic and others, IYIL, 2002, p. 292 ff., with a note by BRUNO. The
order has been commented upon by RONZITTI, Azioni belliche e risarcimento del danno, RDI,
2002, p. 682 ff.; ID., Compensation for Violations of the Law of War and Individual Claims,
IYIL, 2002, p. 39 ff.; FRULLI, When Are States Liable to Individuals for Serious Violations of
Humanitarian Law? The Markovic Case, JICJ, 2003, p. 406 ff.; BRUNO, Danni collaterali
172 NOTES AND COMMENTS
To say that political acts are exempt from judicial review does not
mean that courts are prevented from deciding whether a criminal of-
fence has occurred in connection with these acts; nor does it prevent
courts from establishing civil or criminal liabilities arising from
such an offence. Now, the liberty and dignity of every human being
are fundamental values protected by general norms of international
law. The gravest violations of these norms constitute international
crimes. By virtue of Art. 10, para. 1 of the Italian Constitution, these
general norms are automatically incorporated into the Italian legal
order. Thus, they provide legal parameters to evaluate whether a
wrongful act has been committed during the performance of a politi-
cal decision.11
This passage is very important because it recognises that an act of war alleged-
ly in conict with fundamental human rights could be challenged before domestic
courts. Incidentally, one must say that the Court mixes up the two notions of inter-
national crimes of individuals and international crimes of States. This confusion
runs throughout the whole judgment. As we shall see further on in this paper, this is
not necessarily a major defect. It could be a positive, albeit unconscious, indication
by the Court about the particular kind of legal regime which is taking shape in in-
ternational practice in order to protect the most basic human rights. In this regime,
the responsibility of States and that of individuals both concur in the international
protection of fundamental values in international law.
The next step taken by the Court was to demonstrate that the wrongful acts al-
legedly committed by Germany amounted to a violation of international norms of
jus cogens. In fact, the Court does not limit itself to interpreting the international
rule on sovereign immunity with its possible exceptions. It embarks on a thorough
examination of jus cogens, considered as a special category of international cus-
tomary rules. What the Court proposes is a complete description of international
nella guerra giusta ai conni dellimpero. Alcune riessioni sul caso Markovic, in Scritti in
ricordo di Giovanni Motzo, Napoli, 2004, p. 75 ff.
11
Para. 7.1.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 173
jus cogens, moving from its specic content to the formal position that peremptory
norms assume in the hierarchy of international law sources, and then the special
consequences resulting from the breach of these norms.
On this problem, the method followed by the Court is again worth of note.
Understandably, the Court ignores the lengthy discussion on the distinction be-
tween international delicts and international crimes of States, which has been going
on for years within and outside the International Law Commission. Consequently,
it seems unaware of the difference between the two notions of crimes of individu-
als and crimes of States. From its point of view, both prohibit deportation from
occupied territories for slave labour. This is the dominant approach in international
practice dealing with gross violations of human rights. The tendency is to concen-
trate on the substance of the internationally protected value and on all the possible
remedies made available by international law to the person who has been the direct
victim of the crime. In this perspective, it is not so much important to establish who
committed the crime, as to ascertain which fundamental human right has been vio-
lated, and then activate the appropriate remedies.
Thus, the concept of jus cogens advocated by the Italian judges is not totally
based on the normative hierarchy theory.12 This is a rather formalistic doctrine,
stating that conicts between rules should be solved according to the position they
have in the hierarchy of sources. Conversely, the Court seems to understand jus co-
gens as the material values of the international community as a whole, as a sort of
ordre public to be protected by the special regimes created by both customary and
conventional international law.13 These regimes might also include interventions
by domestic courts.
The Court begins its probe into the regime of international jus cogens by ad-
dressing the legal nature of the crimes at issue. It afrms: [T]here could be no
doubt that deportation and forced labour are crimes of war prohibited by a norm of
general international law binding all members of the international community.14
The Court reaches this conclusion after quoting different precedents in inter-
national practice.
First of all, it refers to Article 6(b) of the Charter of the Nuremberg International
Military Tribunal, which roundly considers deportation to slave labour or for any
other purpose of civilian population of or in occupied territory as a war crime.
In the Indictment, the Nuremberg Tribunal had already condemned mass de-
portation of able-bodied citizens from occupied countries to Germany and to other
occupied countries for the purpose of slave labour upon defence works, in factories,
12
This point has been rightly underscored by BIANCHI, cit. supra note 1, p. 247.
13
This concept of jus cogens has been developed in my monograph La tutela dei valori fon-
damentali nel diritto internazionale, Napoli, 2000. See the review by SANTULLI, RGDIP, 2001, p.
267, where this author highlights the distinction drawn in the book between the hierarchy theory
and ordre public.
14
Para. 7.4.
174 NOTES AND COMMENTS
and in other tasks connected with the German war effort. Such deportations were
considered contrary to international conventions, in particular to Article 46 of the
1907 Hague Regulations on the laws and customs of war, the general principles of
criminal law as derived from the criminal laws of all civilized nations, the internal
penal laws of the countries in which such crimes were committed. The Judgment
of 30 September 1946 upheld this condemnation, afrming that Article 52 of the
Regulations annexed to the Hague Convention of 18 October 1907 lays down that
services might be imposed on the inhabitants of an occupied territory only for the
needs of the occupying army.
As some belligerent States were not parties to the 1907 Convention, the de-
fendants had argued that it was inapplicable to the facts in question. However, as
the Cassazione recalls in the present judgment, this objection was rejected by the
Tribunal, which recognised that the Conventions rules were acknowledged and ac-
cepted by all civilised nations and were thus part of customary international law.
The Court also refers to other international acts and conventional norms which
corroborate the customary nature of the prohibition of deportation and forced
labour. These acts and norms include General Assembly Resolution 95(I) of 11
December 1946, which conrmed the principles of international law recognized
by the Nuremburg Tribunal and in the judgment of the Tribunal, the Principles of
International Law Recognized in the Charter of the Nuremberg Tribunal adopted
by the International Law Commission of the United Nations in 1950, the Statutes
of International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the
Rome Statute of the International Criminal Court.
So far, the Court has only managed to establish that deportation and forced
labour are crimes of individuals under customary international law. This would
not be enough to consider the German State as a whole as accountable for them
and deny it immunity from jurisdiction. But the Court did attribute these crimes
to the German State by arguing that: [T]he acts for which redress was sought
by the claimant in this proceedings were not isolated events. They were part of a
precise strategy carried out by the German State with rm determination at that
time.15
The Court draws this conclusion taking into account to two main elements.
The rst one is the extreme gravity of these crimes. The second is the
Germanys enactment of the Law on the Creation of a Foundation Remembrance,
Responsibility and Future (2 August 2000, which came into force on 12 August
2000). The purpose of the Foundation is to make nancial compensation available
to former slave and forced labourers. According to the Court the Law is clear evi-
dence that Germany has accepted responsibility for the injustice committed and the
human suffering it caused to former forced labourers.
At the end of its analysis, the Court sums up its conclusions by afrming:
15
Ibid.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 175
The evidence provided in support of this nal conclusion conrms the gen-
eral inspiration underlying the present judgment. As already mentioned above, the
Court tends to envisage a unitary international regime centred on the victims of the
violation of a fundamental human right and on the remedies available to them, ir-
respective of whether the violation has been committed by a State, by an organ of
that State or by a private person.
In fact, on serious violations of peremptory norms giving rise to a more drastic
regime of international responsibility, the Court quotes material dealing both with
State and individual responsibility.
It refers, on the one hand, to Article 40 of the 2001 Draft Articles of the
International Law Commission, on the consequences of serious breaches of per-
emptory norms committed by States; and on the other hand, it corroborates its
nding by referring to several judgments by the International Criminal Tribunal for
Yugoslavia which, on the contrary, deal with the responsibility of individuals.
4.3. The Denial of Immunity from Jurisdiction as a Way to Enact the Special
Regime of International Norms of Jus Cogens
Having established that gross violations of human rights are prohibited by cus-
tomary norms possessing a higher hierarchical rank, the Court tries to clarify what
the international regime afforded for their special protection might be.
As a rst result, the Court nds that peremptory or jus cogens norms:
16
Para. 9.
17
Para. 9.2.
176 NOTES AND COMMENTS
And again:
According to the Court, the prevalence of fundamental human rights over im-
munity from jurisdiction is now a well established principle of current international
law. In support of this conclusion, once again, the Court does not distinguish be-
tween violations of human rights committed by States or by individuals.
In fact, reference is made rst of all to the recent judgment of the Hellenic
Supreme Court which afrmed Greek jurisdiction over a petition against Germany
to pay compensation for atrocities committed during World War II.19
However, in the last part of the judgment, the Court also tries to justify lifting
State immunity on the basis of the same rationale which has led to the denial of
jurisdictional immunity to State agents accused of committing gross violations of
human rights. The analogy between State immunity and functional immunity was
not meant by the Court as a formal argument to its decision. It was only to stress
that, when fundamental human rights are at stake, the protection given by interna-
tional law is no longer for the State as a sovereign power, but safeguards the dignity
of every individual.
18
Ibid.
19
Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000, 4 May 2000,
discussed by GAVOUNELI and BANTEKAS in AJIL, 2001, p. 198 ff. On the judgment see also the
critical remarks by GATTINI, To What Extent Are State Immunity and Non-Justiciability Major
Hurdles to Individuals Claims for War Damages?, JICJ, 2003, p. 358 ff.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 177
perfectly compatible with the protection of human rights. It also seems perfectly
aware of the doctrinal debate stemming from this practice and that the existence of
the so-called fundamental human rights exception is far from certain. Nonetheless,
it tries to nd its own justication for supporting the existence of Italian jurisdiction
over Germany in the case in question.
As a rst premise, the Court explicitly rejects the doctrine of the implicit
waiver to sovereign immunity by States committing gross violations of human
rights. This is a sort of technical, albeit ctitious, argument which both scholars
and courts had often used to justify the dubious denial of jurisdictional immunity
to States from the point of view of current international law. The acts of a State in-
volving a breach of jus cogens, so runs the argument, imply a waiver on the part of
the perpetrator to all rights and privileges afforded by international law. The Court
contests this explanation by afrming that:
The Court repeats several times that the solution of the problem cannot be
found in a logical deduction, but must be drawn directly from the practice. For
this reason, having rejected the doctrine of implicit waiver, it moves on to ex-
amine the possible application to the present case of the so-called tort exception,
which has been emerging in recent case-law and legislative precedents. At the
end of this examination, the Cassazione arrives at the conclusion that contempo-
rary international law allows a foreign State to be sued before foreign courts, pro-
vided that the injury derives from wrongful acts committed within the territory of
the forum State. In other words, the right of the victim to recover damages from
the State that committed a gross violation of human rights is rendered effective
thanks to the tort exception. At rst sight, this nding by the Court seemed to
be based on a theoretical incoherence. On the one hand the judges have insisted
throughout the whole judgment that the denial of sovereign immunity is a direct
consequence of the special protection afforded to fundamental human rights; but
in the end, they have grounded Italian jurisdiction on an exception to sovereign
immunity originally conceived, as we shall see, for minor offences like road ac-
cidents.
But let us take a closer look at the different arguments leading the Court to this
decision.
20
Para. 8.2.
178 NOTES AND COMMENTS
As a rst step, it admits that jurisdictional immunity has recently been upheld
in some decisions by domestic and international courts. However, in the Courts
opinion this has happened only because those decisions dealt with damage caused
by acts committed outside the forum State. On this, the Court nds supports in the
opinion expressed by Lord Hutton in the Pinochet case. In this famous judgment,
Lord Hutton recognised that Chile was responsible under international law for
acts of torture carried out by Senator Pinochet. Nonetheless, he also admitted that
Chile could still claim State immunity if sued for damages in a court in the United
Kingdom, because the acts of torture were committed outside British territory. In
judicial practice, the customary nature of the tort exception has also been recog-
nised by the Hellenic Supreme Court in the already mentioned recent judgment
concerning crimes committed by Nazi Germany in Greece.21
Secondly, the Court points out that the tort exception has been endorsed in
statutory provisions in force in different countries, including the United States of
America, Canada, Australia and South Africa. These provisions are unanimous in
setting aside sovereign immunity in proceedings concerning personal injuries and
damage caused by an act or omission in the forum State. This position is reected
also in Article 12 of the United Nations Convention on Jurisdictional Immunities
of States and their Property.22
Thirdly, the Court strongly disapproved of the European Courts decision in the
McElhinney case, stating that the tort exception concerned only personal injury
arising out of ordinary road trafc incidents, rather than matters relating to the
core area of State sovereignty. On the contrary, it shared the dissenting opinion
of judges Caisch, Cabral Barreti and Vajic, who deemed that the tort exception
also covered intentional physical harm resulting from homicide, including political
assassination.
Lastly, the Court found further support to its reasoning in Sec. 221 of the
Anti-Terrorism and Effective Death Penalty Act, which narrows the immunity of
foreign governments from suit in American courts. In fact, this provision states
that foreign governments, designated as State sponsors of terrorism, which engage
in torture, murder, aircraft sabotage, hostage taking, or providing material support
for any of the various acts of terrorism prohibited by 18 USC 2339, become liable
to suit for damages for the personal injuries or death these acts of terrorism cause
American victims. According to the Court: [T]his provision is but another con-
rmation that, in the face of particularly serious tortious activities, the protection
of fundamental rights of every human being takes priority over the protection of
the States interest that its jurisdictional immunity before foreign courts be recog-
nised.23
21
Supra note 19.
22
General Assembly Resolution 59/38 of 16 December 2004.
23
Para. 10.2.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 179
Is the Courts nding acceptable from the point of view of present customary
international law?
On this point, a heated discussion is going on among scholars about the pos-
sible existence of a human rights exception to the immunity enjoyed by foreign
States for acts performed in their capacity as sovereign authorities. It is not our
intention to dwell at length on this well known conict between different doctrinal
opinions.24 Sufce it to recall that some authors insist that suing a State that violat-
ed human rights before a foreign court has already become possible under current
international law. Others, on the contrary, are of the opinion that this possibility has
not yet been generally accepted. While highly desirable, the human rights excep-
tion is, thus, not already well established in customary international law. They re-
call that, although sometimes denied by lower courts, immunity has almost always
been restored when the denial has been challenged before Supreme courts.
Establishing exceptions to sovereign immunity has never been an easy task,
ever since the doctrine of absolute jurisdictional immunity was abandoned at the
beginning of the 20th century. There has always been a grey zone between activi-
ties which are surely exempted, and activities which may certainly be challenged
before a foreign court.25 Moreover, there is a tendency among some States to extend
the recognition of jurisdictional immunity even over undisputed commercial or
non-sovereign activities of a foreign State or public instrumentality. This occurs
for political and economic convenience, and mostly when courts are not left free to
decide questions of jurisdictional immunity, but are obliged to follow the opinion
of the executive in these matters. For all these reasons, judicial practice throughout
the world has never been one hundred percent consistent as to the exact scope of
restricted sovereign immunity under customary international law.
On the other hand, it is true that the law of sovereign immunity is being con-
tinuously developed by domestic courts. Urged by private subjects wanting to exer-
24
Among authors particularly dealing with this topic see recently: GAVOUNELI, War
Reparation Claims and State Immunity, Revue hllenique de droit international, 1997, p.
595 ff.; RESS, The Changing Relationship Between State Immunity and Human Rights, in
DE SALVIA and VILLIGER (eds.), The Birth of European Human Rights Law Lclosion du
droit europeen des droits de lhomme, Liber Amicorum Carl Aage Nrgaard, Baden-Baden,
1998, p. 175 ff.; KARAGIANNAKIS, State Immunity and Fundamental Human Rights, Leiden
JIL, 1998, p. 11 ff.; FLAUSS, Droits des immunits et protection internationale des droits de
lhomme, Schw. ZIER, 2000, p. 299 ff.; DE VITTOR, Immunit degli Stati dalla giurisdizione e
tutela dei diritti umani fondamentali, RDI, 2002, p. 573 ff.; CAPLAN, State Immunity, Human
Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, AJIL, 2003, p. 741
ff.; BIANCHI, Serious Violations of Human Rights and Foreign States Accountability Before
Municipal Courts, in VOHRAH et al. (eds.), Mans Inhumanity to Man. Essays on International
Law in Honour of Antonio Cassese, The Hague/London/New York, 2003, p. 149 ff.; BIANCHI,
Limmunit des Etats et les violations graves des droits de lhomme: la fonction de linterprte
dans la dtermination du droit international, RGDIP, 2004, p. 63 ff.
25
Cf. CRAWFORD, International Law and Foreign Sovereigns: Distinguishing Immune
Transactions, BYIL, 1983, p. 75 ff.
180 NOTES AND COMMENTS
cise their right to a judicial determination of their claims, courts are under continu-
ous pressure to actively interpret this traditional rule and adapt it to the changing
functions of the State at both domestic and international levels. It is impossible to
predetermine how long it will take to bring about a complete change in the custom-
ary rule on jurisdictional immunity. A transitional period may be necessary, where
innovative solutions coexist with more conservative interpretations not only in
judicial decisions, but also in statutory provisions and international treaties. In this
period the exact boundaries of a new exception to the jurisdictional immunity of
foreign States may not have been precisely dened. However, in establishing the
current existence and content of a customary rule one cannot ignore widespread
objections arising from different sectors of the international community.26 These
objections are not meaningless and should be taken into consideration when inter-
preting the rule during a transitional period. To be more exact, we believe that if
challenge against the old rule becomes sufciently widespread, albeit not unani-
mously, it is possible to afrm that, for the time being, the application of an inno-
vative solution does not amount to the commission of an internationally wrongful
act27 especially if the departure from current law is justied by the vindication of a
universally recognised principle, such as the protection against gross violations of
human rights.28
As a rst, tentative conclusion, it may be said that this is exactly the case of the
human right-tort exception envisaged by the Court in the case in hand.
It might be useful to recall that the whole shift towards the human right-tort
exception dates back as far as the early 1980s. During that period, jurisdictional
immunity was denied in a number of judgments delivered by American district and
appeals courts. These decisions concerned proceedings instituted by individuals
seeking compensation for injuries they had suffered due to acts contrary to inter-
national law committed by foreign States. Injuries had been caused to individuals
by alleged internationally wrongful acts of a different nature, not always amounting
to the violation of jus cogens protecting the liberty and human dignity of every
human being. In fact, these acts ranged from the breach of treaties on the freedom
of navigation in the high seas, or American maritime neutrality,29 to the breach of
customary law on the prohibition of torture,30 from the violation of the precepts
26
CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 38.
27
The issue is dealt with by BIANCHI, Denying State Immunity to Violators of Human
Rights, Austrian Journal of Public International Law, 1994, p. 195 ff.
28
On this point see FRANCIONI, Balancing the Prohibition of Force with the Need to Protect
Human Rights: A Methodological Approach, in CANNIZZARO and PALCHETTI (eds.), Customary
International Law on the Use of Force: A Methodological Approach, The Hague/Boston, p. 269
ff., available at www.addix.it/internazionale/relazioni/Francioni.pdf.
29
Amerada Hess Shipping Corporation v. Argentin Republic, US Court of Appeals, 2nd
Circuit, Judgment of 11 September 1987, 830 F 2d 421 (1987), ILR, 1989, pp. 8-17.
30
Siderman de Blake and Others v. Republic of Argentina and Others, US Court of Appeals,
9th Circuit, Judgment of 22 May 1992, 965 F 2d 699 (1992), ILR, Vol. 103, 1996, pp. 454-479.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 181
31
Letelier v. Chile, District Court, District of Columbia, Judgment of 11 March 1980, 488 F.
Supp. 665 (D.D.C. 1980), ILR, Vol. 63, pp. 378-390; Liu v. Republic of China, Court of Appeals,
9th Circuit, Judgment of 29 December 1989, 892 F. Supp. 1419, ILR, Vol. 101, 1995, pp. 519-
535.
32
Von Dardel v. Union of Soviet Socialist Republics, US District Court, District of Columbia,
Judgment of 15 October 1985, 623 F. Supp. 246 (1985), ILR, Vol. 77, 1988, pp. 258-275; Hugo
Princz v. Federal Republic of Germany, US District Court, District of Columbia, Judgment of 23
December 1992, 813 F. Supp. 22, 26 (D.D.C. 1992), ILR, Vol. 103, 1996, pp. 598-603.
33
Argentine Republic v. Amerada Hess Shipping, US Supreme Court, Judgment of 23
January 1989, 102 L Ed 2d 818 (1989), ILR, Vol. 81, 1990, pp. 658-669.
34
Federal Republic of Germany v. Hugo Princz, US Court of Appeals, District of Columbia
Circuit, Judgment of 1 July 1994, 26 F 3d 1166 (1994), ILR, Vol. 103, 1996, pp. 604-621.
35
See infra section 6.
36
See supra note 19.
182 NOTES AND COMMENTS
In effect, many authors point out that judges should try to reconcile the conict
between sovereign immunity and human rights each time a similar conict arises
before them. They suggest that the court should make an attempt to nd a balance
between two principles both protected by international law currently in force. We
think it illogical to base such an attempt on the premise that the denial of sovereign
immunity entails the international responsibility of the forum State.37
6.1. To What Extent May a Well Established Rule of International Law Be Set
Aside in Order to Protect the Values Enshrined in an International Norm of
Jus Cogens? The Intertwining of the Human Rights and Tort Exceptions in the
Courts Reasoning
37
See infra section 6.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 183
On the other hand, having the universal civil jurisdiction in mind, the Court ful-
ly endorses the nding by the Trial Chamber of the International Criminal Tribunal
for the Former Yugoslavia of 10 December 1998 in the Furundzija case. It afrms:
In the same perspective we may quote also the Furundzija judgment, where the
Tribunal recognised that the victim of an international crime may bring a civil suit
for damage before a foreign court.39
Accepting the principle of universal civil jurisdiction, the Italian Supreme
Court has outlined a general framework in which the obligations of States to protect
human rights, the remedies made available to the individuals injured by a violation
of human rights, and the role of domestic judges in examining these remedies are
all part of a single international regime. In turn, this general framework is in line
with two recurring elements in recent practice. On the one hand, the international
regime protecting interests of human beings often includes an obligation to afford
compensation for the injury inicted to the victim. On the other, persons who have
been injured by an alleged violation of international law tend, almost naturally, to
address domestic courts, considered as the authorities normally entrusted to decide
on compensation claims by private persons.
38
Para. 9.1.
39
Ibid.
184 NOTES AND COMMENTS
The right of the victims to receive compensation for the injury resulting from
gross violations of human rights is an integral part of the customary rules prohibit-
ing the commission of such violations. It is true, on the other hand, that in recent
practice and doctrinal discussions, the principle of the universal civil jurisdiction is
conceived as referring to all possible mechanisms, both domestic and international,
available to victims seeking redress for the harm they have suffered.40
Before moving on to illustrate the present trend of international law on these
points, a preliminary issue must be claried from the very outset. Addressing the
problem of compensation from the perspective of the remedies available to the
injured person is not tantamount to recognising the international personality of the
individual. Nor is it an admission of individuals as directly entitled by international
law to the right to lodge a claim for damages. This is a merely theoretical question.
On the contrary, the real problem is to establish how international law adapts the
States obligation to pay compensation, and its concrete implementation, to the
particular value which has been violated, that is the dignity and liberty of human
beings. Now, the evolution of international law has recognised for some time that
the interests of individuals are better protected if they are given the possibility of
suing a judicial or administrative mechanism directly.41
For a better clarication of the whole issue, we must draw attention to another
preliminary consideration. The international regime concerning compensation for
40
For the most recent works on that problem see STEPHENS and RATNER, International
Human Rights Litigation in U.S. Courts, Irvington-on-Hudson, New York, 1996; STEINHARDT
and DAMATO, The Alien Tort Claims Act: An Analytical Anthology, Ardsley, New York, 1999;
VAN SHAACK, In Defence of Civil Redress: The Domestic Enforcement of Human Rights
Norms in the Context of the Proposed Hague Judgments Convention, Harvard ILJ, 2001, p.
141 ff.; STEPHENS, Translating Filartiga: A Comparative and International Law Analysis of
Domestic Remedies for International Human Rights Violations, Yale JIL, 2002, pp. 1-57.
41
The importance of domestic courts in applying and interpreting international law, especial-
ly those international rules protecting interests of individuals, has been systematically developed
and encouraged in Italian doctrine by CONFORTI, cit. supra note 26.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 185
damage suffered by individuals has often involved both a domestic and an inter-
national level. This means that domestic and international means of redress could
well be operating alternatively or contemporarily in order to implement the right
of the victims.
All that premised, we must clarify that the right of the victim to obtain compen-
sation may be described from different perspectives, depending on whether a hu-
man rights violation has been committed by a State or by an individual. The mean-
ing of the universal civil jurisdiction principle will vary accordingly, and so will the
role of the different mechanisms set up in order to assess an individual claim.
Let us begin by considering the possibility that a State makes use of the mere
faculty, recognised by the customary rule on universal criminal jurisdiction, to pun-
ish the author of an international crime under international law. The punishment is
very likely to include compensation for the victims of the crime. This hypothesis
would correspond to the rst meaning of the universal civil jurisdiction principle.
In fact, some authors simply refer to this principle as the possibility for victims to
seek reparations in the course of the same trial instituted on the basis of universal
criminal jurisdiction. They highlight that reparations for the victims of criminal
offences are provided for in every national criminal law system. Moreover, some
domestic systems permit the recovery of damages already as part of the criminal
prosecution of the wrongdoer (so called action civile).42 In this sense, it is also pos-
sible to quote paragraph 404 of the Restatement (Third) of the Foreign Relations
Law of the United States, which afrms that jurisdiction on the basis of universal
interests has been exercised in the form of criminal law, but international law does
not preclude the application of non-criminal law on this basis, for example, by pro-
viding a remedy in tort or restitution for victims of piracy.
The right of the victims to receive compensation for the injury suffered persists
also when criminal jurisdiction over individual perpetrators is exercised by inter-
national tribunals.
The principle that victims of international crimes committed by individuals are
entitled to receive compensation is endorsed also in Article 75 of the Statute of the
International Criminal Court. To this end, the Court may, in the rst place, make an
order directly against a convicted person specifying appropriate reparations to, or in
respect of, victims, including restitution, compensation and rehabilitation. Where
appropriate, the Court may order that the award for reparations be made through
the Trust Fund provided for in Article 79. The Trust Fund could be considered as an
international alternative to the payment of compensation through a domestic court.
It is true that the Statutes if the International Criminal Tribunals for the Former
Yugoslavia (ICTY) and for Rwanda do not expressly provide for any right of the
victims to compensation for the injuries they have suffered. However, the question
42
RANDALL, Federal Courts and the International Human Rights Paradigm, Durham/
London, 1990, pp. 163-193.
186 NOTES AND COMMENTS
is being increasingly debated among the judges of both tribunals. The proposal
has been advanced that the two statutes should be amended in order to admit vic-
tims claims for compensation. In a letter dated 12 October 2000 addressed to UN
Secretary-General, the President of the ICTY suggested that the Security Council
should consider possible mechanisms for the payment of compensation, such as the
creation of an international compensation commission.43
We may consider the right of the victim to obtain redress from the court dealing
with the international criminal responsibility of individuals as a general principle
of criminal law, to use an expression drawn from the Statute of the International
Criminal Court. In fact, criminal justice is not only about punishing perpetrators,
but also about restoring dignity to victims.44
The above-quoted examples also conrm the general assumption that both
domestic and international mechanisms may be used to implement the right of the
victims to obtain redress for the injury suffered.
Secondly, the victim of an international crime committed by an individual
may rely on universal civil jurisdiction to address a claim for compensation to the
courts of a State, although the crime has been committed on the territory of another
State. This possibility must be expressly established in the legal order of the forum
State. It seems a broad application of the second concept of the universal civil ju-
risdiction. As an example, we may quote the American Torture Victim Protection
Act, whose section 2(a)(1) states that an individual who, under actual or apparent
authority, or colour of law, of any foreign nation subjects an individual to torture
shall, in a civil action, be liable for damages to that individual. In this case, the
exercise of civil jurisdiction could nonetheless be subject to certain conditions,
such as the exhaustion of adequate and available remedies in the place where the
conduct giving raise to the claim occurred.
Perhaps, we may also classify under this heading the order establishing repara-
tions to victims issued by the International Criminal Court. Pursuant to Article 109
of the ICC Statute, this order may be addressed to State parties without distinc-
tion. Presumably, the States concerned would be all those where sufcient property
and assets of the sentenced person are. This is the sole condition to secure the
execution of the order. Moreover, the order should be given effect by the address-
ees in accordance with the procedure of their national law. This could amount to
seeking redress to the courts of a State other than the national State of the convicted
perpetrator or of the State where the crime was committed.
Here again, domestic and international mechanisms concur in the implementa-
tion of the right of the victims to receive adequate redress.
43
UNDOC S/2000/1063.
44
This was declared by Judge Akua Kuenyehia, First Vice-President of the International
Criminal Court in the address pronounced at the rst meeting of the Board of Directors of the
Trust Fund for Victims. The text of the address is available on the ofcial site of the International
Criminal Court.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 187
As a third possibility, universal civil jurisdiction designates the right of the vic-
tim of a gross violation of human rights to obtain compensation for the injury they
have suffered. To this end, States should not merely be permitted to exercise civil
jurisdiction when their tribunals are sued by those victims. They would even be
obliged to provide an effective remedy through the competent national tribunals.
This third possibility concerns those cases where the violation of an interna-
tional norm on the protection of fundamental human rights has been committed by
a State.
In effect, scholars are unanimous in afrming that the prohibition of gross viola-
tions of human rights is part of current international customary law. It is commonly
held that this norm has been developing since the end of World War II, although not
all its aspects have been clearly settled by the relevant practice. Doctrinal opinions
are also unanimous in pointing out that, in this context, States are basically required
to refrain from committing gross violations of human rights. In the same vein, they
must adopt preventive and repressive measures to avoid these violations being
committed by individuals on the territories under their control.
The prohibition of gross violations of human rights is often presented as the
only existing customary norm on the protection of human rights. More recently, the
conviction is taking shape that, in the eld of human rights, some acts are prohib-
ited by international customary law, or general principles of law recognised by civi-
lised nations, even though they would not amount to a widespread or systematic
attack directed against any civilian population. This is particularly true for torture,
racial discrimination, slavery, extra-judicial assassination, or, as the Court put it in
the present judgment, the all-encompassing prohibition against undermining a per-
sons human dignity. In the opinion expressed by a number of judgments, and again
this includes the present decision of the Italian Supreme Court, the prohibition of
these acts is established in peremptory norms of international law.
In our opinion, this second and wider version of the customary rule on the
protection of human rights comes closer to the current status of international prac-
tice. We may dene this rule as prohibiting violations of fundamental human rights
rather than only gross violations of human rights.
The obligation to afford compensation to victims of such violations is, in turn,
part of the protection of fundamental human rights provided for by both customary
and conventional international law. One usually speaks, in this regard, of an obliga-
tion incumbent upon States to provide effective remedies to victims of the gravest
violations of human rights.
In effect, when the ultimate beneciaries of a legal regime are individuals,
international law has always included compensation to be calculated, in principle,
according to the injury suffered by the actual victims.45 This has been true since the
45
For a general discussion on this topic see RANDELZHOFER and TOMUSCHAT (eds.), State
Responsibility and the Individual, The Hague/Boston/London, 1999; PISILLO MAZZESCHI,
Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights,
188 NOTES AND COMMENTS
emergence of principles on the treatment of aliens, although in this case the per-
sonal interests of the offended aliens tend to merge with the general interest of the
State that its subjects receive the prescribed treatment on foreign territory.
It might be debatable whether the obligation to provide an effective remedy to
victims of human rights abuses is the content of a primary or a secondary rule.
Yet, this is a wholly theoretical question which is destined to have little bearing on
the concrete denition of what international law requires exactly from States in the
event that interests of individuals have been injured.
JICJ, 2003, p. 341 ff.; ID., Esaurimento dei ricorsi interni e diritti umani, Torino, 2004, p. 26 ff.;
SHIN HAE BONG, Compensation for Victims of Wartime Atrocities Recent Developments in
Japans Case Law, JICJ, 2005, p. 187 ff. On the difculties to implement the right of the victims
of international crimes to receive reparation see RIGAUX, La condition des victimes de crimes
de droit international, in VOHRAH et al. (eds.), cit. supra note 24, p. 771 ff.
46
UN Doc. S/2004/616.
47
The Report was issued in Geneva on 25 January 2005 pursuant to Security Council
Resolution 1564 of 18 September 2004.
48
Para. 598, pp. 151-152.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 189
The obligation in question is clearly set out also in the Revised Draft of the UN
Commission on Human Rights on Basic Principles and Guidelines on the Rights
to a Remedy and Reparation for Victims of Gross Violation of International Human
Rights Law and Serious Violations of International Humanitarian Law.49 Paragraph
II.3(d) of the Draft recognises that the obligation to respect, ensure respect for and
enforce international human rights law and international law, includes, inter alia,
the duty to afford effective, prompt and appropriate remedies to victims, including
providing and facilitating reparation to victims [].
This concept seems to be shared also by the Italian Supreme Court in the
Ferrini judgment. According to the Cassazione, in fact, there could be no doubt
that the principle of universal jurisdiction applies also to civil proceedings arising
from the commission of an international crime.50 Although, once again the Court
is ambiguous on whether it is referring only to international crimes of individuals
or also to violations of fundamental human rights committed by States.
The obligation to pay compensation to victims of serious breaches of human
rights is so well established that States having committed these breaches have of-
ten offered redress spontaneously. They have done so, although the abuses dated
back to a period where the existence of the obligation in question was even more
uncertain. Sufce it to mention Germanys attitude as regards most of the crimes
perpetrated during World War II. In some instances it has indemnied foreign
victims whose national States had expressly waived any claim on behalf of their
citizens.51
Payment of compensation to victims of particularly grave human rights abuses,
both at the domestic and international level, may be prompted thanks also to pres-
sure put upon the responsible State by all States. In fact, these abuses fall within
the category of gross or systematic breaches by a State of an obligation arising
under a peremptory norm of general international law, as stated by Article 40 of
the ILC Draft Articles on the International Responsibility of States. According to
subsequent Article 48 para. 2(b) of the said Draft Articles, any State may claim the
obligation of reparation from the responsible State in the interest [] of the ben-
eciaries of the obligation breached.52
49
The Revised Draft on the Basic Principles is dated 5 August 2004. The text is available at
www.ohchr.org/english/events/meetings/docs/versionrev.doc. The Draft was prepared in consul-
tation with the independent experts Theo Van Boven and Cherif Bassiouni pursuant to Resolution
2004/34 of the Commission on Human Rights, adopted on 19 April 2004. The latest text of the
Basic Principles ofcially adopted by the Commission on Human Rights is contained in Human
Rights Resolution 2005/35 of 19 April 2005.
50
Para. 9.
51
For the sake of brevity, we refer here to information reported by GATTINI, cit. supra note
1, p. 226 ff.
52
See recently on this point GAJA, Is a State Specially Affected When Its Nationals Human
Rights Are Infringed?, in VOHRAH et al. (eds.), cit. supra note 24, p. 373 ff.
190 NOTES AND COMMENTS
We have now to examine how the domestic and the international spheres are
connected when the obligation to make compensation to victims arises within the
context of a violation of human rights committed by States.
For some time, the regime of international obligations concerning the protec-
tion of interests of individuals has begun to show a common feature. This is the
recognition that the interests of individuals are better protected if they can obtain
appropriate redress by suing a domestic court directly.
Here again, we may say that this tendency dates back to the local remedies rule
in the eld of the treatment of aliens and diplomatic protection. As is well known,
scholars are still discussing the substantial or procedural nature of this rule. Be
it as it may, we think that both in the realm of injury to aliens and the protection
of human rights, the real point is quite different. What really matters is that States
have to provide effective judicial or administrative remedies necessary to enable
victims to obtain prompt and adequate redress. Moreover, when the victims of hu-
mans rights violations are citizens of the State responsible, recourse to domestic
remedies might even prove to be the only opportunity they have to receive com-
pensation for the injury received.
The obligation to provide effective remedies starting from the domestic level was
originally established in Article 8 of the Universal Declaration of Human Rights.
Since then, it is has been included in many treaties on the protection of human rights
and the prohibition of human rights abuses like torture. Pursuant to Article 14 of
the United Nations Convention Against Torture of 10 December 1984 [e]ach State
Party shall ensure in its legal system that the victim of an act of torture obtains re-
dress and has an enforceable right to fair and adequate compensation [].
Preference for the establishment of domestic remedies available to the victims
of gross violations of human rights is afrmed in the UN Declaration on Basic
Principles of Justice for Victims of Crime and Abuse of Power, adopted by General
Assembly in 1985.53 Point A.5 of the Declaration states that [j]udicial and admin-
istrative mechanisms should be established [] to enable victims to obtain redress
through formal or informal procedures that are expeditious, fair, inexpensive and
accessible []. A similar provision is contained in paragraph I.2(b) of the already
mentioned Basic Principles adopted by the Commission on Human Rights.
A domestic remedy may also be created outside the ofcial institutions of the
responsible State. Just think of the creation of special indemnication programmes
or foundations which may receive individual claims and afford compensation for
the victims of human rights abuses.54
53
Res. 40/34.
54
This could be the case of the German Law on the Creation of a Foundation Remembrance,
Responsibility and Future of 2 August 2000, which came into force on 12 August 2000.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 191
As we have said above, when the injury has been caused to individuals the ob-
ligation to pay compensation may alternatively be implemented at the international
level. The activity of international courts, mixed tribunals, claims, conciliation or
compensation commissions may substitute or supplement lacking or insufcient
remedies at the domestic level.55
Obviously, compensation afforded at the international level is likely to take
place especially when victims are foreign and could thus benet from diplomatic
pressures by their national State.
The conict between human rights and sovereign immunity arises when no
remedies are available for the victim, or the compensation afforded is considered to
be neither adequate nor effective. In this event, the victims or their heirs tend to sue
the allegedly responsible State before the courts of the State where the violation of
fundamental human rights has occurred. There is another point to be made. Cases
must be evaluated from their inception to their conclusion and beyond, taking into
account also the solution they managed to reach outside the judicial proceedings
where sovereign immunity had been invoked. This perspective has been already
rightly highlighted in a recent article and deserves further development.56
In our opinion, the decision on whether immunity may be granted to a foreign
State must be considered part of the whole procedural phase necessary to have
the obligation to redress the victims applied. As usual, this complex phase involves
both the domestic and the international spheres.
This phase begins at the domestic level when the victims sue a foreign State
before the court of the State where the human rights violation took place. At this
stage, two opposite solutions may be possible: the judge may either grant or reject
the plea for immunity. In the rst case, the right of the victim to receive compensa-
tion would be undermined; in the second, the refusal to recognise immunity could
be challenged by the defendant State and trigger a difcult diplomatic dispute. The
reconciliation between the two conicting principles, if necessary, takes place at a
subsequent stage, i.e. at the international level.
As a rst alternative, the domestic court may uphold a plea to dismiss the pri-
vate claim on the ground of the sovereign immunity or political act doctrines. This
is likely to happen when a domestic judge ascertains that the obligation to afford
55
Internationally sponsored programmes to provide reparations to victims for harm suffered
by victims of human rights abuses is envisaged also by the UN Secretary-Generals Report on
The Rule of Law and Transitional Justice, cit. supra note 46, Chapter XVI, p. 18.
56
DE VITTOR, cit. supra note 24, espec. p. 608.
192 NOTES AND COMMENTS
compensation could be discharged in some other manner. For instance, the judge
may nd out that the States involved in the case which originated the claim for
damages have already agreed on a different, non jurisdictional means to redress the
victims. Most of the time, this means of redress is provided for at the international
level, thanks to treaties in force among the concerned States.
For a long time, some Italian scholars have upheld the recourse to this method
in order to strike the proper balance between immunity and human rights guaran-
teed by the Italian Constitution.57 They referred to this criterion as that of imple-
mentation by equivalent of a fundamental human right, which would otherwise be
completely sacriced. They have proposed this solution especially bearing in mind
the relationship between sovereign immunity and the fundamental right to judicial
protection, recognised to every person by Article 24 of the Italian Constitution.
However, the same line of reasoning could also be extended to the relations
between immunity and fundamental human rights protected by customary inter-
national law. An analogous solution seems to be behind the Corte di Cassaziones
decision on the Cermis case, where negotiations had taken place between Italy and
the United States to compensate the victims of the disaster pursuant to the London
Convention among NATO States on the status of their forces.
In this context, mention can be made also to the Princz case. The judgment of
the Court of Appeals granting immunity to Germany was balanced by the conclu-
sion of an agreement between Germany and the United States concerning benets
to certain United States nationals who were victims of National Socialist measures
of persecution.58
It might be complained that courts do not verify often enough, and more ac-
curately, whether individuals do have an alternative method to satisfy their claims
before recognising jurisdictional immunity to a foreign State.
Secondly, the victims may have no other actual means to obtain redress than
addressing their claim to the domestic judge. We think this is exactly the situation
where a courts denial of sovereign immunity would not amount to an internation-
ally wrongful act, provided that the foreign States responsibility is beyond doubt.
The denial of immunity would, in turn, correspond to the domestic phase which of-
ten takes place when the interests of individuals are protected by international law.
However, it is unlikely that the victims of a breach of fundamental human rights
would obtain compensation exclusively before national judges. As we have already
stated, not all the aspects of the human right-tort exception have been fully clari-
57
PISILLO MAZZESCHI, Immunit giurisdizionale delle organizzazioni internazionali e
Costituzione italiana, RDI, 1976, p. 489 ff.; CONDORELLI, Le immunit diplomatiche e i prin-
cipi fondamentali della Costituzione, Giur. Cost., 1979, I, p. 455 ff.; CONFORTI, cit. supra note
26, pp. 296-297. With specic reference to the Ferrini judgment: BARATTA, cit. supra note 1, p.
1203; DE SENA, Immunit degli Stati, cit. supra note 1, p. 264.
58
Bonn, 19 September 1995, ILM, 1996, p. 193 ff.
THE FERRINI JUDGEMENT OF THE ITALIAN SUPREME COURT 193
59
After the judgment of the Court of Appeals afrming the United States jurisdiction in the
Siderman case, Argentina accepted to pay damages to the Siderman family: New York Times, 14
September 1996, p. 6.
60
As is well known, the Letelier case ended with an agreement between United States and
Chile, whereby Chile accepted to pay damages for the deaths of Letelier and Moft. The text of
the agreement is published in ILM, 1992, p. 3 ff.
61
On these problems see DE VITTOR, cit. supra note 24, pp. 608-617.
BALANCING THE HUMAN RIGHT TO HEALTH
AND INTELLECTUAL PROPERTY RIGHTS AFTER DOHA
VALENTINA VADI*
*
J.D. University of Siena, MJur. University of Oxford, MPol.Sc. University of Siena, PhD
candidate European University Institute, legal practitioner.
1
See FIDLER, Trade and Health: The Global Spread of Diseases and International Trade,
GYIL, 1997, p. 354 ff.
2
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),
Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, 33 ILM
1994, p. 1197 ff., in force since 1 January 1995.
3
Around the world 42 million people live with HIV/AIDS. See the UN Secretary General
Report Access to Medication in the Context of Pandemics such as HIV/AIDS, 16 January
2003, Doc. E/CN.4/2003/48, p. 2 ff.
4
ABBOTT (Negotiations in the WTO TRIPS Council pursuant to paragraph 6 of the
Ministerial Declaration on the TRIPs Agreement and Public Health, World Bank Seminar,
Washington DC, 2003) quotes Lao Tzu: To be overbearing when one has health and position is
to bring calamity upon oneself (Tao Te Ching, Book I, Chapter IX).
5
For a suggestive inquiry on the historical importance of infectious diseases, see FIDLER,
International Law and Infectious Diseases, Oxford, 1999.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 195-223
196 NOTES AND COMMENTS
to human dignity, life and development. On the other, Intellectual Property Rights
(hereinafter IPRs) have been highly controversial since their inception in the phar-
maceutical eld.
The argument in this section will proceed in three parts. First, we will briey
make explicit the conceptual continuity that unites the access to essential drugs and
the right to health, examining the legal content of this right. The second part of this
section will put forward a denition of IPRs and some theoretical parameters will
be set. In the third and last part of this section, some of the implications of such a
conceptualization will be explored briey.
Importantly, access to essential drugs6 and the right of States to protect public
health are not two different rights;7 on the contrary, promoting access to medicines
constitutes an element of States sovereign right to protect public health.8 But, what
is the right to health? Do we have a moral right to health? Do we have a legal right
to health?
According to ethical justications of human rights, human dignity makes
human rights a moral necessity.9 At a legal level, the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health is an
economic right, which States are obliged to full gradually, in a manner compatible
with their economic and structural capabilities.
Indeed some authors have asserted that the right to health already belongs
to customary international law.10 Actually, the right to health is undoubtedly
included in a large number of treaties11 and other instruments of international
6
Essential medicines are those that save life, satisfying the priority health care needs of
the population and which should therefore be available at all times, in adequate amounts and at
a price the community can afford. WHO, The Use of Essential Drugs, WHO Technical Report
Series 895, Geneva, 2000.
7
See OTERO GARCA-CASTRILLN, An Approach to the WTO Ministerial Declaration on
the TRIPS Agreement and Public Health, JIEL, 2002, pp. 212-219; ACCONCI, Laccesso ai
farmaci essenziali. DallAccordo TRIPS alla Dichiarazione della Quarta Conferenza Ministeriale
OMC di Doha, CI, 2001, pp. 637-664.
8
For the denition of health, see the Preamble to the Constitution of the World Health
Organization according to which health is a state of complete physical, mental and social well-
being and not merely the absence of disease or inrmity.
9
See, for instance, General Assembly Resolution 58/173 adopted on 10 March 2004 (Doc.
UN A/RES/58/173).
10
See ABBOTT, WTO TRIPS Agreement and Its Implications for Access to Medicines in
Developing Countries, Study Paper for the British Commission on Intellectual Property Rights,
Geneva, 2002, pp. 56-57.
11
Article 12 of the International Covenant on Economic, Social and Cultural Rights (UNGA
Resolution 2200 (XXI), 16 December 1966, entered into force on 3 January 1976 (UNTS, Vol.
999, p. 171), obliges States to respect, protect and full the right of everyone to the highest at-
tainable standard of health. The UN Committee on Economic, Social and Cultural Rights has
further set out the content of the right to health in its General Comment No. 14 on the Right to
the Highest Attainable Standard of Health adopted on May 2000 (Doc. E/C.12/2000/4).
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 197
relevance.12 The right to health is also recognized in regional human rights trea-
ties13 and in over 60 national constitutions. In particular, in some jurisdictions,
constitutional provisions on the right to health have generated signicant juris-
prudence. The willingness of courts to adjudicate on matters involving this socio-
economic right is gradually establishing the justiciability of the right14 Indeed,
human rights cases, combined with increasing attention from public opinion, can
lead to actual changes in government policy.15 This empirical component is fasci-
nating: once more, normative gaps have been lled by court interpretation, while
jurisdictional trends have inspired the international law-making process.
Turning now to IPRs, this concept indicates the inventors rights to the recog-
nition and economic exploitation of a given idea. As Thomas Jefferson wrote in a
1813 letter to Isaac McPherson, an inventor from Baltimore,
If nature has made any thing less susceptible than all others of ex-
clusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to
himself; but the moment it is divulged, it forces it into the possession
of everyone [].16
12
Article 25 of the 1948 Universal Declaration of Human Rights (Doc. UNGA Res. 217 A
(III), adopted on 10 December 1948) (hereinafter UDHR) afrms the human right to a standard
of life adequate for the health of the individual.
13
See, for instance, Article 16 of the African Charter of Human and Peoples Rights (entered
into force on 21 October 1986, ILM, 1982, pp. 58-68).
14
In the Viceconte case (Viceconte, Mariela Cecilia v. Argentine Ministry of Health & Social
Welfare, Case No. 31.777/96, 1998, Poder Judicial de la Nacin) the Argentine court ordered
the national government to manufacture and distribute vaccines against a neglected disease, the
Haemorrhagic Fever. The Court referred specically to the right to health contained in Article
25 of the UDHR and Article 12 of the International Covenant on Economic, Social and Cultural
Rights.
15
For instance, in its recent decision Treatment Action Campaign v. Minister of Health
(available at http://www.cptech.org) the Constitutional Court of South Africa held that the South
African Constitution requires the State to full the right of pregnant women and their children to
access to health services which combat the mother-to-child transmission of HIV.
16
See JEFFERSON, Letters, Washington, 1972, p. 629 ff., quoted by DAVID, Le istituzioni
della propriet intellettuale e il pollice del panda Brevetti, diritti dautore, e segreti industriali
nella teoria economica e nella storia, in CLERICO and RIZZELLO (eds.), Diritto ed economia
della propriet intellettuale, Padova, 1988, pp. 9-81.
17
See JEFFERSON, ibidem, p. 630 ff.
198 NOTES AND COMMENTS
the inventor and the public aim of promoting research, therefore enhancing human
welfare. Patents are considered particularly essential to certain industries, such as
the pharmaceutical sector, because of the high costs incurred by manufacturers in
testing, developing and getting approval for new drugs. The monopoly created by
the grant of a pharmaceutical patent from relevant authorities allows the inventor
to recover costs and helps stimulate further research. Still, from a functional angle,
IPRs are meant to serve as the nal disclosure of a certain process or product.
Indeed, after the expiration of the patent, the knowledge is owned by the public.
From an historical perspective, the history of arts and crafts shows that without
patent protection, there would be no incentive to public disclosure of a given new
technique.18
Adopting a critical approach toward pharmaceutical patents, developing coun-
tries put forward a series of arguments. Firstly, they claim that pharmaceutical pat-
ents restrain competition, setting high prices and obstructing access to medicines
for the poor. Secondly, they argue that, although pharmaceutical products are com-
mercial goods, they should be considered distinct from other consumer products,
due to their nature as essential instruments to health. Indeed, the critical approach
which considers patents as obstacles to competition was widespread in many
European countries during the XIX century.19 Indeed, as a result of their particular
characteristics, pharmaceutical patents have not always been recognized. In Italy,
for example, medicine has become patentable subject matter only since Case No.
20, decided by the Constitutional Court on 20 March 1978.20 In this case, the Court
declared Article 14 of the Italian Patent Law (1939), which prohibited pharma-
ceutical patents, as inconsistent with Articles 9 and 32 of the Italian Constitution,
which are designed to afrm the public interest in the promotion of health, by
means of scientic research.
A third hypothesis considers IPRs human rights instrumental to the develop-
ment of essential medicine, and therefore to the protection of human health and
life. Paradoxically, the nality of IPRs creates limits to the right of the inventor to
the exclusive economic exploitation of his invention. Indeed, the monopoly rights
granted to an inventor do not have an absolute character, but are limited in time
and conditioned on adequate commercialisation of the given product. If the patent
18
In the Middle Ages professions and the relative knowledge were not open to everybody,
but strictly transmitted from father to son. For centuries manufacturing techniques were owned
by a single family or by the artisans of a single city or region. See, for instance, KYBALOV,
HERBENOV and LAMAROV, Enciclopedia illustrata del costume, Milano, 1988, p. 113 ff., and
HAUSER, Sozialgeschichte der Kunst und Literatur, Italian edition (Storia sociale dellarte), I,
Torino, 1955, pp. 272-273.
19
See PACON, What Will TRIPS Do for Developing Countries?, in BEIER and SCHRICKER
(eds.), From GATT to TRIPs The Agreement on Trade-Related Aspects of Intellectual Property
Rights, Mnich, 1991, p. 356 ff.
20
Reproduced in Rivista di diritto industriale, 1978, pp. 3-10.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 199
owner does not full his obligations, the IPRs system provides for ad hoc remedies.
Where administered in a proper manner in light of their purposes, IPRs are thus
human rights instrumental to the realisation of other fundamental human rights. As
both IPRs and other human rights coexist with self-standing legitimacy, it is neces-
sary to explore the extent to which human rights standards can and should inuence
the interpretation of intellectual property norms. As Cottier points out, it seems
important to consider the relationship of IPRs and human rights not so much as a
relationship of subordination, but one of co-ordination.21 In other words, further
debate should move from discussion of the IPR system per se to the ways in which
IPRs may be adequately balanced with other human rights.
Finally, an interesting point of discussion is whether and the extent to which
IPRs are part of the panoply of human rights that individuals enjoy.22 As the
international IPRs system is highly sophisticated, discussion of its foundations
seems to be crucial in our search for balance. Indeed, IPRs are protected, at times
by constitutional provisions, in many legal systems.23 At the international level as
well as at the regional one24 references to IPRs in human rights instruments are
not extensive, however. Explicit reference to IPRs can be found in the Universal
Declaration of Human Rights (UDHR)25 and the International Covenant on
Economic, Social and Cultural Rights. In particular, Article 15 of the International
Covenant on Economic, Social and Cultural Rights identies the need to protect
both public and private interests to intellectual property.26 States are bound to es-
tablish intellectual property rights systems in order to strike a balance between
21
See COTTIER, The General Relationship of Intellectual Property, Human Rights and
Sustainable Development, paper presented at the international workshop on The Impact of
Biotechnologies on Human Rights, European University Institute, Florence, 25 October 2004
(on le with the author).
22
Ibidem, p. 8 ff.
23
Article 1, Section 8, paragraph 8 of the Constitution of the United States of America states
that The Congress shall have power to promote the progress of science and useful arts, by secur-
ing for limited times to authors and inventors the exclusive right to their respective writings and
discoveries.
24
At a regional level, e.g., Art. 14 of the Protocol of San Salvador recognizes the right of
everyone to enjoy the benets of scientic and technological progress as part of the right to the
benets of culture.
25
Article 27(2) of the UDHR states that Everyone has the right to the protection of the
moral and material interests resulting from any scientic, literary or artistic production of which
he is the author.
26
Article 15(1)(b)(c) of the International Covenant on Economic, Social and Cultural Rights
proclaims the right of everyone to enjoy the benets of scientic progress and its applications
and to benet from the protection of the moral and material interests resulting from any scien-
tic, literary or artistic production of which he is the author. Paragraph 2 of the same article
further states: The steps to be taken by the States Parties to the present Covenant to achieve the
full realization of this right shall include those necessary for the conservation, the development
and the diffusion of science and culture.
200 NOTES AND COMMENTS
promoting general public interest in accessing new knowledge and the protection
of authors and inventors interests. Such a balance should have the primary objec-
tive of promoting and protecting human rights, as Article 5 of the same Covenant
states that nothing in the Covenant can justify any act aimed at the destruction of
any of the rights recognized therein or at their limitation to a greater extent than is
provided for in the Covenant.
Hence, it seems possible to argue that the international IPRs system is grounded
in human rights. In my opinion, denying the value of IPRs as human rights would
take away from their fundamental goal, which is to promote both technological
progress and knowledge diffusion for the benet of human welfare. This should
help us move the debate from the IPRs system per se to the ways IPRs can be ad-
equately balanced with other human rights.
The TRIPS Agreement was adopted in 1995 at the end of the Uruguay Round.
While the 1883 Paris Convention27 had been fairly liberal in protecting IPRs,28 the
standards of protection provided by TRIPS are very strict.29 The debate on phar-
maceutical patent protection between developed and developing countries has thus
been intensied since its entry into force.
As per the minimum standard mentioned in the TRIPS Agreement, a patent
shall be granted for any inventions whether products or processes in any eld of
technology, provided that they are new, involve an inventive step and are capable of
industrial application without any discrimination. Accordingly, patents now have
to be granted in all areas, including pharmaceuticals; and the effective period of
protection is for twenty years from the date of ling.
Another important novelty introduced by the TRIPS Agreement is that States
can now bring actions against other States before the Dispute Settlement Body
(hereinafter DSB) in order to protect the rights of their citizens against unauthor-
ized use of their IPRs abroad. Moreover, the DSB can produce binding decisions:
27
The Paris Convention is the oldest treaty governing the protection of intellectual property
and it is still in force.
28
Under this convention, contracting States were free to determine the standards of protec-
tion, the subject matter of protection and the period of protection. Thus, there was maximum
divergence in the protection of innovations in the pharmaceutical sector. Several countries nei-
ther protected the processes of manufacturing a drug, nor the nal drug. Other countries adopted
process patents only. Then, the same drugs could be produced by an alternative method or proc-
ess during the protection period.
29
Although the TRIPS sets only detailed minimum standards, leaving a Member State free
to set standards of protection higher than those adopted by the Agreement itself, the standards
provided are the same as those applied in the majority of the industrialised countries.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 201
the defendant State, after losing on appeal, cannot block the implementation of the
decision unless the DSB decides, by consensus, to reject the request.
As stated explicitly in Article 7, the TRIPS Agreement attempts to strike a bal-
ance between the long-term objective of providing incentives for future inventions
and the short-term objective of allowing people to use existing inventions and crea-
tions.30 Hence, it provides for a number of exible elements, such as limited excep-
tions (Article 30) and compulsory licensing (Article 31). Further, under Article 8 of
the Agreement, Member States can adopt measures necessary to protect public health,
provided that such measures are consistent with other provisions of the Agreement.
In particular, relevant exceptions under Article 30 include, inter alia, prepara-
tion of medicine for individual prescription, use of the invention for research or
teaching, prior use and the Bolar exception.31 Three requirements must be fullled
in order to invoke this section: the exception must be limited in time and must not
unreasonably conict with the normal exploitation of the patent, nor unreasonably
prejudice the legitimate expectations of the patent owner.32
Article 31 of the TRIPS Agreement further allows for use other than that per-
mitted under Article 30, that is to say compulsory licenses. Compulsory licenses
are not, in fact, exceptions but authorizations: a third party can be admitted by com-
petent public authorities to make, use or sell a patented invention without the patent
owners consent for reasons of public policy, such as to protect public health. Such
licensing will be permitted only if twelve restrictive preconditions are fullled;33
each case has to be examined on its individual merits.
Evidence that the authorization will be used to produce the product predomi-
nantly for the supply of the countrys domestic market is one of these preconditions.
30
Article 7 of the Agreement states: The protection of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological knowledge and in a
manner conducive to economic and social welfare, and to a balance of rights and obligations.
31
The Bolar exception permits generic manufacturers, without the authorization of the pat-
ent holder, to develop the product and to submit it to regulatory authorities for market approval
in order to market the product immediately after the expiration of the patent.
32
In the recent case Canada Patent Protection of Pharmaceutical Products (WT/DS114/R,
2000, available at the WTO web site: http://www.wto.org) the WTO panel held that the Canadian
law was not consistent under the TRIPS Agreement, as Canada was not only authorizing registra-
tion procedures, but also the right to manufacture and stockpiling before patent expiration.
33
First of all, the proposed user shall make reasonable efforts to obtain authorization from
the right holder of the patent on reasonable commercial terms. If such efforts are not success-
ful within a reasonable period of time this requirement may be waived in the case of national
emergency or extreme urgency the grant of compulsory licenses is then conditioned by a series
of procedural conditions. For instance, a condition is the payment to the patent holder of adequate
remuneration taking into account the value of the authorization. The scope and the duration of the
licence must be then limited to the purpose for which it was authorized and the authorization shall
be liable to termination at any time if the circumstances which led to the grant cease to exist, sub-
ject to adequate protection of the legitimate interests of the persons authorized to use the patent.
202 NOTES AND COMMENTS
The problem here is that only a few developing countries have the manufacturing
capacity to produce signicant quantities of off-patent generic drugs. While the
wording of Article 31(f) would permit some exports, these may be only of a limited
scale and only to countries that do not have pharmaceutical industries themselves.
Even though, de iure, the Agreement includes some exibility, problems have
arisen in practice34 upon the actual implementation of particular clauses, due to
de facto fear of retaliation measures. If the procedures of the Dispute Settlement
Understanding (DSU)35 subject States to multilateral surveillance, thus making
developing countries and least developed countries (hereinafter LDCs) less vulner-
able to bilateral confrontation, the new DSU has nevertheless introduced the possi-
bility of cross-retaliation: if a country successfully complains about the practices of
another WTO Member in one sector, it might be authorized to retaliate in another.
In other words, if a developing country were to protect IPRs inadequately, it might
face cross-retaliatory restriction on its exports of goods, with grave consequences
for its economy. For instance, countries like the United States have persistently
threatened to impose trade sanctions against States granting compulsory licenses.
In particular, section 301 of the US Trade Act of 1974 authorizes the United States
Trade Representative to take retaliatory measures against foreign trade practices
the United States deems unfair. In practice, the United States could unilaterally
decide whether its rights were violated. It should be mentioned that the EU chal-
lenged this provision at the WTO36 without obtaining any concrete result.
The spread of infectious diseases poses an enormous threat to life, health, dig-
nity and development in many developing countries today. The WHO has called
this phenomenon a global crisis that requires global co-operation. Indeed, over the
past decades, many important developments in molecular biology and biotechnol-
34
Periods of transitional relief vary according to the beneciarys status as either a devel-
oping country or a least-developed country. See TRIPS Agreement, Articles 65(1)(2) and 66.
Developing countries may postpone the implementation of the Agreement for a period of ve
years, and even ten years, with respect to elds of technology previously excluded under their
domestic patent law. LDCs have 11 years since the date of the entry into force of the WTO
Agreement, but in case of hardship, they can obtain further concessions. During the Ministerial
Conference held at Doha in 2001, such a transitional period was extended to 2016. However,
during the transitional period, both DC and LDC are not allowed to relax their protection of IPRs
and pharmaceutical patents must obtain at least ve years of exclusive marketing rights, even in
those developing countries that did not grant patents in these elds.
35
1994 Understanding on Rules and Procedures Governing the Settlement of Disputes
(DSU), Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, ILM,
1994, p. 1125 ff, in force 1 January 1995.
36
United States Sections 301-310 of the Trade Act of 1974, WT/DS152/R, 2000.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 203
ogy have created or improved techniques to prevent, treat or cure a wide variety of
diseases. However, since providing poor consumers in developing countries with
essential drugs is less attractive than other commercial opportunities, the pharma-
ceutical industry has directed a minute fraction of its research expenditure toward
products vital to the markets of developing countries.37 In particular, those diseas-
es that affect almost exclusively poor and powerless people living in rural parts of
low-income countries38 such as tuberculosis and malaria still remain relatively
under-researched.39 The pharmaceutical products related to neglected diseases are
consequently called orphan drugs. According to the WHO questions remain as
to whether the patent system will ensure investment for medicines needed by the
poor.40
Furthermore, despite the creation and improvement of new therapies and medi-
cation, infectious diseases remain the largest contributor to mortality in developing
countries and LDCs, since high prices limit access to essential drugs.
Recently, the South African case, amongst others, has increased the public
awareness on the problem of the access to essential drugs. Indeed, in response to
the HIV/AIDS epidemic in South Africa, the Government enacted the Medicines
and Related Substances Control Amendment Act of 1997, adding Section 15 C to
the 1965 Medicine and Related Substances Control Act. The aim of the law was to
guarantee access to essential medicines through parallel imports and compulsory
licenses. In light of large and continuing economic disparities within South Africas
population, the purpose of the Act was to enforce the principle of equality,41 by
ensuring access to essential drugs for the whole population.42
37
See, for instance, HUNT, Neglected Diseases, Social Justice and Human Rights: Some
Preliminary Observations, Health and Human Rights Working Paper, Series No. 4, Geneva,
2003, p. 6 ff.
38
WHO, Global Defence Against the Infectious Disease Threat, Geneva, 2002, p. 96 ff.
39
LANJOUW, Intellectual Property and the Availability of Pharmaceuticals in Poor
Countries, Innovation Policy and the Economy, 2002, pp. 9-25.
40
Drahos, Human Rights, Globalization and Intellectual Property Rights, paper presented
at the Workshop on International Trade, Finance and Investment and Economic, Social and
Cultural Rights, Geneva, 6 May 2000 (on le with the author).
41
Section 9(1) of the South African Constitution provides that [E]veryone is equal before
the law [...]. The second paragraph further states that [E]quality includes the full and equal
enjoyment of all rights and freedoms to promote the achievement of equality; legislative and
other measures designed to protect or advance persons or categories of persons, disadvantaged by
unfair discrimination may be taken. Therefore, the Constitution requires not only formal equity,
but also a substantial one. See DAVIS, Equality and Equal Protection, in VAN WYK, DUGARD,
DE VILLIERS and DAVIS (eds.), Rights and Constitutionalism, Cape Town, 1994, pp. 196-211.
42
Indeed, the Medicines Act originates from the period after South Africas rst democratic
elections in 1994 and directly derives from the overwhelming concern of the rst post-apartheid
government to inject social justice into health care provision [...], Government of South Africa,
Department of Health, Brieng Document: Defending the Medicines Control Amendment Act,
Pretoria, 2 March 2001, p. 4 ff., available at http://www.afrol.com.
204 NOTES AND COMMENTS
Many authors have studied and proposed possible instruments to enable develop-
ing countries to deal with the spread of global diseases. My point here will be that a
single scheme is not enough and that a multi-layered strategy is necessary instead.
A preliminary remark is that whilst national governments have primary re-
sponsibility for the health of their citizens, all countries should co-operate in a
spirit of partnership to ensure primary health care for all. In fact the attainment or
maintenance of health by people in any one country directly concerns and benets
every other country.44
At the IPRs level, in Doha, Ministers agreed that the TRIPS Agreement
[...]can and should be interpreted and implemented in a manner supportive of WTO
Members right to protect public health and, in particular, to promote access to
medicines for all.45 Thus, WTO Members have the right to use the exibility pro-
visions of the TRIPS Agreement to the full for this purpose. Among these exibility
elements, compulsory licensing has a primary role. While it has positive effects on
access to drugs in the short term, it could destroy incentives for research in the long
one, eventually encouraging a culture of intellectual piracy.
Further, the TRIPS Council recently adopted a waiver46 upholding the appli-
cation of Article 31(f) for LDCs and developing countries with insufcient or no
43
South African Pharmaceutical Manufacturers Association v. the Government of South
Africa, Case No. 4183, 1998, High Court of Pretoria, available at http://www.cptech.org.
44
The Declaration of Alma Ata was adopted by the International Conference on Primary
Health Care on 12 September 1978.
45
Declaration on the TRIPS Agreement and Public Health, IV Ministerial Conference,
Doha, (WT/MIN(01)/DEC/W/2), 20 November 2001, para. 4.
46
Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS
Agreement and Public Health of the 30 August 2003 adopted by the TRIPS General Council
(WT/L/540).
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 205
47
Frank P. Ramsey (1903-1930) was the rst to elaborate the theory. The application of this
theory to the drugs markets have been proposed by several economists during the 1990s. See, for
instance, DANZON, Pharmaceutical Price Regulation: National Policies versus Global Interests,
Washington, 1997.
48
The so-called national exhaustion treats intellectual property rights as exhausted only
within the boundaries of a given State: buyers must comply with these rights in every other coun-
try. For this reason, national exhaustion forbids parallel imports. On the contrary, international
exhaustion treats intellectual property rights as exhausted throughout the world, after the rst
sale.
49
Within the EU, there exists a system of regional exhaustion, as the European Court of
Justice found that national exhaustion was contrary to the principle of freedom of movement
of goods, one of the distinguishing pillars of the Common Market (see, for instance, Case C-
9/93, IHT v. Ideal Standard, ECR, 1994, p. I-2789 ff.). Therefore, parallel imports are allowed
throughout the territory of EU Members, but Member States may block parallel imports from
outside. See BRONCKERS, WTO Implementation in the European Community Antidumping,
Safeguards and Intellectual Property, JWT, 1995, pp. 88-95.
50
Burton termed this provision an agreement to disagree. See BURTON, Differentiated
Pricing of Patented Products, paper No. WG4:2, in WHO Commission on Macroeconomics and
Health, Working Paper Series, Geneva, 2001.
51
This phenomenon is also known as the grey market because, while it does not count as
counterfeiting, it does circumvent the consent of the patent holder.
206 NOTES AND COMMENTS
In recent years, the private sector has increasingly played an important role
in the economic and social sphere. Indeed, transnational corporations54 have the
capacity to foster economic development and transfers of technology, as well as to
cause harm to human rights and to the lives of individuals. Although international
human rights law traditionally imposes obligations on States, it has recently con-
sidered the role played by non-State actors.55 In particular, the private sector plays
a crucial role in the promotion and protection of the right to health.56
At the normative level, it is worth mentioning, inter alia, the Tripartite
Declaration of Principles Concerning Multinational Enterprises and Social Policy,57
the OECD Guidelines for Multinational Enterprises58 and the United Nations
52
Marrakesh Agreement Establishing the World Trade Organization, ILM, 1994, p. 1200 ff.,
in force 1 January 1995.
53
Doha Ministerial Declaration adopted on 14 November 2001 (WT/MIN(01)/DEC/1).
54
The term transnational corporation refers to an economic entity operating in more than
one country or a cluster of economic entities operating in two or more countries whatever their
legal form.
55
See ALKOBY, Non-State Actors and the Legitimacy of International Environmental
Law, Non-State Actors in International Law, 2003, pp. 23-98; HONGJU KOH, Complementarity
Between International Organisations on Human Rights/The Rise of Transnational Networks as
the Third Globalisation, HRLJ, 2001, pp. 307-310, and CULLEN and MORROW, International
Civil Society in International Law: The Growth of NGO Participation, Non-State Actors and
International Law, 2001, pp. 7-39.
56
See HUNT, cit. supra note 37, p 11 ff.
57
Tripartite Declaration of Principles Concerning Multinational Enterprises and Social
Policy, adopted by the Governing Body of the International Labour Ofce, Geneva, 1977.
58
Guidelines for Multinational Enterprises of the Organization for Economic Co-operation
and Development.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 207
Furthermore, the Norms state that transnational corporations and other busi-
ness enterprises [...] are also obligated to respect generally recognised responsibili-
ties and norms contained in United Nations treaties and other international instru-
ments.62 The Norms further state that:
59
United Nations Global Compact, available at http://www.unglobalcompact.org.
60
Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights, adopted on 13 August 2003 by the UN Sub-
Commission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub/2003/
12/Rev.2, 2003.
61
Ibidem, preamble, paragraph 3.
62
Ibidem, preamble, paragraph 4.
63
Ibidem, preamble, paragraph 3.
64
Cf. SULLIVAN, NGO Expectation of Companies and Human Rights, Non-State Actors
and International Law, 2003, pp. 303-322.
65
See ROSENTHAL and GOMERO, Families Appeal to Secretary General Ko Annan to
Exclude Bayer from the UN Global Compact, paper available at http://www.corpwatch.org (last
visited November 2004).
208 NOTES AND COMMENTS
There are examples of domestic legislation which have been used to address
the policies of transnational corporations. Evidence suggests that the United States
judicial system is already being used to pursue corporate accountability in the
global marketplace. Indeed, the 1789 Alien Tort Claims Act (ATCA) provides for-
eigners who suffer human rights injuries outside the United States with a federal
forum through which pursuing their claims.66 In a further example, the Competition
Commission of South Africa recently found respondents, in the case Hazel Tau v.
GlaxoSmithKline and Boehringer Ingelheim, in breach of the South African 1998
Competition Act67 for excessive pricing of antiretrovirals and for abuse of domi-
nant position in their respective markets.68
The Doha Ministerial Declaration and the Doha Declaration on the TRIPS
Agreement and Public Health, both adopted on 14 November 2001, marked a
turning point in the question of public health, by integrating the TRIPS Agreement
into the international strategy addressing public health emergencies. Indeed these
declarations represent a signicant milestone.69 Not only was a new round of ne-
gotiations launched named the Development Round but the parties involved
undertook a new approach to the problem of balancing the right to health and the
protection of IPRs.
The tragic events of 11 September surely had a decisive impact on the outcome
of Doha.70 As the concrete bio-terror threat caused public health emergencies in
many industrialized countries, several of them granted compulsory licences on
Ciprobay, an antibiotic composed of ciprooxacin, supposedly the most effective
drug against anthrax. The affair illustrated once more that health is a common
concern of humankind and caused most industrialized countries to rethink their
pharmaceutical politics. It became clear that under well-dened circumstances,
66
See ACQUAVIVA, Verso una responsabilit delle multinazionali per gravi violazioni dei
diritti umani?, CI, 2002, pp. 593-611; CHEPESIUK, Human Rights: Can Multinationals Be Held
Accountable?, The Daily Star, 20 November 2004; and SEBOK, Is The Alien Tort Claims Act a
Powerful Human Rights Tool?, 12 July 2004, available at http://www.cnn.com.
67
South Africa Competition Act, Act No. 89 of 1998, available at http://
www.comptrib.co.za.
68
Competition Commission Media Release No. 29/2003, 16 October 2003, available at http:
//www.compcom.co.za. On the same day of this nding, the Competition Commission concluded
a settlement with GlaxoSmithKline, and voluntary licences to generic manufacturers were issued,
thus reducing the price of an essential part of the HIV/AIDS treatment (Competition Commission
Media Release No. 33 of 2003, 16 October 2003, available at http://www.compcom.co.za).
69
Cf. SUN, Reshaping the TRIPS Agreement Concerning Public Health: Two Critical
Issues, JWT, 2003, pp. 163-197.
70
See ABBOTT, cit. supra note 4.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 209
such as health emergencies, governments must have the ultimate power to set up
compulsory licensing systems and admit parallel imports.
Recognizing the gravity of the public health problems aficting many develop-
ing and least-developed countries, the Ministers involved agreed that [t]he TRIPS
Agreement does not and should not prevent Members from taking measures to
protect public health, but it can and should be interpreted and implemented in
a manner supportive of WTO Members right to protect public health and, in par-
ticular, to promote access to medicines for all.71 Therefore, WTO Members have
the right to use to the full, the provisions in the TRIPS Agreement which provide
exibility for this purpose.72
This exibility ensures, in part, the freedom to determine the grounds upon
which such [compulsory] licences are granted73 and a margin of appreciation
in what constitutes a national emergency or other circumstances of extreme ur-
gency.74 Moreover, the Ministers afrmed that each Member is free to establish
its own regime for the exhaustion of intellectual property rights subject to MFN
and national treatment provisions, as already provided by Article 6 of the TRIPS
Agreement in an implicit manner.
Finally, paragraph 6 of the Declaration entrusted the TRIPS Council with the
task of seeking a solution to the problem of application of compulsory licensing by
Members with insufcient manufacturing capacities by December 2002. According
to the Decision on Implementation-Related Issues and Concerns, Members will not
initiate complaints under the TRIPS Agreement.75
The text of the Doha Declaration clearly reafrms the exibility already con-
tained in the TRIPS Agreement; however, there is no common agreement with
regard to its legal status.76 Some authors are convinced that, its relevant practical
implications notwithstanding, it would be merely a political document with am-
biguous and possibly insignicant legal implications,77 a moral commitment by
trade ministers, analogous to G-7 Declarations.
On the other hand, many consider the Declaration to be a binding decision by
Members under Article IX:1 of the WTO Agreement,78 or a subsequent agreement
between parties on the interpretation of the treaty and the application of its provi-
71
Declaration on the TRIPS Agreement and Public Health, para. 4.
72
Ibidem.
73
Ibidem, para. 5.
74
Ibidem.
75
Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/
MIN(01)/17, para. 11.1.
76
See CHARNOVITZ, The Legal Status of the Doha Declaration, JIEL, 2002, pp. 207-211.
77
See SCHOTT, Comment on the Doha Ministerial, JIEL, 2002, pp. 191-219.
78
Article IX(2) of the Marrakesh Agreement Establishing the World Trade Organization
dealing with decision-making states: The Ministerial Conference and the General Council shall
have the exclusive authority to adopt interpretations of [] the Multilateral Trade Agreements
[in Annex 1] [].
210 NOTES AND COMMENTS
sions within the meaning of Article 31(3)(a) of the Vienna Convention on the Law
of Treaties.79 According to this view, the Ministerial Conference exercised its con-
stitutional authority to determine the application of WTO law. The Doha Ministerial
Declaration could be said to represent an ofcial interpretation of some of the relevant
provisions of the TRIPS Agreement, under Article XI:2 of the WTO Agreement.80
In conclusion, although the legal status of the Doha Declaration remains un-
clear, it is undeniable that the Declaration has had a substantial impact, as it created
an atmosphere81 of co-operation.
The implementation of paragraph 6 of the Doha Declaration has been very con-
troversial, given its sensitive nature. In the end, the Decision adopted by the TRIPS
General Council on 30 August 2003, named Perez Motta after the former chairman
of the Council, upheld the application of Article 31(f) for LDCs and developing
countries with insufcient or no manufacturing capacity, permitting them parallel
imports of pharmaceutical products. If the pharmaceutical product is patented in
the importing country, two compulsory licenses must be issued, one to the export-
ing country, the other to the importing country. Remuneration of the compulsory
license is to be paid only by the exporting country. Where the product in question
is not patented in the importing country, only a compulsory licence for export is
required, a so-called cross country compulsory license.
The Decision includes substantial safeguards against trade diversion and, also,
rules to ensure transparency. Members recognize that the system established by the
Decision should be used in good faith, for the protection of public health and not for
the pursuit of industrial or commercial policy objectives. Indeed, the Decision was
adopted by the General Council in the light of a signicant statement read out by the
Chairman.82 Importing countries must take reasonable and proportionate measures
to prevent re-exportation, according to their means and administrative capacities. At
79
Cf. ABBOTT, The Doha Declaration on the TRIPS Agreement and Public Health: Lighting
a Dark Corner at the WTO, JIEL, 2002, p. 491 ff.; SHANKER, The Vienna Convention on the
Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the
TRIPS Agreement, JWT, 2002, pp. 721-772.
80
See MATSUSHITA, SCHOENBAUM and MAVROIDIS, The World Trade Organization,
Oxford, 2003, p. 422 ff.
81
See HORLICK, Over the Bump in Doha, JIEL, 2002, pp. 195-202.
82
Statement of the Chairman, reproduced in the minutes of the General Council as WT/GC/
M/82. This statement conrms that the primary objective of the Perez Motta text is to protect
public health and should be used in good faith. Although this statement does not change in any
respect the text of the decision, it is of key political importance as it conrms the intent of the
parties to adhere to the system and so restores the mutual condence of Members that the system
will be implemented in good faith.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 211
the same time, exporting countries must compel the beneciary company to export
its entire production to the country in need and to clearly identify the relevant drugs
through labelling or marking and through special colouring of the products them-
selves.83 Finally, the system requires prior notication of the TRIPS Council.84
Legally, the Decision takes the form of a provisional waiver transitory per-
mission allowing WTO Members not to comply with normal commitments85 that
will last until amendment of Article 31 of the TRIPS Agreement. While all WTO
Members have the right to export generic drugs, some developed Members86 will
not use the system as importers. Similarly, high income developing countries87 and
new EU Member States88 stated that they would not use the system as importers
except in exceptional circumstances.
In essence, as an author wrote, the waiver provides to the poorest countries
the right to issue meaningful compulsory licenses [...]. In an important sense this is
about policy equity.89 Provided that compulsory licensing is preferable both mor-
ally and pragmatically to the alternatives, notably the offered price cuts and drug
donation schemes,90 it could well play an integral role in a wider strategy.91
83
For instance, Novartis has used different trademark names, one Riamet for an anti-malarian
drug provided to developing countries, the other Coartem for the same drug sold to the developed
countries.
84
Notication does not mean authorisation; the purpose of the notication is merely to
ensure transparency and information. The notication must specify the name and expected quan-
tities of the product(s) needed. As well, it should conrm that the importing Member has insuf-
cient or no manufacturing capacity in the relevant pharmaceutical sector and that it has granted
or intends to grant a compulsory licence.
85
Under the WTO Agreement Article IX:3 [i]n exceptional circumstances, the Ministerial
Conference may decide to waive an obligation imposed on a Member by [...] any of the
Multilateral Trade Agreements [].
86
The Members who have agreed to opt out of using the system are Australia, Austria,
Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan,
Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United
Kingdom, and United States of America.
87
Taiwan, Hong Kong, Israel, Mexico, Korea, Kuwait, Macao, Qatar, Singapore, Turkey and
the United Arab Emirates informed the Secretariat that they would use the system as importers in
situations of national emergency.
88
Until their accession to the EU Turkey, Slovenia, Estonia, Lithuania, Latvia, Hungary,
Slovakia, Czech Republic, Poland, Malta and Cyprus agree that they would only use the system
as importers in situations of national emergency. Once the last have joined the EU, they will not
use the system at all.
89
See MASKUS, TRIPS, Drug Patents and Access to Medicines Balancing Incentives for R &
D with Public Health Concerns, published on the Development Gateways Knowledge Economy
site on 5 September 2003, and available at http://www.developmentgateway.org/knowledge.
90
See SCHKLENK and ASCHCROFT, Affordable Access to Essential Medication in
Developing Countries: Conicts between Ethical and Economic Imperatives, Journal of
Medicine and Philosophy, 2002, p. 179 ff.
91
As Addor wrote Der Prekren medizinischen Versorgung in vielen Entwicklungslndern
liegt eine Vielzahl sozialer, politischer und wirtschaftlicher Faktoren zugrunde. Diese haben zum
212 NOTES AND COMMENTS
grssten Teil nichts mit dem Patentrecht zu tun und fallen auch nicht in den Ttigkeit sbereich der
WTO. See ADDOR, Mehr Generika fr die Dritte Welt WTO-Vereinbarung als Tropfen auf
den heisse Stein, in Neue Zrcher Zeitung, 11 September 2003, p. 1 ff.
92
Bill C-9 was passed by the Parliament on 14 May 2004. The text of the Bill is available
at http://www.parl.gc.ca.
93
Patent Act R. S. 1985 c. P-4, available at http://laws.justice.gc.ca.
94
See, for instance, ACHARYA and DOUGLAS, Bill C-9: An Act to Amend the Patent Act
and the Food and Drugs Act, 3 March 2004, paper available at http://www.parl.gc.ca, and
WATTS, Bill C-9: The Complaints of the Generic Drugs Manufacturers and the Perspective of
Developing Countries, 2004, paper available at http://www.dww.com.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 213
On a theoretical level, WTO Members and legal scholars have been divided
over whether public international law should be introduced into the WTO System
and, if so, to what extent. Indeed, international economic law has, until recently, not
been perceived as part of the mainstream of international law. As a result, there has
been little serious thinking about the implications of one for the other. Nowadays,
although a watertight compartments view of the WTO remains inuential in trade
policy circles and legal academia,97 some authors98 associate the long-term legiti-
macy of the multilateral trading system with democracy and the advancement of
human rights.
In particular, what impact do human rights have on the international intel-
lectual property system? More specically, what role do human rights play inside
the TRIPS system in the establishment of an appropriate balance between intel-
lectual property rights and the right to health? Can we construe the interpretation
of Articles 30 and 31 of the TRIPS Agreement on the basis of the human rights ob-
ligations of WTO Member States under several international instruments, besides
95
See, for instance, United Nations Press Release UN Rights Expert Welcomes Canadian
Initiative on Access to Low Cost Drugs in Developing Countries, 7 November 2003.
96
Cf. WATTS, cit. supra note 94.
97
See, for instance, KRAJESKI, Democratic Legitimacy and Constitutional Perspectives of
WTO Law, JWT, 2001, pp. 167-186.
98
BLOCHE, Health and the WTO, JIEL, 2002, pp. 821-822, and COTTIER, Trade and
Human Rights: A Relationship To Discover, JIEL, 2002, pp. 11-132.
214 NOTES AND COMMENTS
the text of the Agreement itself? In other words, are TRIPS obligations conditioned
with respect to human rights? To what extent could international socio-economic
rights reshape the international economic order?99 After a brief look at the jurisdic-
tional level, analysing the legal and institutional framework in which TRIPS func-
tions will help answer the questions above.
At the practical level, the Appellate Body (AB)100 of the WTO Dispute
Settlement System has considered the relevance of other international instruments
to the WTO system in recent decisions; and has proven to be particularly sensi-
tive on human rights issues. Thus, Michael Lennard has compared the ABs task
of treaty interpretation to that of early navigators scanning the stars to guide their
uncertain journeys.101
In the Gasoline case,102 the AB stated that the WTO Agreement could not be
read in clinical isolation from public international law.103 In another leading deci-
sion, the Shrimp-Turtles case,104 the AB has shown itself to be sensitive to the range
of normative sources in international law relevant to the elaboration of meanings
of trade rules. In particular, after stating that the term natural resources in Article
XX(g) is evolutionary, it mentioned a number of international conventions and
declarations concerning both living and non-living resources. For instance, the
AB cited the 1982 United Nations Convention on the Law of the Sea (UNCLOS),
the 1992 Convention on Biological Diversity, the Agenda 21, and the 1979 Bonn
Convention on the Conservation of Migratory Species of Wild Animals. Last but
not least, the AB considered the fact that all the seven species of sea turtles are
listed in Appendix 1 of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES)105 as a species threatened with extinc-
tion. Finally, in the Asbestos case,106 the AB claried that WTO Members have a
right to determine the level of protection of health that they consider appropriate in
a given situation.107
99
See SAJO, Socio-Economic Rights and the International Economic Order, International
Law and Politics, 2004, pp. 221-240.
100
See ABBOTT, WTO Dispute Settlement and the Agreement on Trade Related Aspects
of Intellectual Property Rights, in PETERSMANN (ed.), International Trade Law and the GATT/
WTO Dispute Settlement System, The Hague, 1997, pp. 415-437.
101
See LENNARD, Navigating by the Stars: Interpreting the WTO Agreements, JIEL, 2002,
pp. 17-89.
102
United States Standards for Reformulated and Conventional Gasoline (US-Gasoline),
WT/DS2/AB/R, 1996.
103
Ibidem, p. 17.
104
United States Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-
Turtles), WT/DS58/AB/R, 1998, paras. 130 and 132.
105
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES), available at http://www.cites.org.
106
European Communities Measures Affecting Asbestos and Asbestos-Containing Products
(EC-Asbestos), WT/DS135/AB/R, 2001.
107
Ibidem, para. 168.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 215
As a general rule, the doctrine of stare decisis does not operate in world trade
law, so that WTO dispute settlement reports formally bind only the parties to a par-
ticular dispute and cannot be considered precedents.108 However, the consistency
and coherence of the Appellate Body reports are remarkable. The AB reports are,
de facto, an important part of a WTO acquis.109 They have been inuential in the
decisions of subsequent panels, contributing to the goal of providing security and
predictability to the multilateral trading system.110 Furthermore, the AB reports
have an intrinsic value, as they are more juridical in tenor than previous GATT
panel reports.111 Therefore, the WTO system tends to treat health protection as a de
facto interpretative principle.112
De iure condito, the TRIPS Agreement, like any other treaty, is not a self-con-
tained regime a hermetically sealed system disconnected from public interna-
tional law and human rights law.113 On the contrary, it must be interpreted in good
faith and be consistent with public international law.114 Therefore it should also be
in line with human rights treaties and customary international law.115
Article 3(2) of the DSU indeed requires that customary rules of interpretation
be considered in interpreting WTO Agreements. A restatement of these rules can be
found in Article 31 of the Vienna Convention on the Law of Treaties. This article
rst requires that one look at the ordinary meaning of the terms of the treaty, in light
108
The AB report in Japan-Taxes on Alcoholic Beverages, WT/DS8/AB/R, 1996, p. 14,
states: Adopted panel reports are an important part of the GATT acquis. [...] They create legiti-
mate expectations among WTO Members, and, therefore, should be taken into account where
they are relevant to any dispute. However, they are not binding, except with respect to resolving
the particular dispute between the parties to that dispute.
109
Prof. Bhala argues that in a de facto sense, the doctrine of stare decisis resonates strongly
throughout WTO Appellate Body reports; see BHALA, The Power of the Past: Towards De Jure
Stare Decisis in WTO Adjudication, The George Washington International Law Review, 2001,
pp. 873-978.
110
See MCNELIS, What Obligations Are Created by WTO Dispute Settlement Reports?,
JWT, 2003, pp. 647-672; PALMETER and MAVROIDIS, Dispute Settlement in the WTO: Practice
and Procedure, The Hague, 1999, p. 45 ff.
111
See JACKSON, The Jurisprudence of the GATT and the WTO, Cambridge, 2000, p.181 ff.
112
See BLOCHE, WTO Deference to National Health Policy: Toward an Interpretative
Principle, JIEL, 2002, p. 825 ff.
113
See PAUWELYN, The Role of Public International Law in the WTO: How Far Can We
Go?, AJIL, 2001, p. 535 ff.
114
See CLEVELAND, Human Rights Sanctions and International Trade: A Theory of
Compatibility, JIEL, 2002, pp. 133-189.
115
See ADDO, Human Perspectives of International Economic Law, in QURESHI (ed.),
Perspectives in International Economic Law, The Hague, 2002, p. 145 ff.
216 NOTES AND COMMENTS
of its object and purpose,116 and then to consider any subsequent practice adopted
by relevant parties. Finally, under Article 31(3)(c) of the Vienna Convention, rel-
evant rules of international law applicable to relations among the parties must be
taken into account when interpreting treaty obligations. As most WTO Members
have ratied or signed the two Human Rights Covenants and other human rights
conventions, this provision is designed to promote coherence in international law
and avoid conicts with other treaties. In case of conict between treaty provisions,
it seems that the necessity principle could be invoked as well.
Furthermore, under Article 53 of the Vienna Convention, TRIPS cannot con-
ict with peremptory norms of general international law, that is to say jus cogens
norms.117 Several commentators118 include among these Article 103 of the UN
Charter, which provides that [i]n the event of a conict between the obligations of
the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter
will prevail.
In recent times, many authors have begun calling the WTO the World Trade
Constitution.119 This theory reects a number of considerations. Firstly, it would
indirectly give individuals entitlements to substantive rights in domestic law.
Indeed, the TRIPS Agreement requires Members to grant intellectual property
rights both to aliens and citizens. Secondly, the WTO system already has consti-
tutional functions to a certain extent, as it promotes economic freedom and non-
discrimination. Thirdly, the compulsory dispute settlement mechanism effectively
promotes the rule of law. In sum, as the signicance of economic rights extends far
beyond economics, the WTO would not be merely a commercial agreement, but a
human rights agreement120 as well.
As a consequence, de iure condendo, commentators have advocated the intro-
duction of a human rights clause into the WTO. Though many countries fear that a
clause expressly recognizing the right to health would be used as a form of disguised
protectionism,121 a clear incorporation of such a clause into the WTO system would
116
Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969.
117
Article 53 of the Vienna Convention further provides a denition of jus cogens as a
norm accepted and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modied only by a subsequent norm of
general international law having the same character.
118
See CONFORTI, Diritto internazionale, 6th ed., Napoli, 2002, p. 186: [L]a regola della
prevalenza degli obblighi derivanti dallo statuto delle Nazioni Unite sugli altri obblighi interna-
zionali nisce con lapparire [...] come una norma consuetudinaria cogente cui lart. 103 ha dato
la spinta iniziale [].
119
See PETERSMANN, The WTO Constitution and Human Rights, JIEL, 2000, pp. 19-25.
120
See CHARNOVITZ, Trade Law and Global Governance, London, 2002, p. 396 ff.
121
Would a human rights approach be a real barrier to trade? Can we presume that a
closed economy surely respects human rights? Indeed, the protectionism of the 1930s contrib-
uted to unemployment, poverty and, indirectly, to the II World War. See BOTCHWAY, Historical
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 217
Perspectives of International Economic Law, in QURESHI (ed.), cit. supra note 115, pp. 309-
325.
122
Article XX(b) states that nothing in the GATT shall be construed to prevent the adop-
tion or enforcement by any contracting party of measures necessary to protect human, animal or
plant life or health. WTO Members are allowed to derogate from the treaty rules, as long as the
measures adopted to protect life or health are not an unjustied discrimination on international
trade or a disguised restriction on international trade.
123
Cf. CORREA, Implementing National Public Health Policies in the Framework of the
WTO Agreements, JWT, 2000, p. 108 ff.
124
See LIM, Trade and Human Rights What Is at Issue?, JWT, 2001, pp. 275-300.
125
See PETERSMANN, Time for a United Nations Global Compact for Integrating Human
Rights into the Law of Worldwide Organizations: Lessons from European Integration, EJIL,
2001, pp. 621-650.
126
See PETERSMANN, cit. supra note 119.
127
Waiver Concerning the Kimberley Process Certication Scheme for Rough Diamonds,
WTO General Council, 23 February 2003, available at the WTO web site http://www.wto.org.
218 NOTES AND COMMENTS
further suggest that the international trading system as a whole is already moving
in the required direction.
Indeed, basic levels of social welfare, political stability and legal certainty are
preconditions to creating necessary health infrastructures in developing countries
and LDCs. It seems necessary to promote education, to channel nancial resources
where they are most needed, and to create incentives in technology transfer, and
capacity building programmes.
Thus far, I have concentrated on poverty as a factor generally cited as being
an obstacle to the access to essential drugs and, more generally, to the fullment
of the right to health, arguing that the development dimension is a conceptual pil-
lar in the health politics discourse. Having set these theoretical parameters, I will
explore the existing legal framework. To begin with, development is not a right
under the Universal Declaration. It was not until 1986 that such a right was prop-
erly articulated by the United Nations.130 Indeed, Article 1 of the Declaration on
128
See, for instance, General Assembly Resolution 58/173 adopted on 10 March 2004 (UN
Doc. A/RES/58/173), p. 2 ff. Indeed, malnutrition reduces the organisms biological defences,
and, where coupled by inadequate hygienic conditions, can lead to the proliferation of infectious
diseases.
129
See the Declaration of Alma Ata, cit. supra note 44.
130
See MANSELL and SCOTT, Why Bother About a Right to Development?, Journal of Law
and Society, 1994, p. 171 ff., p. 174.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 219
In an important step, the need to integrate the development dimension into pol-
icy-making on intellectual property protection has received increased recognition
at the international level. Economic development and social welfare in developing
countries should be major considerations when formulating international policy with
respect to IPRs. Also in the framework of the WTO, paragraph 19 of the WTO Doha
Ministerial Declaration,136 in setting a mandate for the TRIPS Council in the context
of the Doha Development Agenda, refers explicitly to the need to take the devel-
opment dimension fully into account. On examining the framework of the TRIPS
Agreement, it is apparent that the protection of IPRs is not an end in itself, but a part
of institutional strategy for achieving broader goals. The ultimate objective of the
WTO is to raise standards of living through the reduction of trade barriers.137
131
Declaration on the Right to Development, General Assembly Resolution 41/128 of 4
December 1986.
132
Only the Unites States opposed this Declaration.
133
General Assembly Resolution A/RES/55/2, United Nations Millennium Declaration, 18
September 2000.
134
Ibidem, para. 2.
135
Ibidem, paras. 14 and 15.
136
Doha Ministerial Declaration, cit. supra note 53.
137
In a critical sense, see TRACHTMANN, Legal Aspects of a Poverty Agenda at the WTO:
Trade Law and Global Apartheid, JIEL, 2003, pp. 3-21: To what extent can the trade law
220 NOTES AND COMMENTS
It is not just the WTO that needs to look into how its rules may be making
essential drugs expensive, however. Indeed, debt burdens can have a direct bear-
ing on access to essential drugs because States with such burdens cannot allocate
sufcient resources in the health care system. Organizations like the International
Monetary Fund (IMF),138 the World Bank and the WHO may also be making access
to basic health care more difcult for millions of people all around the world.139
In fact, as a condition for receiving loans, the IMF and the World Bank require
countries to adopt austerity programs known as structural adjustment programmes
(SAPs), generally intended to increase the integration of the borrowing country into
the global community and make it more attractive to foreign private investment.140
Among other measures, SAPs are aimed at cutting government expenditures and
privatizing State-owned companies. Therefore, there are two negative consequenc-
es in the national healthcare sectors. First, governments with overwhelming foreign
debt payment obligations must cut back on what they might otherwise allocate to
the healthcare sector. Second, given that SAPs include the privatization of govern-
ment-owned enterprises and the introduction of fee-for-service schemes, access to
health services may be reduced.
After undergoing severe criticism for this attitude, the IMF and World Bank
now insist that their current SAPs carve out social services from mandated budget
cuts, in order to protect the more vulnerable sectors of developing countries.141
13. CONCLUSIONS
The importance and value of IPRs have not been disputed in this article, as they
are indispensable to the promotion of research. Indeed, the introduction of higher
levels of IPR protection to developing countries and LDCs is a precondition for
long term economic growth. An adequate protection of IPRs will stimulate foreign
investment and result in more transfers of technology and more local innovation
than before. Furthermore, one of the major advantages of the universal system is
that it would facilitate access to new medical products which the developed world
will not shy away from introducing in poor countries.
system be harnessed to dismantle the barriers that form global apartheid? and to redress in-
equality and poverty? While liberalization ts into the core tasks of the WTO, redistribution does
not (p. 21).
138
See, for instance, SCHLITZER, Il Fondo Monetario Internazionale, Bologna, 2000.
139
See, for instance, SEXTON, Trading Health Care Away? GATS, Public Services and
Privatisation, 2001, paper available at http://southcentre.org; COLGAN, Hazardous to Health:
The World Bank and IMF in Africa, April 2002, paper available at http://www.africaaction.org.
140
See, for instance, LOBE, World Bank, IMF Held Responsible for Health Crisis in Africa,
30 April 2002, paper available at http://www.twnside.org.
141
See, e.g., BONAGLIA and GOLDSTEIN, Globalizzazione e sviluppo Due concetti incon-
ciliabili?, Bologna, 2003 pp. 100-111.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 221
142
The Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund) was created
to attract, manage and invest resources to ght these three diseases through a public-private
partnership.
143
See SCHERER and WATAL, Post-TRIPS Options for Access to Patented Medicines in
Developing Nations, JIEL, 2002, pp. 913-939.
144
See HOWSE, Mainstreaming the Right to Development into International Trade Law
and Policy at the WTO, paper presented at the 56th session of the UN Sub-Commission on the
222 NOTES AND COMMENTS
the framework of the TRIPS Agreement, it is apparent that the protection of IPRs
is not an end in itself, but a part of the institutional strategy for achieving broader
goals. The Preamble to the WTO Agreement formulates the ultimate objective of
the WTO, expressly recognizing that economic relations between Members should
be conducted with a view to raising standards of living and effective demand and
to expanding the production and trade of goods, in accordance with the objective
of sustainable development. Furthermore, Members recognize that positive efforts
should be made to ensure that developing countries secure a share of growth in in-
ternational trade, commensurate with their economic needs. Therefore, if the goal
of the WTO is to improve world-wide standards of living, the protection of IPRs
is one possible means to this end. Finally, in the July Package,145 the General
Council, inter alia, states that: Development concerns form an integral part of the
Doha Ministerial Declaration.[...] [T]he needs and interests of developing and least
developed countries [are] at the heart of the Doha Work Programme.
In conclusion, while attempting to balance social welfare interests in knowl-
edge creation and knowledge diffusion, the decisions of the TRIPS Council and
other WTO organs, including the DSB, should be guided by one fundamental goal;
technological innovation should be of benet to all mankind.
Similarly other international organizations could adopt complementary strate-
gies to channel nancial resources to create incentives for transfers of technology,
technical assistance and capacity building programmes in the health sector. The
World Bank, whose mission is providing funds and policy advice to governments,
could act as an honest broker146 in relations between investors of industrialized
countries and hosts in developing countries. In addition, the WHO, World Bank
and IMF should incorporate health and poverty-reduction programmes into a viable
macro-economic framework at country level.147
As the Declaration of Alma Ata explicitly recognised more than twenty years
ago, the existing gross inequality in the health status of the people [...] between
developed and developing countries as well as within countries is politically, so-
cially and economically unacceptable and is therefore, of common concern to all
countries.148 Indeed, one of the most important features of the Declaration is the
Promotion and Protection of Human Rights (cf. Doc. E/CN.4/Sub.2/2004/17), available at http:
//www.southcentre.org/info/southbulletin85-02.htm.
145
The text of the General Councils decision on the Doha Agenda work programme, the
so-called July Package, agreed on 1 August 2004, is available at the WTOs website http:
//www.wto.org.
146
See BRAGA and FINK, Reforming Intellectual Property Rights Regimes: Challenges for
Developing Countries, JIEL, 1998, p. 20 ff.
147
See, inter alia, Report of the WHO Commission on Macro-Economics and Health, Report
by the Director General to the Fifty-fth World Health Assembly, 23 April 2002, Doc. A55/5,
provisional agenda item 13.1, recommendation 22.
148
Alma Ata Declaration, cit. supra note 44, para. 3.
RIGHT TO HEALTH AND INTELLECTUAL PROPERTY RIGHTS 223
recognition that the attainment of health by people in any one country directly
concerns and benets every other country.149 All States should recognize the es-
sential role of international co-operation.150
149
Ibidem, para. 9.
150
As John Donne, an Elizabethan poet of XVII century, wrote No man is an Iland, intire of
it selfe; every man is a peece of the Continent [...], if a clod be washed away by the Sea, Europe is
the lesse [...], any mans death diminishes me, because I am involved in Mankinde; And therefore
never send to know for whom the bell tolls; it tolls for thee.
THE REQUIREMENT OF CONTINUOUS CORPORATE NATIONALITY
AND CUSTOMARY INTERNATIONAL RULES
ON FOREIGN INVESTMENTS:
THE LOEWEN CASE
PIA ACCONCI*
1. INTRODUCTION
In its Award of 26 June 2003, the ICSID arbitral Tribunal dismissed the claim
of the Loewen Group, Inc., (TLGI) against the United States, inter alia, for its lack
of continuous nationality.
The ICSID case arose from litigation before the USs Mississippi State Court
between TLGI, doing business in Mississippi, and a local competitor. This Court
rendered a judgment against TLGI and condemned it to pay a considerable sum
of money, US$ 500 million. As Mississippi law requires an appeal bond of 125
per cent of the judgment to stay execution, TLGI did not appeal against this ver-
dict. TLGI could not comply with that condition and agreed to settle the case for
US$ 175 million. The settlement took place one day before the forced execution
of the Mississippi Courts judgment began. TLGI then led a request for arbitra-
tion with the ICSID Secretary against the US under Chapter Eleven of the NAFTA
Agreement for breach of the Agreement, in particular its Article 1105, due to the
Mississippi Courts harsh verdict and the requirement of excessive bond for appeal-
ing prescribed by Mississippi law.
The ICSID Award includes the Tribunals ndings with regards to most of the
merits of the case, as the USs additional objection concerning the NAFTA require-
ment of diversity of nationality was led after the ICSID Tribunal had already dealt
with them.
Briey, the Tribunal denied that there had been a violation of customary inter-
national law and a violation of NAFTA for which Respondent [was] responsible.1
However, it admitted the US had not treated TLGI in accordance with the mini-
mum standards of fair international law and fair and equitable treatment.2 The
*
Associate Professor of European Union Law, University of Teramo; Member of the
Committee on International Law concerning Foreign Direct Investment of the International Law
Association. The present article is based on a paper circulated at the Fourth Public Conference
of the British Institute of International and Comparative Laws Investment Treaty Forum on
Nationality and Investment Treaty Claims, held in London on 6 May 2005. The author may be
contacted at pacconci@tiscali.it.
1
Para. 217 of the 2003 ICSID Award. This Award, as well as the other ICSID decisions men-
tioned in this paper, are available at the ICSID website, http://www.worldbank.org/icsid.
2
In particular, para. 137, ibidem.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 225-236
226 NOTES AND COMMENTS
Tribunal considered decisive in this sense the question whether [] the trial and
the verdict alone or in combination with the subsequent proceedings amounted to
an international wrong,3 as TLGI claimed, for the lack of available and appropriate
remedy under USs municipal law. TLGI maintained that it had voluntarily settled
the case under extreme duress.4 The Tribunal dismissed this claim, arguing that
TLGI had not explained why it had settled and had failed to pursue its domestic
remedies.5 According to the Tribunal, the Mississippi Courts verdict and the bond
requirement had not made the settlement agreement the only course which TLGI
could [have] reasonably be[en] expected to take.6 Therefore, the Tribunal ruled
that TLGIs claim should be dismissed on the merits, even though dismissal was
eventually grounded on a question of jurisdiction.7
The Tribunal upheld the USs additional objection to its jurisdiction because
of the change in the claimants corporate structure and nationality following the
reorganization plan approved by the Canadian and US bankruptcy courts, while the
ICSID proceedings were pending.
At the time the claim arose, TLGI was the Canadian parent company of a group
of companies which were doing business in Canada and the US. TLGI had been
established by a Canadian citizen, Raymond Loewen. The latter was also its main
shareholder and chief executive ofcer.
According to the reorganization plan, TLGI ceased to exist as an independent
company and transferred its assets and obligations to its former American sub-
sidiary, the Loewen Group International, Inc., (LGII). Meanwhile LGII changed its
name to Alderwoods Group, Inc., and established two new companies: Nafcanco
a wholly-owned Canadian subsidiary and Delco, a Delaware limited liability
company. In the light of the reorganization plan, TLGI retained bare legal title to
its NAFTA Articles 1116 and 1117 claims against the United States, while it trans-
ferred to Nafcanco all rights and responsibilities concerning these claims.
The US presented its Memorial on Matters of Jurisdiction and Competence aris-
ing from the Restructuring of the Loewen Group, Inc., on 1 March 2002, to justify its
new jurisdictional objection, stressing that, after the reorganization plan and the sub-
sequent change in the corporate structure, Canada was no longer the claimants home
State. As Alderwoods was its new parent company, TLGIs group of companies had
3
Para. 142, ibidem.
4
Para. 7, ibidem.
5
Para. 217, ibidem.
6
Para. 215, ibidem.
7
Para. 1, ibidem. For a criticism of the Tribunals ndings see generally WERNER, Does the
Loewen Award Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?, The
Journal of World Investment & Trade, 2005, p. 79 ff.; MENDELSON, Does the Loewen Award
Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?, ibidem, p. 83 ff. In
favour of the ICSID Award cf. LEGUM, Does the Loewen Award Endanger the Credibility of the
NAFTA Dispute Settlement Mechanism?, ibidem, p. 89 ff.; CARVER, Does the Loewen Award
Endanger the Credibility of the NAFTA Dispute Settlement Mechanism?, ibidem, p. 95 ff.
CORPORATE NATIONALITY AND INVESTMENTS: THE LOEWEN CASE 227
become based in the US. The US maintained that, as a matter of fact, there were no
longer any NAFTA claims. Specically, TLGI had ceased to be a disputing party in
conformity with NAFTA Chapter Eleven as, with the reorganization of its corporate
structure, TLGI had voluntarily changed its relevant nationality to this end.
In particular, TLGIs NAFTA claims had to be dismissed because of the prin-
ciple that no private citizen and company can maintain an international claim
against its own State and more specically because of the principle that the
requirement of continuous nationality has to be fullled through the date of the
award. In the USs opinion, TLGI, with its complex reorganization plan, had tried,
on one hand, to relaunch its business activities in the US, where it had been earning
most of its revenues, and, on the other, to maintain, at least indirectly, its NAFTA
claims thanks to the Nafcancos Canadian nationality. However, according to the
US, the assignment of TLGIs NAFTA claims to Nafcanco was not relevant since
this latter lacked independence in respect of Alderwoods which had undoubtedly
become the benecial owner of such claims.
In order to demonstrate that a claimant like TLGI could no longer bring a claim
before ICSID arbitration under NAFTA Chapter Eleven, in its 2002 Memorial, the
US referred not only to the text of the NAFTA Agreement, but also to principles of
customary international law, to the jurisprudence of Canadian as well as American
courts and of international arbitral tribunals.
Precisely, to prove that customary international law prescribed the requirement
of continuous nationality through the settlement of the dispute, in this Memorial,
the US mentioned some examples of international practice which had developed in
the eld of diplomatic protection especially during the period of time between the
end of the XIX century and the beginning of the following century. The US also
referred to such practice, and to other developments which had subsequently taken
place in the eld of diplomatic protection, such as the 1970 International Court of
Justices judgment on the Barcelona Traction case, to show that the nationality of
an international claim depended on that of the real claimant and equitable owner.
Hence, there were no longer NAFTA claims since, after the reorganization plan,
Alderwoods, a US company, rather than Nafcanco, a Canadian company, had be-
come the real equitable owner.
Note that, in their Article 1128 Submissions, also Canada and Mexico found
grounded the USAs objection to the ICSID jurisdiction over TLGIs claim in the
light of customary international law and the NAFTA Agreement.8
The claimants, TLGI and Raymond Loewen, argued that the USs objection
was not grounded since TLGI was a proper NAFTA disputing party when it had
submitted the claim. At that time, TLGI had a nationality other than the American
one and had maintained this nationality continuously since the time the claim had
8
See, in particular, the second Article 1128 Submission of Canada of 27 June 2002 and the
third Article 1128 Submission of Mexico of 2 July 2002.
228 NOTES AND COMMENTS
arisen. TLGI stressed that, also in conformity with previous ICSID case-law, both
the pre-submission and post-submission assignment of claims do not affect juris-
diction as the former cannot create jurisdiction where none exists, and the latter
cannot destroy jurisdiction once a claim is vested.9
In its 2003 Award, the ICSID Tribunal upheld the USs objection to its jurisdic-
tion due to the lack of the claimants continuous nationality as it assumed that in
international law parlance, there must be continuous national identity from the date
of the events giving rise to the claim, which date is known as the dies a quo, through
the date of the resolution of the claim, which date is known as the dies ad quem.10
The Tribunal also agreed that the requirement of continuous nationality was a prin-
ciple of international law which could be waived only expressly.11 Since the NAFTA
Agreement does not include Contracting States clear intention in this connection and
refers to the date of the submission of the claim only as regards the requirement of na-
tionality in general, the Tribunal decided to apply customary international law to solve
the problem, in conformity with Article 1131 of the Agreement itself.12
Then, the Tribunal concluded that, according to applicable rules of interna-
tional law, corporate nationality had to be indeed continuous through the resolu-
tion of the dispute.13 The Tribunal denied that claimants had proved a contrary
development of international law in this connection.14
The Tribunal totally disregarded the fact that contemporary investment trea-
ties, either bilateral or multilateral, and the recent works of the International Law
Commission15 do not include the requirement of continuous nationality through the
resolution of the claim.
9
Para. 16 of TLGIs Response to the Article 1128 Submissions of Canada and Mexico
on Matters of Jurisdiction and Competence of 19 July 2002. In this regard, TLGI particularly
referred to the ICSID Awards on the Mihaly case of 15 March 2002, para. 24, and on the CSOB
case of 24 May 1999, paras. 29 and 31.
10
Para. 225 of the 2003 ICSID Award. See also the 2002 US Memorial on Matters of
Jurisdiction and Competence arising from the Restructuring of the Loewen Group, Inc., espec.
pp. 2 and 13.
11
Para. 229 of the 2003 ICSID Award.
12
Para. 226, ibidem.
13
In particular, paras. 228, 229 and 230, ibidem.
14
Para. 235, ibidem.
15
See, in particular, the 2000 Special Addendum concerning Continuous Nationality
and the Transferability of Claims prepared by the rapporteur on diplomatic protection of the
International Law Commission, Professor John Dugard (A/CN.4/506/Add.1), as well as Articles
5 and 10 of the Draft Articles on Diplomatic Protection approved within the International Law
Commission on 24 May 2004 (A/CN.4/L.647).
CORPORATE NATIONALITY AND INVESTMENTS: THE LOEWEN CASE 229
As a general rule, the Tribunal chose to conne itself strictly to the text of the
NAFTA Agreement as the only source of its jurisdiction.16 Therefore, it paid no atten-
tion to the fact that under the ICSID Convention the requirement of continuous nation-
ality was not even prescribed for corporate investors.17 The Tribunal did not apply this
Convention at all, since neither Canada nor Mexico were ICSID Member States and
consequently the proceedings were held under the ICSID Additional Facility Rules.18
On the other hand, the ICSID Tribunal endorsed the relevance attributed by the
US to past international practice in the eld of diplomatic protection. The Tribunal
established that even the NAFTA Agreement corroborated such relevance,19 al-
though this Agreement, like many other recent ones, did not refer to diplomatic
protection for the settlement of disputes between a Contracting State and an in-
vestor of another Contracting State. On the contrary, the Tribunal recognized that
NAFTA Chapter Eleven represents a progressive development in international law
whereby the individual investor may make a claim on its own behalf and submit the
claim to international arbitration.20
16
Para. 234 of the 2003 ICSID Award.
17
According to the ICSID Convention, only the date on which the parties to a dispute con-
sented to submit the dispute to ICSID conciliation or arbitration is relevant to determine the na-
tionality of a company for ICSID jurisdictional purposes. However, in the Tradex case the ICSID
Tribunal took a different decision.
18
In particular, para. 235 of the 2003 ICSID Award.
19
Paras. 229 and 230, ibidem.
20
Para. 223, ibidem.
230 NOTES AND COMMENTS
This debate between north and south raised the problem of identifying the
sources of so-called international law regarding foreign investments. In particular,
this debate made it difcult, if not impossible, to apply classical international law
as it was conceived by industrialized countries.
Even today, when foreign direct investment is welcome in the developing
world, a clear consensus on the exact content of customary principles and rules
concerning foreign investments has not been consolidated yet. That is why treaty
regulation is nowadays paramount in order to dispel doubts related to the level of
treatment and protection that foreign investment is entitled to, especially in the
relations among industrialized countries, developing countries and economies in
transition.
In this connection the ICSID Award of 9 January 2003 in the ADF case is of
the greatest signicance, since it shows that even industrialized countries, such as
the US and Canada, may not share a common view as to the existence of customary
rules concerning the treatment of foreign investments.21
The uncertain content of customary principles and rules on foreign investments
also concerns the issue of determining nationality, and its continuance, as a pre-
requisite either for a State to exercise diplomatic protection or for the jurisdiction
of international arbitral tribunals which can be activated by a State or by a private
investor, whether a person or a company.22 That is mainly true at present since the
widespread dynamism produced by the globalization process makes persons and
companies operate all over the world with the consequent establishment of links
with different countries.23
Thus, the ICSID Tribunal in the Loewen case could not have upheld the US
view that continuous nationality of the claim was to be considered an undisputed
requirement prescribed by customary international law.24
As already pointed out, the Tribunal came to such a decision since the NAFTA
Agreement does not expressly waive the alleged customary rule, that is continuous
nationality throughout the resolution of the claim.
21
Paras. 178-183, in particular para. 179, ibidem.
22
Cf. ACCONCI, Determining the Internationally Relevant Link between a State and a
Corporate Investor, The Journal of World Investment & Trade, 2004, p. 139 ff.
23
See ORREGO VICUA, Changing Approaches to the Nationality of Claims in the Context
of Diplomatic Protection and International Dispute Settlement, ICSID Review, 2000, p. 340
ff., espec. p. 353. However, the ICSID Decision on Jurisdiction of 29 April 2004 in the Tokios
Tokles case refers to a completely different view. According to this Decision, incorporation is
still the standard rule in customary international law to determine corporate nationality (espec.
paras. 69-70).
24
Cf. GAILLARD, CIRDI. Observations, JDI, 2003, p. 230 ff., espec. pp. 232-233;
PAULSSON, Continuous Nationality in Loewen, Arbitration International, 2004, No. 2, p.
213 ff.; MENDELSON, cit. supra note 7, pp. 85-86; IDEM, Runaway Train: The Continuous
Nationality Rule from the Panavezys-Saldutiskis Railway case to Loewen, in WEILER (ed.),
Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law,
London, 2005, p. 97 ff.
CORPORATE NATIONALITY AND INVESTMENTS: THE LOEWEN CASE 231
25
Paras. 229 and 230 of the 2003 ICSID Award.
26
Cf., in general, GECK, Diplomatic Protection, in BERNHARDT (ed.), Encyclopedia
of Public International Law, Amsterdam/New York/Oxford, 1987, Vol. 10, p. 99 ff., pp. 109-
110; WYLER, La rgle dite de la continuit de la nationalit dans le contentieux international,
Paris, 1990; ORREGO VICUA, cit. supra note 23, pp. 349-353; DUCHESNE, The Continuous
Nationality of Claims Principle: Its Historical Development and Current Relevance to
Investor-State Investment Disputes, The George Washington International Law Review,
2004, p. 783 ff.
232 NOTES AND COMMENTS
27
For the same view see generally BROWNLIE, Principles of Public International Law, 5th
ed., Oxford, 1998, pp. 483-484. However, the same author later admitted that much depends on
the terms of the agreement creating the machinery for the settlement of claims (Principles of
Public International Law, 6th ed., Oxford, 2003, p. 461).
28
See the Gould Marketing, Inc.; Oil Field of Texas, Inc.; Mobil Oil Iran, Inc.; and Arthur
J. Fritz & Co. cases.
CORPORATE NATIONALITY AND INVESTMENTS: THE LOEWEN CASE 233
29
For a slight criticism of the ICSID case-law on the so-called critical dates for ICSID
jurisdiction cf. SCHREUER, The ICSID Convention. A Commentary, Cambridge, 2001, pp. 324-
332.
30
Part D of the Decision on jurisdiction (Resubmitted Case) of 10 May 1988.
31
See the Report of 29 September 2000 on the tenth instalment of E3 claims as to the claim
of ABB Schaltanlagen GmbH (S/AC.26/2000/18).
32
See the Report of 22 June 2001 on the thirteenth instalment of E3 claims as to the claim of
NCC International AB (S/AC.26/2000/12).
33
See some reports on E3 claims, such as the Report of 30 September 1999 on the fourth
instalment of such claims as to the claim of Snamprogetti S.p.A. (S/AC.26/1999/14); the Report
234 NOTES AND COMMENTS
5. CONCLUSION
of 29 September 2000 on the tenth instalment of such claims as to the claim of ABB Lumus
Crest, Inc. (S/AC.26/2000/18); the Report of 15 March 2001 on the eighteenth instalment of such
claims as to the claims of Intergraph Corporation and Parsons, de Leuw, Inc. (S/AC.26/2001/3);
and the Report of 22 June 2001 on the seventh instalment of E2 claims as to the claim of Telstra
Corp., Ltd. (S/AC.26/2001/11). Cf. CROOK, The United Nations Compensation Commission
A New Structure to Enforce State Responsibility, AJIL, 1993, p. 144 ff.
34
See para. 97 of the Award on Jurisdiction of 22 November 2002.
35
See paras. 183-184 of the Award of 9 January 2003.
36
See espec. para. 229 of the 2003 ICSID Award.
37
Generally, cf. GUZMAN, Why LDCs Sign Treaties that Hurt Them: Explaining the
Popularity of Bilateral Investment Treaties, Virginia Journal of International Law, 1998, p. 639
ff., espec. pp. 686-687.
38
In particular, see paras. 59 and 62 of the UNCITRAL Award in respect of Damages of 31
May 2002.
39
See para. 117 of the ICSID Award of 11 October 2002.
40
See, particularly, paras. 497-498 of the UNCITRAL Final Award of 13 March 2003.
41
Cf. LOWENFELD, Investment Agreements and International Law, Columbia JTL, 2003,
p. 123 ff., pp. 129-130; HINDELANG, Bilateral Investment Treaties, Custom and a Healthy
Investment Climate, The Journal of World Investment & Trade, 2004, p. 789 ff.; SCHWEBEL,
The Inuence of Bilateral Investment Treaties on Customary International Law, ASIL
Proceedings, 2004, p. 27 ff.; SALACUSE and SULLIVAN, Do BITs Really Work?, Harvard ILJ,
2005, p. 67 ff., espec. pp. 112-115.
CORPORATE NATIONALITY AND INVESTMENTS: THE LOEWEN CASE 235
42
Cf. SCHACHTER, General Course in Public International Law, RCADI, 1982-V, Vol.
178, p. 9 ff., pp. 82-85; BATTAGLINI, Lequit infra legem nei giudizi internazionali, in Studi di
diritto internazionale in onore di Gaetano Arangio-Ruiz, Napoli, 2004, Vol. I, p. 265 ff., espec.
pp. 277, 287-293.
43
See note No. 2 of the Notice of Petition to Vacate submitted by Raymond Loewen.
44
Ibidem.
236 NOTES AND COMMENTS
Actually, the Court did not lift the corporate veil, which was at the base of the
formal perspective of the company law used by the Court itself to justify its deci-
sion. To decide whether the formal link between Canada and Barcelona Traction
was based on a close and permanent connection, the Court evaluated the link
between the company and the general economic environment of the country where
the company operated, rather than the link between the company and elements
indicating an economic and nancial connection. Evaluating these elements would
have implied lifting the corporate veil.45
Therefore, we believe customary international law as ascertained by the Court
in 1970 was not very similar to alleged customary rules on which the US based
some assertions in its 2002 Memorial.
Note that the Tribunal did not consider it necessary to deal with the issue of
determining the real equitable owner of the claim, as requested by the US, although
in practice it applied the lifting-of-the-corporate-veil doctrine by deciding that, due
to the change of the parent companys nationality, there was no longer any NAFTA
disputing party.46
That is even more remarkable in the light of the fact that the Tribunal also dis-
missed Raymond Loewens claim based on Article 1116 of the NAFTA Agreement,
that is, Raymond Loewens claim as an investor of a Party on its own behalf.47
By denying that Raymond Loewens claim under the NAFTA Agreement had
survived the reorganization plan and stating that he certainly was not a party in in-
terest at the time of the reorganization of TLGI,48 the Tribunal somehow attributed
relevance to the change in control over TLGI which had possibly taken place with
its reorganization plan, despite the lack of reference to the control test in Article
1116 of the NAFTA Agreement.
45
See ACCONCI, cit. supra note 22, p. 146.
46
Paras. 237-238 of the 2003 ICSID Award. In this respect, see also para. 65 of the ICSID
Decision on Jurisdiction in the Tokios Tokles case, cit. supra note 23.
47
Para. 239 of the 2003 ICSID Award. See also paras. 19-22 of the Decision on Respondents
Request for a Supplementary Decision issued by the same ICSID Tribunal on 13 September
2004. Cf. WEILER, Dodging Bullets-A First Look at the Final Award in The Loewen Group and
Raymond Loewen v. U.S.A., The Journal of World Investment, 2003, p. 659 ff.
48
Para. 239 of the 2003 ICSID Award.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA
MARIANGELA GRAMOLA*
The Caspian Sea, in the southwestern part of Asia, is by far the largest land-
locked body of water in the world (about 371,000 Km).
On 4 October 2003, the Russian Federation, Kazakhstan and Azerbaijan con-
cluded an agreement regarding the division of the Caspian seabed between the
contracting States.1 This is the latest of many bilateral and/or trilateral agreements
that have been concluded by the coastal States of the Caspian Sea since the demise
of the USSR in 1991. The Caspian Sea had, in fact, been bounded by only two States
for a long time: the Soviet Union and Iran. As a result of the break-up of the USSR,
the Caspian Sea now has ve coastal States: the Russian Federation (NorthWest),
Azerbaijan (West), Iran (South), Turkmenistan (East), and Kazakhstan (NorthEast).
The many agreements are thus the result of an increased number of coastal States
surrounding a land-locked water basin whose international legal status has been
and is very disputed under several international legal principles.
The Caspian Sea is actually a very particular remainder of an ancient wide
oceanic basin the Sarmatian Sea.2 Notwithstanding its numerous physical simi-
larities with seas, in particular its size and salt water content, however, the Caspian
is legally an international lake.3 Indeed it has no direct connections with the ocean:
*
Researcher, University of Padova.
1
See infra section 4.
2
The Sarmatian Sea extended from present-day Hungary to the southwestern Russian part of
Asia. Through successive folding the ancient sea area was progressively reduced and resulted in
the creation of three distinct basins: the Black Sea in connection with the Mediterranean Sea and
two land-locked basins the Caspian Sea and the Aral Sea. This is the reason why the Caspian
is still currently referred to as a sea; and why it has many of the characteristics of a maritime
basin. See National Geographic Italia, additional map, May 1999, Vol. 3, No. 5; MOSETTI, Le
acque, Il nostro Universo (series), Torino, 1977, p. 238 ff.; Mar Caspio, Enciclopedia Italiana
Treccani, 1931, Vol. 9, p. 313 ff. Even if the majority of geographers dene it as a lake, disagree-
ments remain. See Caspian Sea, The New Encyclopaedia Britannica, 1979, Vol. 3, p. 980 ff.;
see also Caspian Sea, Great Soviet Encyclopedia. A Translation of the Third Edition, 1976,
Vol. 11, p. 169 ff.
3
In the same sense, see: TAVERNIER, Le statut juridique de la mer Caspienne: mer ou lac?
(La pratique des Etats vue travers les documents publis par les Nations Unies), Actualit
et droit international, 20 October 1999, available at http://www.ridi.org/adi/199910a1.htm;
DABIRI, A New Approach to the Legal Regime of the Caspian Sea as a Basis for Peace and
Development, The Iranian Journal of International Affairs, 1994, Vol. 6, p. 28 ff.; LUCCHINI and
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 237-272
238 NOTES AND COMMENTS
VLCKEL, Droit de la mer, Vol. I, La mer et son droit. Les espaces maritimes, Paris, 1990, p. 41;
BUTLER, The Law of Soviet Territorial Waters. A Case Study of Maritime Legislation and Practice,
New York/Washington/London, 1967, p. 76; PONDAVEN, Les lacs-frontire, Paris, 1972, pp. 12-
13; DE HARTINGH, Les conceptions sovitiques du droit de la mer, Paris, 1960, p. 29.
4
See GIDEL, Le droit international public de la mer, Paris, 1981, Vol. I, pp. 41-42. Thus, a
river link as in the case of the Caspian Sea, which has recently been re-connected to the Baltic
Sea, the White Sea and the Black Sea through a close net of canals is not sufcient. In this
sense, see Article 122 of the UN Convention on the Law of the Sea, UNTS, Vol. 1833, p.3 ff., p.
442. See also ALLONSIUS, Le rgime juridique de la mer Caspienne. Problmes actuels de droit
international public, Panthon-Assas University (Paris II), Paris, 1997, p. 56.
5
See DIENA, Diritto internazionale, Milano, 1930, Vol. I, pp. 228-234.
6
See PONDAVEN, cit. supra note 3, p. 6 ff.
7
See the 1992 Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, ILM, 1992, p. 1312 ff., in particular the Preamble and
Articles 1, 2, and 3. Among the coastal States of the Caspian Sea the Convention has been ratied
by Azerbaijan, Kazakhstan and the Russian Federation. See also the 1997 New York Convention
on the Law of the Non-navigational Uses of International Watercourses, ILM, 1997, p. 700 ff. For
a general study on the 1997 New York Convention, see passim TANZI and ARCARI, The United
Nations Convention on the Law of International Watercourses: A Framework for Sharing, The
Hague, 2001.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 239
a part of the international lake. Indeed, almost all international lakes have been
conventionally divided among their respective littoral States.8 Nevertheless, there
is no uniform State practice9 either as regards methods of boundary delimitation
or forms of utilization of the lake.10 The extreme specicity of each single basin,
in fact, results in considerable differences between the legal regimes of particular
lakes, as these latter are essentially based upon particular agreements among lit-
toral States.11
In nal consideration, the only existing rule of customary international law on
the exploitation of international lakes regards the duty of coastal States to co-oper-
ate. This duty is fullled by negotiating the regulation of activities involving the
interests of several States in good faith; in any event, it does not compel littoral
States to reach an agreement before starting any activity in the part of the basin fall-
ing under their jurisdiction.12 In the absence of specic treaties or of regional cus-
tom, the only applicable general rules, aside from the duty to negotiate, are general
8
Setting aside peculiarities due to local conditions, one can isolate four main methods ad-
opted for boundary delimitation of international lakes: the bank limit, characterized by exclusive
exercise of sovereignty over the basin by one coastal State only; the median line, each point of
which is equidistant from a point or points located on opposite banks of the lake; astronomical
and geometric lines, or straight lines connecting points following either a meridian or a parallel,
respectively, or determined through the use of coordinates; nally, there are cases in which the
border line crossing the lake is a simple straight line connecting land borders. See SCHRTER, La
dlimitation des lacs internationaux: essai dune typologie, AFDI, 1994, p. 910 ff.
9
In the past, some authors engaged in the drafting of codes of public international law and
included some norms on international lakes. These norms, like many others included in similar
texts, were no more than abstracts of the most widespread and general legal doctrines, however.
See DE BUSTAMANTE Y SIRVEN, Droit international public, Paris, 1936, Vol. III, p. 104.
10
The unity of lakes calls for mutual restraint of sovereignty, so as to allow for the exercise
of activities on the lake. With regard to navigation, the majority of agreements grant freedom of
navigation over the whole lake to the citizens of coastal States. See ANDRASSY, Les relations
internationales de voisinage, RCADI, 1951, II, p. 77 ff., pp. 116-117. As far as shing is con-
cerned, State practice is divided between a general regime of freedom and a regime limiting sh-
ing rights to the respective national sector. The latter solution is, however, more widespread than
the former, both in the absence of agreement and in treaty practice. See PONDAVEN, cit. supra
note 3, p. 293 ff., pp. 296, 297, 298, and 306 ff.; ROUSSEAU, Droit international public, Paris,
1980, Vol. IV, Les relations internationales, p. 592 ff.
11
See PONDAVEN, cit. supra note 3, who has analyzed the legal status of more than 60
international lakes. Since then, agreements have continued to increase, as is evidenced in the
wide-ranging and deep study by SOHNLE, Le droit international des ressources en eau douce
solidarit contre souverainet, doctorate thesis, Universit Strasbourg III, 2000. The exploitation
regime of international lakes has also been complicated by activities introduced as a consequence
of industrialization, including the production of electric energy, irrigation and, in the case of the
Caspian Sea, above all drilling for liquid minerals. Plurality of use creates competition, requiring
compromise solutions capable of satisfying the particular economic and political situation of all
the States concerned. See PONDAVEN, cit. supra note 3, pp. 203-204.
12
See Affaire du lac Lanoux (Spain v. France), Judgment of 16 November 1957, UN Reports
of International Arbitral Awards, Vol. 12, p. 281 ff.
240 NOTES AND COMMENTS
2.1. The Treaties of Friendship, Neutrality and Commerce between the USSR and
Persia (1921-1931)
The legal status of the Caspian Sea has been governed for nearly a century by
the Treaty of Peace between Russia and Persia concluded at Turkmanchai on 22
February 1828 , putting a denitive end to the two wars of conquest engaged in by
Russia in the rst half of the XIX century.18 This treaty upheld the exclusive sover-
13
See RUIZ FABRI, Rgles coutumires gnrales et droit international uvial, AFDI,
1990, p. 818 ff., p. 821.
14
This principle is the expression of a fundamental canon of justice, which limits the ex-
ercise of ones own right in consideration of the contemporaneous existence of corresponding
rights for others. The canon is diffused and constantly observed in domestic legal systems; and
also needs to be respected in the process of the creation of international legal rules, both if it is
considered a fundamental principle of international law and if it is classied as a formal custom-
ary international rule. See GIULIANO, SCOVAZZI and TREVES, Diritto internazionale, Milano,
1991, Vol. I, Parte Generale, pp. 214-216.
15
As far as the obligations of mutual information provision and consultation are concerned,
there are several UN General Assembly resolutions upholding that this obligation is part of inter-
national environmental law in statu nascendi. See GA Resolution 2995 (XXVII) of 15 December
1972, Resolution 2996 (XXVII) of 15 December 1972, and Resolution 3129 (XXVIII) of 13
December 1973, in DJONOVICH (ed.), United Nations Resolutions, Dobbs Ferry/New York, 1978,
Series I (General Assembly), Vol. XIV, 1972-1974, pp. 278-279, pp. 418-419. See also GAJA,
Incidente a Chernobyl ed obbligo di informazione, RDI, 1986, p. 828 ff.
16
See ALLONSIUS, cit. supra note 4, p. 60.
17
See infra section 3.6.
18
See the 1828 Treaty of Peace between Russia and Persia, in PARRY (ed.), The Consolidated
Treaty Series, Dobbs Ferry/New York, 1969, Vol. 78, 1827-1828, p. 105 ff.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 241
eignty acquired over the basin by the Empire of the Tsar and established that only
Russian warships could navigate the waters of the Caspian Sea.19 Still, Article 8 of
the Treaty granted an equal right to both littoral States to navigate freely apart
from the category of warships in the whole of the Caspian basin.20
The status quo established by the Turkmanchai Treaty came to an end with
the arrival of the Soviet regime. As a matter of fact, the dissolution of the imperial
system allowed postwar Persia to regain part of its sovereign rights.
An important testimony of the new direction given to the relationship between
Persia and Soviet Russia was the Treaty of Friendship concluded by the two States
in Moscow on 26 February 1921.21 The 1921 Treaty sets out both contracting
Parties right to freely navigate the Caspian Sea, no longer making a distinction
between merchant vessels and warships (Article 11).22
It should be noted that although the 1921 Moscow Treaty revoked all Russian
concessions in the Caspian Sea,23 it completely ignored the issue of the territorial
delimitation of the Caspian basin between the two littoral States.
Article 3, which addresses questions of the denitive solution of border dis-
putes and the use of frontier waters, among others, makes no reference to the
Caspian Sea.24 The very fact that the provisions concerning the basin are placed
so low in the textual structure of the Treaty suggests that the Caspian Sea was not
regarded as a frontier body of water.
In the 1930s, however, growth in the scope of navigation and shing activities
in the salt water basin drew the littoral States to enter into new agreements, so as to
create a juridical framework to regulate such activities.25 Thus, on 27 October 1931
the Soviet Union and Iran entered into a Treaty of Establishment, Commerce and
Navigation, declaring that navigation and shing in the waters of the Caspian Sea
were reserved to Soviet and Persian ships.26
The reference to the Caspian Sea as a Persian and Soviet sea, contained in
an exchange of notes that accompanied the execution of the Treaty, is extremely
interesting. Some authors have perceived in this statement as well as similar as-
19
In view of such predominance, the Caspian Sea embodied the typical instance of a lake
basin delimited by the method of the bank as boundary limit. See supra note 8.
20
See Article VIII of the 1828 Treaty, cit. supra note 18.
21
See the 1921 Treaty of Friendship, League of Nations Treaty Series, Vol. 9, p. 383 ff.
22
Ibidem, Article 11. See also Article 14 of the same Treaty, dealing with shing in Caspian
Sea waters.
23
See Articles 12 and 13 of the 1921 Treaty, cit. supra note 21; Article 13 requires that the
Persian Government not assign to a third Power, or to the nationals of the latter, any properties or
concessions returned to Persia under the Treaty.
24
See Article 3 of the 1921 Treaty, cit. supra note 21.
25
See VINOGRADOV and WOUTERS, The Caspian Sea: Current Legal Problems, ZARV,
1995, Vol. I, p. 604 ff., p. 608.
26
See the 1931 Treaty of Establishment, Commerce and Navigation, British and Foreign
State Papers, Vol. 134, p. 1026 ff.
242 NOTES AND COMMENTS
sertions contained in the treaties subsequently concluded between the two States27
the intention of the latter to subject the Caspian Sea to condominium status.28
In fact, the littoral States never mentioned such a status either in their bilateral
documents or in the unilateral commitments undertaken by them. On the contrary,
in 1935 the Soviet Minister for Internal Affairs proceeded to draw a delimitation
line across the Caspian Sea between Astara and Gasan-Kholi, to correspond with
terrestrial borders.29
What actually underlay such assertions was only the two coastal States politi-
cal will to deny access to the Caspian Sea to any other State. This interpretation is
also conrmed by a previous treaty, concluded on 1 October 1927, for the exploi-
tation of the sheries on the southern coast of the Caspian Sea.30 Protocol No. 4
of the Treaty expressly refers to the Persian portion of the Caspian Sea,31 albeit
without specifying the range of the latter; also, the recognition of the right of Persia
to appoint a Persian citizen to the presidency of the Soviet-Iranian company in
charge of exploitation of the sh resources in the southern part of the Caspian Sea
reveals that the Soviet Union was aware that the area pertained to Iranian territory.
Consequently, maintenance of public order in the concession area, as a typical at-
tribute of sovereignty, was entrusted to the Persian Government.32
Thus, although the treaties entered into by the two littoral States did not ex-
pressly provide for delimitation of the Caspian Sea, certain provisions thereof dem-
onstrate the evolution characteristic of the legal status of boundary lakes originally
delimited according to the limit-to-the-bank method;33 namely, the progressive
abandonment of the bank as a boundary limit in favor of the subdivision of the
basin between the littoral States.
27
A similar expression can also be found in the exchange of notes attached to the Treaty of
Establishment, Commerce and Navigation entered into by Iran and USSR on 27 August 1935, in
which the Caspian Sea is dened a Soviet and Iranian sea. See League of Nations Treaty Series,
Vol. 176, p. 299 ff., 328. For a more detailed analysis of the Treaty, see infra section 2.3.
28
See DABIRI, cit. supra note 3, p. 32.
29
See Order No. 3 of 1935, by the NKVD (the Soviet Minister for Internal Affairs), in
GIZZATOVA, International Legal Aspects of the Problem of the Caspian Sea, thesis, National
University of Kazakhstan After Al-Farabi, Almaty, 1997, Annex No. 4. Iran did not recognize
the unilateral delimitation ofcially, however, because of the excessive disproportion that would
have ensued in the subdivision of the basin: the Soviet Union would actually have acquired
nearly the whole of the Caspian Sea. See VINOGRADOV and WOUTERS, cit. supra note 25, p. 609;
MERZLIAKOV, Legal Status of the Caspian Sea, International Affairs, 1999, p. 33 ff., p. 34.
30
See Accord entre la Perse et lUnion des Rpubliques Sovitistes Socialistes relatif
lexploitation des pcheries sur la cte mridionale de la mer Caspienne. Sign Moscou, le I
octobre 1927, League of Nations Treaty Series, Vol. 112, p. 297 ff.
31
See Protocole No. 4 of the 1927 Treaty, ibidem, p. 312. See also MERZLIAKOV, cit. supra
note 29, pp. 33-34.
32
See Article XIX of the 1927 Treaty, cit. supra note 30.
33
See supra note 8.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 243
2.2. The Treaties of Establishment, Commerce and Navigation between the USSR
and Iran (1935-1940)
34
Persia was denominated Iran from 22 March 1935 on.
35
See the 1935 Treaty, cit. supra note 27.
36
This obligation is much more stringent than the previous one, requiring Persia alone to
dismiss any foreign individuals taking advantage of their jobs in the Persian navy for purposes
hostile to Federative Russia. See Article 7 of the 1921 Treaty, cit. supra note 21.
37
See PONDAVEN, cit. supra note 3, pp. 55, 84, 155-156.
38
[] 5. Pour les mers autres que la mer Caspienne, les navires naviguant sous le pavillon
de lune des Parties contractantes jouiront, dans les eaux territoriales et dans les ports de lautre,
quant aux conditions de navigation, des mmes droits et avantages que ceux accords aux navires
naviguant sous le pavillon de la nation la plus favorise cet gard. See Article XV of the 1935
Treaty, cit. supra note 35.
244 NOTES AND COMMENTS
incidental clause regarding exemption from port dues for towing vessels having
other craft in tow.39
On the other hand, although the closed character of the Caspian Sea is con-
rmed navigation on its waters being authorized for Soviet and Iranian ships
only the excesses of such closure are abandoned. The new normative system
no longer imposes on the contracting Parties the obligation to exclude all foreign-
ers from their ship crews and port personnel, but only to ensure that nationals of a
third country employed in such activities, do not take advantage of their employ-
ment or presence in those vessels or harbors for purposes outside the limits of the
professional duties with which they are charged.40 This limited opening was prob-
ably due to the progressive consolidation of the political situation in the two littoral
States especially in the Soviet Union and the growing dtente in the relationship
between the two countries.
The Soviet-Iranian Treaties, however, unlike those between Russia/USSR and
Persia, contain no provisions on navigation by Soviet and Iranian warships in the
Caspian Sea, nor on the possibility of overight.
A Soviet-Iranian agreement dated 1964 on air navigation draws an imaginary
line from Astara to Gasan-Kholi, as a reference to circumscribe respective areas
for transmission of ight information. This line corresponds to the one unilaterally
drawn by the Soviet Minister for Internal Affairs, in 1935, to delimit the portion of
the Caspian Sea belonging to the USSR.41 The 1964 agreement does not, however,
in the least question the validity of the 1940 Treaty or of its provisions concerning
the legal status of the Caspian Sea, none of which address the issue of territorial
delimitation of the basin between the littoral States.42
For over fty years the Treaty signed in Tehran in 1940 governed the relation-
ship between the Soviet Union and Iran. Its provisions on commerce and naviga-
tion maintained their original value irrespective of political changes that occurred
in the two countries and inuenced the course of the relationship between the two
States.43
39
See the 1940 Treaty of Commerce and Navigation, British and Foreign State Papers, Vol.
144, p. 419 ff.
40
See Article 13 of the 1940 Treaty, ibidem, and the Exchange of Notes attached to it.
41
See supra note 29.
42
Some authors have inferred from the delimitation of airspace set forth by the 1964
Treaty the existence of a corresponding delimitation of the basin underneath. See DJALILI,
Mer Caspienne: perspectives iraniennes, in La Caspienne. Une nouvelle frontire, Cahiers
dtudes sur la Mditerrane orientale et le monde turco-iranien (CEMOTI), 1997, No. 23,
p. 127 ff., p. 133. It should be noted, however, that according to general international law
territorial sovereignty extends to airspace from land, not vice versa; an extension process
different from the norm should, therefore, have been expressly provided for by the Treaty
rather than inferred through expansive interpretation of provisions aimed at regulating air
trafc control.
43
In this connection the 1979 Iranian Islamic Revolution is worth remembering.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 245
The fact that the bilateral regulation system did not take into account a number
of questions difcult to solve through political mediation, including the juridical
delimitation of the Caspian Sea,44 among others, very likely contributed to the lon-
gevity of the Treaty.
2.3. The Internal Practice of the Soviet Union and of Iran as Conrmation of a De
Facto Delimitation of the Caspian Sea between the Two Littoral States
44
See VINOGRADOV and WOUTERS, cit. supra note 25, p. 608. The two Authors underline
the exclusion, for historical and political reasons, of subjects such as: marine scientic research,
exploration of oil and gas deposits, and drilling in areas adjacent to coasts.
45
See supra note 29. From that moment on, Soviet guards guaranteed the protection of the
frontier along the Astara-Gasan-Kholi line: Iranian boats could not cross this line to go north
without the permission of Soviet authorities. Even air space above the Astara-Gasan-Kholi line
was placed under control, with a similar requirement (of permission) before Iranian aircraft could
enter Soviet airspace. See GIZZATOVA, cit. supra note 29, p. 14.
46
See supra note 29.
47
See supra note 30.
48
See GIZZATOVA, cit. supra note 29, pp. 11, 19-21.
246 NOTES AND COMMENTS
consultation with the other littoral State.49 This practice unequivocally shows that
neither the USSR nor Iran considered mineral resources a common property of lit-
toral States, contrary to what was stated after the dissolution of the Soviet Union by
the Russian Federation and by the Islamic Republic of Iran.50
This position was conrmed by a decree issued by the USSR in 1968 regarding
measures for the prevention of pollution of the Caspian Sea and regulating Soviet
oil-drilling activities.51 The decree, which intended to impose obligations only on
Soviet Ministers, business undertakings and boats, did not presuppose the least con-
sultation with Iran on the application of the measures contemplated in the decree.
In addition, an instrument by Iran dated 18 June 1955, on the exploration and ex-
ploitation of the natural resources of the continental shelf established, in Article 2, that:
49
See MOMTAZ, Le statut juridique de la mer Caspienne, Espaces et ressources maritimes,
1991, p. 149 ff., p. 154; MERZLIAKOV, cit. supra note 29, p. 34.
50
See UN Docs. A/49/475 of 5 October 1994, and A/51/59 of 27 January 1996.
51
See Decree on Measures Relating to the Prevention of Pollution of the Caspian Sea
(1968), The USSR, Eastern Europe and the Development of the Law of the Sea, London/Rome/
New York,1983, J.1.
52
See GIZZATOVA, cit. supra note 29, p. 13; MEHDIYOUN, International Law and the Dispute
over Ownership of Oil and Gas Resources in the Caspian Sea, AJIL, 2000, p. 179 ff., p. 181.
53
It should be remembered, however, that these conventions were approved at a time when
issues such as the exploitation of subsoil resources and protection of the ecosystem did not play a
central role in the development of international law provisions. It is only thanks to scientic and
technological progress that States have become aware of the need for intensive co-operation in
working out frameworks of regulation as well as in implementing those activities.
54
See supra note 51.
55
See GIZZATOVA, cit. supra note 29, p. 19. As to the various methods of delimitation of
international lakes, see supra note 8.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 247
All these measures and resolutions were adopted without consulting Iran, even
though they no doubt had repercussions on the legal regime of the basin and on
its natural conditions.56 For example, the risk of oods, provoked by the excessive
elevation of the water level of the Caspian Sea, was partly caused by exclusively
Soviet enterprises, such as the construction of the Kara-Bogaz-Gol dam.57
This reveals the existence of a consensus, tacit though it was, between the lit-
toral States as to the existence of separate areas of jurisdiction over the waters of
the Caspian Sea.
3.1. The Break-Up of the Soviet Union and Its Consequences on the Legal
Situation of the Caspian Sea
With the Agreement signed at Minsk on 8 December 1991, the Soviet Socialist
Republics of Belarus, Ukraine, and the Russian Federation founder States of
the USSR declared the end of the Soviet Union as a geopolitical reality and as
a subject of international law. In that same Agreement, the three States decided to
create the Commonwealth of Independent States (CIS) in order to help the solution
of problems connected with State succession.58
Immediately afterwards, eight other Soviet Republics joined the Commonwealth,
signing the Alma-Ata (now Almaty) Declaration, on 21 December 1991.59 Georgia
followed suit only in 1994, while the Baltic States decided not to do so.60
Hence, there are now at least eleven new independent States within the territory
of the former Soviet Union.61 These States, on the one hand, undertook to comply
56
Regarding the development of the notion of unity of the hydrographic basin and its
consequences as foreseen by modern international law on the powers of the State with regard to
utilization of the portions of the basin subject to its sovereignty, see CAFLISCH, Rgles gnrales
du droit des cours deau internationaux, RCADI, 1989, VII, p. 9 ff.
57
See supra note 2.
58
See Agreement establishing the creation of the Commonwealth of Independent States
(Minsk, 8 December 1991), ILM, 1992, p. 142 ff. See also passim COZZARINI, La Comunit degli
Stati Indipendenti, Torino, 1996.
59
The Republics involved in the Declaration were Armenia, Azerbaijan, Kazakhstan,
Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan. See ILM, 1992, p. 147 ff.
60
See COZZARINI, cit. supra note 58, p. 77 ff.
61
See infra section 3.2. Discussion is still open on the question of the legal status of the
Baltic States. In fact, these States claim their occupation by the USSR had been illegal, referring
to the use of force for their annexation (to the Soviet Union). See KOSKENNIEMI and LEHTO,
La succession dEtats dans lex-URSS, en ce qui concerne particulirement les relations avec
la Finlande, AFDI, 1992, p. 179 ff., p. 190. Contra CONFORTI, Diritto internazionale, 6th ed.,
Napoli, 2002, p. 24.
248 NOTES AND COMMENTS
with the universally recognized principles and rules of the international legal or-
der;62 and, on the other, committed themselves to grant individually implementa-
tion of the international agreements ratied by the Soviet Union.63
The latter undoubtedly also include the Treaty of Friendship, signed on 26
February 1921,64 as well as the Treaty of Commerce and Navigation, signed on 25
March 1940,65 which represent the only conventional legal ground for the utiliza-
tion regime of Caspian Sea waters.
This regime, based on the uncertain acquiescence of the littoral countries,66 may
have been sufcient for Iran rich in resources in other, much more important and
easily reachable water spaces (e.g. the Persian Gulf), hence scarcely interested in
the economic exploitation of the Caspian Sea. Even after declarations on equal rights
for the two coastal States, included in the 1921 Treaty,67 the Soviet Union actually
dominated the greater part of the basin; and, thanks to the absolute superiority of its
eet, secured exploitation of the most relevant quantity of Caspian Sea resources.68
The creation of new States bordering the Caspian Sea multiplied existent
competing interests, the settlement of which has become more and more difcult
following the continuous discovery of important oil deposits in the subsoil of the
basin.
This situation has made urgent the drafting of a new and complete legal statute
for the Caspian Sea. All the littoral countries have agreed on this necessity. Still,
their opinions on the characteristics of the new regime differ or, it would be better
to say, differed a lot.69
All the positions of the present coastal States on the legal status of the Caspian
Sea have sprung from the disputed question of whether the conventional regime
established by the Soviet Union and Iran, and completed by them with practice,
was still in force.70
62
See the Preamble of the Agreement establishing the creation of the Commonwealth of
Independent States, cit. supra note 58, and the Preamble of the Alma-Ata Declaration, cit. supra
note 59.
63
See Article 12 of the Agreement establishing the creation of the Commonwealth of
Independent States, cit. supra note 58, and the Alma-Ata Declaration, cit. supra note 59.
64
See supra note 21.
65
See supra note 39.
66
See supra section 2.3.
67
See supra section 2.1.
68
See UIBOPUU, The Caspian Sea: A Tangle of Legal Problems, The World Today, 1995,
p. 119 ff.
69
See infra section 4.
70
Ibidem.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 249
The right answer to this question from a legal point of view depends on the
exact classication of the new geopolitical reality created by the break-up of the
Soviet Union. Indeed, by changing the legal classication of the latter, it is possible
to change the fate, as per general international law, of the conventional rights and
duties undertaken by the predecessor State in relationship with other countries.71
In the case of the demise of the Soviet Union, it is necessary, in particular, to
determine whether it was a dismemberment or, instead, a separation from the State
currently named the Russian Federation of parts of its territories, in which new
States have been created.72
The distinction is not unimportant: indeed, in the second case only the Russian
Federation, as the continuing State of the Soviet Union, would be compelled, ipso
jure, to respect the international obligations undertaken by the latter. The other for-
mer Soviet Republics, on the contrary, would be free to choose whether to succeed
in the conventional rights and duties of the predecessor State, or not.73
Part of doctrine qualies the demise of the Soviet Union as a dismemberment,
basing this opinion on some ofcial documents, which would testify to the total
disappearance of the USSR as a subject of international law. Thus, the Preamble
of the 1991 Agreement establishing the creation of the CIS,74 states that: []
71
There is also an important Convention on the subject: the 1978 Vienna Convention on
Succession of States in Respect of Treaties, which entered in force only on 6 November 1996.
As of the end of 2004, the 1978 Vienna Convention had not been ratied by any of the former
Soviet Republics surrounding the Caspian Sea. At all events, even if these States were to change
their position and adhere to the Convention, it would still be necessary to take into consideration
what is stated by Article 7 of the treaty. According to the latter, without a declaration otherwise by
successor States, the Convention applies only to State successions that took place after the treaty
entered in force; that is to say after 6 November 1996. Hence, the demise of the Soviet Union in
1991 and its consequent problems of succession in international treaties would not fall under the
regulation of the 1978 Vienna Convention. See the 1978 Vienna Convention on Succession of
States in Respect of Treaties, ILM, 1978, p. 1488 ff. For an analysis of the problems connected
with the entry into force of the Convention, see BURCI, Lentrata in vigore della Convenzione di
Vienna sulla successione di Stati in materia di trattati e la prassi nellambito delle Nazioni Unite,
RDI, 1997, p. 175 ff.
72
The difference between the two situations is essentially that, while detachment does not en-
tail the extinction of the State suffering it, the dismembered State becomes extinct and is replaced
by two or more new States in the same territory. See CONFORTI, cit. supra note 61, p. 122.
73
As the Secretary General of the United Nations remarked in a note sent in March 1992
to the secretariats of the organs and organizations of the United Nations system, there are no
clear customary rules prescribing to new States specic solutions regarding treaties in force for
their predecessors. The note concerned the legal signicance of the 1978 Vienna Convention on
Succession of States in Respect of Treaties (cit. supra note 71). See BURCI, cit. supra note 71, p.
175; see also MLLERSON, The Continuity and Succession of States, by Reference to the Former
USSR and Yugoslavia, ICLQ, 1993, p. 473 ff., pp. 473-474. For an in-depth analysis of practice
concerning State succession in conventional relationships before events in Central and Eastern
Europe see RONZITTI, La successione internazionale tra Stati, Pisa, 1970, pp. 158-202.
74
See supra note 58.
250 NOTES AND COMMENTS
the Union of the Soviet Socialist Republics as a subject of international law and
a geopolitical reality no longer exists. []. Furthermore, Article 12 of the same
Agreement species that: The High Contracting Parties grant the observance of
the international commitments deriving to them from the treaties and agreements
of the former USSR. As some authors have underlined,75 the Russian Federation
does not receive any particular consideration in these rules. Therefore, it seems
to be in the same position as other former Soviet Republics, i.e. a successor State
of the USSR. This reasoning would also be upheld by the Protocol of the Treaty
START 1 on the reduction of nuclear weapons, signed at Lisbon on 23 May 1992.
The Protocol indeed recognizes all the four successor States of the USSR hold-
ing nuclear weapons, i.e. the Russian Federation, Byelorussia, Kazakhstan and
Ukraine, as parties to the Treaty.76 Finally, when the Parliament of the Soviet Union
ratied the 1991 Minsk Agreement, it expressly abrogated the Treaty of 1922,
which gave rise to the Union of the Soviet Socialist Republics.77
In reality, the legal value of these agreements, as well as of others later signed
by the former Soviet Republics, has to be greatly reduced. Qualitative analysis of
the intense negotiating process that went along with the demise of the Soviet Union
shows that the intensity of the talks did not correspond to an equally effective re-
alization of legal statements in the majority of cases. It is sufcient to observe the
repeated understandings on the question of the legal statute of the Caspian Sea,78
and realize that new States have often negotiated and signed agreements without
any real intention of respecting them, but rather with the diplomatic purpose of
avoiding disputes and of keeping dialogue with other contracting States open.79
75
See ALLONSIUS, cit. supra note 4, p. 25.
76
The Protocol was promoted by the USA in order to put an end to a dispute between the
Russian Federation and Ukraine that threatened to compromise achievement of the objectives of
the Treaty START 1. The Russian Federation had initially claimed that the Treaty, signed by the
USA and the USSR on 31 July 1991, should remain a bilateral agreement; and that the Russian
Federation, as the only successor State having the status of nuclear Power, should be the only
legitimate State to negotiate further agreements on the matter. Ukraine challenged the Russian
demand and claimed, as successor State, equal treatment in this regard. See COZZARINI, cit. supra
note 58, pp. 29-32.
77
See ALLONSIUS, cit. supra note 4, p. 25.
78
The behavior of Azerbaijan, Kazakhstan and Turkmenistan is an eye-opener. These States,
after having ofcially condemned unilateral initiatives undertaken before conclusion of an agree-
ment on the new legal status of the Caspian Sea, have delimited with internal acts their respective
sectors of the basin and concluded contracts with oil companies for the exploitation of mineral
resources present in the sectors. Furthermore, the afrmations of the principle of freedom of
navigation in the Caspian Sea included in the joint declarations presented by the coastal States to
the United Nations followed by the creation of particular forms of control and by the conclusion
of bilateral agreements aimed just at regulating navigation may be considered. See GIROUX, Le
Kazakhstan entre Russie et Caspienne, in La Caspienne. Une nouvelle frontire, cit. supra note
42, p. 167 ff., p. 169. See also UN Document A/51/529 of 21 October 1996, and infra section 4.
79
See COZZARINI, cit. supra note 58, p. 39. The Russian Federation, after having solemnly
stated its will to respect the independence and territorial integrity of the other former Soviet
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 251
Hence, in order to understand the real nature of what has happened since the
Agreement of 1991, it is not possible to take into consideration only the documents
signed by the former Soviet Republics. As these documents rarely correspond to
facts, any legal assessment of what has happened must focus on concrete data.
Rein Mllerson has isolated some objective and subjective elements, which
demonstrate that the former Soviet Union has suffered the separation of parts of its
territory from its core, Russia, which therefore assumes the quality of the Soviet
Unions continuing State.80
Among objective factors, it is important to consider that the Russian Federation
spreads over more than seventy-six percent of formerly Soviet territory and that
more than half the population of the former USSR lives in its territory.81
Furthermore, the Russian Federation is still a federal Republic in which, when
the change occurred, power stayed in the hands of the same men who, in 1991,
decided to dismantle Soviet power organs, abandoning communist ideology. All
this took place peacefully, through the use of legal tools. The Union Treaty of 30
December 1922, which gave rise to the USSR, indeed provided for the right of
withdrawal to the federated Republics.82
As a matter of fact, situations in which the continuity or succession of a State
is disputed always take place in a very sensitive political context. It is therefore
important to consider the attitude of both the interested State83 and the behavior of
third States.84
In a letter sent to the United Nations Secretary General on 24 December 1991,
the President of the Russian Federation, Boris Yeltsin, declared that membership of
the Soviet Union in the United Nations system, including the Security Council, and
all other organs and organizations of the United Nations system, is being contin-
ued by the Russian Federation.85
Republics, has also advanced claims on the oil elds exploited by the latter. Moreover, after
having publicly declared respect for the principles expressed in the United Nations Charter, the
coastal States of the Caspian Sea have not hesitated to threaten, in a more or less veiled manner,
use of force aimed at re-establishing the legal order violated by unilateral actions undertaken in
the basin. See UN Docs. A/49/475 of 5 October 1994, A/52/1011 of 10 August 1998, and A/52/
259 of 25 July 1997.
80
See MLLERSON, cit. supra note 73, pp. 476-478.
81
See KOSKENNIEMI and LEHTO, cit. supra note 61, p. 189.
82
Change in the constitutional structure of a State, no matter how fundamental, does not
have any importance for international law if it takes place using constitutional means. The revi-
sion clause of a constitution is thus as much part of the constitution itself as all its other norms.
According to international law, problems of State continuity may arise only if constitutional
change has taken place by means of a revolutionary change of government. See MAREK, Identity
and Continuity of States in Public International Law, Genve, 1954, p. 25.
83
See MLLERSON, cit. supra note 73, pp. 476-478, and also CHARPENTIER, Les dclara-
tions des Douze sur la reconnaissance des nouveaux Etats, RGDIP, 1992, p. 343 ff., p. 351.
84
See CRAWFORD, The Creation of States in International Law, Oxford, 1979, p. 406.
85
See ILM, 1992, p. 138.
252 NOTES AND COMMENTS
86
For a critique of this way of proceeding, with particular regard to the attribution of the per-
manent seat in the Security Council, see VILLANI, Lattribuzione alla Russia del seggio sovietico
nellONU, RDI, 1992, p. 120 ff.
87
The question of membership in the United Nations has, in any case, been resolved in the
same manner as in the context of the separation of Pakistan from India in 1947. The situation
had no effect on the international status of India, which thus kept its status as Member of the
United Nations. On the contrary, the territory breaking away, i.e. Pakistan, had become a new
State, free from the conventional rights and obligations of a continuing State; hence, it was not
automatically a member of the United Nations. See MLLERSON, cit. supra note 73, pp. 447-448;
OCONNELL, State Succession in Municipal Law and International Law, Cambridge, 1967, Vol. I
Internal Relations, pp. 7-8. Also, as far as the CSCE (now OSCE) is concerned, Russia simply
notied the Secretariat of its intention to continue the status of the Soviet Union. See ALLONSIUS,
cit. supra note 4, p. 26.
88
See KOSKENNIEMI and LEHTO, cit. supra note 61, p. 188-189. One particularly meaningful
declaration is that adopted by the European Community in the eld of political co-operation, in
which the Member States notent que les droits et les obligations internationales de ce qui tait
lU.R.S.S., y compris ceux et celles dcoulant de la Charte des Nations Unies, continueront dtre
exercs par la Russie. Ils prennent note avec satisfaction de lacceptation par le Gouvernement
Russe de ces engagements et de ces responsabilits et ils continueront de traiter avec la Russie
sur cette base, en tenant compte de la modication de son statut constitutionnel. The declaration
ends by establishing, as a condition for the recognition of the other former Soviet Republics,
that the latter undertake to respect the international obligations assumed for them in the treaties
and agreements concluded by the Soviet Union. The text of the declaration was adopted on 23
December 1991 and published at The Hague and in Brussels. See VILLANI, cit. supra note 86,
p. 121.
89
See CHARPENTIER, cit. supra note 83, p. 351.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 253
3.3. The Succession of the New Littoral States in the Soviet-Iranian Treaties
Concerning the Caspian Sea
The former Soviet Republics (other than the Russian Federation), as new
States, are thus free of international conventional obligations.
Nevertheless, in the Declaration signed at Alma-Ata on 21 December 1991,
the former Soviet Republics guaranteed the discharge of the international ob-
ligations deriving from treaties and agreements concluded by the former Union
of Soviet Socialist Republics in accordance with their respective constitutional
procedures.90 In this manner, the new States may seem to have accepted a general
principle of continuity in the international obligations of the predecessor State: a
principle that, due to its general character, would also cover the Treaties with provi-
sions on the Caspian Sea.91
According to the principle of customary international law stating the inapplica-
bility of international agreements to third States, the Alma-Ata Declaration cannot
have effect on the other contracting Parties of the treaties concluded by the USSR,
however. Hence, the Declaration only compels the former Soviet Republics to take
the steps necessary to renew these agreements.
On this point, the history of the Treaties with provisions on the Caspian Sea is
bizarre. On the one hand, Iran, as original contracting Party to these Treaties, has
conrmed the persisting validity of the regime established by them. On the other,
two of the three new independent States bordering the Caspian basin, Kazakhstan
and Azerbaijan, have claimed their extinction.92
The Russian Federation, still contracting Party to these Treaties because of
its quality as continuing State of the Soviet Union,93 immediately challenged the
illegal behavior of the two Republics, claiming it violated their obligations, as un-
dertaken in the Alma-Ata Declaration.
In reality, as underlined above,94 negotiating activity following the creation of
the Commonwealth of Independent States does not seem to have generated legal
agreements stricto sensu,95 rather than mere political acts96 the implementation of
90
See Article 12 of the Alma-Ata Declaration, cit. supra note 59.
91
See supra sections 2.1. and 2.2.
92
See infra section 4.
93
See supra section 3.2.
94
See supra notes 78 and 79.
95
Furthermore, the memorandum signed by the Heads of State of the CIS countries on 6 July
1992, greatly limiting the importance of the Alma-Ata Declaration, is worth noticing. It pinpoints
that participation in international treaties in respect of principles and norms of international law
was to be decided individually by each of the former Soviet Republics, considering the specic-
ity of each concrete case, as well as the character and content of each treaty. See MLLERSON,
cit. supra note 73, p. 479.
96
See COZZARINI, cit. supra note 58, p. 36 ff.
254 NOTES AND COMMENTS
97
The problem of distinction between legal and political agreements has been widely
discussed by scholars. See SCHACTER, The Twilight Existence of Nonbinding International
Agreements, AJIL, 1977, p. 296 ff.; VIRALLY, La distinction entre textes internationaux de
porte juridique et textes internationaux dpourvus de porte juridique, Annuaire de lInstitut de
Droit International, 1983, Vol. I, p. 166 ff.; WENGLER, Les Conventions non juridiques comme
nouvelle voie cot des Conventions en droit, in Nouveaux itinraires en droit. Hommage
Franois Rigaux, Bruxelles, 1993, p. 637 ff.; GIULIANO, SCOVAZZI and TREVES, cit. supra note
14, pp. 318-320. See also COZZARINI, cit. supra note 58, pp. 36-37, 40-41; BURCI, cit. supra note
71, p. 176.
98
See ALLONSIUS, cit. supra note 4, p. 30 ff.
99
The rule on transmissibility of territorial treaties, also named real or localizable treaties, is
also adopted by Article 12 of the 1978 Vienna Convention on Succession of States in Respect of
Treaties (cit. supra note 71). See YASSEEN, La Convention de Vienne sur la succession dEtats
en matire de traits, AFDI, 1978, p. 59 ff., pp. 82-83.
100
See RONZITTI, cit. supra note 73, p. 141 ff. Even if the opinion afrming the existence
of a rule of general international law prescribing succession in localized conventional provisions
is predominant, it is not unanimously accepted by doctrine. See contra, inter alia, GIULIANO,
SCOVAZZI and TREVES, cit. supra note 14, p. 410 ff.
101
See supra sections 2.1. and 2.2.
102
See MCNAIR, The Law of Treaties, Oxford, 1961, p. 600 ff.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 255
103
Nevertheless, OConnell thinks that even though the interpretative canons of interna-
tional treaties presuppose the integrity of the latter when a relevant part of an agreement is
self-contained, it does not necessarily need to be read in the context of the whole. In the view
of the Author, one part of a treaty may be interpreted separately when: a) it concerns distinct sub-
jects; b) it does not depend on other parts of the same treaty; c) it is not indissolubly located in the
operational scheme of the treaty. When the separate interpretability of integral parts of the treaty
has been established, it is not difcult to state their independent application. See OCONNELL, cit.
supra note 87, Vol. II International Relations, p. 301.
104
See HERBST, Successione fra Stati e trattati non localizzati, Diritto internazionale,
1964, p. 99 ff., p. 101.
105
The distinction between personal and real or regulating treaties was elaborated on by De
Vattel. The former create mutual rights and duties among governments, so that they are strictly
connected with the subject of international law that has concluded them, and may consequently
survive only in the legal administrative system of that State. See DE VATTEL, Le Droit des Gens,
Lyon, 1802, p. 197. See also OCONNELL, cit. supra note 103, p. 231 ff.; MCNAIR, cit. supra
note 102, p. 655 ff.; CONFORTI, cit. supra note 61, pp. 115-116; and the statements made by the
Swiss Government in the Case of the Free Zones of Upper Savoy and the District of Gex (Swiss v.
France), Judgment of 7 June 1932, PCIJ Series, Series C, No. 17-1, Vol. 3, p. 1333 ff., p. 1654.
106
See supra note 103.
107
See Article 1 and Article 2 of the 1921 Treaty, cit. supra note 21.
108
See the 1940 Treaty, cit. supra note 39.
256 NOTES AND COMMENTS
implies deep limits to the exercise of territorial sovereignty in the interest of one
or more other States.109 In order to create such a submission, it is necessary for
the State to have full sovereignty over the parts of territory it decides to put under
restriction. As already underlined, the Treaties of 1921 and 1940 do not absolutely
reach the issue of sovereignty over Caspian Sea waters, since the latter are ac-
cording to the treaties and as expressly recognized by the Russian Federation ter-
ritory out of the jurisdiction of coastal States.110
The personal character of the provisions on the Caspian Sea is denitely high-
lighted by the combined regulation of the Protocol attached to the 1940 Treaty and
of Article 13 of the same Treaty, aimed at impeding access to the Caspian basin
not only for ships ying the ag of non-coastal States, but also for the citizens and
the trade and transport organizations of third States.111 In the norms regarding the
Caspian Sea, the logic of reservation prevails over that of free utilization of the basin
by littoral States: a freedom that has instead normally a central position in localized
treaties concerning (other) international lakes. The exclusion was strongly desired
by the Soviet Union, however, to the political end of maintaining the position of
supremacy it had acquired in the region and in the exploitation of its resources.112
The remarks made until now are valid also for the provision of the 1940
Treaty that xes a limit of ten nautical miles from the coast within which shing
is reserved to the respective littoral State.113 Russian supremacy draws back when
faced with the accessory relationship between coastal waters and the territory of
the respective coastal State. This accessory relationship is recognized in general
international law, since its observance is a necessary premise for the realization of
coastal populations right to self-conservation. The 1940 Treaty therefore connes
itself to quantifying a right already awarded to the contracting Parties by customary
international law. At all events, the Soviet Union was thereby able to restrict the
right either as far as its extension was concerned and with regard to the limitation
of exclusive utilization to shing only, so that Iran could not hamper Soviet expan-
sion in the basin.
109
Writers from Europe have sometimes dened localized treaties as servitudes, giving rise
to a querelle on the opportunity of the introduction into international law of a concept drawn from
States domestic law. The essential elements of an international servitude were summarized by
the USA, on occasion of the arbitration on the Fisheries of the North Atlantic (1910) in the fol-
lowing manner: the real right must belong to a nation; it must be a permanent right; it must be a
right allowing that the territory of a State serve the utilization and ends of another State; it must
be restrictive or permissive. See Award of the Tribunal of Arbitration in the Question Relating
to the North Atlantic Coast Fisheries (United States v. Great Britain), Judgment of 7 September
1910, UN Reports of International Arbitral Awards, Vol. 11, p. 167 ff., p. 182 and p. 187.
110
See ALEXANDROV, Russian-Kazakh Contradictions on the Caspian Sea Legal Status,
1998, available at http://www.cerc.unimelb.edu.au/bulletin/1998.htm.
111
See supra note 40.
112
See supra note 29.
113
See Article 12 of the 1940 Treaty, cit. supra note 39.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 257
Hence, the highly political nature of the provisions on the Caspian Sea included
in the Soviet-Iranian Treaties of 1921 and 1940 does not allow one to claim, abso-
lutely, their automatic succession upon the new independent States, now bordering
the basin.
3.4. The Applicability of the Rebus Sic Stantibus Principle to the Soviet-Iranian
Treaties Concerning the Caspian Sea
Even if it would be possible to demonstrate either the legal nature of the Alma-
Ata Declaration or the localized nature of the norms concerning the Caspian Sea
combined with the existence of a customary rule stating their transmissibility to
the successor States because of this nature,114 the persistent validity of the Soviet-
Iranian Treaties would still need to be evaluated in light of the rebus sic stantibus
principle.
Among the rules of international law on the termination of treaties, the rebus
sic stantibus principle holds particular importance.115 The fundamental principle
of good faith requires that an international treaty, like a contract in domestic law,
be extinguished when a change of the circumstances upon which it is based is so
radical that continued application of the treaty would amount to a substantial in-
justice.116
The rebus sic stantibus principle, due to the reasons of its existence, is appli-
cable to all kinds of agreements, including localized treaties. With regard to this
latter category, scholars have raised questions as to their survival in ordinary cir-
cumstances of change of sovereignty, rather than assume their continued survival,
regardless of any fundamental change of circumstances.117
The principle, even if interpreted in a restrictive way,118 has a rather wide scope
114
See supra section 3.3.
115
A change of circumstances is essential or fundamental, i.e. it is capable of implying the
lapse of an international treaty when the rationale, le but objectif de la convention en soit si
foncirement atteint quon ne peut, en bonne foi, demander au dbiteur laccomplissement des
obligations stipules et que le maintien du sens mme de la convention exige que son application
cesse. See KAUFMANN, Rgles gnrales du droit de la paix, RCADI, 1935, IV, p. 313 ff., p.
516.
116
As Poch de Cavedies stated, dans lordre international conventionnel, le principe du de-
voir daccomplissement de ce qui a t accord doit tre considr en relation avec le principe de
la bonne foi, et, travers ce dernier, avec le principe rebus sic stantibus. See POCH DE CAVEDIES,
De la clause rebus sic stantibus la clause de rvision dans les conventions internationales,
RCADI, 1966, II, p. 109 ff., pp. 161-167, in particular p. 165. See also GIULIANO, SCOVAZZI and
TREVES, cit. supra note 14, p. 386; CONFORTI, cit. supra note 61, pp. 136-137.
117
See OCONNELL, cit. supra note 103, p. 21.
118
The wording of the norm included in the 1969 Vienna Convention on the Law of Treaties,
which recognizes the validity of the rebus sic stantibus principle, clearly aims at stressing the
258 NOTES AND COMMENTS
of application, given that various rules of the law of treaties are specications of
it. Among these latter, there is the rule stating that, in all cases of State succession,
agreements incompatible with the new regime lose their validity.119 State succes-
sion itself often represents a fundamental change of the circumstances that induced
the original contracting parties to enter into the treaty. This is particularly true for
bilateral international agreements, or those with a limited number of parties; i.e. for
those that could be dened, through a prudent analogy with the domestic law of
contracts, treaties concluded intuitu personae.
The Soviet-Iranian Treaties, including the scanty legal rules on the Caspian Sea,
must, without a doubt, be classied in the aforementioned category. The regime
established by them had been conceived to rule the respective sovereignty of only
two States that could count on important accesses to the open sea.120 Furthermore,
the Caspian Sea was the object of major attention on the part of the Soviet Union,
not only for economic reasons, but above all for political considerations. In fact, the
USSR surrounded eighty percent of the lake and, thanks to the absolute superiority
of its eet, could benet from the major part of basin resources.121 At the same time,
the Caspian Sea represented a dangerous point of penetration for people hostile to
the communist system, who had ed to the near Middle-East.122
This situation explains the generic statements of freedom of navigation and
shing for the two coastal States in the entire basin, accompanied by the engage-
ment of the contracting Parties to prevent access to the Caspian Sea to any subject
having a nationality different from that of the two coastal countries.123
Setting aside the personal or territorial classication to be assigned to the rules
on the Caspian Sea included in the 1921 and 1940 Treaties and notwithstanding any
declaration of principle expressed by the successor States, it seems evident that,
with regard to these provisions, the break-up of the Soviet Union has produced the
radical change of circumstances permitting a claim to their extinction.
First of all, the demise of the communist system has meant the disappearance
of the political rationale underlying the rules limiting basin utilization to the citi-
zens of the coastal States only. Hence, there is no legal basis for the objections,
consisting of claims of violation of the exchange of notes attached to the 1940
exceptional character of this cause of extinction. See Article 62 (Fundamental change of circum-
stances) of the 1969 Vienna Convention on the Law of Treaties, UNTS, Vol. 1155, p. 331 ff. See
also the comment of the International Law Commission to the draft article concerning the funda-
mental change of circumstances as a cause of treaty extinction, YILC, 1966, Vol. II, p. 42 ff.
119
See CONFORTI, cit. supra note 61, pp. 137-138.
120
It is also important to consider that in Iran access to the basin is made difcult by an
important mountain chain that separates Tehran and the rest of the country from the Caspian
Province. See DJALILI, cit. supra note 42, pp. 127-128.
121
See supra note 29.
122
See supra notes 36 and 40.
123
See supra sections 2.1. and 2.2.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 259
Treaty of Commerce and Navigation, raised by the Russian Federation and Iran to
the activities of foreign oil companies in the Caspian Sea.124
Furthermore, with the appearance of three new States around the Caspian Sea,
but above all because of the recent discovery of important oil elds in its subsoil
(with subsequent activity), the generic regime of freedom of navigation and shing
provided for by the 1921 and 1940 Treaties has proven completely inadequate.
This situation explains the unacceptability of the previous regime for the new
Republics bordering the Caspian Sea: Azerbaijan, Turkmenistan, and Kazakhstan.
Moreover, unlike the Russian Federation and Iran, these are land-locked States,
with weak economies, for which the guarantee of being able to exploit at least a
part of basin resources represents a necessary condition for survival.125
In particular, the conspicuous amount of recently discovered, off-shore min-
eral resources represents an important factor of economic self-determination. It is
important to consider that the 1978 Vienna Convention on Succession of States in
Respect of Treaties solemnly declares that none of its provisions on succession can
affect the principles of international law afrming the permanent sovereignty of
each nation and State over its riches and natural resources.126 These principles are
based upon the peoples right of political and economic self-determination.
Hence, even if one would deny the existence of a fundamental change of the
circumstances upon which the 1921 and 1940 Treaties had been based though
clearly present in the opinion of this writer ,127 their validity would in any case
124
See supra note 40.
125
A very large part of the almost ten million people living along the banks of the Caspian
Sea survive by shing. See GIROUX, Laxe Caspienne-Mer Noire, Le Courrier des Pays de
lEst, October 1997, p. 3 ff., p. 6.
126
See Article 13 (The present Convention and permanent sovereignty over natural wealth
and resources) of the 1978 Vienna Convention on Succession of States in Respect of Treaties, cit.
supra note 71. With regard to the ends of the undergoing analysis, Article 14 (Questions relating
to the validity of a treaty) of the same Convention, which states that: Nothing in the present
Convention shall be considered as prejudging in any respect any question relating to the validity
of a treaty is also interesting. Hence, the causes of extinction of treaties, including the rebus sic
stantibus principle, prevail over any supposed principle of succession in conventional obligations
assumed by predecessor States, also according to the Convention.
127
In this sense, see ALLONSIUS (cit. supra note 4, p. 37), who denies the applicability of the
rebus sic stantibus clause in a hasty way, using generic and presumptive arguments. In particu-
lar, the claimed denial of a fundamental change of circumstances based on Soviet and Iranian
knowledge of the presence of mineral resources in the Caspian Sea is soon proved wrong by two
considerations. First of all, the reserves known at the time of the conclusion of the 1921 and 1940
Treaties were not comparable to the great elds discovered only in the last decade. Furthermore,
the scarce interest of the two States in Caspian oil resources was easy to explain, since both could
count on much more rich and accessible elds (such as Siberia for the USSR and the Persian
Gulf for Iran). However, for the new coastal States, though provided in their territory with other
mineral reserves, the sizeable oil elds of the Caspian Sea represent the richest of exploitable oil
resources. Due to the precarious economic situation of these States, basin resources now acquire
an essential character, unlike in the past.
260 NOTES AND COMMENTS
3.5. The International Borders of the New States: The Consequences of the
Caspian Seas Administrative Delimitation as Created by the Soviet Union
Given the lack of conventional rules on the general legal status of the Caspian
Sea and its exploitation regime, it is worth examining, rst of all, whether some
legal criteria allowing the demarcation of coastal States respective areas of sover-
eignty over the Caspian Sea existed at the time of the demise of the USSR, as the
writer believes they did.
When a State suffers either dismemberment or the detachment of some parts of
its territory, resulting in the creation of new States, the problem of delimiting the
boundaries of the new international subjects, as well as (in the second case) of the
predecessor State, is raised.129
The norm guiding boundary delimitation among new States, or with the prede-
cessor State, is the so-called uti possidetis principle, which provides for succession
in line with the administrative boundaries xed by the predecessor State. The prin-
ciple is obviously applicable when dismemberment or detachment affects a single,
or a group of, administrative entities within the previously existing State.130
128
See Article 53 (Treaties conicting with a peremptory norm of general international law
(jus cogens)) of the 1969 Vienna Convention on the Law of Treaties (cit. supra note 118).
With regard to the subject analyzed, the provision just quoted must be read together with Article
64 (Emergence of a new peremptory norm of general international law (jus cogens)) of the
Convention, which states that: If a new peremptory norm of general international law emerges,
any existing treaty which is in conict with that norm becomes void and terminates. Adhering to
Confortis opinion, the jus cogens principle of peoples self-determination arose after the conclu-
sion of the two Soviet-Iranian Treaties. See CONFORTI, cit. supra note 61, pp. 23-24.
129
As Mllerson has pointed out, this is not stricto sensu a problem concerning State suc-
cession, for the rights and duties connected with respect of the new international frontiers arise
only after the succession event. Nevertheless, a strong interrelation exists between State succes-
sion and the question of boundary delimitation among subjects of international law arisen from
dismemberment or detachment. See MLLERSON, cit. supra note 73, p. 485.
130
See SOREL and MEHDI, Luti possidetis entre la conscration juridique et la pratique: essai
de ractualisation, AFDI, 1994, p. 11 ff., p. 14; CONFORTI, cit. supra note 61, pp. 116-117. The
importance of the uti possidetis principle was also recognized on the occasion of the demise of
the Soviet Union, when the continuing State, i.e. the Russian Federation and the successor States
committed themselves to respecting existing frontiers inside the Commonwealth of Independent
States, i.e. the administrative frontiers of the USSR. See Article 5 of the 1991 Minsk Agreement,
cit. supra note 58, and the Preamble of the Alma-Ata Declaration, cit. supra note 59.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 261
However, overcoming the terrestrial limit the uti possidetis principle also
applies to maritime delimitation. Its application in this context has also been upheld
by the International Court of Justice, in the arbitration award of 31 July 1989 on the
delimitation of the maritime frontier between Guinea Bissau and Senegal.131
By analogy, it can be assumed that the uti possidetis principle also applies
when the administrative delimitation concerns a lake basin.
The land, maritime or lake nature of the considered space does not, in fact,
inuence the rationale of the rule. The latter aims, in all contexts, at preventing
centrifugal movements that may provoke regression at the social, political and
economic level, and therefore harm international peace and security, as well as the
existence of the States just created.132
The same rationale justies and calls for respect by the States bordering the
Caspian Sea of the administrative delimitation drawn in 1970 by the Soviet Ministry
for Industry and Energy within the part of the basin de facto assigned to the USSR,
even if only with regard to the performance of oil activities. 133 Moreover, the lack
of a real right of ownership may be addressed by the effective and complete man-
agement of the distinct areas in question by each former Soviet Republic after the
demise of the Union.
The 1970 delimitation also has the merit of being based on the most widely
used method for drawing borders within international lakes, i.e. the median line
criterion,134 allowing for proportional and hence equitable sharing.135
Nevertheless, in practice, the median line method suffered some modications
at certain points in order to satisfy the exigencies of the Soviet economy, based
on strict distribution of competence. Nowadays, these exigencies are contrary to
the needs of the newly independent States bordering the Caspian Sea in trying
to achieve economic self-determination, necessary to support their political inde-
pendence. This inevitably gives rise to disagreements with regard to areas falling
outside the strict application of the median line criterion.
Beyond the 1970 delimitation, the frontier with Iran is ruled by the general
principle of respect of territorial integrity stated in Article 2, paragraph 4, of the
131
The award is available in RGDIP, 1990, p. 204 ff.
132
See SOREL and MEHDI, cit. supra note 130, p. 31.
133
See supra section 2.3.
134
See supra note 8.
135
There is no doubt that mathematical equality conceals some elements of equity, but in
any case the two notions cannot be identied. In a case in which equivalence is under discus-
sion, equity plays a role, above all, as an impartial and reasoned balance of interests, which, in
order to remain fair, may need the application of diverse treatment in the presence of different
conditions. As the Permanent Court of International Justice has pointed out: Lgalit en droit
exclut toute discrimination; lgalit en fait peut, en revanche, rendre ncessaires des traitements
diffrents en vue darriver un rsultat qui tablisse lquilibre entre des situations diffrentes.
See Ecoles minoritaires en Albanie, Advisory Opinion of 6 April 1935, PCIJ, Series A/B, No.
64, p. 4 ff., p. 19.
262 NOTES AND COMMENTS
UN Charter. This principle imposes respect for the delimitation de facto estab-
lished between the USSR and Iran by means of the line connecting the extremities
of territorial borders.136 This line represents the actual frontier between Azerbaijan
and Turkmenistan, on the one side, and Iran on the other. The latter challenges this
delimitation, however, claiming it is inequitable, and asks for a new delimitation of
the whole basin in equal parts.137
At all events, such disputes do not affect the valid application of the aforemen-
tioned principles of territorial integrity and of the inviolability of frontiers, both
necessary premises to the prohibition of the use of force in international relation-
ships. As such, they must not be confused with the principles of immutability and
intangibility of frontiers. While the former have an absolute value, the latter have
relative signicance, since they are applicable only until States decide otherwise in
particular situations.138 The uti possidetis principle thus stands for the determina-
tion that, at the moment of access to independence, frontiers are those inherited
from the predecessor State. This certainly implies the inviolability of such frontiers
but not their immutability.
Eventually, the uti possidetis principle, together with the principle of respect
for territorial integrity, could give the Caspian coastal States negotiable legal
ground, ensuring some certainty, even if challenged, in subjective legal situations,
and should help prevent unilateral claims, thereby contributing to grant security in
the tormented region of the Caucasus.
136
See supra note 29.
137
See United States Energy Information Administration, Caspian Sea Region:
Legal Issues, July 2002, available at http://web.archive.org/web/20030417153357/http://
www.eia.doe.gov/emeu/cabs/casplaw.html.
138
See BARDONNET, Les frontires terrestres et la relativit de leur trac problmes juri-
diques choisis, RCADI, 1976, V, p. 9 ff., p. 68.
139
See supra section 1, in the end.
140
See supra section 3.5.
141
See supra note 2.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 263
International law does not regulate the exploitation of mineral resources lying
in the soil and the subsoil of frontier lakes, either at the conventional level or at the
customary one, however. This lacuna is probably explained by the fact that such
deposits are present in signicant quantities only in the Caspian Sea, the classica-
tion of which as an international lake has been challenged for a long time.141
In this regard, it is worth underlining that major problems in inter-State rela-
tionships arise as a consequence of the presence of deposits of liquid minerals, such
as oil and gas. When such deposits cross a frontier line i.e. they are shared by
more than one State142 their uidity and mobility often allow for complete exploi-
tation from both sides of the boundary, using directional drilling.143 This constitutes
a violation of the principle of State territorial integrity, a necessary corollary of the
right of sovereignty, however, such as it is for exploration and exploitation activi-
ties carried out illegally in the territory of another State.
In any case, drilling for oil and natural gas at a specic point of the deposit
inevitably modies the condition of the whole deposit.144 As a consequence, legiti-
mate drilling activity for minerals by a State within its own territory may result in
other States with sovereign rights over the common deposit being unable to do the
same in areas within their jurisdiction.145
In the absence of conventional regulation, as is the case of the Caspian Sea,
the problem is establishing the rights and duties of States with sovereignty over the
common deposit of liquid minerals.
The different solutions adopted in practice reveal the absence of rules of
general international law capable of resolving this problem. State practice on the
142
This is the case for the oil elds beneath the Apsheron chain, which extends horizontally
across the subsoil of the Caspian Sea from the Azeri bank to the Turkmen one.
143
See ONG, Joint Development of Common Offshore Oil and Gas Deposits: Mere State
Practice or Customary International Law?, AJIL, 1999, p. 771 ff.
144
According to Lagoni, in both of the hypotheses mentioned, the consequence would be
the drilling States responsibility for any material damage caused to the territory of the State
deprived of its own resources. This responsibility has actually been claimed constantly by the
coastal States of the Caspian Sea in the ofcial documents presented to the United Nations on
the question of the legal status of the basin (see UN Documents A/51/59 of 27 January 1996,
A/51/138 of 17 May 1996, A/52/324 of 8 September 1997, and A/52/93 of 17 March 1997). The
Author argues for the existence of a rule of general international law establishing such respon-
sibility developed mainly with regard to extraterritorial environmental effects, such as air and
water pollution which may be applied, by analogy, to the extraterritorial effects of mineral
drilling activities. As a matter of fact, the existence of this rule is challenged. See BOYLE, State
Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by
International Law: A Necessary Distinction?, ICLQ, 1990, p. 1 ff.
145
In order to prevent such problems, some States have agreed to x a security zone, paral-
lel to the line of delimitation, within which it is forbidden to carry out exploration and exploitation
activities. See LAGONI, Oil and Gas Deposits across National Frontiers, AJIL, 1979, p. 215 ff.,
pp. 216-219. The importance of establishing a primtre de protection for continental shelf exploi-
tation activities was also underlined in a memorandum on the law of the sea, presented by the UN
Secretariat to the General Assembly on 14 July 1950. See YILC, 1950, Vol. II, p. 67 ff., p. 112.
264 NOTES AND COMMENTS
146
See UN Doc. A/52/424 of 25 September 1997.
147
This kind of agreement has been concluded above all among Middle East States. See
LAGONI, cit. supra note 145, p. 227.
148
A more widespread pattern of co-operation is represented by agreements aimed at real-
izing the joint operation of contracting States concessionaries. In these conventions, contracting
Parties maintain their jurisdiction over the part of the deposit located in their respective territory
intact, granting exploration and exploitation concessions according to their respective domestic
law. Territorial delimitation of sovereignty also remains the decisive factor in attributing reserves
of common deposits. See LAGONI, cit. supra note 145, p. 226. See also WOODLIFFE, International
Unitization of an Offshore Gas Field, ICLQ, 1977, p. 338 ff., and ONORATO, Apportionment of
an International Common Petroleum Deposit, ICLQ, 1968, p. 85 ff.
149
See supra notes 10 and 11.
150
The good faith principle, in turn, implies a duty of mutual information provision among
interested States. Indeed, it is a necessary premise for any serious negotiation among States
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 265
At all events, as the International Court of Justice has pointed out,151 and again
as in the case of water resources, the duty to negotiate in good faith neither compels
States to reach an agreement, nor requires them to obtain the consent of the other
States concerned before starting exploration and exploitation activities in their own
part of a common deposit.152
Major problems arise when an oil eld is located in an area claimed by two or
more States, as has been the case with some oil elds in the Apsheron chain and
for others located in the northern part of the Caspian basin.153 Disagreement has
regarded, in particular, deposits straddling the administrative line of delimitation
drawn by the USSR in the Caspian Sea among the former Soviet Republics, which
now marks, in accordance with the uti possidetis principle, the international, albeit
contested, boundary between the new coastal States.154
Mouton has argued that, in such cases, the general principle to be applied
should be that of the essential unity of the deposit, the latter being the basis for
any delimitation.155 In other words, the boundary line should not cross the mineral
deposit. In order to support this theory, the Author refers to the 1950 Memorandum
of the United Nations Secretariat on the regime of the high sea.156
However, as Lagoni has pointed out, there is only a generic reference to the
unity principle in the Memorandum at issue, without any indication of concrete
modalities of application. Hence, it does not aim so much to deny deposit delimita-
tion in distinct areas of sovereignty, following the general criteria, as to serve as a
guide for the resolution of problems raised by such delimitation for the exploitation
of common deposits.
This is conrmed by further reference, to the signicance that the unity prin-
ciple acquires in the international law on watercourses. In the latter, indeed, the
principle of deposit unity is linked to the concept of drainage basin, in the sense of
sharing a common deposit of liquid minerals. This is true, rst of all, for cases in which a State
discovers that a deposit straddles the frontier, or the dividing line, extending to the territory
or continental shelf of a neighboring State; second, for cases in which drilling operations in a
common deposit may cause material damage to the territory of a neighboring State. This is a
consequence of respect for the principle of State territorial integrity. See LAGONI, cit. supra note
145, p. 237.
151
See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports, 1969, p. 4 ff.,
p. 48.
152
See the arbitral award in the Lake Lanoux case, cit. supra note 12, p. 314. This means that
States have no right of veto as regards operations undertaken by other States with sovereignty
over the common liquid mineral deposit.
153
See Caspian Seas Unofcial Status Is Unlikely to Make Waves for Investors, Russian
Petroleum Investor, December 1997/January 1998, p. 44.
154
See supra section 3.5.
155
See MOUTON, The Continental Shelf, RCADI, 1954, I, p. 347 ff., p. 421.
156
See UN Doc. A/CN.4/32, Mmorandum prsent par le Secrtariat, cit. supra note 145,
p. 112.
266 NOTES AND COMMENTS
hydro-geological unity.157 The right of any riparian State to a reasonable and equita-
ble sharing of the advantageous uses of water within its territory proceeds from this
principle.158 In the international law on watercourses the unity principle is therefore
connected with the use of resources and not with territorial delimitation.159
Furthermore, the International Court of Justice in the 1969 judgment concern-
ing the North Sea Continental Shelf cases160 noticed that, in the light of State prac-
tice:
157
See supra note 56.
158
See supra section 1, in particular note 7.
159
See LAGONI, cit. supra note 145, pp. 239-240.
160
See North Sea Continental Shelf cases, cit. supra note 151, p. 53.
161
See LAGONI, cit. supra note 145, p. 241.
162
See Article 83 of the 1982 UN Convention, cit. supra note 4.
163
See LAGONI, Interim Measures Pending Maritime Delimitation Agreements, AJIL,
1984, p. 345 ff., p. 362 ff.; ONG, cit. supra note 143, p. 801. This opinion is based on the 1976
Judgment of the International Court of Justice concerning delimitation of the Aegean Sea conti-
nental shelf between Turkey and Greece. In this decision the Court stated that activities are lawful
only if they are either temporary or if they regard the exploitation of a common deposit without
causing irreparable damage to the rights of other interested States. See Aegean Sea Continental
Shelf Case (Greece/Turkey), Judgment of 19 December 1978, ICJ Reports, 1976, p. 3 ff.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 267
activities, which are in any case difcult to establish in the instance of deposits
straddling the border between two States, considering that the lack of delimita-
tion makes it impossible to quantify in the abstract the rights to the deposit to be
awarded to each interested State.164
The question becomes particularly complex when it is necessary to determine
the consequences of the refusal of one or more interested States to reach an agree-
ment. If the refusal constitutes simple inactivity, it may represent acquiescence to
the possible unilateral activities of the other States with regard to the deposit.
According to the Grisbadarna principle,165 acquiescence may, over time, come
to imply the consolidation of exclusive sovereign rights over the mineral deposit
for the active State. Denitive breach of negotiations, or even their non-commence-
ment due to irremediable differences in State positions as seems, or seemed to be,
the case with the Caspian Sea constitutes a different situation.
In this instance, possible unilateral activity undertaken on the mineral deposit
runs the risk of being deemed, at the end of the dispute, to have been performed in
violation of the sovereign rights of other interested States. This would make the ac-
tive State responsible for having committed an international tort while the dispute
was pending, in addition to being responsible for any damage caused to other inter-
ested States. According to relevant doctrine, the existence of a real right of veto for
interested States with regard to exploration and exploitation activities on mineral
deposits lying in disputed areas proceeds from this situation.166
The sole alternative to (a possible) stalemate would be to submit the dispute to
an external judge; the submission would be the logical consequence of the general
international law obligation to negotiate in good faith the agreement concerning the
exploitation of shared natural resources that are the object of competing claims.
The positions of the coastal States on the legal status of the Caspian Sea have
seen a certain evolution in the last decade. This evolution should increase the points
of accord, making agreement on a new legal statute for the basin more likely.
Immediately after the demise of the Soviet Union, there were two sharply con-
trasting positions: that of Russia and Iran, on the one hand, and that of Azerbaijan,
164
See supra in this section.
165
The principle is that [] dans le droit des gens, cest un principe bien tabli, quil faut
sabstenir autant que possible de modier ltat des choses existant de fait et depuis longtemps;
[]. See Affaire des Grisbadarna (Norway/Sweden), Judgment of 23 October 1909, UN
Reports of International Arbitral Awards, Vol. 11, p. 147 ff., p. 161.
166
See LAGONI, cit. supra note 163, p. 364; ONG, cit. supra note 143, p. 801.
268 NOTES AND COMMENTS
Kazakhstan and Turkmenistan, on the other. According to the former, the Caspian
was a lake still subject to the regime established by the 1921 and 1940 Soviet-
Iranian Treaties.167 These agreements would have provided for a regime of joint
use of the basin and its resources, hence impeding in the view of Russia and Iran
any unilateral delimitation and action. In addition, Russia and Iran hoped for
the creation of a regional organization charged with management of the common
resources of the basin.168 Conversely, for Azerbaijan, and in a smaller measure also
for Kazakhstan and Turkmenistan, the 1921 and 1940 Treaties were extinguished.
The Caspian basin, being a sea, should, therefore, have been regulated by the 1982
United Nations Convention on the Law of the Sea, above all with regard to the divi-
sion of sea soils among coastal States.169
In 1996, Russias position changed slightly and was now supported by Iran and
Turkmenistan: the depth of the Caspian basin should remain subject to the com-
mon use of the littoral States, with the sole exception of a zone of 45 nautical miles
from the coast, reserved for the exclusive exploitation of the respective coastal
country.170
In addition, in the same period, Turkmenistan signed a memorandum with
Russia and Iran providing for the creation of a joint company devoted to the ex-
ploration and exploitation of mineral resources within their respective national
sectors.171
All ve coastal States agreed on the need to sign a treaty establishing the new
legal statute of the Caspian Sea, however. This convention, which should have been
concluded by consensus, was envisaged as one containing the guiding principles
for subsequent conclusion of particular agreements aimed at regulating the various
forms of utilization of the basin and its resources.172
Awaiting the conclusion of the new agreement, Azerbaijan, Kazakhstan and
Turkmenistan recognized the legal value of practice subsequent to the conclusion
of the Soviet-Iranian Treaties. This practice includes both the delimitation drawn
between the USSR and Iran in correspondence with the Astara-Gasan Kholi line173
and the 1970 administrative delimitation, which divided the Soviet sector of the
basin between the surrounding Soviet Republics.174
In response to unilateral initiatives undertaken by the three States in their na-
tional sector, as identied by practice, Russia further modied its point of view and
167
See supra sections 2.1. and 2.2.
168
See The Combustible Caspian, The Economist, 11 January 1997, p. 27 ff. See also UN
Doc. A/51/59 of 27 January 1996.
169
See supra notes 4 and 162.
170
See The Combustible Caspian, cit. supra note 168.
171
See ALEXANDROV, cit. supra note 110.
172
See UN Docs. A/52/93 and A/51/138, cit. supra note 144.
173
See supra note 29.
174
See supra section 3.5.
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 269
agreed to division of the basin soil. Nevertheless, it persisted in its pretention that
both the surface and the deep waters should remain the object of common use by
the coastal States. In this spirit, the Russian Federation concluded an agreement
with Kazakhstan for the delimitation of the northern part of the Caspian Sea in
1998.175
Iran, nding itself isolated, modied its own position but supported only the
division of the basin into equal parts; according to the Islamic Republic, this would
correspond to an equitable solution.176
The coastal States, having abandoned their initial, extreme positions or having
re-interpreted them in a suitable way, now seem to agree on the fact that delimita-
tion of the sovereign areas of the Caspian Sea must be carried out using the median
line method.177 Nevertheless, while Iran wants to apply it to the whole basin, the
former Soviet Republics keeping the borders drawn by practice with the Islamic
Republic, i.e. with the method of a straight line connecting the tips of terrestrial
borders178 consider the median line method applicable only within the limits of
the former Soviet area of the basin.
A wider meeting of minds between the Republics surrounding the Caspian Sea
has been reached, instead, with regard to the subjects that should be the object of
particular agreements.
Negotiations are, by now, at a satisfactory stage on measures for the protection
of the ecosystem of the Caspian Sea, of which all the coastal States perceive the
urgency.179 In the various declarations presented to the United Nations on the sub-
ject of the legal status of the Caspian Sea, the littoral States often make reference
to the environmental question and to the consequent responsibility of the littoral
countries for damages caused by their own activities to the other coastal States.180
Co-operation on the protection of sh resources, above all sturgeons, is particularly
developed.181
175
See WOLFENSBERGER, La Russie et le Kazakhstan se partagent le ptrole du nord de la
mer Caspienne, Le Temps, 7 July 1998 available at http://www.letemps.ch.
176
See United States Energy Information Administration, Caspian Sea Region: Legal
Issues, cit. supra note 137.
177
See supra note 8.
178
See supra section 2.3.
179
See RAVIOT, Environnement contre gopolitique: les enjeux cologiques dans la rgion
Caspienne, in La Caspienne. Une nouvelle frontire, cit. supra note 42, p. 65 ff.
180
See supra note 144.
181
Since the demise of the Soviet Union a wild poaching of sturgeons has seriously endan-
gered their breeding, protected by the Soviet-Iranian agreements until that time. Furthermore,
after having caused a dangerous fall in the price of caviar on the world market, poaching now
impairs production and deprives the littoral States of the Caspian Sea of an important source
of revenue. In May 1996, Iran, Russia, Turkmenistan and Azerbaijan xed provisory quotas on
shing; and, in January 1997, established a ten-year program for the preservation of the Caspian
sturgeon. In early 1998, Russia and Kazakhstan agreed on the regulation of shing through a sys-
tem of quotas and exploitation licenses. See YAKEMTCHOUK, Les hydrocarbures de la Caspienne,
270 NOTES AND COMMENTS
Bruxelles, 1999, p. 118. On 21 June 2001, Russia, Azerbaijan, Kazakhstan and Turkmenistan
agreed to halt sturgeon shing in the Caspian Sea for the rest of the year. At the same time, they
undertook a comprehensive survey of sturgeon stocks, setting catch and export quotas, and as-
sessing the scope of illegal trade and of enforcement needs with the assistance of international
agencies such as the CITES (Convention on International Trade in Endangered Species of Wild
Fauna and Flora) Secretariat, Interpol, and World Custom Organization. The Parties, nally,
compelled themselves to develop a regional sheries management system, signicantly enhanc-
ing efforts to combat poaching, regulate domestic trade and implement a caviar labelling system,
by June 2002. See Compromise Agreement on Caspian Sea caviar lauded, 2001, available at
http://www.trafc.org/news/sturg2.html.
182
See supra section 2.2.
183
See supra note 78 and the UN Docs. cit. supra note 144.
184
See UN Docs. A/52/588 of 12 November 1997, A/52/93 of 17 March 1997, A/52/1011
of 10 August 1998, A/53/60 of 26 January 1998, A/51/138 of 17 May 1996, and A/51/529 of 21
October 1996.
185
See FEIFER, Caspian: Russia, Azerbaijan Sign Agreement on Sea Boundaries,
Radio Free Europe September 2002, available at http://www.rferl.org/nca/features/2002/09/
24092002152937.asp. An analogous agreement was previously signed between Azerbaijan
and Kazakhstan at a CIS summit in Moscow on 30 November 2001. See LELYVELD, Iran:
Azerbaijan-Kazakhstan Caspian Accord Irks Tehran, Radio Free Europe, December 2001,
available at http://www.rferl.org/nca/features/2001/12/05122001082337.asp.
186
According to Iranian Foreign Ministry spokesman Hamid-Reza Ase, this trilateral
agreement is not in conformity with the principle of consensus and lacks legal standing, making
the issue of territorial delimitation of the Caspian Sea more complicated. See Iran denounces
trilateral agreement on Caspian Sea, Payvands Iran News, 15 October 2003, available at http:
//www.payvand.com/news/03/oct/1088.html. See also Iran: Trilateral agreement on division of
STATE SUCCESSION AND THE DELIMITATION OF THE CASPIAN SEA 271
division of the basin, however. There is a growing sense of optimism, whose main
source is an environmental pact signed by all the littoral States on 4 November
2003 the rst agreement approved by every Caspian State since they began talks
on the legal status of the basin in 1996.191
191
The environmental agreement aims at resolving problems such as industrial pollution, oil
renery and tanker leaks, and the energy industrys potential impact on marine life, including on
the endangered caviar producing sturgeon. In the view of some ofcials, the pact shows that the
Caspian States are now really ready to co-operate in an effort to reach consensus on territorial is-
sues. Nevertheless, as one observer has correctly pointed out potential stumbling blocks remain
concerning implementation of the environmental pact. The agreement depends primarily on a
national action plan to be developed by each Caspian State. As long as disagreements exist about
the division of territorial waters, little action can be expected on these plans. As a way around
this obstacle, the United Nations Environment Program and the United Nations Development
Program [] have suggested separate protocols that dene each countrys responsibilities. Even
so, ratication of the convention by all ve States and agreement on the protocols could take
years to fulll. See ONICA, Optimism increases for Caspian Sea Agreement, Business &
Economics, eurasianet.org ed., 4 April 2004, available at http://www.eurasianet.org/departments/
business/articles/eav041904.shtml.
IMMUNITY OF HEADS OF STATE: SOME CRITICAL REMARKS
ON THE DECISION OF THE SPECIAL COURT FOR SIERRA LEONE
IN THE CHARLES TAYLOR CASE
CHIARA RAGNI*
On 31 May 2004, the Special Court for Sierra Leone (the Special Court),
one of the so-called internationalized tribunals,1 rendered a decision on the validity
of the indictment issued by its Prosecutor against the former Liberian President,
Charles Ghankay Taylor,2 accused of having committed crimes against humanity,
war crimes and other serious violations of international humanitarian law within
the territory of Sierra Leone.3 The legality of the indictment and of the arrest war-
*
PhD in International Law and Research Assistant at the University of Milano.
1
Internationalized or mixed criminal tribunals represent a new means to seek justice for
massive violations of human rights and humanitarian law. They aim to prevent and to overcome
the drawbacks of prosecutions before domestic and international tribunals and to strike a balance
between the need for impartial proceedings, best granted at an international level, and proxim-
ity to the society concerned. The Special Court for Sierra Leone, the mixed Panels for Serious
Crimes of East Timor and Kosovo and the Cambodian Extraordinary Chambers are all examples
of internationalized tribunals. See, on this subject, BEIGBEDER, Judging Criminal Leaders, The
Hague, 2002, pp. 194-205; DICKINSON, The Promise of Hybrid Courts, AJIL, 2003, p. 295 ff.;
KATZENSTEIN, Hybrid Tribunals: Searching for Justice in East Timor, Harvard Human Rights
Journal, 2003, p. 245 ff.; ROMANO, NOLLKAEMPER and KLEFFNER (eds.), Internationalized
Criminal Courts, Oxford, 2004; ROMANO and BOUTRUCHE, Tribunaux pnaux internation-
aliss: tat des lieux dune justice hybride, RGDIP, 2003, p. 109 ff. On the Special Court
there is a very extensive literature: see, e.g., CERONE, The Special Court for Sierra Leone:
Establishing a New Approach to International Criminal Justice, Journal of International and
Comparative Law, 2001, p. 379 ff.; CRYER, A Special Court for Sierra Leone?, ICLQ, 2001,
p. 435 ff.; DENIS, Le Tribunal spcial pour la Sierra Leone. Quelques observations, RBDI,
2001, p. 236 ff.; DE SANCTIS, Il processo di istituzione di una Special Court per i crimini
della guerra civile in Sierra Leone, CI, 2001, p. 475 ff.; FRULLI, The Special Court for Sierra
Leone: Some Preliminary Comments, EJIL, 2000, p. 857 ff.; LINTON, Cambodia, East Timor
and Sierra Leone: Experiments in International Justice, Criminal Law Forum, 2001, p. 185 ff.;
MCDONALD, Sierra Leones Shoestring Special Court, International Review of the Red Cross,
2002, p. 121 ff.; SCHARF, The Special Court for Sierra Leone, ASIL Insight (October 2000);
SCHOCKEN, The Special Court for Sierra Leone: Overview and Recommendations, Berkeley
Journal of International Law, 2002, p. 436 ff.
2
Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber,
Decision on immunity from jurisdiction, 31 May 2004, available at www.sc-sl.org/SCSL-03-
01-I-059.pdf.
3
Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-I, indictment of 3 March
2003, available at www.sc-sl.org/SCSC-03-01-I-001.html. See AKANDE, The Jurisdiction of
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 273-288
274 NOTES AND COMMENTS
rant that followed was contested by Charles Taylors lawyer on the grounds that
the Special Court, being part of the judicial system of Sierra Leone, would not be
able to indict the serving Head of State of Liberia without violating the immunity
that, because of his status, he enjoyed before domestic jurisdictions according to
customary international law.
The indictment, issued by the Prosecutor of the Special Court, David Crane,
on 7 March 2003, was kept sealed until 4 June 2003, when the Prosecutor saw in
the travel of Charles Taylor to Ghana, where he attended peace talks with rebels
groups, an opportunity to circulate an arrest warrant and to apprehend the Liberian
President. The Ghanaian authorities chose not to execute the order of the Special
Court and in August 2003 Charles Taylor, after having stepped down from the
Presidency of the Republic of Liberia, travelled to Nigeria, where he had been
granted asylum.
In the meantime, on 23 July 2003 his Sierra Leonean lawyer, Mr Terry, led
a motion with the Special Court asking that the indictment of Charles Taylor be
declared null and void on the grounds of sovereign immunity and extra-territorial-
ity. The arguments put forward by the defence were mostly based on the assump-
tion that the Special Court, in contrast to the International Tribunal for the former
Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR), lacks pow-
ers provided for in Chapter VII of the UN Charter and could not indict the former
Liberian President since its judicial orders have the same quality, in terms of bind-
ing force, as those of a national court. Secondly, the applicant maintained that by
serving the indictment and the arrest warrant against Charles Taylor in Ghana, the
Special Court violated the principle of sovereign state equality. Similar arguments
were put forward before the International Court of Justice (ICJ) by the Republic of
Liberia, which on 4 August 2003 led an application against Sierra Leone claiming
that this State had violated customary international law in respect of Liberia, by
issuing the arrest warrant against its President.4
the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, JICJ,
2003, p. 618 ff., p. 631; DEEN-RACSMNY, Prosecutor v. Taylor: The Status of the Special Court
for Sierra Leone and Its Implications for Immunity, Leiden JIL, 2005, p. 299 ff.; FRULLI, The
Question of Charles Taylors Immunity. Still in Search of a Balanced Application of Personal
Immunities?, JICJ, 2004, p. 1118 ff.; JALLOH, Immunity from Prosecution for International
Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone, ASIL Insight
(October 2004); PADELLETTI, Repressione dei crimini internazionali di individui e tribunali
internazionali: il caso della Corte speciale per la Sierra Leone, RDI, 2005, p. 76 ff.; ROMANO
and NOLLKAEMPER, The Arrest Warrant Against the Liberian President, Charles Taylor, ASIL
Insight (June 2003).
4
Similar arguments were put forward before the International Court of Justice (ICJ) by the
Republic of Liberia, which on 4 August 2003 led an application against Sierra Leone claiming
that this State had violated customary international law in respect of Liberia, by issuing the arrest
warrant against its President. In its application, the Republic of Liberia alleged that [t]he inter-
national arrest warrant [] against President Charles Ghankay Taylor, violate[d] a fundamental
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 275
The Prosecutor of the Special Court, on the other hand, insisted on the validity
of the arrest warrant by asserting that, according to the principles expressed by the
International Court of Justice (ICJ) in the Arrest Warrant of 11 April 2000 case (the
Arrest Warrant case),5 the Special Court acted in accordance with its status as an
international tribunal which gives it the power to indict incumbent Heads of State.
On 19 September 2003, the applicants motion was referred to the Appeals
Chamber under Rule 72(E) of the Rules of Procedure and Evidence of the Special
Court on the basis that it raised a fundamental issue of jurisdiction.6 The Appeals
principle of international law providing for immunity from criminal proceedings [in] foreign
criminal jurisdictions of an incumbent Head of State as recognised by the jurisprudence of the
International Court of Justice. It added that [a]n arrest warrant of a Head of State issued by a
foreign jurisdiction is also inconsistent with the internationally recognised principle that foreign
judicial powers or authority may not be exercised on the territory of another State and that [t]he
Special Court cannot impose legal obligations on States that are not a party to the Agreement
between Sierra Leone and the United Nations of 16 January 2002. The Special Court for Sierra
Leone is not an organ of the United Nations and is not established as an international criminal
court. Liberia accordingly asked the Court: (a) to declare that the issue of the indictment and
the arrest warrant of 7 March 2003 and its international circulation, failed to respect the immunity
from a criminal jurisdiction and the inviolability of a Head of State which an incumbent President
of the Republic of Liberia enjoys under international law; (b) to order the immediate cancellation
and/or withdrawal of the indictment and the arrest warrant; and the communication thereof to all
authorities to whom the indictment and the warrant was circulated. In accordance with Article
38 of the Statute of the ICJ, a copy of the application had been transmitted to the Government of
Sierra Leone. However, no action would be taken in the proceedings (in particular on the request
for provisional measures) unless and until Sierra Leone consented to the Courts jurisdiction in
the case. International Court of Justice, Press Release 2003/26, 5 August 2004.
5
With regard to the treatment of immunities in international law, the ICJ in its judgment of
14 February 2002 made a distinction between international and domestic courts and tribunals,
stating that, after having examined: the rules concerning the immunity or criminal responsibility
of persons having an ofcial capacity contained in the legal instruments creating international
criminal tribunals, and which are specically applicable to the latter [] [it found] that these
rules likewise do not enable it to conclude that any such an exception exists in customary interna-
tional law in regard to national courts. The ICJs reasoning is based on the grounds that the im-
munity enjoyed by Heads of State under international law can only be considered a jurisdictional
bar to prosecution by a national court, which is the furthest reach of respect for the principle of
sovereign equality of States. For that reason, the Court concluded that the immunities enjoyed
under international law [] do not represent a bar to criminal prosecution in certain circum-
stances. Among those circumstances, the ICJ specied the possibility that: [a]n incumbent or
former Minister for Foreign Affairs may be subject to criminal proceedings before certain inter-
national criminal courts, where they have jurisdiction, Arrest Warrant of 11 April 2000 (Congo
v. Belgium), Judgement of 14 February 2002, reproduced in ILM, 2002, p. 536 ff.
6
The Prosecutor, on the other hand, claimed that the Taylors application did not raise an
issue of jurisdiction but rather one of immunity; as such it should be decided by the Special Court
only after the initial appearance of the accused according to Rule 73(A). The Special Court in its
nal decision stated that the specicity of the case justied to treat the question of immunity as a
preliminary motion in terms of Rule 72(A). It is not necessary here to dwell upon this procedural
issue; for more details about it see FRULLI, cit. supra note 3, p. 1120.
276 NOTES AND COMMENTS
Chamber, taking into account the conclusions reached by the ICJ in the Arrest
Warrant case (to which the parties made explicit reference), considered that it was
essential, before and to the end of deciding on the legality of the arrest warrant, to
determine the legal nature of the Special Court; if indeed it could be qualied as an
international tribunal it would be entitled to derogate the principle of immunity
of Heads of State.
In order to decide the issues raised by the application, essentially related to
the extent of the immunity enjoyed by Charles Taylor, the Special Court, acting
pursuant to Rule 74 of its Rules of Procedure and Evidence,7 appointed Professor
Philippe Sands, Alison McDonald8 and Diane Orentlicher as amici curiae and
granted leave to the African Bar Association to appear as such in writing.9
The Special Court, according also to the submissions of the parties, assumed
that the question of legality of the indictment against Charles Taylor was strictly
linked to its qualication as an international tribunal.10 Even though questionable,
this assumption gave it the opportunity to deal with the issue of its legal nature.11
7
Rule 74, as amended on 7 March 2003, provides that: [a] Chamber may, if it considers it
desirable for the proper determination of the case, invite or grant leave to any State, organization
or person to make submissions on any issue specied by the Chamber. Very similar provisions
are included also in the Rules of Procedure and Evidence of the ICTR (Rule 74), and in the
ICTYs (Rule 74), while the participation of NGOs in proceedings before the ICC is still cloaked
in some uncertainty and will have to be claried in the future. In contrast, as regards internation-
alized tribunals, only the Special Court provides for this opportunity. On this issue, see TREVES,
FRIGESSI DI RATTALMA, TANZI, FODELLA, PITEA and RAGNI (eds.), Civil Society, International
Courts and Compliance Bodies, The Hague, 2004, and in particular Part II entitled NGOs and
International Criminal Courts and Tribunals.
8
The very interesting brief, written by SANDS and MCDONALD, entitled Submissions of the
Amicus Curiae on Head of State Immunity of 23 October 2003, is available at www.icc-cpi.int/
library/organs/otp/Sands.pdf.
9
Prosecutor v. Charles Taylor, Case No. SCSL-2003-01-AR72(E), Decision on application
by the African Bar Association for leave to le amicus curiae brief, 20 November 2003.
10
Prosecutor v. Charles Taylor, cit. supra note 2, para. 49.
11
The Special Court had indeed previously always been qualied as neither a domestic
nor an international tribunal, but rather as an internationalized or mixed one. This denition, as
given by scholars, even if appropriate when making comparisons with other tribunals of similar
character (cf. supra note 1) does not help to clarify the legal nature of these bodies. It has been
adopted essentially on the basis of a descriptive approach and it is used to indicate those tribunals
that have been created with the involvement of the United Nations as well as of the State directly
affected by the crimes, which have their seat in the territory where the crimes under their jurisdic-
tion were committed and include a mix of judges designated by the United Nations and judges
chosen at a domestic level, who apply international as well as domestic law. Notwithstanding
the similarities, internationalized tribunals differ one from another in relation to the degree of
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 277
In its decision of 31 May 2004, the Special Court, according to its previous ju-
risprudence12 and by also taking into account opinions expressed by amici curiae,13
reached the conclusion according to which:
The Special Court did not explicitly mention all the provisions that it made
reference to, but it is possible to conclude that they are those concerning:
As provided in the preamble of its Statute, the Special Court was the result of
negotiations between UN and local government representatives. It was established
by an agreement signed on 16 January 2002 by the Government of Sierra Leone
and the Secretary-General of the United Nations, pursuant to Resolution 1315
(2000) of the UN Security Council,15 with the aim to prosecute those who bear
the greatest responsibility for serious violations of international humanitarian and
Sierra Leonean law committed within the territory of Sierra Leone. The constitut-
ing instrument of the Court is therefore an international agreement between a State
and an international organisation,16 covered as such by the rules set forth in the
1986 Vienna Convention on the Law of Treaties governing agreements between
States and international organisations.
The Court applies both international and Sierra Leonean law, since it has ju-
risdiction in respect of international as well as domestic crimes. As regards the
rules governing the conduct of legal proceedings, Article 14 of the Statute of the
Special Court provides that the Rules of Procedure and Evidence of ICTR shall be
applicable, mutatis mutandis, to proceedings before the Special Court, and that the
judges shall have the power to amend or adopt additional rules, where a specic
situation is not provided for. In so doing, they may be guided, as appropriate, by the
Criminal Procedure Act 1965 of Sierra Leone. In any event, the Court is bound to
norms related to fair trial as set out by international instruments for the protection
of human rights. One such rule concerns the right for the accused before a criminal
jurisdiction to be judged by a fair and an independent tribunal; that is, as stated
15
UN Security Council Resolution, adopted on 14 August 2000, UN Doc. S/RES/1315
(2000), ILM, 2000, p. 248 ff.
16
The UN Secretary-General expresses the view that the Court is a treaty-based sui generis
court, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone,
4 October 2000, UN Doc. S/2000/915, para. 9. The Special Court itself underlined that this as-
sertion is justied on a perusal of the Vienna Convention on the Law of the Treaties between
States and International Organisations [], Prosecutor v. Morris Kallon, Sam Hinga Norman
and Brima Bazzy Kamara, cit. supra note 12, paras. 42-43, Article 2(1)(a) of which provides that
treaty means an international agreement governed by international law and concluded in writ-
ten form: (i) between one or more States and one or more international organizations []; the
Vienna Convention is reproduced in ILM, 1986, p. 543 ff.
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 279
above, also an important criterion to assess as international the legal nature of any
jurisdictional body.17
Section 11(2) of the Ratication Act of the agreement establishing the Special
Court expressly states that it shall not form part of the Judiciary of Sierra Leone,
while Article 8 of the Statute provides that [t]he Special Court and the national
courts of Sierra Leone shall have concurrent jurisdiction []. The Special Court
shall have primacy over the national courts of Sierra Leone.
v) The Legal Status of the Special Court and the Independence of Its Members
Finally, the Special Court made reference to norms that, by dening its char-
acteristics and powers, allow to associate it with classical international organisa-
tions and stressed its independent and autonomous character in respect both of the
United Nations and of the Government of Sierra Leone.19
The independent character, that is one of the most important criteria a tribu-
nal must meet in order to be qualied as international,20 also implies that persons
17
See, e.g., Article 14 of the International Covenant for Civil and Political Rights (UN Doc.
A/6316 (1966); Article 10 of the Universal Declaration of Human Rights (UN Doc. A/811).
18
Very similar provision is included in the Statute of the ICTY, of the ICTR and of the ICC
(respectively Art. 7(2), Art. 6(2) and Art. 27). See infra section 3.
19
Cf. Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 41(b). See Section II of the
Agreement between the United Nations and the Government of Sierra Leone on the Establishment
of the Special Court for Sierra Leone, at http://www.sc-sl.org/scsl-agreement.html.
20
Actually there is no generally accepted criteria for identifying or qualifying an interna-
tional tribunal. Scholars have commonly used a descriptive approach in order to select some
280 NOTES AND COMMENTS
vested with adjudicatory functions have to enjoy an independent status. The fact
that internationalized tribunals have their seat in the same State where the crimes
under their jurisdiction have been committed and that their staff is partly designated
by local government could induce observers to question whether their members are
really shielded against directions from national governments. However, the found-
ing documents of the Court provide some fundamental guarantees to ensure the
judicial independence of its members. For example international judges form the
most part of the membership of the Court and decisions are taken by majority. In
addition, both the Statute and the Rules of Procedure and Evidence insist that the
judges must have independent status.21
All the above elements, taken into consideration by the Special Court, seem to
justify the conclusion that it has to be considered as an international tribunal.22
Once it determined its legal nature, the Special Court concluded that, according
to the principle expressed by the ICJ in the Arrest Warrant of 11 April 2000 case,23
it acted in accordance with its status as an international tribunal which gives it the
power to indict an incumbent Head of State.
The Special Court based its decision essentially on the difference in the treat-
ment of immunities in national and international tribunals that seems clearly to
common features that particular international tribunals share. Although they do not completely
agree on the choice of criteria tribunals have to meet to be qualied as international, there are
some parameters on which scholars seem to have reached a broad consensus. Accordingly, a tri-
bunal may be considered as an international one when it has a permanent character, its constitut-
ing instrument and the laws that it applies and that regulate its functioning can be qualied as in-
ternational, and when the persons vested with adjudicatory functions enjoy an independent status,
especially with regard to their national government. See, e.g., TOMUSCHAT, International Courts
and Tribunals with Regionally Restricted and/or Specialized Jurisdiction, in Judicial Settlement
of International Disputes: International Court of Justice, other Courts and Tribunals, Arbitration
and Conciliation: An International Symposium, Berlin-Heidelberg, 1974, pp. 285-416; ROMANO,
The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, New York Journal
of International Law and Politics, 1999, p. 709 ff.; TREVES, Diritto internazionale: Problemi fon-
damentali, Milano, 2005, pp. 601-606; MOHEBI, The International Law Character of the Iran-
United States Claims Tribunal, The Hague, 1999, pp. 29-52; ASCENSIO, La notion de juridiction
internationale en question, in Socit Franaise pour le Droit International, La juridictionnalisa-
tion du droit international: Colloque de Lille, Paris, 2003, pp. 163-202.
21
Article 13(1) of the Statute of the Special Court (at http://www.sc-sl.org/scsl-statute.html)
and Rule 15 of the Rules of Evidence and Procedure, as amended on 29 May 2004 (at http:
//www.sc-sl.org/scsl-procedure.html).
22
For a different perspective on the legal nature of the Special Court, see the accurate analy-
sis by PADELLETTI, cit. supra note 3, p. 97 ff.
23
Arrest Warrant of 11 April 2000 case, cit. supra note 5.
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 281
emerge from the conclusions reached by the ICJ in the Arrest Warrant case. The
legal reasoning is questionable as far as the legality of the arrest warrant was made
strictly to depend on the denition of the Special Court as an international tribunal.
Actually, in order to determine whether or not a denition of the legal nature of the
Special Court was needed it will be useful to analyse briey the status of interna-
tional law on the question of immunity of Head of States.
Under international law, it is possible to make a distinction between two kinds
of immunities: those that cover acts performed by State agents in an ofcial ca-
pacity (ratione materiae or functional immunities) and those that prevent some
categories of individuals, and among them Heads of State, from civil and criminal
jurisdiction while discharging their ofce (ratione personae or personal immu-
nities).24 The latter, in other words, are a procedural bar to prosecution of State
agents; they are accorded in order to permit them to carry out their functions abroad
without hindrance, they cover acts performed both in an ofcial and in a private
capacity and they are enjoyed only as long as the person is in ofce. The reason for
this kind of immunities is therefore to facilitate cooperation between States; as a
consequence they should be recognized even in the case of international crimes.25
This rule is mitigated by exceptions included in international instruments, such as
for example the Statutes of the ICTY, ICTR, ICC and of the Special Court that, as
mentioned above,26 provide that serving Heads of State, even while in ofce, can
be prosecuted by those tribunals, where they have jurisdiction.
Functional or ratione materiae immunities, on the other hand, are accorded on
the ground that the State, and not the individual, is to be held responsible for acts
committed by its ofcials, in the exercise and within the limits of their ofcial func-
tions. This kind of immunities is attached to the ofcial acts and not to the person.
It implies that the State, which is therefore directly imputable for violations of na-
tional or international law, committed by its agents while performing ofcial func-
tions, has the right, based on the principle of the sovereign equality of States, not
to be submitted to the exercise of foreign jurisdiction.27 Functional immunities are
24
The issue of rules governing immunities in the context of criminal proceedings has been
broadly explored by scholars. See, e.g., AKANDE, cit. supra note 3, and WATTS, The Legal
Position in International Law of Heads of States, Heads of Governments and Foreign Ministers,
RCADI, 1994-III, Vol. 247, p. 35 ff.
25
See CASSESE, International Criminal Law, Oxford, 2003, p. 272.
26
See supra subsection 2(iii).
27
In Attorney General of Israel v. Eichmann, the Israeli Supreme Court stated that: The theory
of Act of State means that the act performed by a person as an organ of the State whether he was
Head of the State or a responsible ofcial acting on the Governments orders must be regarded
as an act of the State alone. It follows that only the latter bears responsibility therefore, and it also
follows that another State has no right to punish the person who committed the act, save with the
consent of the State whose mission he performed. Were it not so, the rst State would be interfering
in the internal affairs of the second, which is contrary to the conception of the equality of States
based on their sovereignty. Israeli Supreme Court, 29 May 1962, ILR, Vol. 36, p. 5 ff., p. 277.
282 NOTES AND COMMENTS
a substantive defence and, as a consequence, they can be invoked even when the
person ceased its ofcial functions. It has been argued that these immunities should
not apply to crimes committed in violation of international law, humanitarian and
human rights law. The idea, on which a broad consensus seems in the process of
emerging,28 is that individuals who commit international crimes are internationally
accountable for them. Nevertheless, the ICJ in the Arrest Warrant case challenged
this assumption with regard to domestic prosecution, assuming that national tri-
bunals are not allowed to prosecute serving Heads of State even when they are
accused of international crimes.29
The Special Court justied the apparent difference in treatment of immunities
before international and domestic courts, as resulting from the reading of the ICJ
decision, by stating that the norms on immunity have been elaborated in order
to safeguard the ability of States to discharge, through their agents, their ofcial
functions abroad without interference and to preserve the equal exercise of their
sovereign powers; this implies that those who act as organs of one State have the
right not to be prosecuted under foreign criminal jurisdiction.30 In the opinion of
the Special Court, the situation of domestic and international tribunals should be
therefore distinguished in this regard. The latter are not organs of one State but
derive their jurisdiction and their mandate to prosecute international crimes, even
in respect of Head of States, from the international community as a whole.31 It fol-
lowed that, according to its status as an international tribunal, the Special Court
nds no obstacle to its jurisdiction in the immunity enjoyed by Charles Taylor as
the serving Head of State of Liberia.
The Appeals Chamber did not dwell upon the fact that since the accused had ceased
to be the President of Liberia he could not have claimed any more immunity from juris-
diction, even before a domestic court, for acts performed in a private capacity32 and for
28
In this regard it has for example been stated that: It is generally agreed that an exception
to functional immunity exists in cases where the individual is responsible for crimes under inter-
national customary law []. WATTS, cit. supra note 24, p. 109. See also ZAPPAL, Do Heads
of State in Ofce Enjoy Immunity from Jurisdiction for International Crimes? The Ghadda
Case Before the French Cour de Cassation, EJIL, 2001, p. 595 ff.; the author enumerates
and analyses various elements for contending that the mentioned exception to functional im-
munity is now to be considered as a rule of customary international law; in this respect cf. also
CASSESE, cit. supra note 25, pp. 267-271, and ID., When May Senior State Ofcials Be Tried
for International Crimes?, EJIL, 2002, p. 853 ff.
29
See supra note 5.
30
The principle of sovereign equality implies indeed that one sovereign State does not adju-
dicate the conduct of another and, as a consequence, of those who act on behalf of it. Cf. WIRTH,
Immunity for Core Crimes? The ICJs Judgement in the Congo v. Belgium Case, EJIL, 2002,
pp. 877-893, p. 882 ff.
31
Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 51.
32
The Special Court may have assumed that crimes committed by the accused can not be
considered as ofcial acts since, as maintained by the Prosecutor and as specied in the indict-
ment: from an early stage and acting in a private rather than an ofcial capacity [Charles Taylor]
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 283
those carried out prior or after his period in ofce,33 that are not covered by functional
immunity. It just limited itself to stress that, even if the applicant had succeeded in his
application, the Prosecutor would have been entitled to issue a fresh warrant, since
Charles Taylor had already stepped down as President of Liberia.
In order to decide on the validity of the indictment and the subsequent arrest
warrant against Charles Taylor, two more issues have to be taken into considera-
tion: the power of the Special Court to indict the serving Head of State of Liberia
according respectively to (i) its legal basis and (ii) its jurisdiction.
As stated above, defence counsel for Charles Taylor claimed that the immunity
enjoyed by the accused was not nullied by any exception under international law,
since the Court, in contrast with the ICTY and the ICTR, lacks powers provided for
in Chapter VII of the UN Charter. However, this argument is inconsistent on sev-
eral grounds. First, that the Special Court was not established by a Security Council
Resolution under Chapter VII of the Charter does not in any way imply that it
cannot exercise its jurisdiction in respect of Heads of State. In the Arrest Warrant
judgement the ICJ, which, like the Special Court, was created by treaty and not
by resolution, is mentioned as one of the international tribunals whose jurisdic-
tion nds no obstacles in the immunity that customary international law generally
grants to incumbent Heads of State.34
resourced and directed rebel forces, encouraging them in campaigns of terror, torture and mass
murder, in order to enrich himself from a share in the diamond mines that were captured by rebel
forces. Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 5. Accordingly it may
have concluded the immunities enjoyed by Charles Taylor were no more a bar to the exercise of
its jurisdiction over crimes committed by him. Certainly the same result may have reached ac-
cording to the opinion, challenged by the ICJ in the Arrest Warrant case, that functional immuni-
ties can not cover international crimes, whatever the legal nature of the court, that has jurisdiction
over such crimes.
33
The reference is to those acts perpetrated by Charles Taylor between 30 November 1996
(the Special Courts jurisdiction only covers acts performed after this date) and 24 July 1997, day
on which Charles Taylor was declared President of Liberia.
34
The inclusion of the ICC among these international tribunals is reected also in the approach
taken by the Institut de Droit International, in its Resolution of 26 August 2001 on Immunities
from Jurisdiction and Execution of Heads of State and of Government in International Law, in
which it was stressed that even if Heads of State enjoy immunity from jurisdiction before the
284 NOTES AND COMMENTS
Certainly the fact that the Special Court was not set up through Chapter VII
resolution raises the problem of the legal obligation of States not party to the agree-
ment to cooperate with it by giving effect to the arrest warrant, although it cannot
affect the legal status of the Special Court and its power to indict validly Charles
Taylor. That leads to the consequence that, on the one hand, Ghana was not legally
bound to comply with the request from the Court to surrender Charles Taylor (nor
has Nigeria similar obligation) since it is not party to the agreement establishing the
Special Court; on the other hand, the issuance of the arrest warrant did not violate
the sovereignty of Ghana because:
The further issue, therefore, is to decide whether the Special Court can exercise
its jurisdiction in respect of the crimes committed by Charles Taylor within the ter-
ritory of Sierra Leone. The crucial question here is not to determine the competence
ratione materiae of the Special Court, since its Statute includes provisions in this
regard that are broadly similar to those of other international criminals tribunals,36
granting jurisdiction over war crimes and crimes against humanity. The point of
uncertainty is the jurisdiction ratione personae of the Court, since Charles Taylor
was a national of the Republic of Liberia, which is not party to the Statute of the
Special Court,37 whose Article 1(1) provides that:
courts of a foreign State for any crime that they have committed, regardless of its gravity (Article
2 of the Resolution), this rule cannot detract from: (i) obligations under the UN Charter; (ii) obli-
gations under the Statutes of international criminal tribunals; and (iii) obligations, for those States
that have become parties thereto, under the Rome Statute for the International Criminal Court
(Article 11). Cf. FOX, The Resolution of the Institute of International Law on the Immunities of
Heads of State and Government, ICLQ, 2002, p. 119 ff.
35
Prosecutor v. Charles Ghankay Taylor, cit. supra note 2, para. 57.
36
Exceptions are, e.g., represented by the exclusion of the crimes of genocide from the
jurisdiction of the Court (since the crimes committed in Sierra Leone cannot be qualied as
genocide, as dened under customary international law) and by the inclusion of crimes under
Sierra Leonean law.
37
It has already been stressed (see supra subsection 2(iii)) that, according to Article 6(2) of
the Statute of the Special Court, the ofcial position of Charles Taylor does not relieve him of
criminal responsibility nor mitigate punishment.
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 285
Accordingly, there can be little doubt that a Head of State is within the jurisdic-
tion ratione personae of the Special Court. The crucial matter is anyway whether
its competence extends also to a serving Head of State of a country other than
Sierra Leone.39 As regards this issue, it is helpful to take into account the provision,
included in the Rome Statute, that regulates the competence of the ICC since, as
stated above, its legal basis, resulting from an international treaty, is similar to that
of the Special Court. The jurisdiction of the ICC, like that of the Special Court, cov-
ers crimes which, by resulting in serious and gross violations of human rights, con-
stitute offences not only against a single State, but against the entire international
community; in respect of such crimes, States have universal jurisdiction when the
accused is present in their territory. As argued in a scholarly comment:
The above considerations can also be extended to the case under examination.
The fact that the agreement for the establishment of the Special Court was made
38
UN Doc. S/2000/915, cit. supra note 16, para. 30.
39
See SANDS and MCDONALDs brief, cit. supra note 8, para. 84.
40
See AKANDE, cit. supra note 3, p. 626.
286 NOTES AND COMMENTS
pursuant to UN Security Council Resolution 1315 (2000),41 and that it was negoti-
ated between the United Nations and the Government of Sierra Leone, can be seen,
according to what is suggested by the Special Court in the decision under exami-
nation, as the will of the international community to cooperate in establishing the
Court.42 Given such a conclusion, it is therefore possible to argue that the fact that
Charles Taylor was not a citizen of Sierra Leone does not affect, in principle, the
power of the Special Court to prosecute him.43
41
Under the Resolution (cit. supra note 15), the Secretary-General is recommended to:
negotiate an agreement with the Government of Sierra Leone to create an independent special
court consistent with [the] resolution. The Security Council did not act pursuant to Chapter
VII, however, it made reference to the fact that the situation in Sierra Leone constituted a
threat to international peace and security, which is a precondition for exercising Chapter VII
powers.
42
The Special Court, in Prosecutor v. Charles Ghankay Taylor (see supra note 2, para. 38)
observed that: [w]here the Security Council decides to establish a court as a measure to maintain
or restore international peace and security it may or may not, at the same time, contemporane-
ously, call upon the members of the United Nations to lend their cooperation to such court as a
matter of obligation []. It is to be observed that in carrying out its duties under its responsibility
for the maintenance of international peace and security, the Security Council acts on behalf of the
members of the United Nations. The Agreement between the United Nations and Sierra Leone is
thus an agreement between all members of the United Nations and Sierra Leone. This fact makes
the Agreement an expression of the will of the international community. The Special Court es-
tablished in such circumstances is truly international. The reasoning of the Special Court raises
some perplexities, since it seems, at rst glance, i) to make the legal status of a tribunal as an
international one follow from the fact that it has been established by the Security Council, and ii)
to attempt to base the creation of the Special Court on an action taken on the basis of Chapter VII
of the UN Charter. Moreover, the decision on this point seems to suggest that the Statute of the
Special Court, annexed to the agreement, binds almost all the States to the respect of its provi-
sions, Nigeria and Ghana included. It may be noted that an agreement concluded by the United
Nation is binding on the Organization as such and not on individual Member States (see in this
regard FRULLI, cit. supra note 3, p. 1124, and the comment by DEEN-RACSMNY, cit. supra note
3, p. 311 ff.). Opposite conclusions could be drawn by admitting that the Special Court was di-
rectly created, as well as the ICTY and the ICTR, by a Resolution of the Security Council, whose
binding force on individual members of the United Nations expressly derives from provision of
Article 25 of the UN Charter.
43
This marks a difference between the Statute of the Special Court of Sierra Leone and the
ICC. The Statute of the latter provides, at Article 98(1), that: [t]he Court may not proceed with a
request for surrender or assistance which would require the requested State to act inconsistently
with its obligations under international law with respect to the State or diplomatic immunity of a
person or property of a third State, unless the Court can rst obtain the cooperation of that third
State for the waiver of the immunity. It follows from this provision that the ICC cannot enforce
a request for the transfer to it of a Head of a State not party to the Statute unless this State waives
immunity. This limitation does not exist in the Statute of the Special Court for Sierra Leone. In
this regard see however arguments developed in the previous note.
IMMUNITY OF HEADS OF STATE: THE CHARLES TAYLOR CASE 287
5. CONCLUDING REMARKS
The decision of the Special Court in the Charles Taylor case is a further step
in the developing jurisprudence on immunity of ofcial agents and in particular of
Heads of State. On the one hand, it contributes to the consolidation as customary
international law of the rule that functional or ratione materiae immunities can not
cover acts performed by State ofcials when they result in the commission of inter-
national crimes. On the other hand, it followed the Arrest Warrant jurisprudence in
holding that this principle applies only to international tribunals.
The Appeals Chamber, in deference to the ICJ, in order to decide on the appli-
cants motion, focused on the question of the legal nature of the Special Court and
especially on the elements that help to qualify it as an international tribunal. The
legal reasoning of the Appeals Chamber leaves with the feeling that it was mostly
aimed at reaching the only result which, according to the Arrest Warrant judge-
ment, would have legitimated the validity of the indictment.
The Special Court did not take into any account the fact that the view expressed
in the ICJ judgement challenged the opinion, on which a broad consensus seems to
be growing, that under international customary law functional immunities are not
relevant in the case of the alleged commission of international crimes,44 whatever
the legal nature of the tribunal concerned. The fact that the Appeals Chamber took
into careful consideration the decision of the ICJ has to be considered as a positive
element of the judgement. The approach it followed gives however the impression
of dogmatic adherence to the conclusions of the ICJ on an issue, on which inter-
national law is still cloaked in some uncertainty. It may be further noted that the
opinion expressed in the Arrest Warrant case, which in any case is not binding on
the Special Court,45 was articulated as an obiter dictum.46
44
See in this regard the accurate analysis of ZAPPAL, cit. supra note 28, pp. 600-607; and
CASSESE, When May Senior State Officials, cit. supra note 28; see also FRULLI, cit. supra note 3,
p. 1127. See also the dissenting opinion of Judge Van den Wyngaert to the Arrest Warrant judgement
(cit. supra note 5), paras. 24-39, and especially paragraph 39 where she stated: [m]y general conclu-
sion on the question of immunity is as follows: the immunity of an incumbent Minister for Foreign
Affairs, if any, is not based on customary international law but at most on international comity. It
certainly is not full or absolute and does not apply to war crimes and crimes against humanity.
45
[] [A]lthough the ICJ is the principal judicial organ within the United Nations system to
which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although
the Appeals Chamber will necessarily take into consideration other decisions of international courts,
it may, after careful consideration, come to a different conclusion, Prosecutor v. Kvocka, Case No.
IT-98-30/1, Appeals Chamber, 25 May 2001, para. 16, referring to the decision of the Appeals
Chamber of 20 February 2001 in Prosecutor v. Zlatko Alekosovski, Case No. IT-95-14/1-AR77. In
this regard see TREVES, Judicial Lawmaking in an Era of Proliferation of International Courts
and Tribunals: Development or Fragmentation of International Law?, in WOLFRUM and RBEN
(eds.), Developments of International Law in Treaty Making, Heidelberg, 2005, pp. 587-620.
46
See SANDS and MCDONALDs brief, cit. supra note 8, para. 110. The view expressed by the
ICJ in the Arrest Warrant case was however the object of set of separate or dissenting opinions
288 NOTES AND COMMENTS
The Appeals Chamber could have gone beyond the dichotomy, suggested in
the Arrest Warrant case, between international and national tribunals, that made it
reduce its legal reasoning to a very narrow compass. The Special Court, through an
autonomous, although not necessary divergent, interpretation of the international
law, could have found a diverse way of balancing the traditional principle of the
respect of the sovereign equality between States, expressed by the rules on immu-
nity of Heads of State, and the customary law proscribing international crimes.47
The different approach of an international criminal law court might have been
justied.48
The Appeals Chamber, by simply relying on the opinion expressed in the Arrest
Warrant case, may have missed an opportunity to make a contribution to the devel-
opment of international law,49 with regard to the controversial issue of immunity for
international crimes and, as someone properly suggested,50 to explore the original
role that internationalized tribunals (given their being a half-way house between
international and domestic prosecution)51 play in the framework of international
criminal law.
to the judgement. See for example the dissenting opinion of Judge Van den Wyngaert, cit. supra
note 44.
47
CASSESE, cit. supra note 25, p. 271.
48
A diverse consideration of the two conicting customary rules would be justied on ac-
count of the different attitude of the ICJ and of a criminal tribunal, such as the Special Court, in
interpreting international law. The rst one, that deals with inter-States disputes, may be inclined,
due to its status, to solutions that aim to preserve and facilitate relations between States; the sec-
ond ones may favour a reading of international law that grants as most as possible the protection
of a set of shared values, whose safeguard international criminal law is aimed to. See SANDS,
International Law Transformed? From Pinochet to Congo?, Leiden JIL, 2003, pp. 37-53, p.
51.
49
The possibility that international tribunals may give different interpretations of an issue of
international law is not necessarily an emergency signal of the risk of fragmentation of inter-
national law. A positive response of one court to the opinion expressed by another in reaction to
perceived drawbacks of its decisions can on the contrary set up a constructive dialogue between
judicial bodies, that can result in the development of international law on a particular issue, see
TREVES, cit. supra note 45. On this aspect, for further references, see TREVES, Le controversie
internazionali. Nuove tendenze, nuovi tribunali, Milano, 1999, pp. 59-67; and ID., Diritto inter-
nazionale, cit. supra note 20, pp. 281-283.
50
JALLOH, cit. supra note 3.
51
See the denition given by LINTON, cit. supra note 1, p. 185.
THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2004)
TULLIO TREVES*
1. During 2004 two main developments in the life of the Tribunal1 have to be
examined. One, not of a judicial nature, is the conclusion of the Agreement between
the Tribunal and the Federal Republic of Germany regarding the Headquarters of
the Tribunal. The other is the judgment on the Juno Trader case between Saint
Vincent and the Grenadines and Guinea Bissau.
The Agreement regarding the Headquarters of the Tribunal was signed in
Berlin on 14 December 2004 and will enter into force on the rst day of the month
following the date of the receipt of the last notication by which the two parties
have informed each other of the completion of their respective formal requirements
(Article 35). Parliamentary approval is needed according to German law. Most
matters covered by the Agreement are presently regulated by a German decree
adopted in 1996.
The Agreement has 36 articles and is completed by an 11-paragraphs interpreta-
tive exchange of notes of the same date, and by a further exchange of notes, correct-
ing the one just mentioned, also of the same date. The Agreement covers, in particu-
lar, the legal personality of the Tribunal, authority over the Headquarters district in
Hamburg, its inviolability and protection, as well as the immunities of the Tribunal,
its property, assets and funds; privileges and immunities of the members and of the
Registrar of the Tribunal (corresponding, under the Convention, to those of heads of
missions accredited to Germany), of the ofcials of the Tribunal, as well as of their
families and members of household. The agreement also covers privileges and im-
munities of experts appointed under Article 289 of UN Law of the Sea Convention
(the Convention), of agents, counsel and advocates designated to appear before the
Tribunal and of witnesses and experts. The interpretative exchange of notes, whose
negotiation took a long time, concerns mostly questions of social security, health
insurance and taxation. Among the provisions that were most controversial in the
negotiations were those concerning the tax regime of pensions and annuities to be
paid to former members and ofcials of the Tribunal. The solution agreed is that:
*
Judge at the International Tribunal for the Law of the Sea; Professor of International Law,
University of Milano Statale.
1
We will use the Tribunal as an abbreviation for the International Tribunal for the Law of
the Sea; however, in some quotations in the text the abbreviation ITLOS is used. For previous
reviews, see TREVES, The International Tribunal for the Law of the Sea (1996-2000), IYIL,
2000, pp. 233-240 (TREVES, ITLOS 1996-2000); ID., The International Tribunal for the Law
of the Sea (2001), IYIL, 2001, pp. 165-174 (TREVES, ITLOS 2001); ID., The International
Tribunal for the Law of the Sea (2002), IYIL, 2002, pp. 207-218 (TREVES, ITLOS 2002); ID.,
The International Tribunal for the Law of the Sea (2003), IYIL, 2003, pp. 157-169 (TREVES,
ITLOS 2003).
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 289-302
290 NOTES AND COMMENTS
2. The Juno Trader case concerns an application for prompt release, under
Article 292 of the Convention of the vessel bearing that name and ying the ag
of Saint-Vincent-and-the-Grenadines submitted on behalf of the ag State against
Guinea Bissau, in whose port of Bissau the ship was detained. The application was
submitted by a German insurer of Hamburg (designated as Agent) on the basis of
an authorization by the Commissioner of Maritime Affairs of Saint Vincent, in turn
authorized to make an application under Article 292 of the Convention by a letter
of the Vincentian Attorney-General. So the on behalf requirement of Article 292,
para. 2, of the Convention was satised by a two-tiered authorization by the ag
State authorities.
The facts of the case bear some similarities to those of the Tribunals rst case
(the M/V Saiga case (prompt release)),2 not only because the ag State was
the same and the detaining State, Guinea Bissau, was a neighbour of Guinea, the
detaining State in the Saiga case. In neither case the detained ship was a shing
vessel, even though in both a violation of Article 73, para. 2, of the Convention,
concerning enforcement of shing laws and regulations in the exclusive economic
zone, was invoked. While the Saiga was a tanker active in offshore bunkering of
shing vessels, the Juno Trader is a reefer vessel (a refrigerated cargo vessel)
carrying sh transhipped from shing vessels. The controlling interest was prob-
ably South African and the Master and crew Russian. According to the applicant,
the Juno Trader had received a transhipment of about 1,183 tonnes of frozen sh
and 112 tonnes of sh meal in the exclusive economic zone of Mauritania (a fact
evidenced by a Mauritanian certicate and by the markings on the sh packages)
and was heading towards a port in Ghana navigating through the exclusive eco-
nomic zone of Guinea Bissau, when, on 26 September 2004, it was approached
by a zodiac having on board persons armed and without an uniform who shot
rounds injuring one crewman and stopped the Vincentian ship. The Juno Trader
was later boarded by ofcers of the inspection boat of Guinea Bissau who had sent
the zodiac. They apprehended the Vincentian ship and conducted it to the port of
Bissau were it remained in detention. According to Guinea Bissau, the Juno Trader
had been seen anchored parallel to a shing vessel and ed when spotted by the
inspection vessel. After about three weeks, an administrative body (the Fisheries
2
ITLOS Reports, 1997, p. 16.
THE LAW OF THE SEA TRIBUNAL (2004) 291
3
Available on the Tribunals website www.itlos.org.
292 NOTES AND COMMENTS
response by the detaining State may be submitted not later than 96 hours before
the commencement of the hearings.4 In the present case the hearing was xed for 1
and 2 December 2004.5 The detaining State informed the Tribunal on 26 November
that it was not able to prepare for the hearing in the allotted time and asked for a
postponement of the hearing by one week and a corresponding postponement of
the time-limit for the response. The Tribunal met most of these requests, somehow
forcing its Rules.6 It started the hearing on 1 December as decided. The sitting
lasted, however, only a few minutes to decide that the hearing would be continued
on 6 December. In a later communication Guinea Bissau informed the Tribunal that
it would not be in a position to submit a written statement of defence (a submission
that in any case was not compulsory, in its view, as the relevant Article 111, para. 5,
of the Rules of the Tribunal uses the verb may in this connection). Even though,
in talks between the parties and the President, the possibility of a short written
statement before the beginning of the hearing was mentioned, in fact the hearing
began with no indication of the position of the Respondent (paras. 4 to 25 of the
Judgment; see also the Separate Opinion of Judge Chandrasekhara Rao, paras. 7 to
14). The applicant made his rst pleading without any knowledge of such position.
It was only when the time came for the respondent to begin its oral pleading that
its case was made known to the Applicant and the Tribunal. In his second pleading,
the Applicant made the point that, while the Respondent had had all the necessary
time to study the Applicants case, the Applicant had not had such opportunity. It
had only had a night to examine the Respondents arguments. It stressed that [t]he
Tribunal might perhaps want to grasp this opportunity to review the rules of proce-
dure so that greater or more straightforward equity may be established between the
parties.7
In his Separate Opinion Judge Chandrasekhara Rao (a former President of the
Tribunal) while admitting that a party cannot be compelled to submit a statement
(para 16), underlined that:
4
In the 1997 text of the Rules of the Tribunal these time-limits were even shorter. The
present time-limits were introduced, in light of the rst three prompt release cases, through an
amendment to the rules adopted in 2001. The text of the Rules is available at www.itlos.org.
5
Order of 19 November 2004.
6
But following the precedent of the decision taken, in a similar situation, in the M/V Saiga
(prompt release) case. See the Order of 21 November 1997, ITLOS Reports, 1997, p. 10.
7
Pleading of Professor Karagiannis, counsel for Saint Vincent and the Grenadines, 7
December 2004, Doc. ITLOS/PV.04/04, p. 14.
THE LAW OF THE SEA TRIBUNAL (2004) 293
In any event, it is inherent in the Rules of the Tribunal and the gen-
eral principles of procedural law that each party must enjoy equal
rights for the submission of its case to the Tribunal.8 Where a party
fails to submit a statement in response and where the opposite party
does not have sufcient time to respond to the statement made by the
former during the oral proceedings, it may be difcult to maintain
that the former has not obtained an unfair advantage over the other.
The fact that both parties are given equal speaking time does not alter
this position. The permissive provision in article 111, paragraph 4, of
the Rules must not be used by a party to gain an unfair advantage over
the other party (para. 18).
Aggrieved by the disadvantaged position in which it was placed,
the Applicant invited the Tribunal to review its Rules so that greater
equity may be established between the parties. There is force in this
request and the Tribunal should attend to it as soon as possible with a
view to ensuring that neither side obtains any unfair advantage over
the other. There are several ways whereby the principle of equal op-
portunities for the parties may be allowed full play, not all of which
may entail amendment of the Rules (para. 19).
Judge Lucky, in his Separate Opinion, covered in part the same ground. He
held that there is need to review the Rules of the Tribunal to make the response of
the defendant compulsory.
As a matter of fact, the Tribunal would have had the possibility to react to the
astute tactics of the defendant so that the equality of the parties would have been
better ensured. On the basis of Article 73, para. 2, of the Rules (The Tribunal, after
ascertaining the views of the parties, shall determine the order in which the parties
will be heard []), it could, for instance, have organized the hearing in such a
way that the respondent would have been the rst to speak. It could also have given
8
See also ROSENNE, The Law and Practice of the International Court, 1920-1996, The
Hague-London-Boston, 1997, Vol. III, p. 1092 (footnote in the original, with different number-
ing).
294 NOTES AND COMMENTS
more time to the applicant to prepare its reaction to the belated exposition of the
Respondents position. The provision in Article 112, para. 3, of the Rules, that each
party shall be accorded, unless otherwise decided, one day to present its evidence
and arguments, does not mean that the whole hearing must be concluded in two
days, as has been so far the case in the practice of the Tribunal: a day without oral
pleadings between the rst and the second day of hearing could be introduced to
facilitate preparation by the Applicant in case the oral statement of the Respondent
is the rst exposition of the latters position. There is wisdom in the remark of
Judge Chandrasekhara Rao quoted above that there are several ways whereby the
principle of equal opportunities for the parties may be allowed full play, not all of
which may entail amendment of the Rules.
4. The main argument put forward by the Respondent was that, as a conse-
quence of non-payment of the ne, by effect of the decree-law of 22 August 2004,
the ownership of the Juno Trader had reverted to the State of Guinea-Bissau with
effect from 5 November 2004. This entailed that the Tribunal had no jurisdiction
because the Applicant had not discharged its initial burden of establishing that it
was the ag State at the time of the ling of the Application (para. 58), and that the
Application was not admissible because Guinea-Bissau was not the detaining ves-
sel but rather in possession of the vessel as lawful owner (para. 66). The Tribunal
was thus confronted again with the arguments based on conscation of the ship be-
fore the submission of the Application that had been raised by France in the Grand
Prince case.9 In that case the Tribunal avoided responding to these arguments by
nding that it lacked jurisdiction because the ship had not the nationality of Belize,
the State on behalf of which the Application had been submitted. In the present
case, again, the delicate question of the effect of conscation was not tackled with
directly, although for other reasons.
The Tribunal observes that:
9
Judgment of 20 April 2001, ITLOS Reports, 2001, p. 16, espec. paras. 57-59, and
Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas,
Marsit, Eiriksson and Jesus, para. 17, ibidem, p. 70. See TREVES, ITLOS 2001, cit. supra note
1, pp. 166-169. On the conscation aspect see OXMAN and BANTZ, Un droit de consquer?
Lobligation de prompte mainleve des navires, in PEDONE (ed.), La mer et son droit, Mlanges
offerts Laurent Lucchini et Jean-Pierre Quneudec, Paris, 2003, pp. 479-499; and PALCHETTI,
Sul rapporto tra procedura di pronta liberazione delle navi ed equipaggi e i procedimenti davanti
ai giudici interni: il caso della nave Grand Prince, RDI, 2001, pp. 745-749.
THE LAW OF THE SEA TRIBUNAL (2004) 295
The reasoning of the Tribunal on the points just considered is further developed
and claried in the Joint Separate Opinion of Judges Mensah and Wolfrum. First,
they explain why the view of the Regional Court of Guinea-Bissau had to be pre-
ferred over that put forward by the respondent arguing for the conscation of the
ship. They argue that:
Among other points made to reject the claim that a change in ownership im-
plies a change in nationality of the ship, they further argue as follows:
5. The Tribunal had then to determine whether the alleged violation of Article
73, para. 2, of the Convention was well-founded, in other words: whether the just
THE LAW OF THE SEA TRIBUNAL (2004) 297
quoted provision, under which Arrested vessels and their crews shall be promptly
released upon the posting of reasonable bond or other security, had been infringed
by Guinea-Bissau.
The Tribunal noted
[] that a bond for the release of the vessel and its crew was not
requested by the detaining State and that the detaining State did not
react to the posting of the bond referred to in paragraph 51 on behalf
of the shipowner and failed to inform the shipowner that the bond, in
its opinion, was not reasonable. The Tribunal further notes that the
vessel is still detained in the port of Bissau and that the Applicant has
not withdrawn its request concerning the release of the crew (para.
75).
Before stating in para. 80 that the Respondent had not complied with Article 73,
para. 2, of the Convention, and that the application was well-founded, the Tribunal
found it appropriate to introduce (together with two paragraphs on the situation of
the crew) the following two paragraphs:
76. In the present case it is not contested that the notication to the
ag State, as provided for in article 73, paragraph 4, had not been
made. The connection between this paragraph and paragraph 2 of the
same article has been noted by the Tribunal in the Camouco Case.
The Tribunal stated: [T]here is a connection between paragraphs 2
and 4 of article 73, since absence of prompt notication may have a
bearing on the ability of the ag State to invoke article 73, paragraph
2, and article 292 in a timely and efcient manner (ITLOS Reports
2000, pp. 29-30, para. 59).
77. The Tribunal considers that article 73, paragraph 2, must be read
in the context of article 73 as a whole. The obligation of prompt
release of vessels and crews includes elementary considerations of
humanity and due process of law. The requirement that the bond or
other nancial security must be reasonable indicates that a concern
for fairness is one of the purposes of this provision.
This is the rst time that the human rights aspect of prompt release proceed-
ings is mentioned by the Tribunal,10 although it stops short of using this expression,
10
In legal literature, see, however, OXMAN, Human Rights and the United Nations
Convention of the Law of the Sea, in CHARNEY, ANTON and OCONNELL (eds.), Politics, Values
and Functions: International Law in the 21st Century, Essays in Honor of Professor Louis
Henkin, The Hague, 1997, pp. 377-404, p. 398; VUKAS, Droit de la mer et droits de lhomme, in
VUKAS (ed.), The Law of the Sea: Selected Writings, Leiden-Boston, 2004, pp. 71-79, p. 75-77.
298 NOTES AND COMMENTS
An aspect the Tribunal did not consider, possibly because such consideration
might have brought it close to examining the merits, is the strength (or the prima
facie strength) of the evidence of the alleged offence committed by the detained
vessel. This aspect is, nevertheless, briey but eloquently examined in a Joint
Declaration of Judges Kolodkin, Anderson and Cot. They state:
11
Paras. 82-85.
300 NOTES AND COMMENTS
In light of these observations, the three judges state that they could have sup-
ported a lower amount for the bond determined in the judgment.
12
In this context, it may be recalled that the procedure of prompt release was rst put for-
ward by the delegation of the United States, a common law country (footnote in the original with
different numbering. Further footnotes omitted).
13
ITLOS Reports, 2003, p. 4.
14
TREVES, ITLOS 2003, cit. supra note 1, pp. 164-166.
THE LAW OF THE SEA TRIBUNAL (2004) 301
Independent Experts (GOE) in the matter of the ITLOS Order of 8 October 2003
was submitted to the parties on 5 November 2004 and presented to them on 22-23
December.
According to a Joint Press Release of 14 January 2005,15 the Governments of
Malaysia and Singapore met on 22-23 December 2004 and on 7-9 January 2005
to consult on how to implement the recommendations made unanimously by the
Group of Experts (GOE). The Joint Press Release continues as follows:
15
Joint Press Statement of the Governments of Malaysia and Singapore dated 9 January
2005 (http://app.mfa.gov.sg/internet/press/view_press.asp?/posted=1229). See also the less de-
tailed Press Release dated 14 January 2005, of the Permanent Court of Arbitration, available at
www.pca-cpa.org.
302 NOTES AND COMMENTS
The Mox Plant case arbitration under Annex VII of the Convention remains
suspended waiting for the decision of the European Court of Justice on the proceed-
ings instituted by the European Commission against Ireland.16
The Swordsh case between Chile and the European Community remains inac-
tive as a consequence of the already reported provisional arrangement between the
parties. The time-limit for the submission of the rst written pleadings is now xed
on 1 January 2006.17
The Juno Trader has been released by Guinea-Bissau in April 2005. Difculties
concerning the form of the bank guarantee, that had been the main cause of the
delay, were overcome through negotiations between the Government of Guinea
Bissau and the shipowners.
16
TREVES, ITLOS 2003, cit. supra note 1, pp. 166-169.
17
Order of 6 December 2003, ITLOS Reports, 2003, p. 69. For the previous postponement
of the time-limit for the submission of preliminary objections, see TREVES, ITLOS 2001, cit.
supra note 1, p. 173.
REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2004 BY THE
EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO
INTERNATIONAL LAW
SIMONA GRANATA*
*
Head of the Constitutional Co-operation Division at the Secretariat of the Council of
Europes European Commission for Democracy through Law (the Venice Commission). The
views expressed are solely those of the author.
1
Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental
Freedoms amending the control system of the Convention, CETS No. 194, available at http:
//conventions.coe.int.
2
At the 114th Session of the Committee of Ministers, 12-13 May 2004.
3
In January 2005.
4
Further changes touch upon other areas. The term of ofce of judges has been increased
to nine years, but becomes non-renewable. The Council of Europe Commissioner for Human
Rights becomes entitled to intervene in all cases before a Chamber or the Grand Chamber (see
PACE Recommendation 1640(2004)). The Court may place itself at the disposal of the parties
with a view to securing a friendly settlement at any stage of the proceedings, as opposed to fol-
lowing an admissibility decision as is currently the case. The Committee of Ministers will be able
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 303-322
304 NOTES AND COMMENTS
to initiate infringement proceedings when a State refuses to abide by a nal judgment, whereby
it will ask the Court to say in a judgment whether that State has failed to full its obligations
under para. 1 of Article 46 of the Convention. Finally, it is explicitly foreseen that the European
Union may accede to this Convention; however, at the time when Protocol 14 was drafted, the
European Union lacked competence to accede to the Convention, which made it impossible to
include in Protocol 14 the other necessary changes to allow accession. Accordingly, such further
modications will have to be included either in another amending protocol or in an accession
treaty, and will require a second ratication procedure.
5
It seems appropriate to stress that the often-used term unmeritorious application merely
relates to its chances of going through the admissibility procedure, and not to the veracity of the
allegations of the applicant!
6
The Court currently sits in committees of three judges, in chambers of seven judges and
in a Grand Chamber of seventeen judges. Single-judge formation will be possible in addition to
the current ones.
7
Under the current Article 29, para. 3, the Court may in exceptional circumstances decide
not to take the decision on admissibility and that on the merits separately.
EUROPEAN COURT OF HUMAN RIGHTS (2004) 305
For the rst two years after the entry into force of Protocol 14, this criterion
will be applied exclusively by the Grand Chamber and the Chambers (not by
the Committees and by single judges).8 During this time, it is expected that the
Grand Chamber and Chambers will interpret this new requirement, thus ensuring
to avoid the rejection of cases which instead would require an examination on
the merits.9
8
In accordance with the transitional rule set out in Article 20, para. 3, the new admissibility
criterion will not apply to applications declared admissible before the entry into force of Protocol
14.
9
According to the explanatory memorandum (para. 39 in ne), these meritorious cases
include those which, notwithstanding their trivial nature, raise serious questions affecting the
application or the interpretation of the Convention, or important questions concerning national
law.
10
According to the CDDH, the summary procedures preserve the adversarial and judicial
nature of the proceedings in Strasbourg: see Guaranteeing the Long-Term Effectiveness of the
Control System of the European Convention on Human Rights, CDDH(2003)006, p. 20 ff.
306 NOTES AND COMMENTS
be shown understanding when faced with the rejection of their case; they will no
more receive full decisions taken by panels of judges.
It is true that a jammed court would in any event have failed to administer
justice. And it is also true that these aspects do not touch the essence of the right of
individual petition.
The same is not true, however, in respect of the new admissibility criterion.
This new requirement prevents well-founded cases from going through, on the only
ground that prejudice suffered by the applicant is not signicant. But the prin-
ciple that well-founded claims should receive the attention of the Court and lead
to a binding judgment whereby the responsible State is put under the obligation to
redress the violation should not be the object of compromises.
Understandably, the introduction of the new admissibility criterion has raised
many perplexities and objections.11 The Strasbourg Court resulting from Protocol
14 has been referred to as a Court of Damages, as opposed to a Court of
Subjective Right.
In addition to being the object of objections of principle, the new criterion has
been accused of being vague and subjective, and also inexpedient (it will affect
only 1, 6% of existing cases, and will therefore have little impact on the workload).
The signicant disadvantage test will probably be applied differently in respect of
different States and by different Chambers of the Court. In addition, the necessary
elaboration of the guiding principles as to the signicant disadvantage test during
the rst two years will require Chambers and even the Grand Chamber to devote
considerable time and energy to this matter. Finally, it may turn out, unintention-
ally, to put a premium on nancial disadvantages suffered, thus de facto discrimi-
nating against female applicants before the Court.
Time will say if these objections are well-founded. A balanced and careful
development by the Court of guidelines for applying this criterion in a fair and
consistent manner might reduce the harm produced by the new Article 35, para.
3, of the Convention. But it undoubtedly represents a major step backwards in the
history of the European mechanism of human rights protection.
11
PACE Opinion 251 of 28 April 2004 on Protocol 14, text adopted by the Assembly on 28
April 2004 (13th Sitting); Report of the PACE Committee on Legal Affairs and Human Rights,
Doc. 10147 of 23 April 2004; Amnesty Internationals Comments on the Interim Activity Report:
Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, available at
http://web.amnesty.org/library/Index/ENGIOR610052004?open&of=ENG-2EU.
12
Consequences for the European Court of Human Rights of Protocol No. 14 and the
Resolution on judgments revealing an underlying systemic problem Practical steps of imple-
EUROPEAN COURT OF HUMAN RIGHTS (2004) 307
Human Rights protection begins and ends at home: effective national meas-
ures should be capable of preventing human rights violations, and, when this is
not the case, effective national measures must ensure compliance with Strasbourg
judgments and avoid the commission of further violations. Failure or delay in tak-
ing such measures will inevitably generate more individual complaints before the
Strasbourg Court.
Indeed, Protocol 14 is part of a wider package of measures which the
Committee of Ministers has adopted with a view to guaranteeing the effective-
ness of the supervisory system. These measures target university education and
professional training;13 the verication of the compatibility of draft laws, existing
laws and administrative practice with the Convention standards;14 improvement of
domestic remedies.15
These suggestions seem pretty obvious to anyone who is acquainted with the
principles of human rights protection. The main principle is indeed that of subsid-
iarity. And yet, the second reform of the European Convention has cast a new light
on it, and seems to have shaken the States which have nally pledged to take care
of these problems at home. Wouldnt this be ideal? All efforts must now concen-
trate not upon criticizing Protocol 14, but upon seeing to it that it leads to the best
possible results and upon giving any possible good suggestion in order to allow that
it be applied in the most coherent and human right compatible manner.
mentation and challenges, address of WILDHABER at the High-level Seminar on Reform of the
European Human Rights System, Oslo, 18 October 2004, published with the proceedings of the
seminar by the Directorate General of Human Rights of the Council of Europe.
13
Committee of Ministers Recommendation REC(2004)004.
14
Committee of Ministers Recommendation REC(2004)005.
15
Committee of Ministers Recommendation REC(2004)006.
16
The Committee of Ministers had invited the Court (Resolution DH(2004)3) to identify sys-
temic problems in its judgments and had recommended that in such circumstances the Contracting
States should set up effective remedies in order to avoid repetitive cases being brought before the
Court. See also, in this direction, the Venice Commissions report on Implementation of judg-
ments of the European Court of Human Rights, CDL-AD(2002)34, paras. 54-63.
17
The Council of Europes Director General of Human Rights has pointed out the differ-
ence between a systemic or structural problem that is to say endemic and widespread
problems or dysfunctions in the domestic legal system and a specic problem which none-
theless affects a large number of persons. Both kinds of problems should fall within the scope
of application of Resolution DH(2004)3. However, specic problems affecting large numbers of
308 NOTES AND COMMENTS
Protocol No. 1 (concerning Polands acts and omissions in relation to the imple-
mentation of the applicants entitlement to compensatory property, vested in him by
domestic legislation at the time of entry into force of the Protocol and subsisting at
the time of lodging his application).
Indeed, the Court acknowledged that the violation which it found in this case
had originated in the malfunctioning of domestic legislation and administrative
practice, and affected a lot of people. In fact, the systemic nature of the problem
had been recognised by the domestic courts. It followed that the deciencies in
national law and practice identied in the applicants case were likely to give rise
to numerous well-founded applications.
Under Article 41, States are obliged not only to pay sums awarded as just sat-
isfaction but also to select, subject to the Committee of Ministers supervision, the
general and individual measures to be adopted in order to put an end to the violation
and to redress the effects as far as possible. While it is in principle not for the Court
to determine what remedial measures may be appropriate under Article 46, in view of
the systemic situation which it had identied, general measures at national level were
undoubtedly called for and the measures had to be such as to remedy the systemic
defect so as to avoid the Convention system being overburdened with large numbers
of applications deriving from the same cause. Thus, the measures ought to include
a scheme offering redress to those affected, either by removing any hindrance to the
implementation of the claimants right or by providing equivalent redress.
The Court reserved the question of just satisfaction for pecuniary and non-pe-
cuniary damage and only made an award in respect of costs and expenses.
The Broniowski case has identied a problem which touches 80,000 other
individuals. Pending its examination, the Court has suspended its examination of
167 similar cases. Although pilot judgments already existed in the practice of the
Court, this is obviously the rst time that the Court has accepted to play the game
and be involved more directly in the matters of execution. A lot of pressure is, con-
sequently, now put on both the respondent State and the Committee of Ministers:
the success of this joint-venture will probably be the rst indicator of whether the
reform package has chosen to go in the right direction.
5. In 2004, the Court had the opportunity, through three judgments, of recall-
ing, clarifying and expanding on its interpretation of Article 1 of the Convention,
persons can be addressed through specic measures which normally would not need a long time
to take while truly systemic problems may require a more complex and lengthier process (see
IMBERT, Follow-up to the Committee of Ministers Recommendations on the implementation of
the Convention at the domestic level and the Declaration on Ensuring the effectiveness of the
implementation of the European Convention on Human Rights at national and European levels,
speech delivered at the High-level Seminar on Reform of the European Human Rights System,
Oslo, 18 October 2004, and published with the proceedings of the seminar by the Directorate
General of Human Rights of the Council of Europe).
EUROPEAN COURT OF HUMAN RIGHTS (2004) 309
which provides that: The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms dened in Section I of this Convention.
The case of Assanidze v. Georgia (Application No. 71503/01, Grand Chamber,
Judgment of 8 April 2004) raised the issue of whether Georgia had jurisdiction
within the meaning of Article 1 of the Convention over the Ajarian Autonomous
Republic.
The facts of the case (insofar as falling within the competence ratione tempo-
ris of the Court) were the following. In October 2000, Mr Assanidze, the former
mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member
of the Ajarian Supreme Court, was sentenced by the Ajarian High Court to twelve
years imprisonment on a charge of kidnapping. Upon his appeal on points of law,
in January 2001 the Supreme Court of Georgia quashed the conviction, acquitted
him and ordered his immediate release, in a decision that was nal and subject to no
appeal. The applicant however was not released, despite various legal and political
attempts by the central Georgian authorities.
The applicant complained of a violation of his right to liberty and security on ac-
count of his continued detention despite acquittal by the Supreme Court of Georgia.
The Court addressed in the rst place the question of whether the applicants
complaints relating to the conduct of the local authorities of the Autonomous
Republic of Ajaria, a Georgian entity with autonomous status, came within
Georgias jurisdiction within the meaning of Article 1 ECHR.
The Court considered at the outset that the competence of Georgia could be
presumed, given that the Autonomous Republic was indisputably an integral part
of the territory of Georgia and subject to its competence and control. Further ele-
ments conrmed this presumption: Georgia had ratied the Convention in respect
of the whole of its territory (but, in any case, a territorial reservation would not be
valid in respect of an Autonomous Republic, which is not a dependent territory
within the meaning of Article 56, para. 1, of the Convention), Ajaria did not have
any separatist aspirations and no other State exercised effective overall control
there. The Court added that, even assuming that Georgia was a federal State (which
it was not), the European Convention did not contain a federal clause similar to
Article 28 of the American Convention on Human Rights;18 at any rate, a federal
18
Article 28 of this Convention (Federal Clause) reads as follows: 1. Where a State Party is
constituted as a federal state, the national government of such State Party shall implement all the
provisions of the Convention over whose subject matter it exercises legislative and judicial juris-
diction. 2. With respect to the provisions over whose subject matter the constituent units of the fed-
eral state have jurisdiction, the national government shall immediately take suitable measures, in
accordance with its constitution and its laws, to the end that the competent authorities of the con-
stituent units may adopt appropriate provisions for the fullment of this Convention. 3. Whenever
two or more States Parties agree to form a federation or other type of association, they shall take
care that the resulting federal or other compact contains the provisions necessary for continuing
and rendering effective the standards of this Convention in the new state that is organized.
310 NOTES AND COMMENTS
clause would not have discharged the federal State from all responsibility in respect
of the federated States. In addition, the Court made clear that it could not allow a
State to select the parts of its territories to which the Convention was applicable,
as it would otherwise have rendered the protection afforded by the Convention
meaningless and would also have discriminated vis--vis other States which had
accepted the application of the Convention over the whole of the territory.
The Court admitted that the facts out of which the applicants complaints had
arisen were directly imputable to the Autonomous Republic, and not to the central
State. However, the Court recalled that the central State was internationally respon-
sible, and strictly liable, therefore, irrespective of the national authority, be it cen-
tral or local, to which the breach of the convention was imputable. Article 1 of the
Convention in fact imposed on the States parties the duty to implement the national
system so as to secure compliance with the Convention throughout their territory.
The matters complained of were therefore within the jurisdiction of Georgia.
The Court found that there had been a breach of Article 5, para. 1, of the
Convention on account of the lack of any legal basis, be it a statutory provision or
a judicial decision, for the applicants continued detention after his acquittal by the
Supreme Court of Georgia. The Court also found that the failure to comply with
a nal and enforceable decision to acquit for more than three years had deprived
Article 6, para. 1, of all useful effect.
After awarding compensation for pecuniary and non-pecuniary damage, the
Court also indicated that in order to put an end to the violations, Georgia was re-
quired to secure the applicants release at the earliest possible date.
6. The case of Ilacu and Others v. Moldova and Russia (Application No.
48787/99, Grand Chamber, Judgment of 8 July 2004) raised the question of wheth-
er the Moldavian Republic of Transdniestria (MRT), a part of the Moldovan ter-
ritory under the de facto authority of the separatist administration in Tiraspol, fell
within the jurisdiction of Moldova and of Russia, on account of the territorial sov-
ereignty as regards the former (the Moldavian Republic of Transdniestria has not
been recognised by the international community) and on account of the continued
military presence and effective control, as concerns the latter.
The facts of the case were the following. In June 1992, the four applicants were
arrested by a number of persons some of whom wore uniforms bearing the insig-
nia of a former USSR army. They were accused of anti-Soviet activities, ghting
by illegal means against the State of Transdniestria and other offences, including
murder. They were ill-treated while in custody. Three of them were taken to the
garrison of the Russian army, where they claim they were guarded and tortured
by soldiers of that army. They had no access to the outside world and were held
in cells which had no toilets, water or natural light, with only a few minutes of
outdoor exercise each day. They were thereafter held at a remand centre, whose
cells had no natural light, and isolated from the outside world with only sporadi-
EUROPEAN COURT OF HUMAN RIGHTS (2004) 311
cally authorised family visits. The applicants were convicted in December 1993
by the Supreme Court of the MRT, which sentenced the rst applicant to death
and the others to lengthy terms of imprisonment. The Supreme Court of Moldova
examined the judgment of its own motion and quashed it, ordering the applicants
release, but the MRT authorities did not respond to this judgment. Following their
conviction, the applicants were held in single cells with no natural light. Although
their health deteriorated on account of the detention conditions, they did not receive
proper medical treatment. Their detention conditions worsened after their applica-
tion was lodged with the Court. The rst applicant was released in May 2001; the
others remained in prison.
The applicants had complained of their conviction by a Transdniestrian court
which was not competent for the purposes of Article 6 of the Convention, that they
had not been given a fair trial, and that they had been deprived of their possessions
on account of their conviction. They had further complained of the unlawfulness of
their detention and of the conditions of their detention.
The Court dealt in the rst place with the matter of jurisdiction. The Court
recalled that although there was a presumption that jurisdiction is exercised
throughout a States territory, there could be exceptional circumstances in which
a State was in fact prevented from doing so. In order to establish whether such
a situation existed, the Court needed to look at not only the objective facts, but
also the States conduct, since the State had positive obligations to take appropri-
ate steps to ensure respect for human rights within the whole of its territory. The
Court also recalled that in exceptional circumstances the acts of a State which took
place or produced effects outside its territory could also amount to the exercise of
jurisdiction, and that where a State exercised overall control in an area outside
its territory, its responsibility extended to acts of the local administration which
survived by virtue of its support. In addition, acquiescence in the acts of a private
individual could also engage the States responsibility, in particular in the case of
recognition by the State of the acts of self-proclaimed authorities not recognised by
the international community.
The Court observed that the Moldovan Government, which was the only le-
gitimate one under international law, did not exercise authority over the part of
its territory under the control of the MRT. That Government had nevertheless a
positive obligation to take the measures within its power to secure the applicants
rights. These obligations, in the present case, related both to the measures needed
to re-establish control over Transdniestria and to measures to ensure respect for the
applicants rights, including attempts to secure their release. The obligation to re-
establish control required Moldova to refrain from supporting the MRT regime and
to take all the measures at its disposal to re-establish its control. In that respect, the
Court noted that the Moldovan authorities had never stopped complaining of the
aggression and had rejected the MRT declaration of independence, while there
was little they could do against a regime sustained by a power such as the Russian
Federation. Moldova had continued to take steps both internally and internationally
312 NOTES AND COMMENTS
after the 1992 ceasere and after ratifying the Convention in 1997, in particular at
the diplomatic level. While cooperation with MRT authorities had been established
in a number of areas, these acts represented an afrmation of the desire to re-estab-
lish control and could not be regarded as support for the regime. In respect of the
applicants specic situation, certain measures had been taken prior to ratication
of the Convention. However, there was no evidence that, since the release of the
rst applicant in May 2001, effective measures had been taken to put an end to the
continuing infringements of the other applicants rights. In particular, they did not
seem to have been mentioned in the continuing negotiations. The Court considered
therefore that Moldovas responsibility was capable of being engaged on account
of its failure to discharge its positive obligations with regard to the acts complained
of which occurred after May 2001.
The Court then observed that the Russian Federation had supported the separa-
tist authorities during the conict and had subsequently signed the ceasere agree-
ment as a party. Its responsibility was thus engaged in respect of the unlawful acts
committed by the separatists, including on account of the continued military, po-
litical and economic support after the ceasere agreement. In addition, it had been
established that the applicants had been arrested with the participation of Russian
troops and three of them had been detained and ill-treated on their premises. The
Court considered therefore that the applicants came within the jurisdiction of the
Russian Federation, although the Convention was not at that time applicable: in-
deed, the events had to be considered to include not only the acts in which the
Russian agents had directly participated, but also the transfer of the applicants into
the hands of the MRT regime and their subsequent ill-treatment. According to the
Court, in fact, the agents of the Russian Federation were fully aware that they were
handing the applicants over to an illegal and unconstitutional regime and knew, or
should have known, the fate which awaited them.
After ratication of the Convention in May 1998, the Russian army remained
stationed on Moldovan territory and the Russian Federation also provided signi-
cant nancial support. It followed that the MRT remained under the effective au-
thority, or at the very least the decisive inuence, of the Russian Federation: there
was a continuous link of responsibility for the applicants fate, since after ratica-
tion no attempt had been made to put an end to their situation. The applicants there-
fore came within the jurisdiction of the Russian Federation and its responsibility
was engaged.
The Court subsequently declined jurisdiction ratione temporis over the com-
plaints relating to the fairness of the applicants trial. It considered instead to have
jurisdiction over the complaints relating to the lawfulness and the conditions of the
applicants detention, and to the imposition of the death penalty over one applicant
(which it examined however under Article 3).
In respect of the applicants detention under the death penalty, the Court con-
sidered that the applicant had lived in constant fear of execution, had been unable
to exercise any remedy, and had been aware that his sentence had no legal basis
EUROPEAN COURT OF HUMAN RIGHTS (2004) 313
or legitimacy, which aggravated his anguish. The detention conditions had had a
deleterious effect on his health, while he had not received proper medical care or
nutrition. Correspondence and visits had only been allowed on an arbitrary basis,
which had made the conditions of detention even harsher. Accordingly there had
been a breach of Article 3 of the Convention. In this applicants case, it amounted to
torture. The Russian Federation was responsible for this breach. Moldova instead
could not be held responsible, given that the Court had found that at that time it
was discharging its positive obligations. The treatment of the third applicant and
the conditions in which he had been kept also amounted to torture. As he remained
in these conditions, the responsibility of both the Russian Federation and Moldova
was engaged as from the respective dates of ratication. The other two applicants
had been kept in extremely harsh conditions which amounted to inhuman and de-
grading treatment and the responsibility of both States was engaged.
As regards the lawfulness of the applicants detention, the Court held that, in
view of the arbitrary nature of the proceedings leading to their conviction, none
of the applicants could be considered as having been convicted by a court and
the prison sentences imposed on them could not be regarded as lawful detention
ordered in accordance with a procedure prescribed by law. This conduct was
imputable to the Russian Federation in respect of all the applicants, whereas the
responsibility of Moldova was engaged only in respect of the second, third and
fourth applicants.
Finally, the Court considered that, on account of the impossibility for the ap-
plicants to lodge themselves an application to the Court, and also on account of the
threats and of the aggravation of the detention conditions after the submission of
the application in Strasbourg, the applicants right of petition had been hindered.
This engaged the responsibility of both Moldova and the Russian Federation. The
Court awarded compensation for both pecuniary and non-pecuniary damage.
7. The case of Issa and Others v. Turkey (Application No. 31821/96, Section II,
Judgment of 16 November 2004) raised the issue of whether Turkey could be said
to have had effective control over the part or Iraqi territory where the facts out of
which the complaints arose occurred.
The facts of the case are the following. The applicants, from northern Iraq,
alleged that in April 1995, during an operation of the Turkish army in the hills sur-
rounding their village, they were out shepherding, when they came across Turkish
soldiers who ill-treated them and took their husbands away. Their search for their
relatives was unsuccessful. They therefore requested the release of their relatives
to a Turkish military unit in the area, but the latter denied to have detained them.
The bodies of the applicants relatives were found some days later with bullet
wounds and mutilated. No investigation into these deaths was carried out despite
the applicants repeated petitions with the authorities of the region. Although the
Government admitted that they had carried out a military operation in northern
314 NOTES AND COMMENTS
Iraq in March-April 1995, they disputed that their forces were present in the area
indicated by the applicants.
The applicants had complained of the alleged unlawful arrest, detention, ill-
treatment and subsequent killing of their relatives.
The Court dealt at the outset with the question of whether Turkey had juris-
diction over the applicants relatives, a matter which was inextricably linked to
the facts underlying the applicants allegations and therefore to the merits of the
application.
The Court needed to establish whether in March and April 1995, besides carry-
ing out military operations in northern Iraq, Turkey had exercised effective overall
control over that entire area, and in particular whether they had conducted opera-
tions in the area where the killings had taken place. In the light of the documentary
evidence submitted by the parties, and bearing in mind that in that area there had
been erce ghting between PKK militants and KDP peshmergas at the time, it
could not be concluded with certainty that Turkish troops had gone as far as the
valleys and hills surrounding the applicants village. In addition, the post-mortem
reports and the other evidence before the Court was unable to conrm that the gun-
re had been discharged by Turkish troops. Thus, it could not be established to the
required standard of proof that the Turkish armed forces had conducted operations
in the areas in question. In the light of the above, the jurisdiction of Turkey over
the applicants relatives for the purposes of Article 1 of the Convention could not be
established and it was not necessary to examine the applicants complaints.
8. The three judgments outlined above have both brought clarity and added
new elements in respect of the Courts interpretation of the notion of jurisdiction
for the purposes of Article 1 of the Convention. This is the current state of affairs
on this matter.
The basic premise is that the notion of jurisdiction is, as in public interna-
tional law, primarily territorial, extending to certain exceptional cases, such as acts
of public authority performed abroad by diplomatic or consular representatives of
the State; the criminal activities of individuals overseas against the interests of the
State or its nationals; acts performed on board vessels ying the State ag or on
aircraft or spacecraft registered there, and particularly serious international crimes.
There is thus a presumption that jurisdiction is exercised by the State throughout
its territory.
As concerns the internal structure of a State, situations in which certain acts are
directly imputable to local authorities (an Autonomous Republic, for example, or a
federated State) do not alter the jurisdiction of the central State: the latter remains
internationally responsible, hence strictly liable, for any convention breach imput-
able to its national authorities.
There may nonetheless be exceptional circumstances in which a State may be
considered not to have jurisdiction over part of its own territory. This may occur
EUROPEAN COURT OF HUMAN RIGHTS (2004) 315
when the State is prevented from doing so, notably as a result of military occupa-
tion by the armed forces of another State which effectively controls the territory
concerned (see Loizidou v. Turkey, Cyprus v. Turkey), or as a result of acts of war
or rebellion, or as a result of the acts of a foreign State supporting the installation
of a separatist State within the territory of the State concerned (Ilacu and Others
v. Moldova and Russia).
In the Courts view, however, the circumstance that a State does not have con-
trol over part of its territory does not automatically entail that it does not have juris-
diction over it for the purposes of Article 1 of the Convention. Rather, the scope of
such jurisdiction is reduced, and is limited to positive obligations aiming at ensur-
ing respect for human rights within its whole territory. These obligations amount to
taking the diplomatic, economic, judicial or other measures that it is in the power
of the State to take, vis--vis foreign States and international organisations, and that
are in accordance with international law.
The extent of these positive obligations varies depending of course on the spe-
cic circumstances of the case, and also on the rights allegedly infringed, absolute
rights such as those guaranteed by Articles 2 and 3 of the Convention requiring of
course maximum effort.
In case of the installation of a separatist regime within the territory of a State,
the positive obligations of the latter will normally include measures needed to re-
establish control over such territory, as an expression of its jurisdiction.
Despite the preponderance of the territorial principle in the application of the
Convention, the concept of jurisdiction within the meaning of Article 1 is not
necessarily restricted to the national territory of the Contracting States. Indeed, the
acts of a State which take place or produce effects outside its territory may also
exceptionally amount to exercise by it of jurisdiction.
A States responsibility may thus be engaged where, as a consequence of law-
ful or unlawful military action, it exercises in practice effective control of an area
situated outside its national territory.19 It is not necessary to ascertain whether a
State actually exercises detailed control over the policies and actions of the authori-
ties in the areas situated outside the national territory: overall control of the area
may engage the responsibility of the State. This control may be exercised directly,
or through armed forces, or through a subordinate local administration. Single mili-
tary actions, such as air strikes, do not necessarily amount to controlling a territory
for the purposes of Article 1.20
19
See Loizidou v. Turkey (merits), Judgment of 18 December 1996, Reports of Judgments
and Decisions (hereinafter Reports), 1996-IV, pp. 2234-2235, para. 52.
20
See Bankovi and Others v. Belgium and Sixteen Other Contracting States, Application
No. 52207/99, Grand Chamber, Decision of 12 December 2001, Reports of Judgments and
Decisions 2001-XII. See GRANATA, Review of Judgments and Decisions Delivered in 2001 by
the European Court of Human Rights on Subjects Relevant to International Law, IYIL, 2001,
p. 215 ff., pp. 217-220.
316 NOTES AND COMMENTS
21
See Cyprus v. Turkey, Application No. 15318/89, Judgment of 18 December 1996, Reports
of Judgments and Decisions 1996-V, para. 77.
22
Application No. 30882/96, Judgment of 20 July 2001, para. 40, Reports of Judgments and
Decisions 2001-VIII. See GRANATA, cit. supra note 20, pp. 224-226.
EUROPEAN COURT OF HUMAN RIGHTS (2004) 317
10. In 2004, the Court delivered its rst, and so far only, decision concern-
ing a request for an advisory opinion under Article 47, para. 1, of the Convention.
The request concerned the co-existence of the CIS Convention and the European
Convention (Grand Chamber, Decision of 2 June 2004).
This request originated in the concern of the Parliamentary Assembly23 relat-
ing to the co-existence of the Convention on Human Rights and Fundamental
Freedoms of the Commonwealth of Independent States (CIS), an organization
comprising twelve former Soviet Republics.
This Convention was opened for signature on 26 May 1995 and was signed by
seven of the eleven CIS member States on that day (Armenia, Belarus, Georgia,
Kyrgyzstan, Moldova, Russia, Tajikistan). It was subsequently ratied by the
Russian Federation, Tajikistan and Belarus, and entered into force on 11 August
1998, the day the third instrument of ratication was deposited by Belarus.
The CIS Convention24 foresees the setting up of a control mechanism in the
form of a human rights commission, whose members are to be appointed by the
State parties, and which is to monitor compliance with the Convention and issue
understandings, conclusions and recommendations.
The Parliamentary Assembly, which considered that the CIS Commission could
not offer the same guarantees of impartiality and independence as the European
Court of Human Rights on account of it being composed of representatives and
deputy representatives of each State and not issuing binding decisions, was nota-
bly concerned that the monitoring mechanisms foreseen by this Convention could
be considered as constituting an another procedure of international investigation
or settlement within the meaning of Article 35, para. 2(b) (formerly Article 27,
para. 1(b)) of the Convention and thus preclude the Court from admitting an in-
dividual application if raising substantially the same matter as had already been
considered by the CIS Commission and not containing any new information. The
Assembly had recommended that the Committee of Ministers of the Council of
23
See PACE Resolution 249(2001) of 23 May 2001.
24
For a comparative analysis of this Convention and the European Convention, see the
Venice Commissions Opinion on the Legal Problems Arising from the Coexistence of the
Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent
States and the European Convention on Human Rights, available at http://venice.coe.int/docs/
1998/CDL-INF(1998)008-e.asp.
318 NOTES AND COMMENTS
Europe seek an advisory opinion of the Court on this matter, which the Committee
of Ministers did in January 2002.
The Court considered that, irrespective of its wording, the request concerned
specically the question whether the CIS Commission could be regarded as an-
other procedure of international investigation or settlement within the meaning of
Article 35, para. 2(b). While this was a legal question concerning the interpreta-
tion of the Convention within the meaning of that provision, the Court recalled
that under Article 47, para. 2, of the Convention, its competence was excluded if the
question raised fell within the scope of the expression any other question which
the Court or the Committee of Ministers might have to consider in consequence of
any such proceedings as could be instituted in accordance with the Convention
(the travaux prparatoires, suggested that the term proceedings mentioned was
not limited to pending cases but included hypothetical cases which might arise in
the future). In the Courts view, proceedings in this context referred to those insti-
tuted under Articles 33 and 34 of the Convention, namely inter-State and individual
applications; the expression any other question covered admissibility issues. The
Court considered therefore that whether a matter had already been submitted to
an equivalent international procedure was in fact an admissibility requirement;
indeed, it had been previously examined by the European Commission on Human
Rights in the context of the examination of the admissibility of individual applica-
tions. In such cases, the Commission had carried out a qualitative analysis of the
procedure in question, addressing in particular the nature of the procedure and its
effects. The Court considered that the question whether the previous submission of
a matter to the CIS Commission would preclude its competence to examine it was
one which it might need to examine in the future, in the context of an individual
application: the Court was therefore a priori precluded from giving an advisory
opinion on this matter. Several CIS member States (one of which, Russia, has rati-
ed the CIS Convention) were Parties to the European Convention and the sub-
stantive provisions of the CIS Convention were broadly equivalent to those in the
European Convention. It could not therefore be excluded that the Court might have
to consider in the context of a future concrete case whether the CIS procedure was
another procedure of international investigation or settlement.
In these circumstances, the Court concluded that the request for an advisory
opinion did not come within its advisory competence.
11. In accordance with Articles 221 EC and 222 EC, the Court of
Justice consists of Judges and is assisted by Advocates General.
Article 223 lays down identical conditions and the same procedure
for appointing both Judges and Advocates General. In addition, it is
clear from Title I of the EC Statute of the Court of Justice, which, in
law, is equal in rank to the Treaty itself, that the Advocates General
have the same status as the Judges, particularly so far as concerns
immunity and the grounds on which they may be deprived of their of-
ce, which guarantees their full impartiality and total independence.
12. Moreover, the Advocates General, none of whom is subordinate
to any other, are not public prosecutors nor are they subject to any
authority, in contrast to the manner in which the administration of
justice is organised in certain Member States. They are not entrusted
with the defence of any particular interest in the exercise of their du-
ties.
13. The role of the Advocate General must be viewed in that con-
text. In accordance with Article 222 EC, his duty is to make, in open
court, acting with complete impartiality and independence, reasoned
submissions on cases brought before the Court of Justice, in order to
assist the Court in the performance of the task assigned to it, which is
to ensure that in the interpretation and application of the Treaty, the
law is observed.
14. Under Article 18 of the EC Statute of the Court of Justice and
Article 59 of the Rules of Procedure of the Court, the Opinion of the
Advocate General brings the oral procedure to an end. It does not
form part of the proceedings between the parties, but rather opens
the stage of deliberation by the Court. It is not therefore an opinion
addressed to the judges or to the parties which stems from an au-
thority outside the Court or which derives its authority from that of
25
Case C-17/98, Emesa Sugar (Free Zone) NV v. Aruba, Order of 4 February 2000, ECR,
2000, p. I-665 ff.
320 NOTES AND COMMENTS
The case of Emesa Sugar has often been cited as one example of the European
Court of Justice departing from the case-law of the Strasbourg Court. Indeed, the
Strasbourg Court had previously stated, in respect of the role of the Attorney-
General or Procureur Gnral of the Court of Cassation or Supreme Court in
criminal proceedings in Belgium,26 in The Netherlands27 and in Portugal,28 that
the impossibility of obtaining a copy and reply to the opinions of such bodies
before judgment was given, infringed the relevant applicants right to adversarial
proceedings. In the context of the Emesa Sugar case, however, the ECJ had dis-
agreed, while recalling and explicitly referring to this case-law, on the ground that
Advocates General before it are not entrusted with the defense of any particular
interest, but exercise quasi-judicial functions.
In 2001, the Strasbourg Court had again the opportunity of addressing this mat-
ter in the context of administrative proceedings, in relation to the submissions of the
Government Commissioner before the French Conseil dEtat.29 In this judgment,
the Court explicitly recalled the ECJs order in the Emesa Sugar case. It found that
there had been no violation of Article 6 ECHR (adversarial proceedings) on ac-
count of the impossibility of replying to the observations submitted to the Conseil
dEtat by the Commissaire Gouvernement.30 The Court underlined that despite the
differences between criminal proceedings, to which all its previous ndings re-
lated, and administrative procedures, and despite the undoubted independence and
impartiality of the Government Commissioner, it could not be excluded that the
non-disclosure to the parties of his submissions and the impossibility for them to
reply to those submissions may result in a breach of the principle of a fair trial. The
Court pointed to the need of attaching great importance to the part actually played
in the proceedings by the Government Commissioner, and more particularly to the
content and effects of his submissions. It found that in the proceedings before the
Conseil dEtat, lawyers can request the Government Commissioner to indicate the
general tenor of his submissions, and they can reply to them by means of a memo-
randum for the deliberations, which the applicants lawyer had in fact done. In ad-
dition, should the Commissioner orally raise a new argument, the presiding judge
would adjourn the case to enable parties to present argument on the point.
26
See Borgers v. Belgium, Judgment of 30 October 1991, Series A No. 214-B; Vermuelen v.
Belgium, Judgment of 20 February 1996, Reports, 1996-I, p. 224 ff.; Van Orshoven v. Belgium,
Judgment of 25 June 1997, Reports, 1997-III, p. 1039 ff.
27
See J.J. v. The Netherlands, Judgment of 27 March 1998, Reports, 1998-II, p. 603 ff.;
K.D.B. v. The Netherlands, Judgment of 27 March 1998, Reports, 1998-II, p. 620 ff.
28
See Lobo Machado v. Portugal, Judgment of 20 February 1996, Reports, 1996-I, p. 195
ff.
29
See Kress v. France, Application No. 39594/98, Grand Chamber, Judgment of 7 June
2001, Reports of Judgments and Decisions 2001-VI.
30
There had, instead, been a violation of Article 6 (equality of arms) as regards the presence
of the Government Commissioner at the deliberations of the Conseil dEtat (paras. 72-76 of the
judgment).
322 NOTES AND COMMENTS
Will the Strasbourg Court continue on the path initiated with the Kress judg-
ment and try to minimise its divergences in respect of the case-law of the ECJ,
or will it overtly disagree with the Luxembourg Court? At a time when prepara-
tion of ratication by the European Communities of the European Convention is
underway, it would probably be unwarranted to draw everyones attention on the
possible divergences between the two Courts. However, it is unlikely that this case
falls within the competence ratione materiae of the Court, as the summary injunc-
tion proceedings before the Dutch Regional Court concerned a tax dispute, which
does not amount to a civil rights and obligation within the meaning of Article 6
ECHR.
12. Finally, a quick look at the annual statistics. In 2004, the Court delivered
718 judgments, of which 588 gave rise to a nding of at least one violation of the
Convention (36 in respect of Italy). The Court also declared inadmissible a total
of 20,348 applications, and admissible 842 applications. 2,394 applications were
communicated to the parties. The number of cases terminated increased by around
17.5% compared with 2003. In addition, it is estimated that the annual number of
applications lodged with the Court rose to about 45,000 in 2004, an increase of ap-
proximately 16%.
THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2004)*
1. INTRODUCTION
*
The introduction has been written by Massimiliano Montini, sections 2 and 3 by Federico
Lenzerini.
**
J.D., University of Siena; Ph.D., International Law.
***
J.D., University of Siena; LL.M., University of London; Professor of EU Law, University
of Siena.
1
See Update of WTO Dispute Settlement Cases, Doc. WT/DS/OV/23 (Updated to 31 March
2005), 7 April 2005, available at the WTO website, www.wto.org.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 323-336
324 NOTES AND COMMENTS
(AB) Compliance Reports have been adopted, while 16 arbitrations on the level
of suspensions of concessions have been concluded and 15 times the WTO has
authorised a Member to proceed to the suspension of concessions towards other
Members for the failure to comply with a DSB decision.
During the year 2004 the DSB adopted six AB dispute settlement reports. In
chronological order, the rst of these reports to be adopted was the one concerning
the dispute United States Sunset Review of Anti-dumping Duties on Corrosion-
resistant Carbon Steel Flat Products from Japan.3 In this case Japan complained
that the determinations of the United States Department of Commerce (USDOC)
and the United States International Trade Commission in the full sunset review of
the anti-dumping duties imposed on imports of corrosion-resistant carbon steel at
products from Japan (issued respectively on 2 August 2000 and 21 November 2001)
were erroneous and based on decient rulings, procedures and provisions relating
to the US Tariff Act of 1930 and related provisions, thus violating several rules
pertaining to the WTO system, including GATT Articles VI and X, Article XVI:4
of the WTO Agreement and various Articles of the Anti-Dumping Agreement. The
Panel was established by the DSB on 22 May 2002. The Panel Report was circu-
lated on 14 August 2003.4 The Panel rejected all of Japans claims, concerning sev-
eral aspects of the US pertinent legal provisions relating to the conduct of sunset
reviews of anti-dumping duties pursuant to US law. On 15 September 2003 Japan
sent its notication of appeal to the DSB. The Report of the AB was circulated on
15 December 2003. The AB reversed four of the seven Panels legal ndings, but
it did not make any nding that the United States had acted inconsistently with
the WTO Agreement or the Anti-Dumping Agreement. In particular, whilst the AB
reversed the Panels nding that the United States did not act inconsistently with
Articles 2.4 or 11.3 of the Anti-Dumping Agreement by allegedly using a zeroing
methodology5 in calculating dumping margins used for corrosion-resistant carbon
2
Most of the information described in the text has been taken, in addition to the relevant AB
Reports, from the Update of WTO Dispute Settlement Cases, id.
3
See Doc. WT/DS244/AB/R of 15 December 2003.
4
See Doc. WT/DS244/R of 14 August 2003.
5
The zeroing methodology, commonly used by the USDOC when calculating dumping
margins, consists in dividing the products under investigation into groups of identical or strictly
similar product types, calculating a weighted average normal value and export price for each of
such types and then comparing the weighted averages for each of them. This comparison may
lead to the result that, in some instances, the weighted average export price for a given product
type is less than the weighted average normal value or, in other instances, the weighted average
export price is greater than the weighted average normal value. These values are then aggregated
to produce one single value, which represents the margin of dumping for the product under
THE WTO ACTIVITY (2004) 325
steel at products sunset review, it found that there was not a sufcient factual basis
to complete the analysis of Japans claim on such issue, on account of the lack of
factual ndings by the Panel regarding the methodology used by USDOC in the
administrative reviews.6 The DSB adopted the AB Report and the Panel Report
(as modied by the AB Report) on 9 January 2004.
In United States Final Countervailing Duty Determination with respect to
Certain Softwood Lumber from Canada, Canada lamented that the nal afrmative
countervailing duty determination by the US Department of Commerce concern-
ing certain softwood lumber from Canada violated Articles VI:3 and X:3 of the
GATT 1994 as well as a number of provisions of the Agreement on Subsidies and
Countervailing Measures (SCM Agreement). The Panel Report was circulated on
29 August 2003.7 The Panel found that the USDOC Final Countervailing Duty
Determination was not consistent with Article VI:3 of the GATT 1994 as well as a
number of provisions of the SCM Agreement. The decision of the United States to
appeal to the AB certain issues of the Panel Report was notied on 2 October 2003,
then withdrawn for scheduling reasons on 3 October 2003, and nally re-notied
on 21 October 2003. The Report of the AB was circulated on 19 January 2004.8 The
AB upheld two and reversed three of the Panels ndings. The AB, in particular,
did not consider that the United States had acted inconsistently with Articles 10, 14
and 32.1 of the SCM Agreement with regard to the determination by the USDOC
of the existence of the amount of benet in its countervailing duty investigation,9
but found itself unable to complete the legal analysis on such point due to the insuf-
cient factual basis to full such analysis.10 At the same time, the AB upheld the
Panels nding that USDOCs failure to conduct a pass-through analysis in respect
of arms length sales of logs by tenured harvesters/sawmills to unrelated sawmills
is inconsistent with GATT Article VI:3 and Articles 10 and 32.1 of the SCM
Agreement.11 The AB thus recommended that the DSB request the United States
to bring its measure [] into conformity with its obligations under the GATT
1994 and the SCM Agreement.12 The AB Report and the Panel Report (as modied
by the AB Report) were adopted by the DSB on 17 February 2004.
investigation for each investigated exporter. In such process of aggregation a value of zero
is attributed to the product comparisons resulting in a weighted average export price which is
greater than the weighted average normal value; the values resulting from the comparisons where
the weighted average export price is lower than the weighted average normal value (positive
values) are then aggregated, and the result is divided by the total value of exports, so as to obtain
a weighted average margin of dumping.
6
See Doc. WT/DS244/AB/R of 15 December 2003, para. 138.
7
See Doc. WT/DS257/R of 29 August 2003.
8
See Doc. WT/DS257/AB/R of 19 January 2004.
9
Id., para. 121.
10
Id., para. 122.
11
Id., para. 159 (italics in the original text).
12
Id., para. 168.
326 NOTES AND COMMENTS
The two following AB Reports adopted by the DSB in 2004 related to, respec-
tively, the case concerning the conditions for the granting of tariff preferences to
developing Countries by the European Community (EC)13 and the dispute arising
from the US nal dumping determination on softwood lumber from Canada.14 The
rst of these two cases will be examined in details in the following section. As for
the second, it was another very complex and technical controversy arising from a
complaint by Canada, which lamented that the US investigation and the nal af-
rmative determination of sales at less than fair value (dumping) concerning certain
softwood lumber products from Canada violated GATT Articles VI and X:3(a) as
well as a number of provisions of the Anti-Dumping Agreement. The Panel Report
was circulated on 13 April 2004.15 The Panel rejected all Canadian claims, except
the one concerning the assumption that, in its nal dumping determination, the
USDOC acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement
in determining the existence of margins of dumping on the basis of a methodol-
ogy incorporating the practice of zeroing.16 In this respect, however, a member
of the Panel issued a dissenting opinion stating that Canada did not establish that
the application of the zeroing methodology in the instant case was inconsistent
with the United States obligation under Article 2.4 to conduct a fair comparison
between export price and normal value.17 On 13 May 2004 the United States noti-
ed its decision to appeal the Panels decision to the AB. The Report of the AB was
circulated on 11 August 2004.18 The AB found that the United States had violated
the Anti-Dumping Agreement not only by using the practice of zeroing for calcu-
lating margins of dumping (thus upholding the Panels nding on such issue), but
also with respect to Articles 2.2 and 2.4 of such Agreement, in its calculation of the
amount for nancial expense for softwood lumber for Abitibi, one of the Canadian
companies subjected to investigation (reversing the Panels nding on this point),19
although not making ndings on such issue. The AB Report and the Panel Report
(as modied by the AB Report) were adopted by the DSB on 31 August 2004.
A further case involving Canada and the United States was Canada Measures
Relating to Exports of Wheat and Treatment of Imported Grain.20 On 17 December
2002 the United States requested consultations with Canada, claiming that the treat-
ment accorded to grain imported into Canada was inconsistent with GATT Article
13
See European Communities Conditions for the Granting of Tariff Preferences to
Developing Countries, Doc. WT/DS246.
14
See United States Final Dumping Determination on Softwood Lumber from Canada,
Doc. WT/DS264.
15
See Doc. WT/DS264/R of 13 April 2004.
16
Id., para. 8.1(a)(i).
17
Id., para. 9.24.
18
See Doc. WT/DS264/AB/R of 11 August 2004.
19
Id., para. 183(b).
20
See Doc. WT/DS276.
THE WTO ACTIVITY (2004) 327
21
See Doc. WT/DS276/R of 6 April 2004.
22
Id., para. 7.4.
23
See Doc. WT/DS276/AB/R of 30 August 2004, para. 214.
24
See Doc. WT/DS268.
25
See Doc. WT/DS268/R of 16 July 2004.
26
Id., para. 8.1.
27
See Doc. WT/DS268/AB/R of 29 November 2004.
28
Id., para. 365.
328 NOTES AND COMMENTS
The case concerning the tariff preferences29 represents, to date, the latest de-
velopment in the seemingly endless controversy concerning the preferential treat-
ment granted by the European Community (EC) to certain developing countries,
the so-called ACP States (African, Caribbean and Pacic countries) since the entry
into force of the First Lom Convention in 1976.30 After the blocking of two GATT
panels by the EC respectively in 199231 and 1993,32 such controversy exploded in
1996 under the new WTO dispute settlement regime, with the so-called Banana
dispute.33 In that occasion Ecuador, Guatemala, Honduras, Mexico and the United
States successfully challenged the non-reciprocal tariff preferences system granted
by the EC to the ACP States pursuant to the Fourth Lom Convention.34 The EC
system was found by both the Panel and the AB to be inconsistent with various
GATT/WTO provisions (including Articles I, III and X of the GATT 1994) in
spite of the Lom Waiver (authorizing the EC to provide preferential treatment
for products originating in ACP States as required by the relevant provisions of the
Fourth Lom Convention, without being required to extend the same preferential
treatment to like products of any other contracting party).35
In view of making its policy of cooperation for development consistent with
GATT/WTO rules (in the meantime such policy has been prolonged with the con-
clusion, in June 2000, of the Cotonou Partnership Agreement),36 in 2001 the EC
Council adopted Regulation No. 2501/2001,37 extending preferential treatment
29
See supra note 13.
30
See ACP-EEC Lom Convention, signed on 28 February 1975, entered into force on 1
April 1976, OJ EC L 205 of 30 January 1976.
31
See Doc. DS 23/R of 3 June 1993.
32
See Doc. DS 38/R of 11 February 1994, ILM, 1995, p. 177.
33
See European Communities Regime for the Importation, Sale and Distribution of
Bananas, Doc. WT/DS27. See LENZERINI and MONTINI, The Activity of the World Trade
Organization (2000), IYIL, 2001, p. 191 ff., espec. p. 202 ff.; LENZERINI, Le relazioni tra
Organizzazione Mondiale del Commercio e Comunit europea nel settore della cooperazione
allo sviluppo, in FRANCIONI, LENZERINI and MONTINI (eds.), Organizzazione mondiale del com-
mercio e diritto della Comunit europea nel settore della risoluzione delle controversie, Milano,
2005, p. 171 ff., espec. p. 182 ff. See also the sources cited in such article.
34
See Fourth Lom Convention, 1989, ILM, 1990, p. 783.
35
See The Fourth ACP-EEC Convention of Lom Decision of the CONTRACTING PARTIES
of 9 December 1994, Doc. L/7604 of 19 December 1994. The waiver was later extended in 1996
(see EC The Fourth ACP-EC Convention of Lom Extension of Waiver, Decision of the WTO
General Council of 14 October 1996, Doc. WT/L/186 of 18 October 1996).
36
See http://europa.eu.int/comm/development/body/cotonou/pdf/agr01_en.pdf#zoom=100.
37
OJ EC L 346 of 31 December 2001, p. 1. Article 41, para. 2, originally provided that the ef-
fects of this Regulation should expire on 31 December 2004, but Article 1 of Council Regulation
(EC) No. 2211/2003 of 15 December 2003 amending Regulation (EC) No. 2501/2001 applying a
THE WTO ACTIVITY (2004) 329
scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004
and extending it to 31 December 2005 (OJ EC L 332 of 19 December 2003, p. 1) has extended
such effects to the whole year 2005.
38
See the 5th recital of the Preamble and Annex 1.
39
See Article 1.
40
See LENZERINI and MONTINI, cit. supra note 33, p. 204.
41
See European Communities transitional regime for the EC autonomous tariff rate quotas
on imports of bananas, Decision of 14 November 2001, Doc. WT/MIN(01)/16 of 14 November
2001, available at http://www.wto.org, para. 1.
42
See European Communities the ACP-EC Partnership Agreement, Decision of 14
November 2001, Doc. WT/MIN(01)/15 of 14 November 2001, available at http://www.wto.org.
43
Id., Preamble.
44
See LENZERINI and MONTINI, cit. supra note 33, p. 205.
45
See Doc. WT/MIN(01)/15, cit. supra note 42, p. 1.
330 NOTES AND COMMENTS
incentive arrangements for the protection of labour rights and for the protection
of the environment contemplated by the same Regulation, but, on 28 February
2003, it declared that it had decided to limit its complaint to the drug arrange-
ments, although reserving for itself to bring separate complaints concerning the
other arrangements in the event that the EC were to implement them in a way det-
rimental to Indias trade interests or if the European Communities were to renew
them after the lapse of its current General System of Preferences [GSP] scheme
on 31 December 2004.46 India thus requested the Panel to ascertain that the drug
arrangements were inconsistent with Article I:1 of the GATT 1994 and were not
justied by the Enabling Clause of 1979,47 which allows GATT parties to ac-
cord differential and more favourable treatment to developing countries, without
according such treatment to other contracting parties, notwithstanding the provi-
sions of GATT Article I.48 The EC, on its part, contended that the Enabling Clause
is an autonomous right not an afrmative defence and it excludes the application
of Article I;49 consequently, it claimed that India had the burden of establishing
that the drug arrangements were not covered by paragraph 2(a)50 or were inconsist-
ent with paragraph 3(c)51 of the Enabling Clause. In addition, the EC also relied on
Article XX(b) of GATT 199452 as supplementary counter-argument for the event
that the Panel was to consider that the drug arrangements fall within GATT Article
I:1 and were prima facie inconsistent with such provision.53
The Panel held that the Enabling Clause is to be considered as having the status
of exception to GATT Article I:1;54 consequently, the EC had the burden of dem-
onstrating that the drug arrangements fall within the scope of paragraph 2(a) of the
46
See the Report of the Panel, Doc. WT/DS246/R of 1 December 2003, para. 1.5.
47
See Differential and More Favourable Treatment, Reciprocity and Fuller Participation of
Developing Countries (Enabling Clause), Decision of 28 November 1979 (L/4903), available
at http://www.wto.org/english/docs_e/legal_e/enabling1979_e.htm.
48
Id., para. 1.
49
See Doc. WT/DS246/R, para. 3.5.
50
See supra note 47. Paragraph 2(a) states that the provisions of paragraph 1 apply to
[p]referential tariff treatment accorded by developed contracting parties to products originating
in developing countries in accordance with the Generalized System of Preferences; the meaning
of this provision is further claried by note 3 to the Enabling Clause, according to which such
treatment must be [a]s described in the Decision of the CONTRACTING PARTIES of 25 June
1971, relating to the establishment of generalized, non-reciprocal and non discriminatory prefer-
ences benecial to the developing countries.
51
See supra note 47. Paragraph 3(c) states that any differential and more favourable treat-
ment provided under the Enabling Clause shall in the case of such treatment accorded by de-
veloped contracting parties to developing countries be designed and, if necessary, modied, to
respond positively to the development, nancial and trade needs of developing countries.
52
GATT Article XX(b) includes among the general exceptions any measure necessary to
protect human, animal or plant life or health.
53
See Doc. WT/DS246/R, para. 3.7.
54
Id., para. 7.39.
THE WTO ACTIVITY (2004) 331
Enabling Clause.55 India had thus the only duty of establishing the inconsistency
of the drug arrangements with GATT Article I:1.56 According to the Panel, the
tariff advantages under the Drug Arrangements are not consistent with Article I:1
of the GATT 1994.57 It was thus necessary to ascertain whether the drug arrange-
ments could be considered as included within the scope of the Enabling Clause, i.e.
whether the preferential treatment granted by the EC to certain developing countries
pursuant to such arrangements could be considered of non discriminatory charac-
ter, as explicitly required by note 3 explicative of paragraph 2(a) of the Enabling
Clause.58 In this perspective the Panel rejected the ECs argument according to
which the Enabling Clause would allow to grant a preferential treatment to only
a limited number of developing countries when this is required by objective needs
that are not shared by all such countries (as the need to combat drug production and
trafcking provided for by Article 10 of Regulation No. 2501/2001 would actually
be).59 According to the Panel, [t]here could be no reasonable explanation why cer-
tain causes of the problem of development should be addressed through GSP and
why other causes of the same development problem should not be so addressed.60
This conclusion would be conrmed by pertinent practice, which would demon-
strate that the term non-discriminatory included in note 3 requires that identical
tariff preferences under GSP schemes be provided to all developing countries with-
out differentiation, except for the implementation of a priori limitations.61 In addi-
tion, the Panel held that the term developing countries included in paragraph 2(a)
should be interpreted to mean all developing countries (again, with the exception
of cases of implementation of a priori limitations),62 since the intention of the ne-
gotiators was to provide GSP equally to all developing countries and to eliminate all
differentiation in preferential treatment to developing countries [].63 Accordingly,
the Panel concluded that the drug arrangements had to be considered as inconsistent
with paragraph 2(a) and non-justied by paragraph 3(c) of the Enabling Clause.64
Concerning the possible application to the controversy of GATT Article XX(b),
the Panel held that
55
Id., para. 7.42.
56
Id., para. 7.53.
57
Id., para. 7.60.
58
See supra note 50.
59
See Doc. WT/DS246/R, para. 7.100.
60
Id., para. 7.103.
61
Id., para. 7.161.
62
Id., para. 7.174 (italics in the original text).
63
Id., para. 7.169.
64
Id., para. 7.177.
332 NOTES AND COMMENTS
65
Id., para. 7.207.
66
Id., para. 7.211.
67
Id., para. 7.213.
68
Id., para. 7.214.
69
See Article 26(1)(d).
70
See Doc. WT/DS246/R, para. 7.216.
71
Id., para. 7.228.
72
Id., para. 7.235.
THE WTO ACTIVITY (2004) 333
73
See the Report of the Appellate Body, Doc. WT/DS246/AB/R of 7 April 2004, para. 99.
74
Id., para. 103.
75
Id., para. 174.
76
Id., para. 176 (italics in the original text).
77
Id. (italics in the original text).
78
Id., para. 154.
79
Id., para. 156.
80
Id., para. 160.
81
Id., para. 162 (italics in the original text).
334 NOTES AND COMMENTS
cal.82 In other words, the use of the term non-discriminatory in paragraph 2(a)
of the Enabling Clause simply requires that, in the event that a preferential treat-
ment is granted to certain developing countries on account of special needs shared
by them, such treatment must be designed so as to ensure that identical treatment
is available to all similarly-situated GSP beneciaries, i.e. to all GSP beneciaries
that have the development, nancial and trade needs to which the treatment in
question is intended to respond.83
Accordingly, as pointed out by the AB, the term developing countries in-
cluded in paragraph 2(a) of the Enabling Clause may also mean less than all
developing countries.84 The AB thus reversed the key point of the Panels in-
terpretation of the scope of the Enabling Clause. It was consequently necessary
to ascertain whether the drug arrangements were incompatible with such Clause
under a perspective different from the one considered by the Panel. In the ABs
words, it was necessary to ascertain whether the preferences granted under the
Drug Arrangements are available to all GSP beneciaries that are similarly affected
by the drug problem.85 Such a requirement could not be considered as fullled
for basically two reasons: rst, Regulation No. 2501/2001 did not contemplate
the possibility of updating (except in the case of an amendment to the Regulation
itself) the list of countries eligible to enjoy the special tariff treatment under the
Drug Arrangements (provided for by Annex I), that is to say that countries origi-
nally not included in such a list were not eligible to accede to such treatment even
in the event that their domestic rate of drugs production and trafcking would
quantitatively match or surmount that of States included in the list.86 Second, the
Regulation provided for the removal of a country from Annex I (applying also to
the Drug Arrangements) in the event that particular circumstances are met that
do not relate in any way to the degree to which the country is suffering from the
drug problem.87 In particular, Article 3 provided for the removal from Annex I
of a country if particular criteria are met indicating that such country had reached
a given degree of development. Article 12 also contemplated such removal with
regard to a product sector in the event that the country concerned had attained a
given level of development with respect to that sector. Title V provided for certain
temporary withdrawal and safeguard provisions, common to all the preferential
arrangements under the Regulation,88 which were also unrelated to the question of
whether the beneciary is a seriously drug-affected country.89 Concerning this
82
Id., para. 169.
83
Id., para. 173.
84
Id., para. 176 (italics in the original text).
85
Id., para. 180.
86
Id., paras. 182, 183 e 187.
87
Id., para. 184.
88
See supra note 69 and corresponding text.
89
See Doc. WT/DS246/AB/R, para. 184.
THE WTO ACTIVITY (2004) 335
second point, while the AB analysis appears to be impeccable with regard to Title
V, some doubts arise in relation to the reasoning on Articles 3 and 12, particularly
in relation to Article 3, in the event that these provisions were applied on account
of the fact that the developing country concerned was no longer developing.
Since Regulation No. 2501 was indeed intended to benet developing countries,
consistently with the text and the purpose of the Enabling Clause, when a country
reaches a given degree of development which allows it to emerge from the group
of developing countries, a developed State which granted such country a preferen-
tial treatment pursuant to the Enabling Clause has not only the faculty, but, in this
writers opinion, even the obligation, to remove the said country from the list of
countries eligible of preferential treatment. To hold otherwise would entail grant-
ing preferential treatment to a country which no longer falls within the scope of the
Enabling Clause, thus violating GATT Article I.
Be it as it may, the AB concluded that the European Communities failed to
demonstrate that the Drug Arrangements are justied under paragraph 2(a) of the
Enabling Clause.90 The Report of the AB (as well as the Panel Report, as modied
by the AB Report) was adopted by the DSB on 20 April 2004.
Although the nal conclusion of the AB is the same as the Panels is, the rea-
soning that led to such conclusion is remarkably different and has changed the
meaning and the implications of the decision for the EC. In particular, the AB has
declared the compatibility with the Enabling Clause of preferential measures grant-
ed to a number of developing countries that is less than all developing countries,
when this is justied by the purpose of achieving certain development, nancial
and trade needs91 which are common to only a part of developing countries, pro-
vided that the conditions and criteria contemplated by paragraph 3 of the Enabling
Clause are respected. Thus, consistently with the only recommendation made by
the AB, requiring the EC to bring Council Regulation (EC) No. 2501/2001 []
into conformity with its obligations under the GATT 1994,92 the EC will have
the opportunity of continuing its policy of cooperation for development through
the scheme provided by such Regulation, on the condition that it is adjusted so as
to comply with the standards and criteria contemplated by the Enabling Clause as
interpreted by the AB.
At the DSB meeting of 19 May 2004 the EC declared its intention to fully
comply with the recommendations of the AB Report as adopted by the DSB in a
way compatible with its WTO obligations. The EC also stated that it would need
a reasonable period of time to reach such goal, which, in the intention of the EC
authorities, will be fullled through the adoption of a new GSP scheme, due to be
enacted in 2005. On 16 July 2004 India requested that such period of time be deter-
90
Id., para. 189.
91
See supra, text corresponding to note 80.
92
See Doc. WT/DS246/AB/R, para. 191.
336 NOTES AND COMMENTS
mined through the recourse to arbitration pursuant to Article 21.3 of the DSU. The
arbitrator, appointed by the WTO Director-General on 26 July 2004, decided on 20
September 2004 that the reasonable period of time to implement the recommenda-
tions and rulings of the DSB in this dispute [should be] 14 months and 11 days from
20 April 2004, being the date of adoption of the Panel and Appellate Body Reports
by the DSB, and that it will therefore expire on 1 July 2005.93
93
See Doc. WT/DS246/14 of 20 September 2004, para. 60.
ITALIAN PRACTICE
RELATING TO INTERNATIONAL LAW
Classication Scheme
V. TERRITORY
VII. ENVIRONMENT
(Cf. supra in this volume the commentary by IOVANE, The Ferrini Judgment
of the Italian Supreme Court: Opening Up Domestic Courts to Claims of Reparation
for Victims of Serious Violations of Fundamental Human Rights)
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 341-379
342 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
In the judgment under review, the Corte di Cassazione had to establish whether
the Prime Minister of Montenegro, Milo Djukanovic having been convicted of
criminal association aimed at the importation and trafc of contraband tobacco
could benet from immunity from criminal jurisdiction. In this regard, the Court
rstly observed that: The existence of an international norm that guarantees Heads
of State, Prime Ministers and Foreign Ministers of sovereign States personal in-
violability [...] and immunity from criminal jurisdiction in respect of all activities
carried out both as ofcials and private individuals is undisputed.
This is a customary provision which, by virtue of Art. 10, para. 1, of the
Constitution (The Italian legal system conforms to the generally recognized
norms of international law), is ipso facto binding within the Italian legal system
and which allows for application of Art. 3 of the criminal code (whereby, inter
alia, Italian criminal law is compulsory for both citizens and aliens present in the
territory of the State, unless provided for by [...] international law). As the Court
highlighted, however: The same norm [...] states that inviolability and immunity
apply only where the entity can be qualied as a sovereign one, comparable to a
State.
Thus, the Court rst had to establish whether Montenegro, as part of the State
Union of Serbia and Montenegro, had an autonomous personality or not.
The Court claried that in order to qualify an entity as sovereign, two elements
are necessary, namely effective government and independence. In contrast to previ-
ous jurisprudence (Sez. II, 16 July 1980, Re: Baccelli; Sez. III, 17 March 1997, Re:
Ghiotti), the Court expressed the opinion that such an entity need not be recognized
by other States:
Two main arguments were used by the Court to justify this conclusion.
First, the Court recalled that several advisory opinions have been issued by the
Italian Foreign Ofce, unanimously afrming that Mr Djukanovic is not entitled to
immunity from criminal jurisdiction due to a lack of international personality for
the Republic of Montenegro.
Second, the Constitutional Charter of the State Union of Serbia and Montenegro
(Art. 14) expressly states that:
The order under review conrms the traditional tendency of Italian case-law to
acknowledge that the Order of Malta is an international subject, generally entitled
to sovereign immunity (from Italian jurisdiction). However, the order also conrms
the more recent and welcome trend toward restricting this immunity and, in par-
ticular, afrms Italian jurisdiction over disputes concerning the patrimonial aspects
of labour relations.
Mr. Spatini, a member of the Military Corps of the Association of Italian
Knights of the Sovereign Military Order of Malta, had petitioned a civil judge,
asking for the payment of extra wages which he claimed he was entitled to. The
Association, in turn, invoked a lack of jurisdiction and applied to the Corte di
Cassazione for a preliminary ruling on the issue.
In the rst part of the ruling the Court recognised that the Order of Malta is a
subject of international law: The case-law of this Court is consistent in recognis-
ing the position held by the Sovereign Order of Malta as a subject of international
law in the Italian legal system.
This opinion is in line with well-established practice in Italian case-law (see,
for all, Cassazione, 14 July 1953, No. 2281, reproduced in Giur. It., 1954, I, 1, p.
462 ff.; 6 June 1974, No. 1653, ibidem, 1975, I, 1, p. 489 ff.; 18 March 1999, No.
150, reproduced in Giustizia civile, 1999-I, p. 3353 ff.), recently also conrmed by
the Italian Parliament, which authorised the ratication and ordered the execution
of an international treaty concluded with the Order concerning the management of
its hospitals in Italy (see Law No. 157 of 9 June 2003 concerning the execution of
the Treaty of 21 December 2000).
However, the above-mentioned tendency has been heavily criticised by interna-
tional law scholars, as one without support in the principles of international law. The
opinion is commonly shared that this practice is the source of an absolutely unjusti-
ed situation of privilege (see, among others, BERNARDINI, Ordine di Malta e diritto
internazionale, RDI, 1967, p. 497 ff.; PAONE, Ordine di Malta e sistema giuridico
internazionale, ibid., 1979, p. 233 ff.; LARGER and MONIN, A propos du protocole
daccord du 5 septembre 1983 entre les Services Gouvernementaux Franais et la
Reprsentation ofcielle en France de lOrdre de Malte : quelques observations sur
la nature juridique de lOrdre de Malte, AFDI, 1983, pp. 229-239; CONFORTI, Sui
privilegi e le immunit dellOrdine di Malta, Foro It., 1990, I, p. 2597 ff.).
In light of these opinions, the judgment invites criticism when it claims that:
[T]he theory that the Order of Malta enjoys sovereign privileges is unanimously
shared by legal scholars.
As the Order was considered an international subject, the Court applied, to
the Italian Association, the principles on jurisdictional immunity in employment
disputes that have been developed by Italian tribunals with regard to foreign States.
The Court afrmed that:
On this ground given that the dispute concerned only nancial matters the
Court afrmed Italian jurisdiction over the case. With regard to State immunity, a
distinction between the economic and organisational aspects of employment
relationships had been introduced by the Court in judgment No. 2329 of 15 May
1989, and conrmed on several occasions (see orders No. 5941 of 18 May 1992,
reproduced in RDI, 1992, p. 402 ff., No. 9657 of 24 September 1993, ibid., 1993,
p. 812 ff.).
The Courts conclusion here is in line with a trend in the Corte di Cassazione
toward reducing the immunity attributed to the Order on other grounds (see, for
example, the reference to waiver of immunity in judgments No. 3374 of 19 July
1989, reproduced in Foro It., 1990, I, p. 2595 ff., and, mutatis mutandis, No. 960 of
18 February 1989, ibid., 1989, I, p. 677 ff.; the signicance attributed to the private
nature of the activity carried out in judgment No. 1073 of 3 February 1988, repro-
duced in RDI, 1988, p. 905 ff.; or the relevance attributed to the nancial character
of the dispute in order No. 374 of 14 January 1992, reproduced in Diritto ecclesia-
stico, 1992-II, p. 3 ff.). This trend, strengthened by the ndings of the Court in the
present case, gives greater respect to the individual right of action guaranteed by
the Italian Constitution and in human rights instruments and, for this reason, should
be welcomed. Nevertheless as has been said on several occasions in this Yearbook
(see Vol. II, 1976, p. 328 ff.; Vol. VIII, 1988-1992, p. 38; Vol. IX, 1999, p. 154 ff.)
it would be preferable and more consistent with international law principles to
abandon the theory of the Orders international personality altogether. (The Italian
text of the order has been published in RDIPP, 2004, pp. 1034-1036).
FRANCESCA DE VITTOR
These judgments are among the rst applications of the discipline provided for
by Law No. 40 of 6 March 1998 (Rules on immigration and on the legal status of
aliens, cf. IYIL, Vol. IX, 1999, p. 315 ff., transposed into Testo Unico by D.Lgs.
No. 286/1998) relating to civil protection from discriminatory action or conduct by
reason of race or nationality concerning entitlement to dwelling of aliens regularly
residing in Italy.
The 6th sub-section of Art. 40 of the Testo Unico provides for regularly resi-
dent aliens right to public housing on the same terms as Italian citizens. Consistent
with Art. 43 of the Testo Unico, the provision of lett. c) allows for the possibility
of initiating civil suits for refusal to assign public housing or for the imposition of
disadvantageous conditions by reason of foreign status, race, religion, ethnic group
or nationality.
With the rst judgment under examination, the Court of Milan censured the
attribution of additional points to applicants of Italian citizenship in classication
lists for the allocation of public housing as discriminatory behaviour. By a previous
decree (judgment No. 323/2000, published in Diritto, immigrazione e cittadinanza,
2002, No. 2, p. 117 ff.), the Regional Administrative Court of Piemonte had dealt
with a similar situation; but, having examined matters from a different perspective,
ruled admissible the provision laid down in regional law providing, as a prereq-
uisite for participation in allocation of public housing, not only that the alien be a
regular resident but also that he be gainfully employed, either as a subordinate em-
ployee or as an autonomous worker, for at least three years (for concurrent critique
of the decision, see GILI, Una singolare pronuncia giurisdizionale in materia di
diritto allaccesso agli alloggi pubblici da parte degli stranieri, Diritto, immigra-
zione e cittadinanza, 2002, No. 2, p. 73 ff.). The Court of Milan, on the other hand
after having resolved preliminary issues relating to the jurisdiction and powers
of ordinary judges and after having conrmed the absence of any issues of public
order, as well as any legal regulations allowing the administration to proceed in
this direction reached the conclusion that the conduct under examination was dis-
criminatory, because [...] it results in the imposition of disadvantageous conditions
upon aliens entitlement to public housing, even when such aliens regularly reside
in Italy, (and this) only because of their status as foreign citizens.
We have, furthermore, to point out the recognition of the legitimacy of public
interest organisations to initiate action. Initially this recognition was not provided
for by the Testo Unico. The possibility was later expressly introduced by D.Lgs. No.
215/2003 implementing EC Directive 2000/43 concerning equal treatment among
people irrespective of their racial and ethnic origin which stipulated that any such
association be included in a list approved by the Minister of Labour and Social
Policies, as well as by the Minister of Equal Opportunities, and have a formal proxy
from the victim of the act of discrimination, except in cases of collective discrimina-
tion when the persons damaged cannot be directly and immediately identied.
JUDICIAL DECISIONS 347
Should the interpretation allowing the domestic rules implementing the direc-
tive to supersede the previous provision prevail, there would be a risk that immi-
grants might be deprived of protection against a form of indirect racial and ethnic
discrimination, resulting from alleged distinctions based on nationality.
ANNA LIGUORI
The decisions quoted above address two important issues, namely respect for
family life in Italian immigration practice and the determination of applicable rules
when this right is governed by conicting domestic and international provisions.
In order to tighten immigration policy, Italian immigration law was recently
reformed, reducing the number of cases where the right to enter Italy is granted
to aliens and increasing the power of competent authorities to revoke residence
permits for public policy or public security reasons (D.Lgs. No. 268 of 1998, as
modied by Law No. 189 of 2002, hereinafter Immigration Law). In particular,
the Immigration Law provides a broader range of cases in which an alien may be
expelled after conviction or violation of immigration rules.
In the decisions discussed here, judges revised expulsion orders for aliens
convicted of criminal or administrative offences. Following conviction, the aliens
were expelled by the competent administrative authority, since their presence on
domestic territory was considered dangerous for society and prejudicial to public
order and national security.
JUDICIAL DECISIONS 349
Although the instance of interference with family life in this case respects
the legality requirement and pursues a legitimate aim, grounded in public morals,
the judge found a need to ascertain whether the requirements really exist, if the
measure applied is indeed necessary to safeguard public order and to prevent of-
fences.
According to the judge, a two-stage procedure has to be followed in determin-
ing whether the alleged violation of Art. 8 has actually occurred.
The rst step is to check whether the individual, in view of his conviction,
could represent an real danger to society. If so, any interference with family life
would be theoretically justied by Art. 8, para. 2.
The second step encompasses the proportionality test, i.e. balancing the aliens
interest in remaining in Italy with his family with the States interest in safeguard-
ing moral values. This test consists of comparing the real and concrete danger
the alien represents to society with the severity of interference in his family life.
In evaluating the criteria relevant to carrying out this assessment, Italian judges
must take into account the factors (already) identied by the European Court of
Human Rights (in particular reference is made to decision Boultif v. Switzerland of
2 August 2001):
going to be expelled; the time elapsed since the offence was commit-
ted as well as the applicants conduct in that period; the nationalities
of the various persons concerned; the applicants family situation;
whether the spouse knew about the offence at the time when he or she
entered into a family relationship; whether there are children in the
marriage, and if so, their age; seriousness of the difculties which ap-
plicants and their families would be likely to encounter in complying
with the expulsion order.
In the present case, the Tribunal gave particular weight to three elements.
Firstly, the alien has lived in Italy for many years, and is perfectly integrated; sec-
ondly, her three sons grew up in Italy and have no ties with their mothers country
of origin; thirdly, apart from the offence committed, applicants behaviour has been
irreproachable. Taking these elements into account, the judge held that
the degree of danger actually shown [by the applicant] is not suf-
cient to require her expulsion from the State as a measure neces-
sary for the protection of the community. The expulsion order is
undue and disproportionate, considering the overall disruption that
the measure would have on the private and family sphere of the life
of the person to be deported.
It has to be pointed out that the Constitutional Court has already addressed,
if in an obiter dictum, the problem of a possible conict between an individuals
interest in family life and the States interest in defending public order and national
security (see IYIL, Vol. XII, 2002, p. 272). In that case, the Court stated that the
interest of the individual has to yield to the need to protect public order and the
States security. As many scholars have rightly pointed out, the Constitutional
Court completely overlooked not only the importance of the rights of the family in
our constitutional system in the decision, but also the Italian obligation to respect
the limitations imposed by Art. 8 of the ECHR.
The decision at issue thus has the merit of modifying the previous trend, by rec-
ognizing the existence of international State obligations in the eld of human rights
and by relying on them to assess the legitimacy of the measure being challenged.
Moreover, the Tribunale di Torino, when deciding the extent to which the State
may limit an individuals right, chose to adhere strictly to the criteria established
by the European Court of Human Rights in its case-law. Lastly, only by adopting a
case-by-case approach and evaluating the concrete interests involved can the judge
effectively balance the contrasting requirements acknowledged by the European
Courts case-law. (The Italian text of the decision is published in Diritto, immi-
grazione e cittadinanza, 2003, No. 2, p. 127 ff.).
In the Stajanovic case, the expulsion of an alien, living in Italy with his family,
had been ordered for non-renewal of a permesso di soggiorno (permits of stay).
JUDICIAL DECISIONS 351
The alien, with both his own children and a two year-old nephew under his custody,
appealed against the measure, alleging violation of both Art. 8 ECHR and Art. 3,
para. 1, of the New York Convention on the Rights of the Child (ratied by Italy
with Law No. 176 of 27 May 1991. The law at issue has been published in GU No.
135 of 11 June 1991).
As to the violation of Art. 8 ECHR, the judge, seeking to balance the need to
guarantee public order with that of protecting family life, granted applicants re-
quest in this case also. Indeed, in the judges view, rstly, the ngerprint records to
which applicant had been previously subjected could not be considered decisive in
proving that he was a social danger; and secondly, the social ties of the alien in Italy
were such as to justify protection of his private and family life.
With regard to the violation of Art. 3, para. 1, of the New York Convention
(which recognizes the primacy of the best interest of the child), the judge deter-
mined that: The denitive expulsion of the alien would be detrimental to the child,
whose interest has to prevail in each administrative proceeding related to family
unity.
In other words, the judge maintained that when a deportation measure concerns
the parent (or person to whom custody of the minor has been entrusted) of a child
living in Italy, the legitimacy of the measure has to be assessed in light of specic
provisions on child protection. (The Italian text of the decision is published in
Diritto, immigrazione e cittadinanza, 2003, No. 4, p. 134 ff.).
The Vehbi case concerns an alien who, having been convicted for simple theft,
did not obtain a renewal of his visa and, consequently, was notied of an imminent
expulsion order. The domestic provision applicable in the case at issue was Art. 4,
para. 3, of the D.Lgs. No. 286/98 (as modied by Art. 4 of Law 189/2002), accord-
ing to which an alien convicted for certain offences (like theft, with aggravated
circumstances) cannot be allowed to re-enter Italian territory. As a result, if the
offender is found to be living in Italy, he is automatically deported. Mr. Vehbi main-
tained that the application of the provision led to violation of Art. 8 ECHR and, in
this respect, asked the judge to suspend his deportation measure.
The judgment is interesting, given that it concerns the central issues of whether
ECHR provisions have to be directly applied in the Italian legal system; and of how
possible conicts between convention rules and subsequent domestic rules should
be solved.
As regards the second issue, the judge in the case relied on the view of the Corte
di Cassazione, according to which the legal framework introduced to Italy by the
ECHR cannot be modied by subsequent domestic provisions. Moreover, the same
Court has afrmed that Italian law which enforces the European Convention in the
Italian legal order represents an atypical source, with a primary nature, and, as
such, prevails over domestic laws (Corte di Cassazione (Sez. I), 8 July 1998, No.
6672; Corte di Cassazione (Sezioni Unite), 6 May 2003, No. 6853).
On this assumption, the judge in the Vehbi case reached the following conclu-
sions:
352 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
According to the judge, the third hypothesis prevails in the case at issue; and
thus the apparent conict between Art. 4, para. 3, of D.Lgs. No. 286/98 and Art. 8
ECHR can be solved by interpretation.
In this regard, the judge underscored that Art. 4, para. 3, species the follow-
ing: Italy will permit entry to its own territory to the alien in accordance with
obligations assumed under specic international agreements [].
The legislator thus recognizes, in the provision above, that the application of
domestic provisions on sojourn have to be interpreted in accordance with inter-
national obligations in force. Consequently, according to the Tribunal, the sole
interpretation practicable is the one which guarantees the right to private life, as
provided for in Art. 8 ECHR. The application of Mr. Vehbi had to be upheld on
these grounds.
The approach adopted by the Tribunal in order to reach such a conclusion,
namely recourse to interpretation, is undoubtedly persuasive.
Indeed, the inconsistency between Art. 8 ECHR and subsequent municipal
provisions could be justied differently. First, the judge could have relied on the
jurisprudence of the Constitutional Court, according to which Art. 10, para. 2,
of the Constitution (The legal status of the foreigner is regulated by law in ac-
cordance with international rules and treaties) already guarantees the primacy
of international obligations regarding the protection of aliens over subsequent
domestic provisions. Second, reference could have been made to Constitutional
Law (legge costituzionale) No. 3/2001, whose Art. 3(1) (which amends Art.
117(1) of the Italian Constitution) establishes that municipal laws have to respect
international obligations. As already highlighted by an authoritative doctrine
(CONFORTI, Reections on the Recent Amendments to the Italian Constitution
Concerning Respect for International and European Community Law, IYIL,
Vol. XI, 2001, p. 3 ff.) and despite the fact that conicting opinions have been
expressed in this regard, the new Art. 117(1) of the Constitution means that a
municipal law which does not respect the provisions of a treaty goes against the
JUDICIAL DECISIONS 353
Constitution. On the basis of either Art. 10(2) or Art. 117(1) of the Constitution,
the Constitutional Court could quash a subsequent domestic provision inconsist-
ent with treaty norms. Thus, the judge could have relied on both of the two argu-
ments to raise the issue of the constitutional legitimacy of the above-mentioned
domestic provision.
Nevertheless, our impression is that the approach adopted by the Tribunal was
the most appropriate. The solution reached in the above-mentioned cases, i.e. the
decision of directly interpreting domestic provisions in accordance with interna-
tional obligations, allows for prompt and effective protection to the alien. It is
noteworthy, in this regard, that the same doctrine favourable to a textual interpreta-
tion of Constitutional Law No. 3/2001 recognizes that the primacy of international
obligations should be guaranteed primarily by means of interpretation. (The Italian
text of the decision is published in Diritto, immigrazione e cittadinanza, 2003, No.
4, p. 145 ff.).
The fourth decision to be considered is similar to the Stojanovic case, since it
concerns a Moldovan citizen, living in Italy with a child, who was expelled because
of an administrative infringement, i.e. the failure to submit her visa request within
the period prescribed.
The grounds for her claim, regarding the violation of Art. 24 of the Immigration
Law, of Articles 29 and 30 of the Constitution, of Art. 8 ECHR and of the New York
Convention on the Rights of the Child, were upheld by the judge in the case, who
concluded:
The reasoning of the judge reects, for the most part, that developed in the
other judgments. The sole difference lies in the fact that in the case at issue the
judge applied Art. 28 of the Immigration Law, according to which: In all admin-
istrative and judicial proceedings aiming to enforce the right to family unity and
concerning children, the best interest of the child should above all be taken into ac-
count in accordance with what is provided for by Art. 3, para.1, of the Convention
on the Rights of the Child. (The Italian text of the decision is published in Diritto,
immigrazione e cittadinanza, 2004, No. 2, p. 155 ff.).
LUCIA ALENI
354 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
1989 United Nations Convention on the Rights of the Child Right to Personal
Identity Equality Principle (Article 2 of the Italian Constitution) 1975 European
Convention on the Legal Status of Children Born Out of Wedlock Children born
out of an incestuous union
In its order of 4 July 2002 the Corte di Cassazione challenged the constitutional
legality of Article 278 paragraph 1 of the Italian Civil Code (hereinafter c.c.), and
of Article 251 paragraph 1 c.c., providing for judicial recognition of paternity for
children born out of an incestuous relationship. According to Article 278 paragraph
1, investigations of paternity are not admitted when recognition of such children is
already prohibited in Article 251 paragraph 1.
In the opinion of the Court of Cassation the prohibition of any investigation is
in conict with Articles 2 (Equality Principle), 3 (Non Discrimination Principle)
and 30 paragraph 3 (Parental Duties) of the Italian Constitution. It also contradicts
the right to personal identity provided for by Article 8 of the 1989 United Nations
Convention on the Rights of the Child, as well as the right to paternal afliation
provided for by Article 3 of the 1975 European Convention on the Legal Status of
Children Born Out of Wedlock.
In its judgment, the Corte Costituzionale outlined the legal status of children
born out of an incestuous association in the Italian legal order, from early codica-
tions during the 19th century to the 1975 reform of the family law.
The unequal legal status of children born to parents with family ties, compared
to other children born out of wedlock, emerges from this analysis. The Court ad-
mitted that the child was a victim of a situation whose negative consequences on
his rights led to an unjustiable violation of the principle of equality of all citizens
before the law.
Article 2 of the Constitution, recognized as one of the most fundamental prin-
ciples, offers general recognition and active protection of the inviolable rights of
persons. Legal discrimination of an individual based on personal and social con-
ditions is prohibited. The right to obtain a status liationis can derive from this
general protection.
Although the Constitution (Article 30 paragraph 4) provides for the possibility
of prescribing provisions and limits for parental afliation in national legislation,
any violation by law of the principles of Article 2 is in principio categorically ex-
cluded.
The Convention on the Rights of the Child was expressly mentioned by the
Constitutional judges when they took into account a possible conict between the
JUDICIAL DECISIONS 355
As a result, and with the purpose of giving effective protection to the per-
sonality of individuals, the Corte Costituzionale annulled that part of Article 271
paragraph 1 c.c. which excludes the establishment of paternal afliation through
judicial decision in cases provided for by Article 251 paragraph 1 c.c. where
recognition of children born out of an incestuous relationship is forbidden.
The judgment under examination invites some observations. First of all, any
advance in the protection of the right to personal identity has to be welcomed. In
particular, this decision deals with a case in which the persons involved bear no
responsibility for the situation in which they nd themselves.
Concrete progress has therefore been achieved for the removal of discrimi-
nation towards children born out of an incestuous union. According to Article 7
paragraph 2 of the 1989 Convention of the Rights of the Child: States Parties shall
ensure the implementation of [childrens] rights in accordance with their national
law. It is the task of the State to widen, as far as possible, the application of the
right to personal identity.
The Court did not mention the 1975 European Convention on the Legal
Status of Children Born Out of Wedlock, which had been recalled by the Corte
di Cassazione in its order of 2002. In fact, Italy has signed but not yet ratied the
Convention and, as a consequence, is not formally bound by it. At any rate, under
the principle of good faith, any signatory State should, pending ratication, refrain
from substantive acts against the object and scope of the treaty.
Ratication of the 1975 Convention as a tool for the protection of childrens
rights has also been recommended by the Committee on the Rights of the Child,
356 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
A request for an advisory opinion had been lodged with the Consiglio di
Stato by the Presidenza del Consiglio dei Ministri (Presidency of the Council of
Ministers) in order to ascertain the effects of a judgment by the European Court of
Human Rights on the relationship between the State and its organs.
The case concerned the application of the occupation-expropriation rule
(occupazione acquisitiva or accessione invertita), under which the State may
take possession of land in the public interest by using an expedited procedure,
but thereby failing to issue an expropriation order. The rule had been scrutinized
by the Strasbourg Court, which considered it a violation of the right to prop-
erty, protected by Article 1 of the First Protocol to the European Convention on
Human Rights and Fundamental Freedoms (hereinafter ECHR) (see, inter alia,
Belvedere Alberghiera v. Italy, Application No. 31524/96, Judgment of 30 May
2000; Carbonara and Ventura v. Italy, Application No. 24638/94, Judgment of 30
May 2000). Specically, the Court had found that constructive expropriation was
not provided for by the law, as established by the ECHR, but had been created
through domestic jurisprudential principles, applied on an inconsistent basis.
In the present case, the Consiglio di Stato was asked if a judgment award-
ing compensation to the victims of the violation of Article 1 of the First Protocol
of the ECHR might give rise to compensation claims by the Presidency of the
Council of Ministers against local authorities, whose acts were the source of the
ascertained violation. Any judgment rendered by the European Court is, in fact,
directed to State Parties, and is normally delivered to the Presidenza del Consiglio
dei Ministri, representing the State as a whole.
The Consiglio di Stato analysed the European system of protection of funda-
mental rights, based on the ECHR and guaranteed by the Strasbourg Court.
The judgements of the European Court of Human Rights are binding upon
States, as per Article 46 ECHR; when a violation of the Convention and its Protocol
is ascertained, the Court may afford just satisfaction to the injured.
JUDICIAL DECISIONS 357
While Articles 244 and 256 or the European Union Treaty provide for direct
application of judgments of the European Court of Justice,
Such a conclusion would be consistent with the case-law of the Court and, in
particular, with the Belvedere Alberghiera judgment, which did not directly grant
compensation but asked the State to settle the question of quantifying the amount
or identifying the means for compensation for damage incurred.
The possibility for the Presidenza del Consiglio dei Ministri to sue local
authorities on the basis of the existence of a judgment from the European Court
may be excluded. Any possible action should be veried under domestic law, even
though: [A]ction [against local authorities] could be carried out where attainment
of the principle under which ECHR provisions [] are directly applicable in the
Italian legal order is afrmed.
The Consiglio di Stato then tackled the thorny question of the nature of ECHR
obligations. First of all, it is ascertained whether the wording of Article 1 of the
First Protocol allows for a provision of a self-executing nature. In the ECHR the
right of property is ensured; a restriction of this right may be envisaged in the
public interest, but only subject to the conditions provided for by law and by the
general principles of international law.
The State has the right to enforce laws as it deems necessary to control the use
of property in accordance with the general interest, and under the control of the
European Court, where there is substantive compatibility of national laws with the
limits set by the Convention (public interest; balance between loss of possession
and compensation).
With specic reference to the occupation-expropriation rule, violation of the
ECHR was found by the European Court because, on the one hand, the rule would
violate the legality principle and, on the other, would allow a State organ to benet
from a situation contrary to the law.
The self-executing nature of the prohibition of the constructive expropriation
rule may be detected from the outline above, with the ensuing result of:
but also to return to the State the amount due to the victim, in execu-
tion of a judgment of the Strasbourg Court.
international law, whether the organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the organization of the State, and
whatever its character as an organ of the central government or of a territorial unit
of the State (UN Doc. A/RES/56/83 of 28 January 2002).
The task of the Court is accomplished when it discovers State responsibility.
However, domestic law may provide for any relevant subsequent action for the
determination of lower levels of accountability.
As noted on other occasions (see IYIL, 2001, p. 296 ff.), the Consiglio di
Stato has followed, and still follows, a very restrictive approach in the detection
of the possible direct application of conventional rules in the domestic legal order.
According to its view, general uncertainties on the subject would have consequenc-
es even on the positive outcome of a claim for compensation brought against a lo-
cal authority. The legislative solution sought by the Consiglio can unquestionably
settle the problem, but it seems to us complicated and far from being effectively
realized. (The Italian text of the opinion has been published in Foro It., 2004, III,
p. 336 ff.).
GIOVANNI CARLO BRUNO
On 11 August 2003 the Italian Parliament passed Law No. 228/2003, provid-
ing measures preventing the trafcking of human beings. Article 1 of the above-
mentioned Act amended Article 600 of Italian criminal code relating to the crime
of slavery.
The judgment under review represents one of the rst decisions handed down
by an Italian court on Article 600 of the criminal code since the entry into force of
the new law. In the present case the defendants, two Albanian citizens, had been
charged with the crime of having reduced to slavery two women from the same
country. The investigating authorities provided evidence attesting that the accused,
having bought the women at clandestine markets, had trafcked them from Albania
and, once in Italy, forced them into prostitution, in the process taking away their
documents and depriving them of liberty.
The decision deserves attention as the judges of the Corte di Assise (in the
Italian criminal judiciary this jury tribunal has rst instance jurisdiction over very
serious crimes) had to scrutinize whether, as to the crime of reduction to slavery,
Law No. 228/2003 simply abrogated the former crime (i.e. abolitio criminis) or,
360 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
rather, replaced the former legal regime amending its scope of application. In
effect, it is worth recalling that, prior to amendment, Article 600 punished any
person who reduces another to slavery, or to a condition similar to slavery by im-
prisonment of between ve and fteen years, without clarifying what reduction to
slavery meant. In contrast, the new formulation of Article 600 criminalizes any
person who exercises over another person powers attaching to the right of owner-
ship, or reduces to or maintains another person in a condition of continuative slav-
ery-like practice []. In other words, the Corte had to ascertain whether, pursuant
to the legislative amendment: [] [T]he material conduct (i.e. actus reus) punish-
able under the former regime has lost criminal relevance; or, rather, still continues
to fall within the scope of application of the new regime.
The judges of the Corte agreed with the second point of view, establishing that
as regards the crime of reduction to slavery, Law No. 228/2003 had merely speci-
ed the scope of the former provision. According to the Corte, therefore, Law No.
228/2003 triggered the phenomenon of succession of criminal laws, regulated by
the last in time rule as set forth in Article 2, paragraph 3, of the Italian Criminal
Code. According to the judges:
Consequently:
ence of massive slavery-like practices within its territory may be associated mainly
with the position it occupies in the Mediterranean Sea: it is not surprising that this
situation might justify the need to revise criminal provisions on slavery.
The above-mentioned considerations lead us to consider that the establishment
of an effective legal framework criminalizing contemporary slavery-like practices
in the Italian legal system was at stake here. It is, in fact, worth recalling that before
the adoption of Law No. 228/2003 domestic tribunals rarely applied the provisions
set forth in former Article 600. The former article was, indeed, based on a tradition-
al and historical notion of slavery, with features and dynamics that were completely
different from those concerning contemporary forms of slavery. This difference
justied a certain reluctance on the part of domestic judges in applying obsolete
legal features (slavery, slave trade and servitude conditions) to situations that were
objectively different and involved wider issues of law. More recently, some domes-
tic tribunals tried to widen the scope of the criminal conduct foreseen in former
Article 600. According to these courts the term condition of slavery did not need
to be regarded as indicating situations regulated under well-established legal provi-
sions: on the contrary, they considered this legal feature to be the expression of a
de facto situation that may be associated, as to the legal regime, to slavery stricto
sensu (see, among the others, Corte di Assise di Firenze, 23 March 1993, repro-
duced in Foro It., 1994, II, p. 298 ff.). In spite of these attempts, an enlargement of
the scope of former Article 600 by virtue of extensive interpretation was prevented
by the very same terminology: according to the majority of domestic judges, in
fact, Article 600 seemed to require situations involving material or physical con-
straint and was, therefore, not applicable to psychological constraint. Moreover,
taking into account that former Article 600 regulated an ancient legal feature no
longer extant in Italy, its application to situations falling outside the historical and
legal context of traditional forms of slavery raised strong concerns regarding the
compatibility of the provision with the constitutional principle of legality. For in-
stance, right under this aspect, the Italian Corte Costituzionale declared Article 603
of the criminal code, punishing the crime of plagiarism, to be incompatible with the
Constitution (see Corte Costituzionale, 8 June 1981, No. 96, reproduced in Foro It.,
1981, I, p. 1815 ff.). Consequently, in spite of the increase of slavery-like practices
in Italy, the application of former Article 600 by domestic courts continued to be so
as to require legislative involvement.
It follows, as far as the present judgement is considered, that Law No. 228/
2003 gave to the judges of the Corte di Assise di Milano the occasion to address
well-established domestic case-law according to which Article 600 criminalized
exclusively slavery status while the condition of slavery had to be considered
as falling outside the scope of the norm. According to this point of view, and taking
into account that Article 1 of the 1926 Geneva Convention distinguished between
slavery status and condition of slavery, domestic courts used to grant legal rel-
evance only to slavery status under former Article 600. The notion of condition
of slavery, on the contrary, was seen as having a factual and practical nature and
362 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
therefore had to be excluded from the scope of former Article 600 (see Corte di
Cassazione (Sezioni Unite penali), 20 November 1996, Ceric, reproduced in Foro
It., 1997, II, p. 313 ff.).
In the judgment under review, on the contrary, the judges of the Corte di
Assise, in interpreting the new legal framework, took the opposite view. In fact,
in establishing that [] within the structure of the crime of reduction to slavery
what seems to be legally relevant is the consequence of the criminal conduct, the
criminal event: in other words the continuing, intensive and exclusive status of sub-
jection that affects the victim, and in declaring that the status of slavery condition
pertains to every de facto situation in which the criminal conduct leads the victim to
be reduced to a material condition of slavery [], they seem to classify the case
within the category of the crime of reduction to slavery: in other words, the Corte
di Assise seems to leave behind that case-law of domestic tribunals according to
which similar situations had to be regarded as cases of reduction to a slavery-like
condition.
Also under this perspective, the present judgement seems to be correct and
consistent with the objectives of Law No. 228/2003. This law, in amending the
text of Article 600 has not, in fact, modied the title of the article: in doing so it
demonstrates that its aim is not to abrogate the former crime but, rather, to modify
the norm enlarging its scope of application. Accordingly, the new provision encom-
passes and includes the crime foreseen by former Article 600. This might indicate
that, pursuant to the need of ghting an increase in slavery-like practices in Italy,
the legislator decided to also criminalize cases that were previously excluded from
the scope of application of the former regime, due to the absence of the element of
absolute control over the victim. According to this point of view, under new Article
600, therefore, the crime of reduction to slavery does not entail only the existence
of a physical constriction but also requires the existence of a state of property-like
control, or more reasonably a state of psychological supremacy over another per-
son. It follows that the new regulation broadens the scope of former Article 600 to
situations that were considered as being slavery-like practices falling outside the
scope of the law. At the same time, in order to avoid the risk of an excessive widen-
ing of the scope of the provision, the legislator of Law No. 228/2003 xed some
boundaries which may not be derogated from: the situation criminalized under new
Article 600 requires a destabilization of the emotive sphere of the victim so deep
and systematic so as to generate a state of impotence in the individual.
The judgment, nally, invites some considerations as to the status of slavery in
the international legal system. International law has, in fact, moved from recogniz-
ing and regulating slavery and the slave trade as part of juris gentium to banning it
completely, on acknowledging the idea that freedom is a basic condition for the full
enjoyment of most other human rights. Thus, for the last 100 years slavery and the
slave trade have been regarded as illegal under customary international law: this
might lead to the conclusion that, in theory, the abolition of the slavery was, from a
legal point of view, achieved long ago. (In practice it seems more realistic to state
JUDICIAL DECISIONS 363
that slavery and the slave trade persist and continue to constitute an international
problem). It follows that today slavery falls within the category of international
crimes; its prohibition constitutes a ius cogens rule. Like piracy, genocide, torture,
war crimes, crimes against humanity, etc., slavery threatens the security, peace and
other essential values of society as a whole: its prohibition, consequently, binds
all States and/or persons regardless of their consent. As a consequence of their ius
cogens status, norms preventing these crimes constitute obligations erga omnes
and create non-derogable duties. A State is, accordingly, obliged to either punish or
extradite (aut dedere aut iudicare) a person who violates these norms; in this con-
text, the universal jurisdiction principle may be applied (see, mutatis mutandis, as
to the crime of torture, International Criminal Tribunal for the Former Yugoslavia,
Prosecutor v. Furundzija, reproduced in ILM, 1999, p. 315 ff.).
Since international law prohibits slavery and the slave trade, it is not surprising
that a certain number of international treaties aim to reinforce this provision via the
introduction of additional rules and/or sanctions. Accordingly, under international
law of the sea, Article 13 of the Geneva Convention on the High Seas of 1958 and
the homologous Article 99 of the UN Convention on the Law of the Sea of 1982
(UNCLOS) establishes that Every State shall adopt effective measures to prevent
and punish the transport of slaves in ships authorized to y its ag, and to prevent
the unlawful use of its ag for that purpose. Any slave taking refuge on board any
ship, whatever its ag shall ipso facto be free.
In addition, provisions prohibiting slavery, forced or unfree labour are in-
cluded in every international human rights document. Accordingly, leaving aside
the Slavery Convention of 1926 and subsequent instruments, Article 4 of the
Universal Declaration of Human Rights states that no one shall be held in slavery
or servitude and adds that slavery and slave trade shall be prohibited in all their
forms. Provisions under the Covenant on Civil and Political Rights go further: in
addition to the general prohibition of slavery and of servitude, Article 8(3)(a) of the
Covenant afrms that no one shall be required to perform forced or compulsory
labour. Finally, as to the European Convention on Human Rights, Article 4(1)(2)
prohibits slavery, servitude and slavery-like practices, such as forced or compulsory
labour. However, some exceptions are admitted under the Convention: in fact, cer-
tain categories of persons may be legitimately forced to perform particular tasks.
This situation occurs in States where national military service is compulsory under
domestic law: in this case, eligible persons are required to serve or, if conscientious
objectors, may substitute military service by other activities. Persons sentenced to
a term of imprisonment may also be expected to work or to undertake community
service as a means of social rehabilitation. Further, in States in which the judiciary
admits a jury system, citizens may be required to serve in a jury. Finally, in case of
a national emergency threatening the well-being of the State, an individual may be
lawfully forced to provide assistance. (The Italian text of the judgment has been
published in Foro It., 2004, II, p. 585 ff.).
MARCO FASCIGLIONE
364 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
[I]n the tax eld, developments which might have occurred in demo-
cratic societies do not, however, affect the fundamental nature of the
obligation on individuals or companies to pay tax. In comparison
with the position when the Convention was adopted, those develop-
ments have not entailed a further intervention by the State into the
civil sphere of the individuals life. The Court considers that tax
matters still form part of the hard core of public-authority preroga-
tives, with the public nature of the relationship between the taxpayer
and the community remaining predominant (see Ferrazzini v. Italy,
para. 29).
other means. Moreover, the competent authority the legislative branch might
improve protection by passing a legislative act.
In conclusion, the Corte di Cassazione quashed the challenged decree, decided
on the merits and rejected the request of compensation for damage.
The present judgment has to be considered important, since it claries the
function of the Convention as a living instrument to be interpreted by the European
judge, and then to be applied accordingly by national judges.
Apart from this general consideration, the subject of the decision calls for a
nal remark. The question of non-applicability of the protection granted by the
ECHR to tax matters, with the exception of those proceedings on civil obliga-
tions and criminal charges has been discussed in the above-mentioned case-law
of the European Court, and also in legal literature (see, inter alia, DORIGO, Il dirit-
to alla ragionevole durata del giudizio tributario nella giurisprudenza recente della
Corte europea dei diritti delluomo, Rassegna tributaria, 2003, p. 42 ff.). Judge
Ress observed, in his concurring opinion to the Ferrazzini judgment, that:
In the judgment under review the Supreme Court dealt with two main issues:
i) whether an individual to be extradited must be present at the proceedings aimed
at revoking and substituting provisional measures of custody to which he has been
subjected; ii) whether and to what extent a nal decision favourable to extradition
may bar proceedings against coercive provisional measures to be led. Before ana-
lysing the approach adopted by the court, it would be worth clarifying some related
notions concerning Italian extradition proceedings. The latter is both subject to in-
ternational treaties and to Articles 697 ff. of the Italian code of criminal procedure.
Two sub-proceedings may be identied from a global examination of the relevant
provisions.
The rst sub-proceeding, whose purpose is to ensure that an Appeals Court
renders a decision on extradition, is provided for in Articles 697-713 of the code.
The second sub-proceeding, on the other hand, having an interlocutory nature,
aims to apply coercive measures to the individual to be extradited and allows for
seizure of his or her personal property, according to Articles 714-719 of the code.
Article 718, in particular, provides for both repeal and substitution of provisional
measures. It reads as follows: 1. The repeal and substitution of measures provided
for in the previous articles are decided in council chamber (camera di consiglio)
by the appeals court or, in proceedings before the Court of Cassation, by the court
itself. Thus, the provision refers to proceedings in council chamber (procedimento
in camera di consiglio) whose particularity, according to Article 127, lies in more
clear-cut and informal methods than those characteristic of ordinary proceedings.
As to proceedings under Article 127 or in camera di consiglio, what is noteworthy
is the fact that the accused may participate: in other words a possible or con-
ditional adversarial proceeding applies (principio del contraddittorio eventuale).
While Article 127 describes the general model of proceedings in council chamber,
other and more specic provisions of the code may derogate, even by excluding
possible participation of the accused.
That said, as far as the rst issue is concerned, the Supreme Court had to es-
tablish whether interlocutory proceedings of repeal and substitution of coercive
measures required the possible participation of the individual to be extradited.
The Court, in bypassing different approaches adopted by some of its chambers,
answered in the afrmative. In order to draw such a conclusion, the Court adopted
several interpretative tests. First, by a literal interpretation, the Court considered
that: Where in a specic provision it is established that the decision of the judge
368 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
must be rendered in council chamber and is not otherwise stated, the proceedings
and basic forms provided for in Article 127 apply per relationem.
This means that the individual to be extradited has to be accomodated for the
purposes of participation in an interlocutory proceeding of repeal or substitution of
measures to which he has been subjected. Indeed, the general model drawn up by
Article 127 applies.
Second, an approach underpinning a systemic and teleological interpretation
led the Court to point out two particular matters. On the one hand, in the Courts
view, both an accused and an individual to be extradited have to be subjected, as
far as possible, to uniform treatment in Italy. On the other hand, the Italian code of
criminal procedure, in providing for provisional measures to be applied pending
extradition proceedings, allows an individual to be extradited to lodge an appeal
only before the Court of Cassation, but not to take advantage of the broader range
of remedies which an accused may otherwise enjoy. The balance of these opposing
attitudes makes it clear, in the Court of Cassations view, that:
As far as the second issue is concerned, i.e. whether and to what extent a nal
decision favourable to the extradition of an individual is able to bar proceedings
against coercive provisional measures to be led, the Supreme Court reached its
conclusions by pointing out two aspects. First, the code expressly provides for
hypotheses of judicial review on provisional measures, which follow on from the
nal decision favourable to extradition (Article 708, paras. 2, 3 and 6). Second, the
quoted code entitles the Minister of Justice to grant or, conversely, to negate extra-
dition and, in the rst case, to suspend the execution of the decision rendered by a
Court of Appeals. In this light, the Court of Cassation considered that:
Extradition Coercive measures Articles 314 and 714 of the code of criminal
procedure Compensation for unfair detention Absence of conditions favouring an
extradition order Law No. 81 of 16 February 1987 of delegation for enacting the
code Implementation of international treaties European Convention on Human
Rights, Art. 5, para. 5 UN Covenant on Civil and Political Rights, Art. 9, para. 5
In the decision under review, the Corte Costituzionale addressed the following
issue: whether a provision securing the right to compensation for unfair detention
of an individual to be extradited exists in the Italian judicial system. The Corte,
was, indeed, called to pronounce on the question of the constitutionality of Article
714 of the code of criminal procedure, submitted by the Court of Cassation for the
reason that, in the Courts view, such a norm does not provide for compensation in
the case of unfair detention related to extradition proceedings. Article 714, which
concerns precautionary measures pending extradition proceedings, recalls all the
norms provided for by the code for ordinary precautionary measures, with the
exception of Articles 273 and 280. While the rst article provides for general
conditions for the applicability of the measures, the second one specically en-
compasses coercive measures. According to the Court of Cassation, Article 714, by
ruling out the applicability of such provisions, also makes it clear that the compen-
sation for unfair detention provided for in Article 314 of the same code cannot be
awarded. Indeed, Article 314(2) guarantees the above-mentioned remedy where it
has been ascertained that the general conditions provided for by Articles 273 and
280 have not been met.
In reaching such a conclusion, the Court therefore considered that, insofar as
the code does not provide for compensation for unfair detention pending extradi-
tion proceedings, a violation of constitutional principles, namely of Articles 2, 3,
13 and 24(4), takes place.
Yet, the Corte Costituzionale deemed the question of constitutional legiti-
macy submitted by the Supreme Court to be unfounded, for the reason that an
interpretation of Article 714 of the code of criminal procedure may be given that
is in accordance with the Italian Constitution. Indeed, by ruling out the applicabil-
JUDICIAL DECISIONS 371
ity of Articles 273 and 280 of the code, such a norm does not negate the right to
compensation for unfair detention. Rather, what Article 714 says, according to the
Corte Costituzionale, is that precautionary measures pending extradition proceed-
ings must be founded on conditions different vis--vis those required by analogous
measures adopted in ordinary domestic proceedings. Consequently, if different
conditions are required for coercive measures to be imposed, this does not mean
that redress for unfair detention is not provided for, but that such a remedy has to
be evaluated in light of conditions peculiar to extradition proceedings and not of
Articles 273 and 280 of the code. Thus, the judgement reached the following con-
clusion: As far as individuals to be extradited are concerned, unfair detention has
to be ascertained by verifying whether the specic requirements of applicability of
coercive measures which, for these persons, Article 714(3) identies as conditions
for a decision favourable to extradition, have not been met.
The Corte Costituzionale considered that such an interpretation of the norm de-
pends both on its own jurisprudence in the matter (Decisions Nos. 310/96, 446/97,
109/99, 284/03 and 230/04) and on relevant international provisions and standards.
Having referred to Article 2 of the law of delegation for enacting the code of crimi-
nal procedure, according to which Italian procedural norms must abide by interna-
tional treaties ratied by Italy, the Corte specically referred to: [T]he European
Convention on Human Rights and Fundamental Freedoms and the Covenant on
Civil and Political Rights [], which, in Article 5, para. 5 and in Article 9, para.
5, respectively, provide for the right to compensation in case of unfair detention,
without any limitation.
It is in light of such reasoning that the Corte Costituzionale dismissed the ques-
tion submitted by the Supreme Court. (The Italian text of the decision has been
published in RDI, 2004, p. 1129 ff.).
Thus, the Corte claried that when an individual to be extradited to Italy is held
in custody abroad, the time of custody elapsed abroad has to be taken into account
in calculating the maximum time-limit of custody with regard both to times pro-
vided for the entirety of proceedings and to specic times concerning each phase
of said proceedings. (The Italian text of the decision has been published in RDI,
2004, p. 1136 ff.).
EDUARDO SAVARESE
With the Senates approval of Constitutional Bill No. 2544 (23 March 2005)
on the re-organization of the territorial units of the Italian Republic into a fed-
eral State, we have reached a decisive moment in the ongoing process of the
reform of constitutional provisions dealing with local autonomy and the latters
relation to national, international and EC law. The said reform was initiated by
Constitutional Law No. 1/99, but up to now has been applied principally with
regard to the reform of Title V, Part II of the Constitution (Constitutional Law No.
3 of 18 October 2001). The reform was implemented by Law No. 131 of 5 June
2003, containing measures for the adjustment of the Republican order to Law
No. 3/2001 and by Law No. 11 of 4 February 2005, which envisages the introduc-
tion of general rules on Italian participation in the decision-making processes
of the European Union and on the procedures for execution of Community obli-
gations (see CONFORTI, Reections on the Recent Amendments to the Italian
Constitution Concerning Respect for International and European Community
Law, IYIL, 2001, p. 3 ff., and, recently, the articles contained in CATALDI and
PAPA (eds.), Formazione del diritto comunitario e internazionale e sua appli-
cazione interna: ruolo delle Regioni e dello Stato nelle esperienze italiana e
spagnola, Napoli, 2005).
With the decisions above, the Constitutional Court provided a detailed expla-
nation of the current system of relations between Regions and State, taking into
account the changes that have taken place thus far.
Decision No. 242 of 15 July 2003, issued in response to a claim led by the
central government, ruled on the constitutional legitimacy of the Statute of the
Region Friuli-Venezia Giulia, with specic reference to the section contemplating
the competence of the President of the Region to enter into international agree-
ments with Slovenia and Austria for the coordination of soil protection activities.
The Court ruled against the governments contention that the statute contravened
the provisions of Art. 117, para. 9, of the Constitution which allow for the pos-
sibility of understandings between Regions and the internal territorial bodies of
other States, but not with sovereign States themselves. The provision contested was
deemed to attribute to the President of the Region only the competence to enter into
negotiations in order to conclude the understandings above, and thus had no im-
pact on constitutional limitations. In other words, the determination of the internal
competence of Regions falls, according to the Court, within the statutory autonomy
of each Region. Violation of the constitutional norm, stated the Court,is submit-
ted, in the claim of the President of the Council of Ministers, only in a hypothetical
sense and the complaint is intended to censure understandings and agreements with
other States that have not yet been stipulated.
JUDICIAL DECISIONS 375
It must be noted, however, that the Court, though dismissing the claim of the
central Government, certainly did not support the Regions contention that the con-
stitutional provision of Art. 117, para. 9, allows Regions to enter into agreements
that have direct constitutional relevance (the Italian text of the judgment has been
published in RDI, 2003, p. 817 ff.).
Decisions Nos. 238 and 239, both dated 19 July 2004, provide different as-
sessments of the consistency of Law No. 131 of 5 June 2003, which enforced the
constitutional dictate, with the new text of Art. 117 of the Constitution.
The rst of the two decisions focuses on the issue of a Region undertaking
international commitments with other States. On this particular point, and as we
have already pointed out (see IYIL, 2003, p. 260 ff.), there is a certain ambiguity
in the section of Art. 117 of the Constitution, para. 9, which states that in matters
that come under their competence, Regions may undertake agreements with States
and understandings with territorial bodies of other States, in cases governed by and
in accordance with the laws of the State. This particular wording has led Regions,
as well as some of Italian scholars, to maintain that they have been granted an
autonomous treaty-making power. However, Art. 6 of Law No. 131/2003 rejects
this interpretation, afrming that Regions may autonomously conclude only imple-
mentation and enforcement agreements of international covenants already in force,
or technical-administrative or program agreements, if they have the consent of the
State. The nal part of the article also specically contemplates that, in these cases,
the Minister of Foreign Affairs shall confer full signatory power as required by
general international law and by the Vienna Convention on the Law of Treaties.
In their claim, the Region of Sardinia and the Province of Bolzano had argued that
this solution did not comply with the Constitution, maintaining that the new formu-
lation of Art. 117 brought about profound innovations. The Constitutional Court,
on the other hand, has essentially reiterated the rulings and decisions issued prior
to reform of Title V, Part II (cited in IYIL, 2003, p. 260 ff.), thereby conrming
the exclusive competence of the State on the matter of undertaking international
commitments. Even the possibility of an exception to this principle in favour of the
Regions is envisaged only if empowered by the State and limited to promotional
activities abroad, trans-border cooperation agreements and activities of mere in-
ternational relevance. The Courts ruling afrms:
bodies of other States but also actual agreements with other States,
within the framework of their own competences, albeit in circum-
stances and form determined by State laws (Art. 117, para. 9). This
external power must be exercised in coordination with exclusive
State competence over foreign policy; thus the State determines the
circumstances and the form, in order to safeguard the joint inter-
ests that are expressed in national foreign policy. In exercising this
acknowledged authority, the Regions are not considered delegates
of the State but autonomous entities that deal directly with the foreign
countries, although always within the framework of guarantees and
coordination provided by the powers of the State.
Correctly, in our opinion (but see, for a different evaluation of the case
CANNIZZARO, Federalismo e rapporti internazionali nel nuovo modello delineato
dal Titolo V della Costituzione italiana, in CATALDI and PAPA (eds.), cit. supra,
p. 171 ff.), the Court also specied the unacceptability of a Region entering into
an agreement with a foreign country that would be binding only on the Region but
not on the State:
In Decision No. 239, the Court issued a ruling on an objection submitted by the
Region of Sardinia and the autonomous Province of Bolzano to Art. 5, para. 1, of
Law No. 131/2003. According to appellants, this legislation regulates the participa-
tion of Regions and Provinces in the formation of EC law (the so-called ascending
phase of decision-making processes) in a restrictive manner, as compared to the
requirements of the Constitution, specically of Art. 117, para. 3, in the section
which assigns to the concurrent competence of the State and Regions the man-
agement of international relations and of relations of Regions with the European
JUDICIAL DECISIONS 377
Decision No. 258 of 22 July 2004, on the other hand, concerns the so-called
descending phase of Community law; that is, the direct application of Community
law by Regions. In this case, the central Government raised the issue of a clash of
attribution (conitto di attribuzioni) in respect of the autonomous Province of
Bolzano, the Region of Friuli-Venezia Giulia and the Region of Veneto with refer-
ence to the trans-border cooperation agreements they signed on 15 January 2002,
as part of the Community initiative Interreg IIIA, Italia-Austria with the Austrian
Republic Lnder of Tyrol, Carinz and Salzburg. According to the Government, the
Agreement in question is detrimental to the constitutionally (Art. 117) guaranteed
competence of the State, as it was concluded without the prior authorization of
the Government, as required by Art. 5 of the Law of 19 November 1984, which
implemented, within the Italian system, the European Convention on Trans-Border
Cooperation of Territorial Communities and Authorities, adopted in Madrid on 21
May 1980. The Court, however, considered the Agreement challenged from the
perspective not of an autonomous commitment, regulated as such by the Madrid
Convention, but simply as an act that is clearly and strictly aimed at enforcing a
Community program of trans-border cooperation.
As such, the Agreement does not infringe on the limitations imposed by the
Constitution regarding foreign policy authority reserved to the State.
Therefore, the principle of loyal cooperation between State and Regions is
not violated, also in consideration of the fact that the central Government actively
participated both in the preparatory and in the executive phase of the Community
program implemented by the Agreement. The Court states:
Prior agreement with the central Government should therefore have been con-
sidered as implicitly acquired. According to the Court: The Agreement now being
censured adds nothing to the trans-border cooperation programs as they have been
studied and approved by competent Community fora; a further procedure of assent
for signature of the Agreement would simply be a repetition of formal fulllments
and would lack any value.
Even the establishment of common bodies, also contemplated by the contested
Agreement, cannot be interpreted as an interference with the foreign policy author-
ity reserved to the State, as claimed by the latter, since, as the Court explained:
JUDICIAL DECISIONS 379
The ofces and bodies established by the Agreement in question are contemplated
directly as a mandatory feature by the Community source. (The Italian text of the
judgment has been published in RDI, 2004, p. 1138 ff.).
It is obvious from the decisions above that with regard to the applicable legal
regime, the Court (in our opinion in a very plain manner) clearly distinguishes
between the assumption of international and Community commitments and their
implementation within the national system. In the rst case, relations between
Regions and the central government are based on the requirement, except in the case
of mere understandings without any legal value, that the central authority assume
the obligation on a supranational level, possibly even (and this is the novelty intro-
duced by the constitutional reform) through the Regions, invested in this case with
the authority to negotiate and stipulate on behalf of the State. In the second case,
the division of competence envisaged within the internal system requires that, in
respect of issues that come under Regional competence, the Region be directly re-
sponsible for the correct fulllment of obligations undertaken within the EC system
or through international agreements, although the central Government nevertheless
remains responsible in respect of other States. The interpretation attributed by Law
No. 131/2003 to the new text of Art. 117 of the Constitution is therefore conrmed
(the same approach can be found in some thoughts of CONFORTI, in CATALDI and
PAPA (eds.), cit. supra, p. 261 ff. For an opinion that Law No. 131/2003 tends to de-
viate from its appropriate (implementing) function in respect of relations between
regional autonomy and international relations and to determine its own direction
one not always compatible with that arising from the constitutional system see
CANNIZZARO, Le relazioni esterne delle Regioni nella legge di attuazione del
nuovo Titolo V della Costituzione, RDI, 2003, p. 759 ff.).
GIUSEPPE CATALDI
DIPLOMATIC AND PARLIAMENTARY PRACTICE
1. RESERVATIONS TO TREATIES
While appreciating the work done so far, the Italian delegation exhorts
the Commission to begin addressing the most important part of the res-
ervations to treaties: namely, the part on the legal regime of inadmissible
reservations and objections to such reservations. This question, that the
Vienna Convention does not regulate in a clear way, has not so far been
addressed by the Special Rapporteur. In this regard, the Commission
now puts forward a terminological question. How should the inadmis-
sible reservations be named? The choice is not easy, as all the terms
generally used present some difculties. Saying that a reservation is not
permitted, invalid or inadmissible reects the determination that a State
party to a treaty is not entitled to make that reservation. However, a res-
ervation that cannot be considered as permissible by a State party, could
be permissible for another State party. That reservation, therefore, should
be considered as permissible with regard to that other State. The formula
of illegal reservation would be more suitable to distinguish between
different States, as what is illegal for one State is not necessarily illegal
also for another. On the other hand, the said formula presents the disad-
vantage of suggesting that legal consequences arise on the level of in-
ternational responsibility for the State that made the reservation which
is incorrect. It could be concluded that a term equals the other, provided
that the Commission claries the sense in which the term is used.
And he added:
Italy underlines that the Commission has not yet completed the
discussion on the draft directive on the denition of the objections to
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 381-405
382 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
On 16 March 2004, a public hearing of the Sottosegretario di Stato per gli af-
fari esteri (Under-Secretary of State for Foreign Affairs), Mr. Roberto Antonione,
took place before the Permanent Committee III (Foreign and European Affairs) of
the Camera dei Deputati (Chamber of Deputies) according to Article 143, para-
graph 2, of the Chamber Regulation. On the unilateral decision taken by Croatia
on 3 October 2003 to establish an ecological and sheries protection zone in the
Adriatic Sea, the Sottosegretario made the following statement:
And he added:
the objectives for which the SPAMIs were established. This gives to
the SPAMIs and to the measures adopted for their protection an erga
omnes partes effect.
1. DIPLOMATIC PROTECTION
On 1st November 2004, speaking before the Sixth Committee of the General
Assembly (LIX Session) on the Report of the International Law Commission on
the Work of its Fifty-sixth Session (UN Doc. A/59/10), the Italian delegate, Mr.
Braguglia, commenting on Chapter V of the Report on Diplomatic Protection,
made the following statement with regard to the solutions that the Commission
adopted on the question of the protection of shareholders:
2. RIGHT TO ASYLUM
practice, which shed light on its real and more correct scope as tem-
porary refuge. In general terms, the international source of the right
to asylum is to be found in Article 14, paragraph 1 of the Universal
Declaration of Human Rights adopted by the UN General Assembly
on 10 December 1948, according to which Everyone has the right to
seek and to enjoy in other countries asylum from persecution.
It is, however, to be noted that the preceding international custom
according to which the right to asylum was automatically granted
to foreigners who had found shelter on board of warships in order
to avoid persecution on grounds of race, religion, national or social
origin, has not become established in time thus not being valid at the
international practice level.
Moreover, it is totally evident that recognition of the particular legal
status deriving from the granting of asylum to foreigners who declare
themselves to be persecuted, can only be carried out by governmental
authorities or at least by diplomatic and consular agents. It is also to
be taken into account that the Commander of a warship is unlikely to
be aware of the notions that are necessary to assess the socio-political
situation of the country of which the refugee is national, or rather to
verify the fullment of the conditions for granting asylum to indi-
viduals who, having come up alongside, ask for shelter referring to
the legal concept at issue.
In view of the foregoing, it is clear that temporary protection on board
of warships may not, while ascertaining the fullment of the require-
ments for the possible recognition of the legal status connected to
asylum, aim at guaranteeing safety and/or fundamental rights of per-
sons declaring themselves persecuted.
Therefore, the Italian Navy deemed it indispensable to conform The
Instructions of Naval Law for Naval Commanders (published by the
General Staff of the Navy in 1996 and still in force) to the relevant
international legal framework, by providing, in Article 11 of the men-
tioned publication, that the Commander of a unit of the Navy in a
foreign port shall give temporary shelter, as far as possible, to Italian
nationals whose security is threatened by an impending danger, on
condition that they are not, on the basis of information provided by
the Italian diplomatic and consular agents, wanted by the competent
local authorities for ordinary offences or international crimes and
must not be handed over to them.
On 29 October 2004, during the LIX Session of the Sixth Committee of the UN
General Assembly, on the item of the Responsibility of States for Internationally
Wrongful Acts, the Italian delegate, Mr. Nesi, stated:
would waste resources and pose a possible threat to the delicate com-
promise reached within the Commission.
We believe that international practice could further contribute to the
development of customary law in the areas where the Draft Articles
are not to be considered as general international law. This is why Italy
proposes that the General Assembly task the UN Secretariat to collect
international practices in this area in order for the Sixth Committee
to reconsider how the Draft Articles are perceived in international
relations, on the basis of practice and, in any event, no earlier than
the 63rd UNGA.
On 22 October 2004, during the LIX Session of the Sixth Committee of the UN
General Assembly, on the item International Convention against the Reproductive
Cloning of Human Beings, the Permanent Representative of Italy to the UN,
Ambassador Spatafora, stated:
years ago which still continue. These results give the lie to the argu-
ment that a ban on human cloning would impede scientic progress.
We maintain, instead, that there is no reason why scientic progress
should have to come at the expense of human dignity.
Italy would like to recall a new element that forces us to reect: on
29 January 2004, the European Parliament passed a Resolution (by a
vote of 367 in favour, 62 against, 14 abstentions) by which it reiter-
ates its call for a worldwide ban on the cloning of humans, and sup-
ports Costa Ricas initiative in this connection and the UN General
Assemblys decision to work on a corresponding Convention in 2004
(Resolution on the relations between the European Union and the
United Nations).
The text of the Resolution and the result of the vote in the European
Parliament are self-explanatory and Italy associates itself with that
text.
1. UNITED NATIONS
I will focus here on few key principles, in fact six principles, that
Italy feels are crucial for the possibility of a successful reform:
Principle No. 1: broad consensus. Like any constitutional reform in
our national countries, the Security Council reform should not have
a divisive fallout on the membership, otherwise it would defeat the
very purpose of a UN reform. Any proposal of reform will have to
build upon a broad political consensus; and all possible efforts should
therefore be made by all of us, showing exibility and pragmatism, in
order to promote an approach which will be able to command broad
consensus in the Assembly. Under this point of view, the Secretary-
Generals Panel, and if I may the Secretary-General himself, should
seek to promote such a consensus on an equitable and comprehen-
sive reform proposal. I see that even countries that are in favour of
an increase in the number of permanent members are well aware of
the need of a broad consensus, because only a broad consensus will
394 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
as a stake holder, will feel comfortable, and will feel that he will be
more adequately taken on board. Would this happen with the estab-
lishment of new permanent members, which would not be account-
able to the membership through elections? [].
2. EUROPEAN UNION
A. Italys Participation in the Multinational Force and the Political Transition in Iraq
Moreover, referring to the possibility that NATO and the European Union as-
sume a major role in the stabilisation of the post-conict situation in Iraq, he stated
that:
On 14 April 2004, the Ministro degli affari esteri (Minister for Foreign Affairs),
Mr. Franco Frattini intervened during a public hearing on the situation in Iraq at the
joint Meeting of the Permanent Committees III (Foreign and European Affairs) and
IV (Defense) of the Camera dei deputati (Chamber of Deputies) and III (Foreign
Affairs and Emigration) and IV (Defense) of the Senato della Repubblica (Senate
of the Republic). The Ministro declared what follows:
The new path that faces the Italian Government [in Iraq] presents
two major steps: rst, Italy will work with a view to guarantee that the
United Nations, by means of a Security Councils Resolution, can of-
fer an explicit, both formal and substantive, legitimisation to an Iraqi
Government that will come into existence by 30 June and will take up
its functions on 1st July. At the same time, Italy will work with a view
to guarantee that, even before the 30 June deadline, the United Nations
will be able to accompany the process of political transition of Iraq
until this country will assume real and full sovereignty. This strategy
will be the object of a formal request of the Italian Government that
I will present to the United States in the coming week. [] Italy
reasonably believes that this strategy can gather a broad consensus.
Such consensus, representing the second step of a necessary strategy,
will enable the Iraqi Government to be established on 30 June with
the legitimisation of the United Nations and the Security Council, to
evaluate what it believes to be the better strategy to maintain security
and to stabilise the situation on the ground [].
tional missions beyond 30 June 2004, date in which the relevant mandates would
have expired. The Sottosegretario di Stato per gli affari esteri (Under-Secretary
of State for Foreign Affairs), Mr. Alfredo Luigi Mantica, and the Sottosegretario
di Stato per la difesa (Under-Secretary of State for Defence), Mr. Francesco Bosi,
intervened during the debate. The former stated what follows:
The Camera dei Deputati (Chamber of Deputies) approved the disegno di leg-
ge (Bill) on 12 July 2004 and transmitted it to the Senato della Repubblica (Senate
of the Republic). The latter approved the Bill on 27 July 2004 and turned it into
Law No. 207 of 30 July 2004.
1
The treatment and detention conditions of Iraqi nationals arrested by the Italian Forces and
handed over to the British Command of the Coalition and the conformity of these conditions with
DIPLOMATIC AND PARLIAMENTARY PRACTICE 403
the Geneva Conventions and international humanitarian law have been also the subject-matter of
a Memorandum of Understanding, signed by the Ministro della difesa (Minister for Defence) of
Italy, the UK and other countries of the Multinational Force legitimized by the United Nations.
This Memorandum, already recalled in a Meeting of the Camera dei Deputati (Chamber of
Deputies) (Meeting 466th XIV Legislature) by the Ministro della difesa, Mr. Antonio Martino,
is mentioned again by the Sottosegretario di Stato per la difesa (Under-Secretary of State for
Defence), Mr. Francesco Bosi, on 17 June 2004, in his intervention at the Senato della Repubblica
(Senate of the Republic) (632nd Meeting XIV Legislature). The Sottosegretario, answering a
parliamentary question which, inter alia, asked the Government to inform the Parliament on the
content of the Memorandum, stated that this Memorandum deals with various issues including
the treatment of prisoners, to whom compliance with international humanitarian law must be
guaranteed. The Sottosegretario also conrmed as already emphasized on 26 May 2004 by the
Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco Frattini (see above) that
the treatment and detention conditions in the British Prison of Al Shaiba in Iraq are on the whole
satisfactory and in compliance with the Geneva Conventions and international humanitarian
law, as veried through the inspections carried out by the special team composed of experts
from the Italian Joint Task Force and ofcers of the British Military Police the International
Committee of the Red Cross, and a UK parliamentary group.
404 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
ISAF operates under Chapter VII of the United Nations Charter with
the mandate to help the Afghan Interim Authority, established in Kabul
on 22 December 2001, maintain a secure environment in the city of
Kabul and its surroundings in the framework of the Bonn Agreement.
The operations command rotates every six months and it is presently
held by NATO Command CINCNORTH. On the other hand, the op-
eration Enduring Freedom continues a broader campaign against in-
ternational terrorism with a coalition made of more than 70 countries.
Operation Enduring Freedom was launched in 2001 according to a
series of Security Councils Resolutions setting forth the operations
purposes: the stabilisation and reconstruction of Afghanistan under a
legitimate Government. The Italian contribution to the operation is
limited to a naval unit with 230 crew members operating in the Indian
Ocean in the framework of the European Naval Cooperation Scheme
(Italy, Spain, France and Portugal). Such unit aims to operations of
identication, patrolling and recognition, maritime interdiction, con-
trast to Al Qaedas leadership, and monitoring of illicit trafcking.
On 13 October 2003, the Security Council approved Resolution 1510
authorising the extension of ISAFs mandate to cover areas outside
Kabul and to support the Afghan Transitional Authority in maintain-
ing security in the area. Although ISAF and Enduring Freedom are
separate operations with different mandates, military tasks and goals,
it would be preferable to follow a comprehensive approach to them
in order to attempt a positive development of Afghanistans relation-
DIPLOMATIC AND PARLIAMENTARY PRACTICE 405
This section is divided into two parts. Part A) contains a list of agreements
signed by Italy and published in the Gazzetta Ufciale in 2004. Part B) contains a
list of agreements signed by Italy and published before 2004, but of which the entry
into force was announced in the Gazzetta Ufciale in 2004.
These agreements are listed by subject in both parts, and within the same sub-
ject, multilateral agreements are placed before bilateral agreements. Multilateral
agreements are in chronological order, while bilateral agreements are listed in
order of the international subject with which they were signed. In the case of more
than one bilateral agreement signed with the same international subject, they are in
chronological order.
A comment is annexed to the list of agreements regarding a particular area.
The comment relates to the most signicant agreements of that list and the laws
authorising ratication, wherever such laws have been enacted and present interest-
ing features.
If an agreement has entered into force, the date of entry into force is indicated.
For those agreements requiring a law authorising ratication, 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 Ufciale (GU).
A)
Bilateral Agreements
Consular Convention between Italy and Georgia, done at Tbilisi on 17 July 2002,
implemented by Law No. 201 of 19 July 2004 (GU No. 186 of 10 August 2004);
Consular Convention between Italy and Libya, done at Rome on 4 July 1998,
implemented by Law No. 65 of 26 February 2004 (GU No. 62 of 15 March 2004);
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 407-432
408 ITALIAN PRACTICE RELATING TO ITALIAN LAW
Comment
The conclusion of the Consular Conventions with Georgia, Libya and Moldova
shows Italys intention to strengthen relations with these States in the political, eco-
nomic, cultural and social elds. In effect, the intensication of bilateral relations
between States requires the strengthening of the protection of nationals, which is
strictly linked to the role played by consular ofces (see e.g., SHAW, International
Law, 5th ed., Cambridge, 2003, p. 733).
Moreover, it should be noted that, apart from Italy, only Georgia was a party
to the 1963 Vienna Convention on Consular Relations when the bilateral Consular
Conventions were signed. The Vienna Convention is a multilateral treaty on con-
sular relations, immunities and privileges, which largely reects customary inter-
national law (this universal Convention, which presently binds 167 countries, was
implemented in Italy by Law No. 804 of 9 August 1967, published in GU Suppl. to
No. 235 of 19 September 1967).
According to their preambles, the three bilateral Conventions listed above re-
afrm principles and rules contained in the 1963 Vienna Convention on Consular
Relations. This notwithstanding, the position of the Conventions vis--vis the
1963 Vienna Convention partially differs (on the general issue concerning rela-
tions between bilateral consular conventions and the 1963 Vienna Convention, see
ECONOMIDS, Consular Treaties, in BERNHARDT (ed.), Encyclopedia of Public
International Law, 1992, Vol. I, p. 768 ff.).
As for Georgia, which is a party to the 1963 Vienna Convention since 1993,
the mechanism established by Article 73.2 of the 1963 Vienna Convention has
been applied. By virtue of this disposition [n]othing in the present Convention
shall preclude States from concluding international agreements conrming or
supplementing or extending or amplifying the provisions thereof. Accordingly,
the preamble of the bilateral Convention notes that the provisions of the 1963
Vienna Convention shall continue to be applicable to matters not expressly
regulated by the present Convention. In other words, the legal framework es-
tablished under the Consular Convention of 17 July 2002 constitutes a supple-
ment to the 1963 Vienna Convention, particularly with regard to consular func-
tions (see Camera dei Deputati-XIV Legislatura, Disegno di Legge No. 4920,
Relazione, p. 2).
On the contrary, the Consular Convention between Italy and Moldova will con-
stitute, from its entry into force, the only treaty law applicable to relations between
the two States on consular issues. In fact, since Moldova is not a party to the 1963
Vienna Convention, the rules laid down by the universal Convention are applicable
AGREEMENTS TO WHICH ITALY IS A PARTY 409
to consular relations between the two States to the extent that they reect custom-
ary international law.
Libya acceded to the 1963 Vienna Convention on 4 September 1998, i.e. af-
ter the signature of the bilateral Consular Convention, which has not yet entered
into force. The bilateral Convention establishes that, from its entry into force, the
contracting parties shall apply the 1963 Vienna Convention on reciprocal con-
sular relations (Article 1.1). Consequently, the further provisions of the bilateral
Convention constitute, according to Article 73.2 of the 1963 Vienna Convention, a
supplement to this instrument.
As for the content, the three Consular Conventions reafrm several provisions
of the 1963 Vienna Convention on the status of consular organs (e.g., denitions;
establishment of consular posts, appointment of members of the consular post and
exercise of consular functions; facilities, privileges and immunities; main consular
functions), supplementing or extending some aspects of the consular relations estab-
lished by the universal treaty (this practice is also seen in the Consular Convention
between Italy and the Russian Federation, done in Rome on 15 January 2001). On
the other hand, one also has to note that some of the provisions established by the
bilateral Conventions in the eld of consular relations are not contained in other
bilateral instruments concluded by Italy in consular matters. For instance, one can
cite the discipline on consular functions relating to nationality and cooperation with
the receiving State (see Article 40.1 of the Consular Convention between Italy and
Georgia and Article 43.1 of the Consular Convention between Italy and Moldova).
According to this discipline, consular ofcers shall cooperate with the competent
authorities of the receiving State at their request in order to determine the national-
ity of persons not possessing a passport or other identication card and who are
presumed by the authorities of the receiving State to be nationals of the sending
State. Evidently, the rationale of these provisions is represented by the need to
strengthen bilateral co-operation in the ght against illicit immigration.
Of particular relevance are also the provisions concerning the right of consular
ofcers to register their nationals and issue them their corresponding documents
(see Article 38.1 of the Consular Convention between Italy and Georgia; Article
6(a) of the Consular Convention between Italy and Libya; Article 38.1 of the
Consular Convention between Italy and Moldova), as well as the provisions relat-
ing to the electoral formalities, according to which consular ofcers are entitled to
full formalities related to the participation of nationals of the sending State in ref-
erenda and elections in the said State (see Article 42(e) of the Consular Convention
between Italy and Georgia and Article 44(e) of the Consular Convention between
Italy and Moldova).
Moreover, all three bilateral Conventions emphasise the consular functions that
enable consular ofcers to communicate freely with nationals of the sending States
and to have access to them. In particular, one has to stress the right of consular ofc-
ers to communicate and visit a national of the sending State who has been arrested,
sentenced to prison or to custody pending trial or detained in any other manner. In
410 ITALIAN PRACTICE RELATING TO ITALIAN LAW
this respect, the authorities of the receiving State shall inform the consular post if a
national of the sending State is being detained within a maximum of two days from
the day in which the national is arrested, committed to prison or deprived of his/her
liberty in any manner (see Article 48 of the Consular Convention between Italy and
Georgia; Article 13 of the Consular Convention between Italy and Libya; Article
49 of the Consular Convention between Italy and Moldova). Only the Consular
Convention between Italy and Libya expressly establishes that the authorities of the
receiving States shall inform the consular post if a national of the sending State has
to be expelled from the receiving State (Article 13.4).
With regard to the powers of consular ofcers relating to vessels and their crew,
one has to note that the Consular Convention signed with Libya gives consular
ofcers the right to inspect vessels of third States directed to ports of the sending
State in order to issue all documents allowing the vessel to reach the territory of the
sending State. Nevertheless, consular ofcers cannot intervene without the consent
of the master of the vessel (Article 19).
As a consequence of Italys participation in the EU integration process, all
three Conventions establish that Italian consular ofcers may also exercise consu-
lar functions in the territory of the receiving State in favour of citizens of other EU
Member States that do not have a consular post within the consular district of said
ofcers (see Article 60.2 of the Consular Convention between Italy and Georgia;
Article 22.2 of the Consular Convention between Italy and Libya; Article 61.2 of
the Consular Convention between Italy and Moldova). This obligation is consistent
with the provision of Article 20 of the EC Treaty which provides for diplomatic
and consular protection from the authorities of any Member State when the EU
citizens country is not represented in a non-Union country. The diplomatic protec-
tion laid down by the EC Treaty represents a specication of the classic principle
of diplomatic protection, according to which every State is allowed to protect its
nationals and may take up their claims against foreign States (see the Mavrommatis
Palestine Concessions case, PCIJ Series A, No. 2, 1924, p. 12 ff.).
Finally, for disputes between contracting parties relating to the application
or interpretation of the Consular Conventions, different methods of settlement
have been established. The Consular Convention between Italy and Moldova pro-
vides that all disputes shall be resolved through diplomatic channels (Article 76).
Moreover, the Convention establishes a Joint Commission made of ofcials ap-
pointed by each of the two States. This Joint Commission shall meet upon request
of the parties in order to ensure that the provisions of the Convention are imple-
mented in the best possible way (Article 75).
The recourse to diplomatic channels is also provided for in the Consular
Convention between Italy and Georgia. Nevertheless, this Convention establishes
that, whenever disputes between parties are not settled through diplomatic chan-
nels, they shall be submitted to the International Court of Justice (Article 74).
The submission of disputes to the International Court of Justice is also pro-
vided for in the Consular Convention between Italy and Libya. In this case, each of
AGREEMENTS TO WHICH ITALY IS A PARTY 411
the two parties may invoke the intervention of the World Court whenever (i) such
disputes are not settled through diplomatic channels, and (ii) an arbitration tribunal,
entitled to settle the disputes, is not established within two months from the request
of a party (Article 24.3). According to Article 24.2 of the Consular Convention, the
arbitration tribunal shall consist of a collegiate body of three arbitrators. Each party
shall appoint one arbitrator; the third arbitrator shall be appointed by arbitrators
already nominated or, in case of disagreement, by the President of the International
Court of Justice. (Federico Casolari)
VII. ENVIRONMENT
Multilateral Agreements
Bilateral Agreements
Bilateral Agreements
2. TAXATION
Multilateral Agreements
Bilateral Agreements
3. INVESTMENTS
Bilateral Agreements
Bilateral Agreements
Protocol of Agreement between Italy and Senegal on the Project Public Health
in the Sedhiou Department, done at Dakar on 21 May 1997, entered into force on
28 October 2003 (GU Suppl. to No. 62 of 15 March 2004);
Agreement between Italy and Vietnam for the Implementation of the Water
Sector Program Aid in support to the Balance of Payments in favour of the Ministry
of Finance of the Socialist Republic of Vietnam to be nanced with a Grant in the
Amount of Euro 2,737,221.50, with a Technical Annex and One Appendix, done in
Rome on 29 November 2002, entered into force on 12 August 2003 (GU Suppl. to
No. 206 of 2 September 2004);
Bilateral Agreements
Agreement between Italy and Burkina Faso on the Consolidation of the Debt,
done at Rome on 19 April 2000, entered into force on 7 October 2003 (GU Suppl.
to No. 62 of 15 March 2004);
Agreement between Italy and Indonesia on the Consolidation of the Debt, done
at Rome on 10 January 2001, entered into force on 3 June 2003 (GU Suppl. to No.
62 of 15 March 2004);
416 ITALIAN PRACTICE RELATING TO ITALIAN LAW
Agreement between Italy and Nicaragua on the Cancellation of the Debt, done
at Managua on 21 October 2003, entered into force on the same day (GU Suppl. to
No. 62 of 15 March 2004);
Agreement between Italy and Yemen on the Restructuring of the Debt (Paris
Club, 14 June 2001), with Annexed Lists, done at Sanaa on 14 August 2002, en-
tered into force on 8 November 2003 (GU Suppl. to No. 88 of 15 April 2004);
Agreement between Italy and Zambia on the Consolidation of the Debt, done at
Lusaka on 18 December 1997, entered into force on 9 September 2003 (GU Suppl.
to No. 62 of 15 March 2004);
Agreement between Italy and Zambia on the Consolidation of the Debt, done
at Lusaka on 1 March 2000, entered into force on 9 September 2003 (GU Suppl. to
No. 62 of 15 March 2004);
Agreement between Italy and Zambia on the Cancellation of the Debt (Paris
Club, 13 September 2002), done at Lusaka on 22 December 2003, entered into
force on the same day (GU Suppl. to No. 88 of 15 April 2004).
Multilateral Agreements
Bilateral Agreements
Exchange of Notes between Italy and Japan for Mutual Recognition of Driving
Permits, done at Rome on 29 September 2003, entered into force on 29 October
2003 (GU Suppl. to No. 206 of 2 September 2004);
7. TOURISM
Bilateral Agreements
Multilateral Agreements
Bilateral Agreements
Bilateral Agreements
Agreement between Italy and the Russian Federation for the Organization of
Bilingual Sections (Italian-Russian) in the Secondary School Institutions, done at
Rome on 5 November 2003, entered into force on 6 April 2004 (GU Suppl. to No.
206 of 2 September 2004);
Bilateral Agreements
Exchange of Letters between Italy and France on the Extradition of the Italian
Citizen Angelo Cuccu, born at Villasimius on 15 January 1945, according to Article
5 of the European Convention on Extradition of 13 December 1957, done at Paris
on 19 March-4 April 2003, entered into force on 4 April 2003 (GU Suppl. to No.
62 of 15 March 2004);
Bilateral Agreements
Technical Agreement between the Ministry of Defense of Italy and the Ministry
of Defense of Bulgaria on the Establishment of a Military Representative, done at
Varna on 17 July 2002, entered into force on 20 November 2003 (GU Suppl. to No.
62 of 15 March 2004);
Agreement between Italy and Georgia in the Field of Defense, done at Rome
on 15 May 1997, implemented by Law No. 216 of 27 July 2004 (GU No. 194 of
19 August 2004);
Bilateral Agreements
Agreement between Italy and Hungary for the Perpetual Memory of Military
and Civilian Victims of the World Wars and for Determining the Status of their
Graves, done at Rome on 9 September 2003, entered into force on 1 March 2004
(GU Suppl. to No. 206 of 2 September 2004);
AGREEMENTS TO WHICH ITALY IS A PARTY 421
Bilateral Agreements
Multilateral Agreements
2. EUROPEAN UNION
Multilateral Agreements
Statute of the European System of Central Banks and of the European Central
Bank, entered into force on 1 June 2004 (GU Suppl. to No. 206 of 2 September
2004);
Bilateral Agreements
Multilateral Agreements
Bilateral Agreements
Bilateral Agreements
Multilateral Agreements
Bilateral Agreements
Additional Protocol to the Agreement between Italy and the Russian Federation
on the Italian Assistance in the Destruction of the Russian Chemical Weapons
Stocks of 20 January 2000, done at Rome on 17 April 2003, implemented by Law
No. 196 of 19 July 2004 (GU No. 182 of 5 August 2004).
B)
Bilateral Agreements
Consular Convention between Italy and the Russian Federation, done at Rome
on 15 January 2001, implemented by Law No. 243 of 19 August 2003 (GU Suppl.
to No. 203 of 2 September 2003), entered into force on 1 May 2004 (GU No. 56 of
8 March 2004).
Bilateral Agreements
Fifth Protocol between Italy and Malta on the Economic, Technical and
Financial Assistance, done at Rome on 20 December 2002, implemented by Law
No. 359 of 11 December 2003 (GU No. 302 of 31 December 2003), entered into
force on 5 January 2004 (GU No. 50 of 1 March 2004).
2. TAXATION
Bilateral Agreements
with regard to Income Taxes and Capital Levies, and of Fiscal Avoidance, with an
Additional Protocol, done at Rome on 31 October 2000, implemented by Law No.
242 of 11 July 2003 (GU Suppl. to No. 181 of 6 August 2003), entered into force
on 19 February 2004 (GU Suppl. to No. 206 of 2 September 2004);
3. INVESTMENTS
Bilateral Agreements
Agreement between Italy and Iran on the Reciprocal Promotion and Protection
of Investments, with a Protocol, done at Rome on 10 March 1999, implemented by
Law No. 171 of 11 July 2002 (GU No. 184 of 7 August 2002), entered into force on
8 August 2003 (GU No. 256 of 30 October 2004);
Agreement between Italy and Qatar on the Reciprocal Promotion and Protection
of Investments, with a Protocol, done at Rome on 22 March 2000, implemented by
Law No. 331 of 3 November 2003 (GU Suppl. to No. 276 of 27 November 2003),
entered into force on 1 August 2004 (GU No. 186 of 10 August 2004);
Law No. 294 of 27 October 2003 (GU No. 256 of 4 November 2003), entered into
force on 3 March 2003 (GU No. 296 of 18 December 2004).
Bilateral Agreements
Multilateral Agreements
Bilateral Agreements
Comment
The entry into force of the Interim Agreement between Italy and the Palestine
Liberation Organization (PLO) for the Benet of the Palestine National Authority
(PNA) requires some general remarks.
The Interim Agreement constitutes the rst example of Agreement signed by
the PLO with Western States in the eld of cultural co-operation (see Camera dei
Deputati-XIV Legislatura, Disegno di Legge No. 2460, Relazione, p. 2). Furthermore,
while reinforcing relations between Italy and Palestine, it is meant to facilitate
achievement of a just and comprehensive peace process in the Middle East Area
and the establishment of an independent State in Palestine. In particular, the Interim
Agreement is intended to promote and implement activities, to encourage mutual
knowledge of the respective cultural and scientic heritage of the parties, and to en-
courage cultural, scientic, technological and artistic co-operation (Article 1).
At the same time, this agreement shows some interesting elements concerning
the international personality of the PLO and the PNA.
The status of the PLO as a subject of international law has been largely discussed
by the relevant literature (see, inter alia, OBRIEN, The PLO in International Law,
Boston University International Law Journal, Vol. 2, 1984, p. 344 ff.; VAN DE CRAEN,
Palestine Liberation Organization, in BERNHARDT (ed.), Encyclopedia of Public
428 ITALIAN PRACTICE RELATING TO ITALIAN LAW
International Law, 1997, Vol. III, p. 870 ff.; MARCELLI, Gli accordi fra Israele e
OLP nel diritto internazionale, RDI, 1994, p. 430 ff.; WATSON, The Oslo Accords:
International Law and the Israeli-Palestinian Peace Arrangements, Oxford, 2000).
According to most scholars, the PLO is a particular kind of national liberation
movement in that it is not ghting against a colonial or racist regime. As pointed
out more precisely, the State of Israel cannot be considered as an example of a
colonial or racist regime []. Israel is rather a combination of a belligerent and
a trustee-occupant rgime, legally and illegally controlling Palestine Territory
(VAN DE CRAEN, cit. supra, pp. 870-871). In other words, the denition of the PLO
as a national liberation movement is directly linked to the nature of the right to
self-determination which, as stated by the International Court of Justice, is a right
erga omnes (see, for instance, East Timor (Portugal v. Australia), Judgment, ICJ
Reports, 1995, p. 102 ff., para. 29).
As a national liberation movement, the PLO is characterized by limited inter-
national subjectivity, strictly linked to developments in the principle of self-deter-
mination relating to the Palestinian people (on the relationship between the inter-
national subjectivity of a national liberation movement and the afrmation of the
self-determination principle, see RONZITTI, Introduzione al diritto internazionale,
Torino, 2004, p. 21 ff.). From this point of view, during the last decade, several
events relating to the self-determination of the Palestinian people took place and
the PLOs position began to evolve considerably. A decisive role was denitely
played by two Israeli-PLO Agreements, which followed the understandings on the
Middle East peace process reached at Madrid in October 1991. In particular, refer-
ence has to be made to the Declaration of Principles on Interim Self-Government
Arrangements, signed in Washington on 13 September 1993 (reprinted in ILM, Vol.
32, 1993, p. 1525 ff.), and to the Cairo Agreement of 4 May 1994 (reprinted in ILM,
Vol. 33, 1994, p. 622 ff.). These two Agreements, together with subsequent under-
standings (in particular: the Protocol of 25 August 1995; the Interim Agreement
on the West Bank and Gaza of 28 September 1995; the Hebron Agreement of 17
January 1997; the Wye River Memorandum of 23 October 1998; the Sharm el
Sheikh Memorandum of 5 September 1999), provided for: (i) recognition of the
PLO by Israel as the legitimate representative of the Palestinian people, (ii) with-
drawal of Israeli forces from Jericho and the Gaza Strip, and (iii) establishment of a
Palestinian Authority the Palestinian National Authority having certain legisla-
tive, executive and judicial powers as well as an increasing territorial jurisdiction.
The bilateral relations established between Israel and the PLO show that, as
noted by the International Court of Justice, the existence of a Palestinian people
is no longer in issue (see Advisory Opinion of the International Court of Justice on
the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory of 9 July 2004, reprinted in ILM, Vol. 43, 2004, p. 1009 ff., para. 118).
On the other hand, the internal autonomy acquired by the PNA according to
these agreements raises the question of the status of the PLO and the PNA in the
international arena.
AGREEMENTS TO WHICH ITALY IS A PARTY 429
The sui generis character of this situation is well represented by the Interim
Agreement concluded with Italy. In fact, it was concluded by the Palestine
Liberation Organization on behalf of the Palestinian National Authority.
Accordingly, its preamble notes that the parties to the Agreement are the
Government of Italy and the Palestinian National Authority. In this respect, the
Interim Agreement is not the only example. There have been other cases in recent
years, such as the Memorandum of Understanding between Italy and the PLO for
the benet of the Palestinian National Authority in the Electronic Sector, done at
Gaza on 28 June 2000, the Basic Agreement between the Holy See and the PLO, in
its capacity of Representative of the Palestinian People working for the benet and
on behalf of the Palestinian National Authority, signed on 15 February 2000, and
the Euro-Mediterranean Interim Association Agreement on trade and cooperation
between the European Community, on the one part, and the Palestine Liberation
Organization (PLO) for the benet of the Palestinian Authority of the West Bank
and the Gaza Strip on the other part, done at Brussels on 24 February 1997 (pub-
lished in the OJ EC No. L 187 of 16 July 1997, p. 3 ff.).
How should this practice be interpreted?
Reference has to be made here to Article VI.2 of the Cairo Agreement.
According to this provision, the Palestinian Authority will not have powers and re-
sponsibilities in the sphere of foreign relations (sub-para. (a)). On the other hand,
sub-para. (b) provides that the PLO may conduct negotiations and sign agree-
ments with States or international organizations for the benet of the Palestinian
Authority in the following cases only: (1) economic agreements []; (2) agree-
ments with donor countries for the purpose of implementing arrangements for the
provision of assistance to the Palestinian Authority; (3) agreements for the purpose
of implementing the regional development plans []; (4) cultural, scientic and
educational agreements (emphasis added).
The effective role of such a provision is not clear. In fact, one could be
tempted to read it and the related practice (including the conclusion of the Interim
Agreement with Italy) as conrmation of the PNAs afrmation of a limited in-
ternational personality (this afrmation has also been stressed in the legal litera-
ture: see e.g., REECE THOMAS, Non-Recognition, Personality and Capacity: The
Palestine Liberation Organization and the Palestinian Authority in English Law,
Anglo-American Law Review, 2000, p. 228 ff.). According to such a reading, the
PLO could be considered an organ of the Authority, negotiating, drafting and enter-
ing into international treaties concerning the subjects mentioned in Article VI.2(b)
of the Cairo Agreement.
Nevertheless, this reading hardly seems compatible with several factual ele-
ments. It is important to recall that, as observed by the majority of legal scholars,
the international personality of a subject depends on a strict relationship between
legal and factual criteria: a fortiori if the subject in question (i.e. the PNA) is tak-
ing on the characteristics of embryonic statehood. In this respect, it seems that the
relationships between Israel and Palestine still remain characterized by the right of
430 ITALIAN PRACTICE RELATING TO ITALIAN LAW
self-determination of the Palestinian people (see RONZITTI, cit. supra, p. 14; SHAW,
cit. supra, p. 222). Consequently, the PLO continues to play an essential role in
the afrmation of Palestinian statehood. This situation also has repercussions on
the relationship between the PLO and the PNA. For instance, several members of
the PLO Executive Committee also hold responsibilities in the framework of the
PNA structure. Moreover, the transfer of powers and competences from the PLO
to the PNA has been very partial and limited because of the outbreak of the second
Intifada in September 2000.
In other words, the PLO, as legitimate representative of the Palestinian people,
still remains strictly associated with the government structures and the embry-
onic Palestine statehood (in this respect see also TREVES, Diritto internazionale.
Problemi fondamentali, Milano, 2005, p. 188). This means that, with respect to the
form in which the Interim Agreement was concluded, it is difcult to consider the
PLO a mere organ of the PNA. Probably, the PLO will only decrease its inuence
on the Palestinian people and be transformed into a political force when the PNA
takes on a more authoritative international personality. This process might increase
in the coming months as a consequence of the death (on 11 November 2004) of
Yasser Arafat, Chairman of the Executive Committee of the PLO and President of
the PNA. (Federico Casolari)
Bilateral Agreements
Agreement between Italy and Hong Kong Special Administrative Region of the
Peoples Republic of China on the Transfer of Convicts, done at Hong Kong on 18
December 1999, implemented by Law No. 149 of 11 July 2002 (GU Suppl. to No.
173 of 25 July 2002), entered into force on 14 December 2002 (GU Suppl. to No.
62 of 15 March 2004).
Multilateral Agreements
Agreement among Italy, France, Portugal and Spain, Containing the Statute
of EUROFOR, done at Rome on 5 July 2000, implemented by Law No. 251 of 19
AGREEMENTS TO WHICH ITALY IS A PARTY 431
August 2003 (GU No. 209 of 9 September 2003), entered into force on 4 February
2004 (GU Suppl. to No. 88 of 15 April 2004).
Bilateral Agreements
Bilateral Agreements
9. NEIGHBOURLY RELATIONS
Bilateral Agreements
Agreement between Italy and San Marino on Cultural and Scientic Co-opera-
tion, done at Rome on 21 March 2002, implemented by Law No. 299 of 24 October
2003 (GU No. 261 of 10 November 2003), entered into force on 19 January 2004
(GU No. 76 of 31 March 2004);
Multilateral Agreements
VII. ENVIRONMENT
Legislative Decree No. 42/2004 contains the new Code on Cultural Goods
and Landscape, which was adopted by the Government upon a specic delegation
by the Parliament. The new Code provides principles, guidelines and regulations
for the safeguard, use, valorisation, circulation, trade and export of national cultural
goods and heritage and for landscape protection.
DPR No. 142 of 30 March 2004 (GU No. 127 of 1 June 2004)
Decree No. 142/2004 introduces provisions for the reduction and prevention of
noise pollution from road trafc, implementing Article 11 of Law No. 447/1995,
the Framework Law on Noise Protection.
Decree 1 April 2004 of the Ministry of the Environment and Territory sets new
guidelines and technical requirements within the framework of the Environmental
Impact Assessment (EIA) procedure. Projects approval under the EIA procedure is
now performed through innovative systems for environmental protection based on
new technical assessment and certication criteria.
Two new decrees, issued on 20 July 2004, amend two previous Decrees of 24
April 2001, which had identied some energy-saving goals and obligations, so to
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 433-452
434 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
Law No. 239 of 23 August 2004 (GU No. 215 of 13 September 2004)
Law No. 239/2004 deals with the re-organisation and consolidation of the national
energy sector and contains a delegation to the Government for the re-formulation of
the existing national legislation aiming at the promotion of specic energy sources.
The new law modies the renewable energy certicate system, by introducing the pos-
sibility to obtain green certicates also by electricity produced from hydrogen, fuel
cells as well as for energy produced from combined heat and power (CHP) plants.
Law No. 308 of 15 December 2004 (GU Suppl. to No. 302 of 27 December
2004)
This law delegates the Government to adopt, within 18 months, one or more
legislative decrees for the re-organisation, co-ordination and integration of the ex-
isting national environmental legislation, possibly also by means of new specic
consolidated texts.
The environmental legislation must be re-organised along the following areas:
waste management and soil decontamination;
water pollution and water resources management;
soil protection and desertication prevention;
management of protected areas and conservation of protected fauna and
LEGISLATION 435
ora;
rectication of environmental damage;
procedures for environmental impact assessment (EIA), strategic environ-
mental assessment (SEA) and integrated environmental authorisation (IPPC);
air protection and reduction of air emissions.
Pursuant to Article 77 of the Italian Constitution, Law No. 308/2005 determines
the principles and guidelines to be followed by the Government in the exercise of
its delegated competence. They include:
the implementation of the EC environmental law objectives and principles,
as enshrined in Article 174 EC Treaty;
the achievement of an increased level of efciency in the performance of
environmental checks and in the issuance of sanctions;
the full respect of the EC legislation in force, also with regard to the com-
petitiveness of national companies and territories;
the promotion of the EC EMAS Scheme, in particular for SMEs.
Law No. 311 of 30 December 2004 (GU Suppl. to No. 306 of 31 December
2004)
Law No. 311/2004 (Budget Law for the year 2005) introduces a six year
programme (2005-2010) involving duty exemptions for biodiesel, with the limit
of 200.000 tonnes/year. It also establishes a fund for the promotion of energy from
renewable sources with an initial capacity of 10 million EURO. Such a fund will
nance studies and research in the environmental sector aimed at the enhancement
of renewable energy.
MASSIMILIANO MONTINI
1. NATIONALITY
Law No. 193 of 28 July 2004 (GU No. 180 of 3 August 2004)
Extension and re-nancing of Law No. 72 of 16 March 2001 concerning ac-
tions for the protection of the historical and cultural heritage of the community of
Italian refugees coming from Istria, Fiume and Dalmatia, as well as of Law No.
73 of 21 March 2001 concerning actions on behalf of the Italian minority living in
Slovenia and Croatia.
Law No. 193/2004 authorizes the payment of EURO 1,550,000 for 2004, 2005,
2006 each, in order to re-nance the measures for the protection of the historical
and cultural heritage of the community of Italian exiles coming from Istria, Fiume
and Dalmatia.
436 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
According to Law No. 72 of March 2001, the expenditure of the funds required
the conclusion of a special convention between the Ministry for Cultural Activities
and the Federation of Associates of exiles coming from Istria, Fiume and Dalmatia,
after consultation with the Ministry for Foreign Affairs and with the Presidency
of the Council of Ministers. Law No. 193/2004 modies Art. 1(4) of Law No.
72/2001, and establishes that the Ministry for Foreign Affairs must be part of such
a convention and that both Ministries together with the Federation must hear the
opinion of the Presidency of the Council of Ministers only.
Art. 2 of Law No. 193/2004 extends certain important provisions of Law
No. 73 of 21 March 2001, concerning the Italian minority living in Slovenia and
Croatia, until 31 December 2006. On behalf of this minority, Law No. 193/2004
authorizes the payment of EURO 4,650,000 for the period from 2004 to 2006.
Liquid assets of the Ministry for Foreign Affairs are to be employed to nance
both payments.
Law No. 194 of 22 July 2004 (GU No. 181 of 4 August 2004)
Extinction, through the payment of a lump sum premium, of pension and ex-
traordinary allowances annexed to the decorations for bravery given the Italian
soldiers who were employed at the former Italian Administration of Eritrea.
Law No. 1117 of 2 November 1955 assigned to the Italian soldiers who were
employed at the former Italian Administration of Eritrea which ceased at the end
of the World War II a pension and some extraordinary allowances annexed to the
decorations for bravery. According to Art. 1 of Law No. 194/2004, those benets
could be substituted by one single lump-sum cash payment, which consists in an
amount equal to the double of the last four years allowances. To this end, Law No.
194/2004 provides the payment of EURO 508,000 for 2004, by means of liquid
assets of the Ministry for Foreign Affairs.
By Decree of the Minister for Economy and Finance, the beneciaries of the al-
lowances are to be informed about the possibility to opt for the lump-sum premium
and about its conditions of payment.
If a beneciary opting for the lump sum dies before this is paid, the sum can
not be received by his heirs.
DM of the Minister for Italians in the World of 19 January 2004 (GU No. 81
of 6 April 2004)
Organization of the Department for Italians in the World.
Cultural promotion;
Protection of political and civil rights of Italians residing abroad;
Joint State and Regional interventions in favour of Italian communities
abroad;
General policies concerning Italian communities abroad.
The Department is divided in four Ofces. Each of these Ofces is called after
its own eld of competence. Every subject, pertaining to a specic Ofce, is ana-
lyzed, controlled and managed separately.
The Minister for Italians in the World administrates the whole Department by
coordinating the Ofces, by dening priorities and goals and by verifying the cor-
respondence between the Department activity and its aims.
Decree of the General Director for Italian Citizens Abroad of 27 July 2004
(GU No. 195 of 20 August 2004)
Extension of the condition of necessity to repatriate Italian citizens residing in
Eritrea.
By Decree of 11 June 1998 (GU No. 140 of 18 June 1998), the Ministry for
Foreign Affairs established the condition of necessity to repatriate Italian citizens
residing in Eritrea from 7 June 1998 on, in consideration of the political instability
in that country. Since it is not yet considered appropriate for Italian citizens resid-
ing in that country to stay, Decree of 27 July 2004 maintains the condition of neces-
sity for the period from 8 June 2004 to 7 June 2005, as Decrees of 7 June 2000 (GU
No. 148 of 27 June 2000), of 9 September 2002 (GU No. 253 of 28 October 2002),
of 16 October 2003 (GU No. 249 of 24 October 2003) did for the period from 7
June 1998 to 8 June 2004.
Since the political instability of the territory in Cote dIvoire does not make
appropriate for Italian citizens residing in that country to stay, Ministry for Foreign
Affairs establishes, by Decree of the General Director for Italian citizens abroad,
that it is necessary to repatriate them during the period from 1 November 2004 to
31 October 2006.
CHIARA BATTISTINI
438 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
Law No. 271 of 12 November 2004 (GU No. 267 of 13 November 2004)
Enactment as a law, with amendments, of Decree Law No. 241 of 14 September
2004, concerning urgent measures in the eld of migration.
This Law has the fundamental aim of amending the provisions concerning the
expulsion of illegal immigrants, as a result of the judgment of the Constitutional
Court (Corte Costituzionale) No. 222 of 15 July 2004. Constitutional judges in
fact considered the procedures there established to be in breach of the guarantees
enshrined in Art. 13 of the Italian Constitution (limits on the acts of detention, in-
spection or personal perquisition).
According to these amendments, the local chief of State police (questore),
within 48 hours from the adoption of an expulsion order, shall communicate it
to the competent ordinary judicial authority (giudice di pace). The order is thus
suspended until the decision about its validation. The hearing shall take place with
the necessary participation of a defending counsel. The judge convalidates the or-
der with a motivated decree, within 48 hours, after hearing the person involved, if
present, and verifying that all the conditions are met.
During this period the foreigner shall stay in one of the centres for temporary
presence. If the expulsion is conrmed by the judge, the decree becomes executory
and the foreigner shall be accompanied to the frontier, while if it is not conrmed,
or after the time-limit mentioned above, the order of questore loses its effect.
Against the decree of validation of the expulsion it is possible to lodge a peti-
tion with the Italian Supreme Court (Corte di Cassazione), which anyway does not
suspend the execution of the expulsion.
These two decrees take into consideration the consequences of the new acces-
sions to the EU as regards immigration policies. In fact each member State can
continue to apply national measures concerning the access to the national labour
market vis--vis citizens coming from some new EU Countries such as Estonia,
Latvia, Lithuania, Poland, Slovakia, Slovenia, Hungary and the Czech Republic, as
a temporary derogation to the EU rules on the free circulation of workers.
The Decrees of 19 December 2003 concerning the temporary planning of the
quota of non-EU workers for 2004 (see IYIL, 2003, pp. 332-333) authorised a total
LEGISLATION 439
amount of 79,500 entries for non-EU workers, 20,000 of which for non-seasonal
employed jobs for citizens coming from non-EU Countries that had signed or were
about to sign specic cooperation agreements in the eld of migration.
Art. 2 of DPCM of 20 April 2004 therefore establishes a further quota of 20,000
entries for citizens coming from the Countries listed above (besides those already
admitted before 1 May 2004, in accordance with the Decrees of 19 December
2003), for employed jobs.
Art. 1 of DPCM of 8 October 2004 furthermore authorises 16,000 entries for
the year 2004, for seasonal employed workers, especially in the agricultural sector,
coming from the countries listed above, in accordance with the principle of com-
munitarian preference established by the treaty of accession.
Both Decrees state that the Ministry of Welfare shall both monitor all the en-
tries in order to respect the total quota and guarantee that the conditions of access to
the job market for the citizens of such Countries shall not be more restrictive than
those existing when the treaties of accession were signed.
This decree was adopted in conformity with the Italian law on immigration (see
Law No. 189/2002, IYIL, 2002, pp. 346 ff.), according to which, in the absence of
the decree of the annual global maximum quota, the Prime Minister can determine
it by decree, as an interim measure, within the limits established for the previous
year.
Taking into consideration the Decrees of 19 December 2003, concerning the
quota for 2004, as well as the general level of labour supply within the national ter-
ritory, Art. 1 authorises a maximum quota of 79,500 entries for both self-employed
and employed, either seasonal or non-seasonal workers, to be allocated to the
Italian regions and autonomous provinces by the Ministry of Welfare.
Within this quota, Art. 2 species that 30,000 entries are for non-seasonal em-
ployed workers, 15,000 of which for domestic or assistance work.
Art. 3 states that a quota of 2,500 permits shall be granted to such self-em-
ployed workers as researchers, entrepreneurs whose activities are of interest for the
national economy, professionals, internationally-known artists employed by public
or private organisations and few others.
It furthermore allows, within this quota, convertions of residence permits for
study or professional training to residence permits for self-employed work, up to a
maximum amount of 1,250.
Art. 4 establishes that 200 entries shall be granted to non-seasonal employed
or self-employed workers of Italian origin who are resident in Argentina, Uruguay
and Venezuela, according to the ad hoc lists prepared by the diplomatic or consular
authorities.
440 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
DPR No. 303 of 16 September 2004 (GU No. 299 of 22 December 2004)
Procedures for the granting of the status of refugee.
This act describes the procedures that are necessary for a foreigner to be granted
the status of refugee, starting from the moment he or she enters the territory of Italy.
The frontier police ofce receiving the application for asylum records all the
data of the foreigner and addresses him or her to the competent local State police
ofce (questura).
The local chief of State police (questore) may decide to send the asylum-seeker
to an identication centre or to a temporary stay and assistance centre, according
to the concrete situation and conditions, or otherwise may issue a permit of stay
whose validity is three months, but which may be extended until the status of refu-
gee is nally granted or denied.
The asylum-seeker is provided with a brochure containing all the information
concerning the procedures, the rights and duties and other practical aspects that
may be useful.
The DPR then describes the functionning of such centres, in terms of person-
nel, rights and duties of the people living there, possibility for external visitors to
enter (basically NGOs with at least three years of experience in the sector), medical
assistance, etc.
The application of the asylum-seeker is examined by one of the territorial com-
missions established in the Italian territory according to Art.1-quater of Law No.
39 of 28 February 1990 (Provisions concerning the right of asylum).
There is then a hearing to which the asylum-seekers is invited, with the pos-
sibility, for the foreigner, to use his or her own language, to ask for an interpreter,
and to be assisted by a lawyer.
At the end of the hearing, within three days, the Commission takes one of the
following decisions:
a) grants the status of refugee to the asylum-seeker meeting the requirements
set out in the Geneva Convention;
b) rejects the request of the asylum-seeker who does not meet the requirements
set out in the Geneva Convention;
c) rejects the request of the asylum-seeker who does not meet the requirements
set out in the Geneva Convention, but asks the questore to take into consideration
the possibly negative consequences of a repatriation and grants a permit of stay for
humanitarian reasons.
The foreigner who has been denied the status of refugee has to leave the Italian
territory, unless he or she has obtained a permit of stay for other reasons.
Art. 16 provides for the possibility of a re-examination of the application that
has been rejected, within ve days from such a decision. The second decision, in
442 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
case it conrms the previous one, may be appealed in front of the competent tri-
bunal. In such a hypothesis, the asylum-seeker can ask the administrative chief of
State police (prefetto) to grant him or her an authorisation to stay in the territory
of Italy, in a centre of identication or of assistance, until the nal decision of the
tribunal is taken.
GIANLUCA RUBAGOTTI
Law No. 40/2004 regulates the controversial matter of assisted procreation and
human cloning, on the basis of a well denite ethical choice. This choice is already
clear from Article 1 (introducing the chapter on the general principles), which al-
lows recourse to medically assisted procreation, with the purpose of favouring the
solution of reproductive problems deriving from human sterility or infertility, only
within the limits and strict modalities and conditions established by the law. The
aim is to ensure the protection of all involved subjects, including the conceived
one (i.e. the embryo). Also, medically assisted procreation may be used when no
other means exist for removing the causes of sterility or infertility of the persons
concerned (see Article 1 para. 2).
Chapter II of the Law deals with the modalities of access to medically assisted
procreation techniques. Article 4, after having reiterated the principle expressed
in Article 1 para. 2, adds that such access is limited to cases of infertility, both
unexplained or explained, certied by a medical act. Paragraph 2 contemplates the
principles guiding the application of medically assisted procreation techniques, that
is to say graduality (i.e., recourse to interventions must not be more invasive than
what is strictly necessary for the person concerned) and informed consent. This
latter principle is later explained by Article 6, which species that the persons con-
cerned must receive detailed information concerning, inter alia, bioethical prob-
lems and possible risks relating to any phase of the treatment of medically assisted
procreation they are subjected to and that their consent to such treatment must be
given in written form. Article 4 para. 3, nally, forbids tout court the recourse to
medically assisted techniques of heterologous procreation (the violation of such
provision is punished, according to Article 12 para. 1, with an administrative ne
ranging from 300,000 to 600,000 EURO). Article 5 establishes the requirements
that must be met for being entitled to access medically assisted procreation tech-
niques; they are: heterosexual couples of persons, who are married or live together,
both living, being adults and of a potentially fertile age.
Chapter III contains provisions concerning the protection of the child(ren) born
consequently to the application of medically assisted procreation techniques; in
LEGISLATION 443
particular, the parents who have given their consent to the use of such techniques
pursuant to Article 6 must recognize the child as their legitimate son or daughter
(Article 8) and the legal or common-law husband of the mother of the child, who
has given his consent as provided for by Article 6, cannot exercise the legal action
of denial of his paternity (Article 9).
Chapter IV is devoted to the rules for identifying the medical structures which
are authorized to operate medically assisted procreation techniques. According to
Article 11, such structures must obligatorily be inscribed in an ad hoc register kept
by the Ministry of Health. However, medical and paramedical personnel is not
obliged to take part in the procedures for the application of assisted procreation
techniques when, as contemplated by Article 16, a preventive declaration of consci-
entious objection is made. Such objection may be revoked at any time.
One of the most controversial parts of Law No. 40/2004 is represented by
Chapter VI, contemplating a number of measures for the protection of the embryo.
Article 13 prohibits, as a general principle, any kind of experimentation on hu-
man embryos (para. 1), allowing only clinic and experimental research on a single
embryo on the condition that no alternative methodology is available and that it is
carried out for exclusively therapeutic and diagnostic purposes for the protection
of the health and development of that embryo (para. 2). In any event, paragraph 3
explicitly prohibits the following practices: a) production of human embryos for
experimentation or research or for any purpose not explicitly contemplated by
the present law; b) any form of eugenic selection of embryos or gametes or any
other intervention which, trough the use of techniques of selection, manipulation
or any other articial process, is aimed at altering or determining certain traits of
the embryos (or gametes) genetic patrimony, with the exception of interventions
having diagnostic or therapeutic purposes; c) cloning for reproductive or research
purposes; d) insemination of a human gamete with a gamete belonging to a differ-
ent animal species and production of hybrids or chimeras. According to paragraph
4, the infringement of one of the prohibitions provided for by paragraphs 1 and 3
constitutes a criminal offence. Article 14 also contains very controversial provi-
sions: paragraph 1 prohibits the crioconservation and the suppression of embryos
(without prejudice for the provisions of Law No. 194 of 22 May 1978 (GU No.
140 of 22 May 1978), concerning the voluntary interruption of pregnancy), while
paragraph 2 species that the number of embryos produced for the implementa-
tion of the medically assisted procreation techniques regulated by the present law
must not exceed what is strictly necessary in any specic case, and in no case such
number can be more than three. Also, in the event that the implantation of one of
the embryos in the womans womb is not possible (for exceptional reasons relating
to the womans health and not foreseeable at the moment of the insemination of
the embryos) such embryo can be preserved through crioconservation, but the im-
plantation of the embryo concerned in the womans womb must be realized as soon
as possible (para. 3). The reduction of implanted embryos in the event of multiple
pregnancies is prohibited, except in the cases contemplated by Law No. 194/1978,
444 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
cloning (Additional Protocol to the Convention for the Protection of Human Rights
and Dignity of the Human Being with regard to the Application of Biology and
Medicine, on the Prohibition of Cloning Human Beings, Paris, 12 January 1998,
CETS No. 168; ratication by Italy also authorised with Law No. 145 of 28 March
2001), as well as Article 3 of the Charter of Fundamental Rights of the European
Union (concerning the integrity of the human person). However, it should be noted
that Italy is not a Party to these two instruments, as it never deposited its instru-
ments of ratication with the Secretary General of the Council of Europe, notwith-
standing the adoption of the above-mentioned law authorising ratication by the
President of the Republic.
The Constitutional Court has reached a different conclusion with regard to
the other four requests of popular referendum concerning Law No. 40/2004, and
involving four questions aiming at the abrogation of the following parts of the law
in point:
i) the limitations to clinical and experimental research on embryos provided for
by Article 12 para. 7 (with the view of limiting such prohibition to the sole cases
of cloning processes having the purpose of producing identical human beings),
Article 13 para. 2 (which allows research on embryos only when it is nalized
to the exclusive therapeutic and diagnostic protection of the health and develop-
ment of the embryo concerned and when no alternative methodology is available),
Article 13 para. 3(c) (which prohibits human cloning through nucleus transfer) and
Article 14 para. 1 (prohibiting embryos crioconservation);
ii) the limitations to the access to medically assisted procreation techniques
contemplated by Article 1 para. 1 (the very introductory words stating that the re-
course to medically assisted procreation is only allowed for favouring the solution
of reproductive problems deriving from human sterility or infertility), Article 1
para. 2 (according to which medically assisted procreation may also be used when
no other means exist for removing the causes of sterility or infertility), Article 4
para. 1 (stating that access to the techniques in point is only limited to cases of
infertility, both unexplained or explained, certied by a medical act and that can-
not be removed with other means), Article 4 para. 2 (concerning the principle of
graduality), the reference to Article 4 para. 1 included in Article 5 para. 1, Article
6 para. 3 (stating that, with regard to the principle of informed consent, such con-
sent may not be revoked by the persons concerned after the fecundation of the egg
cell), the reference to Article 13 para. 2 included in Article 13 para. 3(b) (thus limit-
ing the exceptions to the prohibition of eugenic selection of embryos to the cases
of therapeutic or diagnostic needs specically relating to the embryo concerned),
the general limitation of three embryos provided for by Article 14 para. 2, and the
limitations contemplated by Article 14 para. 3 in allowing embryos crioconserva-
tion only for exceptional reasons relating to the womans health and not foresee-
able at the moment of the insemination of the embryos and in prescribing that the
implantation of the embryo(s) concerned in the womans womb must in any case
be realized as soon as possible;
446 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
iii) certain provisions concerning the purposes of Law No. 40/2004, the rights
of the involved persons and the limitations of access to medically assisted pro-
creation techniques (in most part coinciding with the content of second question),
including: the entire Article 1, the principle of graduality contemplated by Article
4 para. 1(a), the reference to Article 4 para. 1 included in Article 5 para. 1, the im-
possibility of revoking the consent after the fecundation of the egg cell pursuant
to Article 6 para. 3, the reference to Article 13 para. 2 included in Article 13 para.
3(b) (also including the word therapeutic), and the limitations contemplated by
Article 14 already addressed by the second question;
iv) the prohibition of heterologous procreation provided for by Article 4 para. 3
and recalled by Article 9 paras 1 and 3 and Article 12 paras. 1 and 8.
In dealing with such questions (see Judgments Nos. 46/2005, 47/2005, 48/
2005 and 49/2005 of 13 January 2005, full text available at www.cortecostituzi
onale.it/ita/attivitacorte/pronunceemassime/pronunce/ltro.asp), the Court con-
sidered them as admissible in view of the fact that they did not relate to laws for
which the recourse to popular referendum is explicitly or implicitly excluded by
Article 75 of the Constitution, and did not conict with the principles of the 1997
Oviedo Convention on Biomedicine and of its 1998 Paris Protocol prohibiting hu-
man cloning. The Court also noted that the possible abrogation of the provisions
contemplated by the questions under examination was not susceptible of giving rise
to the lack of the constitutionally required minimum level of protection, which in
principle would require the declaration of inadmissibility of a question of popular
referendum.
The results of the four popular referenda concerning Law No. 40/2004, con-
sidered as admissible by the Constitutional Court, will be examined in the next
volume of this Yearbook.
FEDERICO LENZERINI
of Slavs followed by fascist regime in the previous decades. The mass executions
continued until the end of 1945, when Yugoslav partisans led by Tito occupied
Venezia Giulia and Istria and followed a policy of ethnic cleansing. On the whole,
thousands (6,000 to 15,000, depending on sources) of Italian-speaking inhabitants
of those regions were thrown in Foibe, many of those suffering this fate while they
were still alive.
In order to spread the awareness about those tragic events, cultural initiatives
will be held among youths in schools. Moreover, public institutions will support
the realization of studies, meetings and discussions to deepen and reinforce the
memory of what happened. All these initiatives shall emphasize the cultural, his-
torical, literal and artistic heritage of those Italians coming from Istria, Fiume and
Dalmatia and, in particular, their contribution to cultural and social development of
those territories and their efforts to preserve the traditions of all Istrian-Dalmatian
communities residing in Italy or abroad.
As to Art. 2, the State recognizes and supports the Museum of the Istrian-
Fiuman-Dalmatian civilization, located in Trieste and the Museum-Archive of
Fiume, located in Rome. To this aim, the Regional Institute for Istrian-Fiuman-
Dalmatian Culture and the Society of Studies on Fiume are nanced with an
amount of EURO 100,000 each to be paid every year, beginning from 2004. Law
No. 92/2004 provides that liquid assets of the Ministry of Economy and Finance
are to be employed for these payments.
In order to honour the memory of those who were killed and then abandoned
into Foibe in the period between 8 September 1943 and 10 February 1947 in Istria,
Dalmatia, or in the other eastern territories, Art. 3 states that their relatives can re-
quest a courtesy title, consisting in a special medal with the inscription The Italian
Republic remembers and a certicate, signed by the President of Republic. The
same right is recognized to the heirs of those who disappeared or who were killed,
drowned, shot, slaughtered or were victims because of any other form of attack,
in the same period and territory, as well as to the relatives of Italian citizens who
died in consequence of torture, deportation or captivity after 10 February 1947 and
before the end of 1950 (except for those who were voluntary members of groups
that were not serving Italy at that time).
The applications must be addressed, within 10 years, to the Presidency of the
Council of Ministers, in a package including the description of facts, location and
date (known or presumed) of the events, together with eventual evidences, studies,
publications or memoirs.
A special Commission, composed by ten members and chaired by the President
of the Council of Ministers, will examine these applications, in order to choose
who will have to be excluded from the courtesy title and who will be awarded,
in an annual collective ceremony, with the certicate and the medal. Anyway, the
Commission will not award the relatives of those committed brutal crimes against
people.
448 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
(Cf. supra X.1, Law No. 193 of 28 July 2004 as regards the community of
Italian refugees coming from Istria, Fiume and Dalmatia)
CHIARA BATTISTINI
Law No. 232 of 25 August 2004 (GU No. 210 of 7 September 2004)
Extension of the deadline to close the activity of the parliamentary enquiry
commission on the reasons of the disappearance of dossiers concerning Nazi
crimes which was established by Law No. 107 of 15 May 2003.
1. FOREIGN TRADE
Italy is an IIC Member State in conformity with its Law No. 165 of 29 April
1988. Law No. 60/2004 authorizes the Italian nancial contribution to rst in-
LEGISLATION 449
Law No. 155 of 17 June 2004 (GU No. 147 of 25 June 2004)
Extension of the Italian Agency for Payments in Agriculture (Agenzia per le
erogazioni in agricoltura AGEA) functions which is regulated by Art. 3 of Law
No. 413 of 29 December 2000.
Law No. 138 of 26 May 2004 (GU No. 125 of 29 May 2004)
Enactment as a law, with amendments, of Decree-Law No. 81 of 29 March
2004 concerning urgent measures to deal with situations dangerous for public
health.
In order to improve the Italian ght against infectious diseases and bioter-
rorism, Law No. 138/2004 establishes two specialized bodies, that is the Italian
National Centre for the Prevention and Control of Diseases (Centro nazionale per
la prevenzione e il controllo delle malattie) and the National Institute of Molecular
Genetics and other Modern Diagnostic Methods (Istituto di riferimento nazionale
specico sulla genetica molecolare e su altre moderne metodiche di rilevazione e
di diagnosi).
Law No. 138/2004 also authorizes the payment of EURO 12,945,000 for 2004,
EURO 12,585,000 for 2005, and EURO 12,720,000 for 2006 to nance research
projects concerning the protection of health against cancer, rare diseases and bioter-
rorism. These projects are to be carried out in collaboration with the United States
of America. A decree of the Minister of Health will indicate these projects.
To this end, liquid assets of the Ministry of Economy and Finance and of the
Ministry of Health are to be employed.
PIA ACCONCI
Law No. 207 of 30 July 2004 (GU No. 188 of 12 August 2004)
Enactment as a law, with amendments, of Decree-Law No. 160 of 24 June
2004 concerning the extension of the Italian participation in international military
operations;
Law No. 208 of 30 July 2004 (GU No. 188 of 12 August 2004)
Extension of the Italian participation in international military operations.
These laws extend Italian military and civil participation in international op-
erations until 30 June 2004 (Law No. 68/2004) and 31 December 2004 (Law No.
207/2004 and Law No. 208/2004).
LEGISLATION 451
The operations involved are carried out in various countries. Each law author-
ises the payment of the necessary amount of money (as regards previous Italian
decree-laws and laws concerning Italian participation in these peace operations,
see IYIL, 2003, p. 341 ff.)
Art. 1 and Art. 2 of Law No. 68/2004 authorise expenses up to EURO
11,627,450 and EURO 209,017,084 for the complex humanitarian and reconstruc-
tion mission in Iraq. According to Art. 9-bis the Ministry of Defence is authorised
to give to Iraqi Armed and Police Forces materials, equipments and vehicles no
longer in use.
Art. 1 of Law No. 207/2004 identies the material sectors of the Italian inter-
vention: health sector to assist the population, institutional and technical support,
support to small and medium enterprises, especially in Southern Iraq, communica-
tion sector. Art. 1 authorises expenses for EURO 20,925,066, while Art. 6 provides
EURO 556,788 for the year 2004 for the participation of Italian military experts in
the reorganisation of the Iraqi Ministry of Defence as well as in the training of the
personnel of the Iraqi Armed Forces.
According to Art. 3 of Law No. 68/2004 and Art. 1 of Law No. 208/2004,
other international operations involved are: Joint Forge in Bosnia, Multinational
Specialized Unit in Bosnia and Kosovo, Joint Guardian in Kosovo and Former
Yugoslav Republic of Macedonia, NATO Headquarters Skopje in Former
Yugoslav Republic of Macedonia, United Nations Mission in Kosovo and Criminal
Intelligence Unit in Kosovo, Albit, Albania 2 and NATO Headquarters Tirana in
Albania, Temporary International Presence in Hebron, United Nations Missions
in Ethiopia and Eritrea, as well as the European Union monitoring mission in the
territories of Former Yugoslavia and the peace processes concerning Somalia and
Sudan (EURO 292,919,802 for the rst extension and other various amounts for
the second part of the year).
Art. 4 of Law No. 68/2004 authorises expenses for EURO 7,282,927 for the
participation of State Police staff in Kosovo (United Nations Mission in Kosovo),
in Albania and in the Balkan area, in Bosnia-Erzegovina (EUPM) and in Former
Yugoslav Republic of Macedonia (EUPOL Proxima).
Arts. 10 and 11 of Law 68/2004 as well as Art. 3 of Law No. 208/2004 extend
the assistance to logistically support and train to the Romanian infantry troop (see
IYIL, 2002, p. 362) and to the Albanian Armed Forces, while Art. 12 (Art. 7 of Law
No. 208/2004) states on the one hand that the wartime military criminal code shall
apply to the military personnel deployed in all these international operations and on
the other hand that the crimes committed by a foreigner against the State or Italian
citizens deployed in such international missions shall be punished upon request
from the Ministry of Justice, after consultation with the Ministry of Defence in case
of crimes against the staff of the Armed Forces.
As for activities of scientic research for sanitary prevention, Art. 13-ter au-
thorises expenses up to EURO 1,175,330 (a further amount of EURO 800,000 is
authorised by Art. 8 of Law No. 208/2004) for an epidemiologic study with a view
452 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
to ascertaining the levels of uranium and other possibly toxic elements in biological
specimen of the military staff deployed in such international operations.
Art. 10 of Law 208/2004 establishes that, until the entry into force of a new
law in favour of the victims of terrorism, the provisions of Law No. 369 of 24
December 2003 (see IYIL, 2003, pp. 343-344) concerning measures for the benet
of military and civil victims of terrorist attacks abroad shall apply and allows ex-
penses in this respect up to EURO 415,600.
(Cf. supra XV.1, Decree of 22 June 2004 as regards the special Fund for the
Italian participation in the process of stabilization, reconstruction and development
of the Balkans Countries)
Law No. 226 of 23 August 2004 (GU No. 204 of 31 August 2004)
Anticipated suspension of compulsory military service.
This law provides the framework for the new system of selection of the volun-
tary members of the Italian armed forces.
After the end of the compulsory recruitment the personnel of the army, the
navy and the air forces will operate on a voluntary basis, initially for a period of
one or four years. The law species the requirements, in terms of age, education,
physical conditions, moral standards as well as the material formalities ruling the
procedures for the public competition granting access to the armed forces.
GIANLUCA RUBAGOTTI
BIBLIOGRAPHIES
ITALIAN BIBLIOGRAPHICAL INDEX
OF INTERNATIONAL LAW 2004
This bibliography includes books and articles published during the year 2004,
with some exceptions going back to 2003.
Items are listed only once, under their most appropriate heading. Headings
correspond to the Classication Scheme adopted for the Italian practice relating to
international law.
Unless otherwise specied, texts are in the same language as corresponding
entries in the bibliography.
When available, translations of titles have been reproduced from the original
source.
The bibliography includes only works on public international law. Works con-
sidered 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.
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 455-492
456 BIBLIOGRAPHIES
1. GENERAL
BIANCHI A., Limmunit des Etats et les violations graves des droits de lhomme:
la fonction de linterprte dans la dtermination du droit international (State
Immunity and Gross Violations of Human Rights: The Function of the Inter-
preter in the Determination of International Law), RGDIP, 2004, p. 63 ff.
BIANCHI A., International Law and US Courts: The Myth of Lohengrin Revisi-
ted, EJIL, 2004, p. 751 ff.
CANNIZZARO E., Fragmented Sovereignty? The European Union and Its Member
States in the International Arena, IYIL, 2003, p. 35 ff.
CICIRIELLO M.C., La soggettivit internazionale dellOrdine di Malta (Interna-
tional Personality of the Order of Malta), in Studi di diritto internazionale in
onore di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 47 ff.
CONDORELLI L., Lvolution du champ dapplication de la protection diploma-
tique (The Evolution of the Scope of Application of Diplomatic Protection), in
FLAUSS J. (ed.), La protection diplomatique, Bruxelles, 2003, p. 3 ff.
GAJA G., Droits des Etats et droits des individus dans le cadre de la protection
diplomatique (Rights of States and Individual Rights in the Context of Dip-
458 BIBLIOGRAPHIES
V. TERRITORY
MILANO E., Territorial Disputes, Unlawful Territorial Situations and State Re-
sponsibility, The Law and Practice of International Court and Tribunal, 2004,
pp. 509-541.
SCIACOVELLI A.L., La controversia confinaria tra Eritrea ed Etiopia (The Border
Dispute between Eritrea and Ethiopia), RDI, 2004, p. 730 ff.
VII. ENVIRONMENT
BURCHI S., International Rivers and Lakes/Groundwater, YIEL, 2003, p. 280 ff.
DI LEVA C., RAGAZZI M. et al., World Bank, YIEL, 2003, p. 774 ff.
DI LIETO A., Il diritto allacqua nel diritto internazionale (The Right to Water
under International Law), RGA, 2004, p. 749 ff.
FODELLA A., Il movimento transfrontaliero di riuti pericolosi nel diritto interna-
zionale (Transboundary Movement of Hazardous Waste in International Law),
Torino, 2004, pp. 432.
FODELLA A., Mountains and Sustainable Development: The Legal Instruments
Adopted at the World Summit on Sustainable Development (Johannesburg
2002), in TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Devel-
opment of Mountain Areas. Legal Perspectives beyond Rio and Johannesburg,
Milano, 2004, p. 27 ff.
FORNARI M., Laccordo di Kuala Lumpur contro linquinamento transfrontaliero
da fumi provocati da incendi forestali (The Kuala Lumpur Agreement on
Transboundary Pollution Provoked by Forest Fires), RGA, 2004, p. 553 ff.
FORNARI M., Italy, YIEL, 2003, p. 499 ff.
GALIZZI P., International Law and the Protection of the Environment: Shared
Universal Rules or Unethical Imposition of a Western Agenda?, in BO-
SCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 327 ff.
LENZERINI F., Lo sfruttamento minerario sostenibile come principio emergente
nel diritto internazionale contemporaneo (Sustainable Mining as Emerging
Principle of Contemporary International Law), RGA, 2004, p. 165 ff.
LENZERINI F., International Law and Mountain Protected Areas, in TREVES T.,
PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain
460 BIBLIOGRAPHIES
Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 163
ff.
MARINI L., Il principio di precauzione nel diritto internazionale e comunitario
(The Precautionary Principle in International and EC Law), Padova, 2004, pp.
432.
MARRONI A., Sette anni dopo Kyoto: i risultati della nona conferenza delle parti
(COP 9) della convenzione quadro sui cambiamenti climatici (UNFCCC)
(Seven Years after Kyoto: The Decisions Adopted by the Ninth Conference of
the Parties of the United Nations Framework Convention on Climate Change
(UNFCCC)), RGA, 2004, p. 323 ff.
MORGERA E., From Stockholm to Johannesburg: From Corporate Responsibility
to Corporate Accountability for the Global Protection of the Environment?,
RECIEL, 2004, p. 214 ff.
MORGERA E., Whale Sanctuaries: An Evolving Concept within the International
Whaling Commission, Ocean Development and International Law, 2004, p.
319 ff.
NESPOR S., Oltre Kyoto: il presente e il futuro degli accordi sul contenimento del
cambiamento climatico (Beyond Kyoto: The Present and the Future of the
Agreements on Climate Change), RGA, 2004, p. 1 ff.
NESPOR S., Laccesso alla giustizia nelle controversie giudiziarie in materia am-
bientale: considerazioni su due recenti volumi (Access to Justice in Environ-
mental Disputes: Some Remarks about Two Recent Volumes), RGA, 2004, p.
861 ff.
PAPANICOLOPULU I., The Secretariat of the Alpine Convention, in TREVES T.,
PINESCHI L. and FODELLA A. (eds.), Sustainable Development of Mountain
Areas. Legal Perspectives beyond Rio and Johannesburg, Milano, 2004, p. 215
ff.
PAVONI R., Biodiversit e biotecnologie nel diritto internazionale e comunitario
(Biodiversity and Biotechnology in International and European Community
Law), Milano, 2004, pp. 526.
PAVONI R., Accesso alle risorse fitogenetiche e diritti di propriet intellettuale
dopo il Trattato della FAO del 2001 (Access to Plant Genetic Resources and
Intellectual Property Rights after the 2001 FAO Treaty), in ROOK BASILE E.,
MASSART A. and GERMAN A. (eds.), Prodotti agricoli e sicurezza alimentare,
Milano, 2004, p. 227 ff.
PINESCHI L., The Convention for the Protection of the Alps and Its Protocols:
Evaluation and Expectations, in TREVES T., PINESCHI L. and FODELLA A.
(eds.), Sustainable Development of Mountain Areas. Legal Perspectives be-
yond Rio and Johannesburg, Milano, 2004, p. 191 ff.
SCOVAZZI T., Deep Seabed and Ocean Floor, YIEL, 2003, p. 343 ff.
SCOVAZZI T., Le protocole mditerranen sur les aires spcialement protges (The
Mediterranean Protocol on Specially Protected Areas), Annuaire de droit mari-
time et ocanique, 2003, p. 347 ff.
ITALIAN BIBLIOGRAPHICAL INDEX 2004 461
SINDICO F. and GUPTA J., Moving the Climate Change Regime Further Through a
Hydrogen Protocol, RECIEL, 2004, p. 175 ff.
TREVES T., PINESCHI L. and FODELLA A. (eds.), Sustainable Developments of
Mountain Areas. Legal Perspectives beyond Rio and Johannesburg, Milano,
2004, pp. 374.
URBINATI S., Non-Compliance Procedure under the Kyoto Protocol, Baltic Year-
book of International Law, 2003, p. 229 ff.
MARCHISIO S., The 1986 United Nations Principles on Remote Sensing, in Studi
di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli,
2004, p. 1311 ff.
ITALIAN BIBLIOGRAPHICAL INDEX 2004 463
1. GENERAL
ACCONCI P., Determining the Internationally Relevant Link between a State and a
Corporate Investor. Recent Trends concerning the Application of the Genuine
Link, Journal of World Investment and Trade, 2004, p. 139 ff.
BALBO P., Extracomunitari. Proli penali e giurisprudenza interna ed internazio-
nale (Non Communitarian Citizens. Criminal Proles and National and Inter-
national Case-Law), Torino, 2004, pp. 336.
DI BLASE A., Universal v. Intercivilizational Approach in the Economic Interstate
Relations and the Role of International Organizations. The Place of Patrimo-
nial Rights of the Individual, in Alberico Gentili: Lordine internazionale in
un mondo a pi civilt, Milano, 2004, p. 197 ff.
MANCA L., La partecipazione degli stranieri alla vita pubblica tra diritto inter-
nazionale e diritto interno (Participation of Foreigners to the Political Life
between International Law and National Law), Affari sociali internazionali,
2004, p. 155 ff.
NASCIMBENE B. (ed.), Diritto degli stranieri (The Law on Foreigners), Padova,
2004, pp. 1284.
PALCHETTI P., Costituzione italiana e norme internazionali in tema di diritto di
voto agli stranieri (Italian Constitution and International Norms: A Compari-
son in matters of Right to Vote for Foreigners), Diritto, immigrazione e cittadi-
nanza, 2004, p. 37 ff.
VALENTI M., Il trattamento conforme al diritto internazionale degli investimenti
stranieri nelle convenzioni internazionali (The Treatment of Foreing Invest-
ments in Conformity with International Law in International Conventions),
DCI, 2004, p. 973 ff.
CHIEFFI L., La tutela costituzionale del diritto dasilo e di rifugio a fini umanitari
(The Protection of Refugees and of the Right to Asylum for Humanitarian
Purposes Provided for by the Italian Constitution), Diritto, immigrazione e cit-
tadinanza, 2004, p. 25 ff.
464 BIBLIOGRAPHIES
1. GENERAL
BRUNO G.C., Il trattamento dei diritti culturali nel Patto sui diritti economici,
sociali e culturali e nel Patto sui diritti civili e politici (The Treatment of
Cultural Rights in the International Covenant on Economic, Social and Cul-
tural Rights and in the International Covenant on Civil and Political Rights),
in Alberico Gentili: Lordine internazionale in un mondo a pi civilt, Milano,
2004, p. 223 ff.
CASSESE A., I diritti umani nel mondo contemporaneo (Human Rights in the Con-
temporary World), 10th ed., Bari, 2004, pp. 172.
CATALDI G., Universality of Human Rights and Cultural Diversity: Some
Thoughts, in Alberico Gentili: Lordine internazionale in un mondo a pi
civilt, Milano, 2004, p. 173 ff.
CITRONI G., Lorrore rivelato. Lesperienza della Commissione della Verit e della
Riconciliazione in Per: 1980-2000 (Horror Revealed. The Experience of the
Truth and Reconciliation Commission in Peru: 1980-2000), Milano, 2004, pp.
215.
CONDORELLI L. and DE SENA P., Les droits de lhomme Guantnamo: en
attendant la Cour Suprme des Etats-Unis (Human Rights in Guantnamo
Awaiting the United States Supreme Court), in Liberts, justice, tolrance.
Mlanges en hommage au Doyen Grard Cohen-Jonathan, Vol. I, Bruxelles,
2004, p. 445 ff.
CONDORELLI L. and DE SENA P., The Relevance of the Obligations Flowing from
the UN Covenant on Civil and Political Rights to US Courts Dealing with
Guantnamo Detainees, JICJ, 2004, p. 107 ff.
DE SALVIA M., Libert de religion, esprit de tolrance et lacit dans la jurispru-
dence de la Cour europenne des droits de lhomme (Freedom of Religion,
Spirit of Tolerance and Laicism under the Case-Law of the European Court
of Human Rights), in Liberts, justice, tolrance. Mlanges en hommage au
Doyen Grard Cohen-Jonathan, Vol. I, Bruxelles, 2004, p. 591 ff.
DE SENA P., Esigenze di sicurezza nazionale e tutela dei diritti delluomo nella
recente prassi europea (National Security and Protection of Human Rights
in Recent European Practice), in BOSCHIERO N. (ed.), Ordine internazionale e
valori etici, Napoli, 2004, p. 195 ff.
DI STASI A., Il sistema interamericano dei diritti umani. Circolazione e mutamento
di una international legal tradition (The Inter-American System of Human
Rights. Circulation and Change of an International Legal Tradition), Torino,
2004, pp. 432.
LA TORRE M., Universalit e relativit dei diritti fondamentali. Diritti delluomo,
diritti delle donne, diritti culturali (Universalism and Relativism of
Fundamental Rights. Human Rights, Women Rights, and Cultural Rights),
Ragion pratica, 2004, p. 411 ff.
MARCHESI A., La pena di morte. Una questione di principio (Death Penalty. A
Question of Principle), Bari, 2004, pp. 184.
MIGLIAZZA M., Proli internazionali ed europei del diritto allinformazione e alla
466 BIBLIOGRAPHIES
CASSESE A., Are International Human Rights Treaties and Customary Rules on
Torture Binding upon US Troops in Iraq?, JICJ, 2004, p. 872 ff.
CONDORELLI L. and DE SENA P., The Relevance of Obligations Flowing from
the UN Covenant on Civil and Political Rights to US Courts Dealing with
Guantnamo Detainees, JICJ, 2004, p. 107 ff.
DE SANCTIS F., The Practice of National and International Courts on Transna-
tional Seizure: Is a Fair Balance between Human Rights and Accountability
Possible?, Netherlands Quarterly of Human Rights, 2004, p. 529 ff.
DIOTALLEVI G., La riduzione in schiavit: un fenomeno antico ancora attuale
(The Reduction to Slavery: An Ancient Plague still Present), Diritto, immigra-
zione e cittadinanza, 2004, p. 64 ff.
LANZI A. and SCOVAZZI T., Una dubbia repressione della tortura e di altri gravi
crimini di guerra (A Dubious Repression of Torture and of Other Gross War
Crimes), RDI, 2004, p. 685 ff.
LENZERINI F., Diritti dei lavoratori, nuove forme di schiavit e commercio inter-
nazionale (Workers Rights, New Forms of Slavery and International Trade),
Il diritto del lavoro, 2004, p. 121 ff.
SACCUCCI A., Il Protocollo istitutivo della Corte Africana dei Diritti dellUomo
e dei Popoli: un primo confronto con le Corti regionali (The Protocol Estab-
lishing the African Court of Human and Peoples Rights: A Comparison with
Regional Courts), RDI, 2004, p. 1036 ff.
SAULLE M.R., La Convenzione delle Nazioni Unite sui diritti del bambino e
la sua applicazione negli ordinamenti interni con particolare riferimento
allordinamento italiano (The UN Convention on Childs Rights and Its Ap-
plication within National Legal Orders with Particular Attention to the Italian
Legal Order), Affari sociali internazionali, 2004, p. 75 ff.
SCISO E., Guerra al terrorismo globale e garanzie non comprimibili dei diritti
umani fondamentali: lopinione della Corte Suprema degli Stati Uniti (War to
Global Terrorism and Guarantees for Fundamental Human Rights: The Posi-
tion of the Supreme Court of the United States), RDI, 2004, p. 752 ff.
468 BIBLIOGRAPHIES
SPATAFORA E.G., Pena di morte e diritti delluomo nellaccordo tra lUE e gli
USA sullestradizione (Death Penalty and Human Rights in the EU-US
Agreement on Extradition), RCGI, 2004, p. 28 ff.
TARBASSI L., The First OPCW Review Conference of the Chemical Weapons
Convention, YIHL, 2002, p. 407 ff.
3. EUROPEAN SYSTEM
BARBISAN B., Il new judicial federalism negli Stati Uniti e la Corte Europea
di Strasburgo in un caso sulla libert sessuale degli omosessuali (The New
Judicial Federalism in the US and the Decision of the European Court of Hu-
man Rights Concerning the Sexual Freedom of Homosexuals), DPCE, 2004,
p. 179 ff.
BULTRINI A., La pluralit dei meccanismi di tutela dei diritti delluomo in Europa
(The Plurality of Mechanisms of Human Rights Protection in Europe), Torino,
2004, pp. 376.
CIRILLO L. and DEL CORVO A., La giurisprudenza della Corte europea dei diritti
delluomo in materia di diritti del minore in ambito processual-penalistico
(The Case-Law of the European Court of Human Rights Relating to the Rights
of Minors in the Context of Criminal Procedure), Cassazione penale, 2004, p.
1800 ff.
DIDONE A., Il nuovo processo societario e la Convenzione europea dei diritti
delluomo (The New Company Laws Trial and the European Convention on
Human Rights), Giur. It., 2004, p. 488 ff.
DIDONE A., La Cassazione, la legge Pinto e la Convenzione Europea dei Diritti
dellUomo (The Court of Cassation, the Pinto Law and the European Conven-
tion on Human Rights), Giur. It., 2004, p. 954 ff.
FASCIGLIONE M., Verso un allineamento della Suprema Corte alle posizioni della
Corte di Strasburgo in tema di durata ragionevole del processo (Towards an
Alignment of the Positions of the Italian Supreme Court and of the Strasbourg
Court in matters of Reasonable Length of Trial), Giur. It., 2004, p. 1147 ff.
GRANATA S., Review of Judgments and Decisions Delivered by the European
Court of Human Rights in 2003 in Subjects Relevant to International Law,
IYIL, 2003, p. 207 ff.
GRIGOLO M., Sexualities and the ECHR: Introducing the Universal Sexual Legal
Subject, EJIL, 2004, p. 1023 ff.
GUARNERI G., Il caso Soering davanti alla Corte europea dei diritti delluomo
(The Soering Case before the European Court of Human Rights), in ZANGH
C. and PANELLA L. (eds.), Cooperazione giudiziaria in materia penale e diritti
delluomo, Torino, 2004, p. 93 ff.
LATTANZI F., Diritti di difesa nella Convenzione europea dei diritti delluomo e
nella giurisprudenza della Corte (Defence Rights in the European Convention
ITALIAN BIBLIOGRAPHICAL INDEX 2004 469
4. BIOETHICS
RUBINACCI C., Bioetica e diritti umani: una sfida per listruzione nella societ glo-
bale (Bioethics and Human Rights: A Challenge for Education in the Global
Community), Affari sociali internazionali, 2004, p. 165 ff.
TANCREDI A., Genetica umana ed altre biotecnologie nel diritto comunitario ed
europeo (Human Genetics and Other Biotechnologies in European Law), in
BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 381 ff.
CONETTI G., Studio sulle minoranze nel diritto internazionale (A Study on Minori-
ties in International Law), Parma, 2004, pp. 261.
PENTASSUGLIA G., Minority Issues as a Challenge in the European Court of Hu-
man Rights: A Comparison with the Case Law of the United Nations Human
Rights Committee, GYIL, 2003, p. 401 ff.
DRAETTA U., The Internet and Terrorist Activities, in BIANCHI A. (ed.), Enforc-
ing International Law Norms against Terrorism, Oxford, 2004, p. 453 ff.
FORNARI M., Stati Uniti, Unione europea e competenza della Corte penale inter-
nazionale (The United States, the European Union and the Competence of the
International Criminal Court), in CALVETTI G. and SCOVAZZI T. (eds.), Dal
Tribunale per la ex-Iugoslavia alla Corte penale internazionale, Milano, 2004,
p. 107 ff.
FRULLI M., The Question of Charles Taylors Immunity: Still in Search of a Bal-
anced Application of Personal Immunities?, JICJ, 2004, p. 1118 ff.
GAETA P., Is the Practice of Self-Referrals a Sound Start for the ICC?, JICJ,
2004, p. 949 ff.
GAETA P., May Necessity Be Available as a Defence for Torture in the Interroga-
tion of Suspected Terrorists?, JICJ, 2004, p. 785 ff.
GAETA P., National Prosecution of International Crimes, in Studi di diritto inter-
nazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1923
ff.
GAJA G., The Respective Roles of the ICC and the Security Council in Deter-
mining the Existence of an Aggression, in POLITI M. and NESI G. (eds.), The
International Criminal Court and the Crime of Aggression, Aldershot, 2004,
p. 119 ff.
GATTINI A., Kelsens Contribution to International Criminal Law, JICJ, 2004, p.
795 ff.
GIOIA A., Terrorismo internazionale, crimini di guerra e crimini contro lumanit
(International Terrorism, War Crimes and Crimes against Humanity), RDI,
2004, pp. 5 ff.
GREPPI E., Qualche riflessione su ordine superiore e responsabilit dellindividuo
nei crimini internazionali (Some Reections on Superior Order and Individual
Responsibility in International Crimes), in Studi di diritto internazionale in
onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1945 ff.
LEANZA U., The Historical Background, in POLITI M. and NESI G. (eds.), The
International Criminal Court and the Crime of Aggression, Aldershot, 2004,
p. 1 ff.
MORI P., Il Tribunale speciale iracheno per i crimini contro lumanit: quale
giustizia? (The Special Iraqi Tribunal for Crimes against Humanity: Which
Justice?), RDI, 2004, p. 458 ff.
NESI G., An Outsider View, in POLITI M. and NESI G. (eds.), The International
Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 163 ff.
PALOMBINO F.M., Il potere inerente di riesame dei Tribunali internazionali: in
margine al caso Celibici (The Inherent Power of Review of International Tri-
bunals: Remarks on the Celibici Case), CI, 2004, p. 707 ff.
PANELLA L., La risposta giudiziaria al terrorismo: giusto equilibrio tra giustizia-
bilit e protezione dei diritti delluomo (The Judicial Response to Terrorism:
The Right Balance between Justiciability and Human Rights Protection), in
474 BIBLIOGRAPHIES
1. STATE RESPONSIBILITY
GAJA G., How Does the European Communitys International Responsibility Re-
late to Its Exclusive Competence?, in Studi di diritto internazionale in onore
di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 747 ff.
GAJA G., In tema di reazione alle violazioni di obblighi erga omnes (Reactions
to Violations of Erga Omnes Obligations), in BOSCHIERO N. (ed.), Ordine in-
ternazionale e valori etici, Napoli, 2004, p. 43 ff.
GIANELLI A., Crimini internazionali ed immunit degli Stati dalla giurisdizione
nella sentenza Ferrini (International Crimes and State Immunity from Juri-
sdiction According to the Ferrini Case), RDI, 2004, p. 643 ff.
GIANELLI A., Aspects of the Relationship between the Law of Treaties and State
Responsibility, in Studi di diritto internazionale in onore di Gaetano Arangio-
Ruiz, Vol. II, Napoli, 2004, p. 757 ff.
GIARDINA A., Responsabilit internazionale, esaurimento dei mezzi interni di
ricorso e carattere sussidiario della tutela internazionale dei diritti delluomo
(International Responsibility, Exhaustion of Local Remedies and Subsidiary
Character of International Human Rights Protection), in Studi di diritto inter-
nazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1019 ff.
MARCHESI A., The Distinction between Obligations of Conduct and Obligations
of Result following its Deletion from the Draft Articles on State Responsibil-
ity, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol.
II, Napoli, 2004, p. 827 ff.
PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in Interna-
tional Law, Leiden, 2004, pp. 868.
PICCHIO FORLATI L., The Legal Core of International Economic Sanctions, in
PICCHIO FORLATI L. and SICILIANOS L. (eds.), Economic Sanctions in Interna-
tional Law, Leiden, 2004, p. 99 ff.
CADIN R., CARLETTI C. and SPATAFORA E., Sviluppo e diritti umani nella coope-
razione internazionale. Lezioni sulla cooperazione internazionale per lo svi-
luppo umano (Development and Human Rights in International Cooperation.
Lessons on International Cooperation for Human Development), Torino, 2004,
pp. 276.
CANTONI S., Cooperazione multilaterale e nanziamento allo sviluppo (Multilat-
eral Cooperation and Funding of Development), Napoli, 2004, pp. 314.
GIUFFRIDA R., Lo sviluppo sostenibile (Sustainable Development), in Studi di
diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. II, Napoli, 2004,
p. 1039 ff.
MARCELLI F., Il debito estero dei paesi in via di sviluppo nel diritto internazionale
(Foreign Debt of Developing Countries in International Law), Milano, 2004,
pp. 186.
NANETTI F. and SQUILLANTE F., Recenti sviluppi dellordinamento internazio-
nale in materia di concorrenza scale dannosa (Recent Developments in the
International Legal Order Concerning Harmful Fiscal Competition), in Studi
di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli,
2004, p. 2263 ff.
TOSATO G.L., The Monetary Constitution of the International Community since
the Second World War, in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. II, Napoli, 2004, p. 1443 ff.
VISMARA F., Proli internazionali dellimposizione tributaria (International As-
pects of Fiscal Obligations), Milano, 2004, pp. 234.
1. GENERAL
2. UNITED NATIONS
AGO R., LOrganizzazione internazionale dalla Societ delle Nazioni alle Nazioni
Unite (International Organization from the League of Nations to the United
Nations), CI, 2004, p. 505 ff.
ARCARI M., Larticolo 40 della Carta delle Nazioni Unite e le misure provvisorie
del Consiglio di Sicurezza (Article 40 of the UN Charter and Security Council
Provisional Measures), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1476 ff.
BALLADORE PALLIERI G. Gli emendamenti allo statuto delle Nazioni Unite
(Amendments to the UN Statute), CI, 2004, p. 273 ff.
BENEDETTI E., Successione tra Stati ed appartenenza alle Nazioni Unite: il caso
dellex Yugoslavia (Succession of States and UN Membership: The Case of
the Former Yugoslavia), RCGI, 2004, p. 81 ff.
BOBBIO N., Il ruolo dellONU nel nuovo assetto internazionale. Problemi giu-
ridici, etici e politici in un mondo trasformato (The Role of the UN in the
New International Legal Order. Juridical, Ethical, and Political Problems in a
Changed World), CI, 2004, p. 47 ff.
BOBBIO N., Nazioni Unite: bilancio critico di un quarantennio (United Nations:
Critical Assessment of the Last Forty Years), CI, 2004, p. 35 ff.
BOSCO G., Laccordo tra lItalia e le Nazioni Unite per lesecuzione delle sentenze
del Tribunale Penale Internazionale per il Ruanda (The Agreement between
Italy and UN for the Execution of the Sentences of the International Tribunal
for Rwanda), RCGI, 2004, p. 21 ff.
DELLA FINA V., Il bilancio nel diritto delle Nazioni Unite (The Budget in UN Law),
Milano, 2004, pp. 378.
DI TURI C., Le Nazioni Unite e la transizione politica in Iraq (The UN and the
Political Transition in Iraq), CI, 2004, p. 53 ff.
FRATTINI F., LItalia e le Nazioni Unite (Italy and the UN), CI, 2004, p. 403 ff.
FRULLI M., Il rigetto delle credenziali di governi non democratici da parte del-
lAssemblea generale dellONU: uno strumento di tutela della democrazia?
(The Refusal of Credentials of Non Democratic Governments by the UN Gen-
eral Assembly: An Instrument for the Protection of Democracy?), in ORR C.
and SCIANELLA L.G. (eds.), Limitazioni di sovranit e processi di democratiz-
zazione, Torino, 2004, p. 65 ff.
MILANO E., Security Council Action in the Balkans: Reviewing the Legality of
Kosovos Territorial Status, EJIL, 2004, p. 999 ff.
SCISO E., La risoluzione 1511 del Consiglio di sicurezza: verso una sanatoria
dellintervento contro lIraq? (UN SC Resolution 1511: Towards an Am-
nesty for the War against Iraq?), RDI, 2004, p. 171 ff.
SEMINARA A., La legittima difesa nello Statuto delle Nazioni Unite (Self-De-
fence According to the UN Statute), Giustizia penale, 2004, p. 604 ff.
STARITA M., Loccupation de lIraq. Le Conseil de Scurit, le droit de la guerre
484 BIBLIOGRAPHIES
3. NATO
1. GENERAL
BIANCHI A., International Law and US Courts: The Myth of Lohengrin Revis-
ited, EJIL, 2004, p. 751 ff.
BUQUICCHIO M., Premesse ad uno studio sulle attivit di rilievo internazionale di
Comuni e Province (dopo la riforma del Titolo V della Costituzione) (Com-
ments on a Study Concerning the International Action of Municipalities and
Provinces after the Reform of Title V of the Italian Constitution), Rassegna
parlamentare, 2004, p. 517 ff.
CONFORTI B., Note sulle recenti modifiche della Costituzione italiana in tema di
rispetto degli obblighi internazionali e comunitari (Remarks on the Recent
Amendments to the Italian Constitution Concerning Respect of International
and EC Obligations), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. I, Napoli, 2004, p. 495 ff.
FLORENZANO D., Gli atti pattizi delle Regioni italiane nellambito delle attivit
di cooperazione trasfrontaliera alla luce del rinnovato quadro costituzionale
(The Agreements Undertaken by Italian Regions in the Context of Transna-
tional Cooperation and in the Light of the Reform of Title V of the Italian
Constitution), DPCE, 2004, p. 680 ff.
FLORENZANO D., Lautonomia regionale nella dimensione internazionale. Dalle
attivit promozionali agli accordi ed alle intese (Regional Autonomy in the
International Dimension. From Promotional Activities to Agreements and
Understandings), Padova, 2004, pp. 358.
PANEBIANCO M., Soft law e materie costituzionali (Soft Law and Constitutional
Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali
e Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 183 ff.
PARISI N., Note sul concorrente ruolo di autorit esecutive e giudiziarie
nellesecuzione di obblighi internazionali in materia penale (Observations on
the Concurrent Role of Executive and Judicial Authorities in the Enforcement
of International Obligations in Criminal Matters), in ZICCARDI CAPALDO G.
(ed.), Attuazione dei trattati internazionali e Costituzione italiana. Una ri-
forma prioritaria, Napoli, 2004, p. 309 ff.
PARODI G., Il potere estero delle Regioni e delle Provincie autonome italiane
(The External Power of Italian Self-Governing Regions and Provinces), DPCE,
2004, p. 766 ff.
PISTOIA E., La questione del carattere self-executing o meno delle norme in mate-
ria di diritto penale adottate nel quadro del Terzo pilastro (The Problem of the
Self-Executing Nature of Norms on Criminal Matters Adopted in the Frame-
work of the Third Pillar of the EU), in Studi di diritto internazionale in onore
di Gaetano Arangio-Ruiz, Vol. I, Napoli, 2004, p. 593 ff.
486 BIBLIOGRAPHIES
CATALDI G., In tema di applicazione delle norme consuetudinarie sui diritti umani
nei giudizi interni (On the Application of Customary Norms on Human Rights
by Domestic Courts), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. II, Napoli, 2004, p. 441 ff.
ARREGHINI R., La Carta europea delle lingue regionali o minoritarie e la sua pecu-
liarit specica (The European Charter of Minority Languages and Its Peculi-
arities), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e
Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 227 ff.
CARBONE S.M., Lattuazione del diritto marittimo uniforme nellordinamento
italiano tra codicazione e decodicazione (The Implementation of Uniform
Marittime Law in the Italian Legal Order between Codication and Decodi-
cation), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e
Costituzione italiana. Una riforma prioritaria, Napoli, 2004, p. 153 ff.
DEL TUFO M., Problemi di adeguamento ai trattati internazionali in materia pe-
nale (Problems Relating to the Implementation of International Treaties on
Criminal Matters), in ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati
internazionali e Costituzione italiana. Una riforma prioritaria, Napoli, 2004,
p. 163 ff.
NEGRI S., Attuazione dei trattati di estradizione, divieto di applicazione della pena
di morte e Costituzione italiana (Implementation of Treaties on Extradition,
Prohibition of Application of the Death Penalty and Italian Constitution), in
ZICCARDI CAPALDO G. (ed.), Attuazione dei trattati internazionali e Costitu-
zione italiana. Una riforma prioritaria, Napoli, 2004, p. 233 ff.
ORIOLO A., Ratifica e attuazione in Italia dello Statuto di Roma: questioni di
compatibilit costituzionale e opportunit di unarmonizzazione legislativa
(Ratication and Implementation in Italy of the Rome Statute of the Inter-
ITALIAN BIBLIOGRAPHICAL INDEX 2004 487
4. IMPLEMENTATION OF UN SANCTIONS
PIRRONE P., Lattuazione delle decisioni del Consiglio di Sicurezza tra ordina-
mento nazionale e ordinamento comunitario (The Implementation of the
Decisions of the Security Council between the Italian and EC Legal Orders),
in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. I,
Napoli, 2004, p. 563 ff.
BARGIACCHI P., Peace in Home and Peace in the World in the Thought and in the
Political Action of Mustaf Kemal Ataturk, RCGI, 2004, p. 23 ff.
CANNIZZARO E., Sui rapporti tra Consiglio di sicurezza e Assemblea generale nel
campo del mantenimento della pace (About the Relationship between the Se-
curity Council and the General Assembly in matters of Peace-Keeping), RDI,
2004, p. 1066 ff.
488 BIBLIOGRAPHIES
CELLAMARE G., Caratteri della Missione delle Nazioni Unite in Etiopia ed Eritrea
(UNMEE) (Features of the UN Mission in Ethiopia and Eritrea (UNMEE)),
in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III,
Napoli, 2004, p. 1571 ff.
DI PAOLA G., Il ruolo delle forze armate italiane nellambito delle missioni inter-
nazionali (The Role of Italian Armed Forces in the Context of International
Peace-Keeping Operations), CI, 2004, p. 409 ff.
FRULLI M., Il ruolo (cessato) dellUnione dellEuropa Occidentale alla luce della
Carta delle Nazioni Unite (The (Ceased) Role of the WEO in the Light of
the UN Charter), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni
regionali e il mantenimento della pace nella prassi di ne XX secolo, Napoli,
2004, p. 343 ff.
INGRAVALLO I., Lazione internazionale per la ricostruzione dellAfghanistan
(The International Action for the Reconstruction of Afghanistan), CI, 2004, p.
525 ff.
LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento
della pace nella prassi di ne XX secolo (Regional Organizations and Main-
tenance of Peace in the Practice of the End of the XX Century), Napoli, 2004,
pp. 412.
MARCHESI A., Il ruolo dellOUA nella prevenzione e gestione dei conflitti e brevi
cenni alla cooperazione con le Nazioni Unite (The OUA Role in the Preven-
tion and Management of Conicts and Brief Remarks on the Cooperation with
the UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il
mantenimento della pace nella prassi di ne XX secolo, Napoli, 2004, p. 33 ff.
MARTINES F., Il ruolo dellUnione europea e suo coordinamento con le Nazioni
Unite e con la UEO (The Role of the European Union and Its Coordination
with the UN and the WEO), in LATTANZI F. and SPINEDI M. (eds.), Le organiz-
zazioni regionali e il mantenimento della pace nella prassi di ne XX secolo,
Napoli, 2004, p. 377 ff.
MINUTI A., ASEAN e mantenimento della pace nel quadro del sistema Nazioni
Unite (ASEAN and Maintenance of Peace in the UN Framework), in LAT-
TANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento
della pace nella prassi di ne XX secolo, Napoli, 2004, p. 161 ff.
NESI G., La cooperazione fra OSCE e Nazioni Unite (The Cooperation between
OSCE and the UN), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni
regionali e il mantenimento della pace nella prassi di ne XX secolo, Napoli,
2004, p. 131 ff.
ODONI M., La partecipazione della NATO ad azioni per il mantenimento della
pace realizzate under the authority del Consiglio di Sicurezza (NATO Par-
ticipation to Peace-Keeping Operations Performed under the Authority of the
Security Council), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni
regionali e il mantenimento della pace nella prassi di ne XX secolo, Napoli,
2004, p. 293 ff.
ITALIAN BIBLIOGRAPHICAL INDEX 2004 489
PENSABENE F., Le competeze e il ruolo della Lega degli Stati Arabi nella gestione
delle crisi della regione anche alla luce della cooperazione con le Nazioni Unite
(Competences and Role of the Arab League of States in the Management of the
Crisis in the Arabian Area also in the Light of the Cooperation with the UN), in
LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il manteni-
mento della pace nella prassi di ne XX secolo, Napoli, 2004, p. 107 ff.
PIRRONE P., I rapporti tra Organizzazione degli Stati americani e Organizzazione
delle Nazioni Unite (The Relationship between OAS and UN), in LATTANZI
F. and SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della
pace nella prassi di ne XX secolo, Napoli, 2004, p. 63 ff.
PISTOIA E., Prevenzione e gestione dei conflitti nella CSI e sistema delle Nazioni
Unite (Prevention and Management of Conicts in the CIS and the UN Sys-
tem), in LATTANZI F. and SPINEDI M. (eds.), Le organizzazioni regionali e il
mantenimento della pace nella prassi di ne XX secolo, Napoli, 2004, p. 235
ff.
PORRETTO G., Il raccordo fra Nazioni Unite e Comunit economica degli Stati
dellAfrica occidentale (ECOWAS) (The Link between the UN and the Eco-
nomic Community of African States (ECOWAS)), in LATTANZI F. and SPINE-
DI M. (eds.), Le organizzazioni regionali e il mantenimento della pace nella
prassi di ne XX secolo, Napoli, 2004, p. 181 ff.
RONZITTI N., The Legality of Covert Operations against Terrorism in Foreign
States, in BIANCHI A. (ed.), Enforcing International Law Norms against Ter-
rorism, Oxford, 2004, p. 17 ff.
SANTORI V., Il processo di democratizzazione in Kossovo dallazione di Stati (e
gruppi di Stati) a quella delle Nazioni Unite. Riessi sulla sovranit e integrit
territoriale della ex Repubblica federale di Jugoslavia oggi Unione di Serbia e
Montenegro (The Democratisation Process in Kosovo from State Action to
UN Action. Impact on the Sovereignty and Territorial Integrity of the Former
Republic of Yugoslavia, Now Serbia-Montenegro), in ORR C. and SCIANELLA
L.G. (eds.), Limitazioni di sovranit e processi di democratizzazione, Torino,
2004, p. 97 ff.
SANTORI V., The United Nations Interim Administration Mission in Kosovo and
the Sovereignity and Territorial Integrity of the Federal Republic of Yugosla-
via, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol.
III, Napoli, 2004, p. 1689 ff.
SCOTTO G., I bombardamenti a tutela delle zone di interdizione al volo in Iraq
(The Shelling for the Protection of No-Flying Zones in Iraq), in Studi di diritto
internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Napoli, 2004, p.
1723 ff.
TANZI A., Il ruolo delle organizzazioni regionali nel dibattito alle Nazioni Unite
(The Role of Regional Organizations in the UN Debate), in LATTANZI F. and
SPINEDI M. (eds.), Le organizzazioni regionali e il mantenimento della pace
nella prassi di ne XX secolo, Napoli, 2004, p. 1 ff.
490 BIBLIOGRAPHIES
1. GENERAL
BERNARDINI A., Diritto e forza nel sistema internazionale (Law and Force in the
International System), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1527 ff.
DE FIORES C., Riforma dei codici militari e guerre di globalizzazione (Reform
of Military Codes and Wars of Globalization), Democrazia e diritto, 2004, p.
105 ff.
DI BLASE A., La dottrina Bush e il diritto internazionale (The Bush Doctrine
and International Law), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. III, Napoli, 2004, p. 1587 ff.
FRIGESSI DI RATTALMA M., Qualche riflessione sullazione bellica in Afghanistan
e la legittima difesa (Some Remarks on the Armed Action in Afghanistan and
Self-Defence), in Studi di diritto internazionale in onore di Gaetano Arangio-
Ruiz, Vol. III, Napoli, 2004, p. 1623 ff.
FRIGESSI DI RATTALMA M., War in Afghanistan, Self-Defence and Questions of
Attribution of the September 11 Attacks to the Afghan-Taliban Regime, IYIL,
2003, p. 59 ff.
GIARDINA A., Diritto internazionale e uso della forza (International Law and Use
of Force), in CARNEVALE P. (ed.), Guerra e Costituzione, Torino, 2004, p. 13
ff.
IOVANE M. and DE VITTOR F., La doctrine europenne et lintervention en Iraq
(The European Doctrine and the Intervention in Iraq), AFDI, 2003, p. 17 ff.
IOVANE M., Il divieto delluso della forza armata tra obblighi degli Stati e diritto
dei popoli alla pace (The Prohibition of the Use of Armed Force between State
Obligations and the Right of Peoples to Peace), in BOSCHIERO N. (ed.), Ordine
internazionale e valori etici, Napoli, 2004, p. 79 ff.
RONZITTI N., La proibizione della forza armata e le sue eccezioni: lo stato del
diritto dopo il conitto iracheno (The Prohibition of Armed Force and Its Ex-
ceptions: The State of Law after the Iraqi War), in BOSCHIERO N. (ed.), Ordine
internazionale e valori etici, Napoli, 2004, p. 47 ff.
RONZITTI N., Lintervento in Iraq e il diritto internazionale (The Intervention in
Iraq and International Law), in COLOMBO A. and RONZITTI N. (eds.), LItalia e
la politica internazionale, Bologna, 2004, p. 67 ff.
SCOVAZZI T., La battaglia tra la Kearsage e lAlabama (The Battle between the
Kearsage and the Alabama), in Studi di diritto internazionale in onore di Gae-
tano Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2169 ff.
ITALIAN BIBLIOGRAPHICAL INDEX 2004 491
TANZI A., Dike Versus Ares. Etica, diritto e uso della forza nelle relazioni inter-
nazionali (Dike Versus Ares. Ethics, Law and Use of Force in International
Relations), in BOSCHIERO N. (ed.), Ordine internazionale e valori etici, Napoli,
2004, p. 131 ff.
VILLANI U., Luso unilaterale della forza per la tutela degli interessi fondamentali
della Comunit internazionale (The Unilateral Use of Force for the Protection
of the Fundamental Interests of the International Community), in BOSCHIERO
N. (ed.), Ordine internazionale e valori etici, Napoli, 2004, p. 55 ff.
VILLANI U., Legittima difesa e lotta al terrorismo nelloperazione Enduring Free-
dom (Self-Defence and Fight against Terrorism in the Operation Enduring
Freedom), in Studi di diritto internazionale in onore di Gaetano Arangio-
Ruiz, Vol. III, Napoli, 2004, p. 1771 ff.
ZICCARDI CAPALDO G., Legality vs. Effectivity in the Global Community: The
Overthrowing of Saddam Hussein, The Global Community, 2004, p. 107 ff.
2. HUMANITARIAN LAW
BOSCO C., BRUNO C., DELLA FINA V., DINUZZI R., EBOLI V. and FERRAJOLO O.,
Correspondents Reports Italy, YIHL, 2002, p. 545 ff.
CANTONI S., Il Comitato internazionale della Croce Rossa e lo sviluppo del diritto
internazionale umanitario (The International Committee of the Red Cross and
the Development of International Humanitarian Law), in PORRO G. (ed.), Studi
di diritto internazionale umanitario, Torino, 2004, p. 155 ff.
CONDORELLI L. and NAQVI Y., The War against Terrorism and Jus In Bello: Are
the Geneva Conventions Out of Date?, in BIANCHI A. (ed.), Enforcing Inter-
national Law Norms against Terrorism, Oxford, 2004, p. 25 ff.
DINI S., Contributo della giurisprudenza italiana allevoluzione del diritto umani-
tario (The Contribution of Italian Jurisprudence to the Evolution of Humani-
tarian Law), in PORRO G. (ed.), Studi di diritto internazionale umanitario,
Torino, 2004, p. 3 ff.
FRIGO M., Cultural Property v. Cultural Heritage: A Battle of Concepts in Inter-
national Law?, International Review of the Red Cross, 2004, p. 367 ff.
LATTANZI F., Il confine fra diritto internazionale umanitario e diritti delluomo
(The Border between International Humanitarian Law and Human Rights), in
Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz, Vol. III, Na-
poli, 2004, p. 1985 ff.
LEANZA U., Il rafforzamento della tutela internazionale del patrimonio culturale
in tempo di guerra nel nuovo diritto dei conitti armati (The Strengthening of
the International Protection of Cultural Heritage during Wartime in the New
Law of Armed Conict), in Studi di diritto internazionale in onore di Gaetano
Arangio-Ruiz, Vol. III, Napoli, 2004, p. 2037 ff.
MAINETTI V., De nouvelles perspectives pour la protection des biens culturels
492 BIBLIOGRAPHIES
3. DISARMAMENT
The long awaited manual on the law of armed conict produced by the United
Kingdom Ministry of Defence follows the famous volume published by HMSO
in 1958 under the tile The Law of War on Land, being Part III of the Manual of
Military Law. Like its antecedent the present manual has taken prot from the ad-
vice of eminent scholars, whose work has been precious because of the complexity
of the contemporary law of armed conict. Unlike the 1958 Manual, the present
one is a tripartite manual, since it deals with law of war on land, air and at sea. It
comprises 16 Chapters, including two dedicated, respectively, to Peace Support
Operations (PSO) and Internal Armed Conicts. These two Chapters are very ap-
propriate, since PSO and Non-International Armed Conicts have become a per-
manent feature of contemporary hostilities.
The reader appreciates that the Manuals rules are properly introduced with a
doctrinal presentation and footnotes, where necessary. Chapter 3 (The Applicability
of the Law of Armed Conict) points out that war has become a term largely
void of current international legal signicance except in the case of declared war
(p. 29). Indeed, the Manual is correctly entitled Law of Armed Conict, aban-
doning the 1958 title which relied on the classical term Law of War. Law of
Armed Conict is an appropriate title and should be preferred to other formulae
such as Humanitarian Law in Armed Conict, as the German Manual is entitled.
It is true that humanitarian law now encompasses both the law of The Hague and
the law of Geneva. However, the title of the UK Manual better renders the idea
of what the book deals with and avoids any confusion between humanitarian law
and human rights law. Even more so since the Manual often refers to human rights
and to the 1950 ECHR or the 1966 ICCPR and takes into account the connection
between humanitarian law and human rights, particularly in the Chapter devoted to
internal armed conict (Chapter 16).
The decision to produce a joint services manual is very felicitous. The distinc-
tion between war on land, on air and at sea seems to be rather articial. It is true
that the latter two branches have their specicity which marks a difference from
the former. However, there are common principles on which the three branches
rely. Common principles may generate common rules, as proven by the ones that
Protocol I dedicates to bombardment and which apply to land bombardment as well
as to naval and air bombardment. The UK Manual follows the modern stream, since
out of 16 Chapters it contains only two dedicated, respectively, to Air Operations
and Maritime Warfare.
For Air Warfare, a largely uncodied body of law, the Manual refers not only
to the few rules contained in Protocol I but also to the 1923 Hague Rules on Aerial
Italian Yearbook of International Law, Volume XIV, 2004 (B. Conforti et al., eds.)
2005 Koninklijke Brill NV. Printed in The Netherlands. pp. 23-38
494 BIBLIOGRAPHIES
Warfare which were never transformed into a treaty. The Manual states that they
are regarded to a large extent as reecting principles and customary rules (p. 10).
For War at Sea, the UK Manual draws extensively not only on the relevant Hague
Conventions, but also on the San Remo Manual on International Law Applicable
to Armed Conict at Sea, which is an academic endeavour, not a governmental
publication.
The inuence of the UN Charter on the law of armed conict is duly taken
into account, for instance in connection with neutrality and armistices. The Manual
correctly states that the traditional law of neutrality has been affected by and, to a
large extent, superseded by the UN Charter (p. 20). The Manual also recognizes
the Charters inuence on the modes for suspending or terminating hostilities. A
grave violation of a permanent armistice does not entitle the aggrieved party to
resume hostilities automatically and recourse to force is allowed only if the UN
Charter so authorizes.
One of the merits of the UK manual is its clarity. It has already been quoted
in ofcial documents, for instance by the Commission of Inquiry on Darfur which
relied heavily upon it for its ndings. The interpretation of rules governing armed
conict is not an easy task, given their complexity. Contemporary rules have been
drafted by a large number of States and negotiated by consensus. Indeed, com-
promise and constructive ambiguity are necessary ingredients of consensus, but
this often adds obscurity to complexity a negative feature, since law of war is a
body of rules which is applied in difcult times, when relations between States are
strained and governed by the force of arms.
The value of the UK Manual should not let us forget that some of the listed
rules raise controversy. This is particularly true of the regulation of belligerent
reprisals (sections 16.16-16.19.2). Section 16.17 states the conditions required for
undertaking reprisals. This is commendable. During the Diplomatic Conference
which adopted Protocol I, France tried to propose rules on lawful reprisals, but its
efforts were defeated. Sections 16.18 and 16.19 deal with unlawful reprisals such
as those against civilians, the civilian population and civilian objects. However,
Section 16.19.1 quotes the UK statement at the time of ratication of Protocol I
which afrms that the obligations under Articles 51 to 55 of Protocol I are accepted
on the basis of reciprocity. It follows that the United Kingdom reserves the right to
take reprisals against protected persons and objects, even though reprisals are ex-
plicitly forbidden by those provisions. This means, Section 16.19. 2 states, that
reprisals taken in accordance with the statement are permissible by and against the
United Kingdom.
In a footnote to Section 16.19.2, the Manual challenges the nding of the
ICTY, which in the Kupreskic case labeled attacks on civilians by way of re-
prisal as prohibited by customary international law. The UK statement is clear
if compared with the French and Italian reservations on the same subject which
are ambiguous. The UK Manual has translated the governments position into an
operational rule. It is however open to question whether the UK stance is accept-
REVIEW OF BOOKS 495
*
Of the Board of Editors.
496 BIBLIOGRAPHIES
allow the reader to discard texts that do not appear relevant to ones research. One
must admit that specialization by international lawyers is a necessary consequence
of the development of international law in new realms that in the past were only
occasionally or marginally regulated by treaty (international criminal law, trade,
investments). It is also the consequence of the important contribution that judicial
and arbitral bodies make to those branches of international law.
Still, maintaining unity in the face of this fragmentation is also a necessary task
for international lawyers and for the members of those bodies. The most relevant
outcome of judicial practice has to be digested, so as not to remain conned to the
experts of this or that eld and in order that cross fertilization be maintained. In this
perspective, the initiative of Brigitte Stern and Hlne Ruiz Fabri, the well known
experts on the international judicial process and international trade law from Paris,
deserves a special praise for their original approach in dealing with this issue in the
context of WTO case law.
The case law developed by the panels and the Appellate Body since the estab-
lishment of the World Trade Organization in 1995 presents a formidable challenge:
ten year later the gures indicate about 90 reports by panels and 60 reports by the
Appellate Body. These are lengthy decisions, as required by the need to summarize
complicate facts and detailed parties arguments, as well as to develop adequate
legal reasoning to sustain the multiple ndings corresponding to the various is-
sues. Most of the time a scholar is not interested so much in the nal holding but
rather in the reasoning leading to it. The way in which issues of treaty interpreta-
tion are addressed may be of special interest for those who do not deal with trade
but are concerned with the coherence in application of those criteria by different
international courts. The possibility of selecting the relevant paragraphs of the text
through key words and other electronics search mechanism and the existence of
repertories based on these techniques (such as the Repertory of the Appellate Body
case law published in 2005 and available in the WTO website) supplies an impor-
tant but partial answer to the need of support felt by researchers.
The volume under review covers the rst nine reports. It is the rst of a se-
ries which intends to present chronologically all Appellate Body reports through
timely volumes (the second volume is already available). The approach is novel
in many respects. In the rst place, material and comments appear both in French
and English. This will not only accommodate a larger public but will hopefully
help bridging one of the several divides that threaten the unity of international law
in its current explosion: the language barrier. This is especially saddening because
languages have never prevented international lawyers in the past to maintain a dia-
logue based on reciprocal knowledge of their respective work.
For each case the volume includes in a few pages for each item a synopsis,
bibliographical references, a summary of the facts and of the procedure, the claims
of the parties, the ndings of the panel and the issues raised in appeal. A summary,
with excerpts, of the reasoning of the Appellate Body and the full conclusions fol-
low. The nal paragraph of each presentation is devoted to the subsequent imple-
REVIEW OF BOOKS 497
mentation. This is a welcome inclusion since it is often difcult to trace the relevant
information in the WTO documents.
After this objective presentation of the case a comment of the case, called
Observations, of eight to ten pages follows, in a standard format, addressing in
a scholarly way the basic issues as decided by the Appellate Body. Their authors
have a variety of backgrounds. The contributors include doctoral candidates as well
as established researchers, practitioners, and academics, both English and French
speaking. The initiative undertaken by the two general editors commends itself as a
valuable tool to approach a larger public of international lawyers to the asperities,
secrets and (if I may say so) treasures of the WTO jurisprudence, thus putting it in
a wider perspective.
GIORGIO SACERDOTI*
*
Of the Board of Editors.
498 BIBLIOGRAPHIES
within the broader framework of the manner in which the international community
reacts to atrocities. In doing so, international criminal law, as a tool for prevent-
ing and punishing atrocities, acquires its utmost relevance and is placed within the
context of a desirable tendency towards a stronger community reaction to the com-
mission of gross breaches of international law. It is against this background that the
author additionally tackles the question of the role of the international community
and of States in the implementation of international criminal law.
Upon reading Casseses book, the reader is already in the introduction im-
mediately impressed by the volume and central role given to case-law, and by the
extraordinary effort of the author to contextualise concepts and rules of interna-
tional criminal law through linking them to their concrete application by courts and
tribunals.
The subdivision of the book is into four parts, comprising a total of 23 chapters.
Part I, by way of introduction, lays down the fundamentals of international criminal
law, starting with its general concept, highlighting its general features and proceed-
ing to the historical evolution and the notion of international crimes, thereby setting
the scene for the following part.
Part II of the book is devoted to substantive criminal law, with two different
sections dedicated to international crimes (section I) and to the fundamentals of
international criminal responsibility (section II). Regarding the analysis of inter-
national crimes, Casseses textbook covers not only the so-called core crimes,
namely genocide, crimes against humanity and war crimes, but also other interna-
tional crimes such as aggression, torture and terrorism. For each of these crimes,
the author begins with an introductory examination of the concept and the possible
historical developments, and then goes on to cover the elements (objective and
subjective) of each crime. Once again the relevance of case-law is conveyed. As
demanded by a systematic and comprehensive examination of the subject, in high-
lighting the relevant features of international crimes and in describing their consti-
tutive elements, the author extends the analysis through constant references to the
case-law (especially the jurisprudence of the two ad hoc Tribunals) and customary
international law.
Section II of Part II, after having set out the general principles of individual
criminal responsibility, proceeds to examine specic issues such as the mens rea of
international crimes, the different forms of perpetration of crimes (including omis-
sion), cumulative offences, the various circumstances excluding criminal liability,
and the issue of immunities. It is worth noting the signicant attention paid to na-
tional legal systems and national case-law, and the effort in drawing comparisons
between the national and the international level in order to better explain the fea-
tures of international criminal law, and to highlight similarities and differences be-
tween the two levels. Similarly, when possible, the author points out at the relevant
differences between the common law and civil law systems. This element turns out
to be very useful to the reader, facilitating as it does the ability to immediately grasp
the signicance of some aspects specic to the different systems.
REVIEW OF BOOKS 499
Part III and Part IV analyse the prosecution and punishment of international
crimes by, respectively, national and international courts. In Part III, after the analy-
sis of the different legal grounds of jurisdiction, and before dealing with the legal
impediments to the exercise of jurisdiction at the national level, the author focuses
on the impact of international law on national legislations, addressing the questions
of whether there exist international customary rules obliging or authorising States
to prosecute international crimes, and then reecting on the scant inuence that
international law has apparently exercised so far on national courts and national
systems. Considered overall, the part devoted to the prosecution and punishment
of international crimes by national courts is a very welcome addition to the topics
generally comprised in textbooks on international criminal law.
The fourth and last part of the book deals with the prosecution and punish-
ment of international crimes by international courts. It features a general section
which gives a historical overview of the establishment of international criminal
tribunals, from references to the Nuremberg and Tokyo Tribunals to the estab-
lishment of the UN ad hoc Tribunals, the International Criminal Court and the
recent mixed or hybrid criminal courts and tribunals. Part IV then focuses on
some critical issues which arise from the necessity of coordinating the activi-
ties of international courts or tribunals with that of the national courts: primacy,
complementarity and co-operation are the main models of the interface between
international and national jurisdictions. The author does not dwell, however,
excessively on all aspects, but rather primarily connes the analysis to the main
features of each model.
Finally, the last section of the book is devoted to international criminal trials. In
this framework, as introductory chapeau, Professor Cassese presents a highly inter-
esting comparison between the adversarial and the inquisitorial systems, covering
the fundamental features both theoretical and procedural of the two models, ex-
plaining their reciprocal inuence, the choices leading to the initial predominance
of the adversarial model in international proceedings, and the recent and gradual
incorporation of signicant features of the inquisitorial model in the UN ad hoc
Tribunals systems. The author, then, moves on to analyze the general principles
governing international criminal trials and outlines the main stages of international
proceedings: the prosecutors investigations, pre-trial and trial proceedings, appel-
late and review proceedings, enforcement of sentences.
The beginning and the end of Casseses textbook are strictly linked one to
another. The book starts by introducing the importance of a strong reaction by the
international community to the commission of atrocities and ends with the re-af-
rmation of the same idea. In the concluding chapter, the author reects on the
possible ways of improving international criminal justice, making references to
recent and innovative trends, both judicial and extra-judicial. The importance of re-
acting to widespread atrocities can be thus considered as a meaningful component
of international criminal law viewed as one of a number of methods open to the
international community as a whole.
500 BIBLIOGRAPHIES
Since Cassese is an expert in the eld, it comes at no surprise that his work
presents a number of merits. Firstly, the book under review renders the essence and
important functions of international criminal law more understandable through an
in-depth reading and interpretation of an impressive amount of case law, which is
indeed the most fruitful way to explain the evolution of norms and rules. Secondly,
the treatment of all subjects is based on extensive analysis and recurring refer-
ences to jurisprudence and literature from different jurisdictions. Finally, the broad
importance given to national case-law (besides the jurisprudence of international
tribunals) is to be welcomed, especially when assessing the existence of customary
international law.
Moreover, the textbooks utility and its additional value as a research source
is enhanced by the tables inserted at the beginning, in particular the Table of Cases
(national and international case-law) and the Table on National Legislation (for a
comparative perspective on national laws), both of which list and specify cases and
laws, and indicate where they are treated and located within the book.
Despite the numerous merits, one can observe that, paradoxically, one of the
primary strengths of the book that is the great amount of information and analysis
that the author carries out in relation to national and international jurisprudence
may result at the same time in one of its major weaknesses. Owing to the sheer
volume of the information, it is at times easy to lose the thread and the reader
may nd it difcult to immediately grasp the core points of the topics discussed.
Furthermore, being Professor Cassese highly involved in the development of inter-
national criminal law, a critical remark may be that necessarily and consequently
the vision of the subject he offers is a subjective one, connoted by his personal
understanding of international criminal law. But, again, at the same time this con-
sideration could be made in support of the strength of this textbook as a remarkable
insight on the subject.
Another aspect that the reader cannot fail to note is the lack of a comprehensive
bibliography at the end of the textbook. The choice made in this regard is of using
several select bibliographies at the end of each chapter; a choice that on the one
hand can be useful as it immediately indicates the relevant references for the topic
discussed, but that on the other hand can obstruct a quick search and a global
overview of the literature referred to. The result is to have several thematic bib-
liographies specic to the different subjects dealt with but very short, thereby
depriving the reader of an alphabetical and complete list of references.
On the other side, an undoubtedly novel and valuable feature of the book is the
fact that it is associated with a website, created specially, which allows the book
itself to avoid lengthy appendices and to present a fairly manageable size. This
companion website comprises three main sections, the most useful of which is
Resources. It contains links to all relevant materials quoted in the book, compris-
ing key international documents and foreign legislation. For every chapter, a link
leads to the relevant documents (international conventions and protocols, Statutes
of international tribunals and courts, national legislations, etc.) utilized in that
REVIEW OF BOOKS 501
particular section. Also of benet is the presence of web-links related to the topics
covered by the book.
Professor Casseses book is indeed a praiseworthy contribution to the eld of
international criminal law, a textbook suitable for both students and practitioners
alike. The reader will nd the volume particularly helpful in developing a deeper
knowledge of international criminal law also through a critical assessment of the
jurisprudence related to it. More than just a textbook, this latest work by Cassese
is a call for action, stemming from the realistic understanding that only a com-
bination of different actions can be effective: there is no single response to the
multifarious aspects of international criminality and, therefore, one must per-
force resort to a whole gamut of responses, each most suited to a specic condition,
effectively to stem international crimes (see the author himself at p. 458).
SILVIA DASCOLI*
The book under review is the companion volume to the Authors seminal text-
book War, Aggression and Self-Defence, the third edition of which was published
by Cambridge University Press in 2001 and reviewed in this Yearbook (see the
review by RONZITTI, IYIL, Vol. XI, 2001, pp. 468-471). Dinsteins new textbook
is a thorough and careful analysis of the rules governing the conduct of hostilities
in international armed conict, as they are prescribed and implemented at present.
It is divided into nine chapters respectively dedicated to: the general framework;
lawful combatancy; prohibited weapons; legitimate military objectives; protection
of civilians and civilian objects from attack; special protection measures; environ-
mental protection; other methods and means of warfare; war crimes, command
responsibility and defences.
The rst chapter elucidates the scope of the Authors analysis. The study of
the rules governing the conduct of hostilities is conned to international armed
conicts. The growing complexity of contemporary armed conicts, however, is
not neglected. As Dinstein rightly emphasises, an armed conict may present ele-
ments of both intra-State and inter-State conict, as in the case of the armed conict
in Afghanistan in 2001. Moreover, an armed conict may start as an intra-State
conict and evolve into an inter-State one, such as the armed conict in the former
Yugoslavia in the 1990s. The conduct of hostilities in international armed conict is
studied against the background of customary norms and treaties in force. Relevant
pronouncements of international and national courts are also recalled.
*
PhD Researcher, Department of Law, European University Institute, Florence.
502 BIBLIOGRAPHIES
ruling at the time, offers a denite military advantage. In Dinsteins opinion, this
denition, which is generally considered as embodying customary international
law, is far from satisfactory. Its abstract and generic wording and the absence of
any, if only illustrative, list of military objectives are stressed in particular.
In many instances, classifying an object or an individual/group of individu-
als as a military objective under Article 52(2) is not free of difculties. Dinstein
carefully examines these instances and differentiates: retreating troops; targeting
individuals; police; industrial plants; oil, coal and other minerals; electricity grids;
civilian airports and maritime ports, trains, trucks and barges; civilian television
and radio stations; government ofces; and political leadership. As far as targeted
killings are concerned, Dinstein states that the law of international armed conict
prohibits treacherous killing of enemy individuals, but does not preclude sin-
gling out an individual enemy combatant as a target, if the attack is carried out
without treachery (p. 94). From this point of view, he considers targeted killings
of suspected Palestinian terrorists by Israeli combat helicopters, tanks and infantry
units as fully legitimate. In actual fact, the legitimacy of Israels practice of tar-
geted killings is highly controversial. In particular, after the Israeli execution of
two Hamas leaders (Yassin and Rantisi) in the Gaza Strip in 2004, this practice was
strongly condemned as violating the fundamental principles of the law of interna-
tional armed conict by many States, including the Russian Federation, China, the
United Kingdom, France and all the other European Union Member States (see the
debate held in the Security Council on 19 April 2004: UN Doc. S/PV 4945).
The fth chapter analyses the customary and treaty norms protecting civilians
and civilian objects from attacks. The Author thoroughly considers: the prohibition
of direct attacks against civilians; the ban of indiscriminate attacks; the principle
of proportionality; the duty to take precautionary measures with respect to attacks;
the prohibition of shielding military objectives with civilians; and the ban on the
deliberate starvation of civilians. Noteworthy observations on the aws of the pres-
ent norms and the numerous references to contemporary State practice supplement
his analysis.
The sixth chapter deals with the special protection measures afforded to certain
categories of persons and objects. As for persons entitled to special protection, it in-
cludes: women and children; the wounded and sick; the shipwrecked; parachutists
from aircraft in distress; surrendering members of armed forces; parlementaires;
medical personnel; religious personnel; civil defence personnel; relief personnel;
and journalists. With regard to this last category of persons, one cannot but observe
the conspicuous violations of even the most elementary protection rules in recent
international armed conicts.
As to objects entitled to special protection, the following are worthy of men-
tion: cultural property and places of worship; medical establishments and units;
works and installations containing dangerous forces. From Dinsteins study of the
norms protecting cultural property, it may be inferred that a customary rule has de-
veloped according to which this property is only liable to attack when it is used in
504 BIBLIOGRAPHIES
such a way that qualies it as a military objective. Evidently, the aforesaid rule does
not offer any viable solution when property of great importance to the cultural and
spiritual heritage of mankind is at stake. Dinstein appropriately cites the dilemma
faced by Israel in 2002 as an example, upon the armed takeover of the Church of
the Nativity in Bethlehem by a group of Palestinian armed combatants; and remarks
that some outstanding cultural and spiritual places cannot be subjected to a me-
chanical application of the ordinary rules of the law of international armed conict
(p. 163). In actual fact, military manuals often recommend that the circumstances
prevailing at the time of application of these rules should be taken into account.
For instance, The Handbook of Humanitarian Law in Armed Conicts, edited by D.
Fleck, states that the cultural property which the enemy uses for military purposes
shall also be spared as far as possible (p. 387).
The seventh chapter contains a careful examination of treaty law relating to the
protection of the environment in time of armed conict. Special attention is devot-
ed to the rules enshrined in the 1976 ENMOD Convention and those set out in 1977
Protocol I. As far as the latter are concerned, Articles 35(3) and 55(1) come into
question. Both prohibit the use of methods or means of warfare that are intended,
or may be expected, to inict widespread, long-term and severe damage to the
natural environment. At the time of the adoption of the 1977 Protocol I, this prohi-
bition certainly constituted an innovation in the law of international armed conict.
Nowadays, it is highly disputed whether it reects customary international law.
Dinstein is of the view that Articles 35(3) and 55(1) have not yet crystallised into
customary rules. He quotes the International Court of Justice Advisory Opinion in
the Nuclear Weapons case in 1996. As regards Articles 35(3) and 55 of the 1977
Protocol I, the Court stated that taken together, these provisions embody a general
obligation to protect the natural environment against widespread, long-term and
severe environmental damage; the prohibition of methods and means of warfare
which are intended, or may be expected, to cause such damage; and the prohibi-
tion of attacks against the natural environment by way of reprisals, but added that
these are powerful constraints for all the States having subscribed to these provi-
sions (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Reports, 1996, p. 226 ff., p. 242, para. 31). From the latter assertion, Dinstein infers
that the Court considered the aforesaid articles as bare treaty rules.
In the eighth chapter, the Author takes a fresh look at the long-standing ques-
tion of the legitimacy of certain methods and means of warfare, namely perdy,
ruses of war, espionage, pillage, seizure as booty of war, capture and condemnation
as prize, other destruction and seizure of enemy property, and belligerent repris-
als. As regards the last, Dinstein inter alia addresses the issue of the legitimacy of
belligerent reprisals against civilians. Article 51(6) of the 1977 Protocol I prohibits
attacks against civilians by way of reprisals. The International Criminal Tribunal
for the Former Yugoslavia, in its judgement in the Kupreki case in 2000, stated
that, after the adoption of the 1977 Protocol I, a customary rule of international
law has emerged on the matter under discussion (Prosecutor v. Kupreki et al.,
REVIEW OF BOOKS 505
Judgement, ICTY Trial Chamber, Case No. IT-95-16-T, 14 January 2000, para.
531). Dinstein, however, does not share this assertion, contending that it is not sup-
ported by State practice.
The last chapter focuses on war crimes. The Author reviews the denition
of war crimes contained in Article 6(b) of the 1945 Charter of the International
Military Tribunal at Nuremberg and the most recent one established in Article 8(2)
of the 1998 Statute of the International Criminal Court. As far as the latter is con-
cerned, he concedes that it largely corresponds to customary international law, but
stresses that certain segments clearly depart from customary rules, such as the one
referring to direct and indirect transfer by the Occupying Power of its own civilian
population into the occupied territory as a war crime (Article 8(2)(b)(viii)). A sharp
distinction is also drawn between the concepts of war crimes and unlawful combat-
ancy. However, the possibility of an unlawful combatant being a war criminal at the
same time is not ignored. Finally, Dinstein considers the complex issue of the com-
manders responsibility with respect to war crimes committed by his subordinates
and assesses the admissibility of defence pleas usually invoked in war crimes trials,
including obedience to superior orders.
The Author concludes his study on the law regulating the conduct of hostili-
ties in international armed conict with laudable remarks on the major problems
confronting it at present. Above all, he rightly stresses the need for reviving the
twentieth century tradition of the periodic review of the main body of the law of
international armed conict.
Dinsteins new textbook is not only a learned treatise but also a useful tool with
a wealth of references to practice. The Authors writing is also very accessible. For
its numerous qualities, this new textbook is expected to become a classic on the law
governing the conduct of hostilities in international armed conict.
MARINA MANCINI*
*
Researcher of International Law, Mediterranean University of Reggio Calabria.
BOOKS RECEIVED
BENEDETTO CONFORTI, Le Nazioni Unite, 7th ed., Padova, Cedam, 2005, pp. 360.
FABIO MARCELLI, Il debito estero dei Paesi in via di sviluppo nel diritto internazio-
nale, Milano, Giuffr, 2004, pp. 186.
ROSA MARA RIQUELME CORTADO, Las reservas a los tratados: lagunas y am-
bigedades del Rgimen de Viena, Murcia, Universidad de Murcia, Servicio de
Publicaciones, 2004, pp. 433.
SILVIA SANNA, Diritti dei lavoratori e disciplina del commercio nel diritto interna-
zionale, Milano, Giuffr, 2004, pp. 301.
508 BIBLIOGRAPHIES
*
This Index has been compiled by Alessandro Chechi and Riccardo Pavoni. The most
signicant judicial cases and legal instruments cited throughout the volume have also been in-
cluded.
510 INDEX
Convention on the Law of the Non- Cultural heritage, 435 ff., 447, 503-
navigational Uses of International 504
Watercourses, 238
Cultural property, international protec-
Convention on the Protection and Use tion, 433
of Transboundary Watercourses and
International Lakes, 238 Underwater Cultural Heritage
Convention, 384
Hague Convention IX on naval bom- Human rights, 39, 40, 44, 45, 48, 130,
bardment, 401 132, 140, 159, 165 ff., 278, 291,
297, 298, 305, 307, 315, 350, 389,
402 see also American Convention
Hague Rules on Aerial Warfare, 493
on Human Rights; European Con-
vention on Human Rights; European
Humanitarian law, 21, 28, 44, 69, 273, Union (EU)/European Commu-
401, 402, 441, 493, 501 see also nity (EC); Geneva Convention (IV)
Geneva Convention (IV) relative to relative to the Protection of Civilian
the Protection of Civilian Persons in Persons in Time of War; Humanitar-
Time of War; Regulations Respect- ian law; Self-determination, right to;
ing the Laws and Customs of War on UN Commission on Human Rights
Land annexed to the Fourth Hague
Convention of 1907 compensation, 182, 184-185, 187,
189-190
erga omnes obligations, 153-156 corporations, 26-32
Geneva Convention (III) relative discrimination, based on race or
to the Treatment of Prisoners nationality, 187, 345 ff.
of War, 54, 55, 57, 62, 63, 64-
65, 67-68, 69-71, 74, 75, 76, freedom of movement, 144
77, 78, 81, 401-402 gross/serious violations, 41, 46,
Geneva Conventions, 54-55, 61, 73, 165 ff., 285, 446, 497,
71, 72, 74, 76, 78, 401, 402, 498, 499
502 human genetics, 83-120
human rights, relation to, 145-147 indigenous peoples rights, 29
implementation, 80 inhuman and degrading treatment,
Islamic concept of, 61-62, 78-79 187, 341
Lieber Code, 149 minorities, 435, 436
military necessity, 133, 134, 135- non-discrimination, 104, 113
136, 149-153 persons with disabilities, 117-119
prisoners of war, 52-81 principle of equality before the
Protocol Additional to the Geneva law, 354, 372
Conventions relating to the reproductive freedom, 109-110
Protection of Victims of In- reproductive technology, 83-120
ternational Armed Conicts
(Protocol I), 54, 125, 126, right to an adequate standard of
131-132, 140, 171, 502 living, 144
serious violations, 41, 46, 273, right to education, 144
278, 285, 497 right to found a family, 108
INDEX 515