(Benedetto Conforti) The Italian Yearbook of Inter

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW
THE ITALIAN YEARBOOK OF INTERNATIONAL LAW

Volume 13
Research for this publication has been made possible by a grant from the
Fondazione Monte dei Paschi di Siena
THE ITALIAN YEARBOOK OF
INTERNATIONAL LAW
Volume XIII
2003
BOARD OF EDITORS
BENEDETTO CONFORTI, University of Napoli “Federico II”

LUIGI FERRARI BRAVO, University of Roma “La Sapienza”
FRANCESCO FRANCIONI, European University Institute, Florence (General Editor)
NATALINO RONZITTI, LUISS-Guido Carli University, Roma
GIORGIO SACERDOTI, Bocconi University, Milano
Assistant Editor: RICCARDO PAVONI, University of Siena
MARTINUS NIJHOFF PUBLISHERS

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ADVISORY BOARD
ROBERTO ADAM PASQUALE PAONE

University of Macerata University of Roma “Tor Vergata”
GIOVANNI BATTAGLINI PAOLO PICONE
University of Ferrara University of Roma “La Sapienza”
PAOLO BENVENUTI RICCARDO PISILLO MAZZESCHI
University of Roma “Tre” University of Siena
SERGIO M. CARBONE FAUSTO POCAR
University of Genova University of Milano “Statale”
FRANCESCO CARUSO MAURO POLITI
“Istituto Suor Orsola Benincasa”, Napoli University of Trento
ANTONIO CASSESE LUCA RADICATI DI BROZOLO
University of Firenze University of Milano “Cattolica”
ANGELO DAVÌ ALBERTO SANTA MARIA
University of Roma “La Sapienza” University of Milano “Statale”
FRANCESCO DURANTE MARIA RITA SAULLE
University of Roma “La Sapienza” University of Roma “La Sapienza”
PAOLO FOIS TULLIO SCOVAZZI
University of Sassari University of Milano-Bicocca
LAURA FORLATI PICCHIO LUIGI SICO
University of Padova University of Napoli “Federico II”
GIORGIO GAJA VINCENZO STARACE
University of Firenze University of Bari
ANDREA GIARDINA GIROLAMO STROZZI
University of Roma “La Sapienza” University of Firenze
FLAVIA LATTANZI GIUSEPPE TESAURO
University of Roma “Tre” University of Napoli “Federico II”
UMBERTO LEANZA ANTONIO TIZZANO
University of Roma “Tor Vergata” University of Roma “La Sapienza”
RICCARDO LUZZATTO GIAN LUIGI TOSATO
University of Milano “Statale” University of Roma “La Sapienza”
SERGIO MARCHISIO TULLIO TREVES
University of Roma “La Sapienza” University of Milano “Statale”
PAOLO MENGOZZI ENNIO TRIGGIANI
University of Bologna University of Bari
FRANCO MOSCONI GABRIELLA VENTURINI
University of Pavia University of Milano “Statale”
BRUNO NASCIMBENE UGO VILLANI
University of Milano “Statale” University of Roma “La Sapienza”
MASSIMO PANEBIANCO
University of Salerno
Editorial assistance for this volume has been provided by Ms. Emmanuela Bertucci and Ms.
Tanya Spisbah.
Manuscripts, books for review and correspondence may be sent to THE ITALIAN YEARBOOK
OF INTERNATIONAL LAW c/o Riccardo Pavoni, Via Mattioli 10, 53100 Siena (Italy) and/or
by e-mail to pavoni@unisi.it.
CONTENTS
LIST OF ABBREVIATIONS XV
ARTICLES
REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH OF
POSITIVE OBLIGATIONS: THE CASE-LAW OF THE EUROPEAN COURT
OF HUMAN RIGHTS 3
Benedetto Conforti
GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF

SOMALIA 11
Abdulqawi A. Yusuf
FRAGMENTED SOVEREIGNTY? THE EUROPEAN UNION AND ITS

MEMBER STATES IN THE INTERNATIONAL ARENA 35
Enzo Cannizzaro
WAR IN AFGHANISTAN, SELF-DEFENCE AND QUESTIONS OF

ATTRIBUTION OF THE SEPTEMBER 11 ATTACKS TO THE AFGHAN-
TALIBAN REGIME 59
Marco Frigessi di Rattalma
THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION ON LEGALITY

OF ARREST: CAN AN INTERNATIONAL CRIMINAL COURT ASSERT
JURISDICTION OVER ILLEGALLY SEIZED OFFENDERS? 77
Andrea Carcano
NOTES AND COMMENTS

CULTURE AND TRADE? A EUROPEAN WAY “TOWARDS AN
INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY” 97
Rostam Josef Neuwirth
THE UNESCO DECLARATION CONCERNING THE INTENTIONAL

DESTRUCTION OF CULTURAL HERITAGE: ONE STEP FORWARD AND
TWO STEPS BACK 131
Federico Lenzerini
THE ESTABLISHMENT OF THE SECRETARIAT OF THE ANTARCTIC

TREATY 147
Patrizia Vigni
VIII CONTENTS
THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2003) 157
Tullio Treves
THE ACTIVITY OF THE INTERNATIONAL LAW COMMISSION DURING ITS

55TH SESSION 171
Massimo Iovane
THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2003) 189

Federico Lenzerini and Massimiliano Montini
REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2003 BY THE

EUROPEAN COURT OF HUMAN RIGHTS ON SUBJECTS RELEVANT TO
INTERNATIONAL LAW 207
Simona Granata
ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
Classifications Scheme 223
JUDICIAL DECISIONS
(edited by Giuseppe Cataldi and Massimo Iovane)
II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 225
III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS

Immunity of foreign States from jurisdiction and prejudgement attachment
- The issuance of bonds by a State on the international market constitutes a
commercial activity not enjoying immunity from jurisdiction - Article 8 of the
Bilateral Treaty on the Protection of Investments between Argentina and Italy,
signed in Buenos Aires on 22 May 1990 - The request for a prejudgement at-
tachment considered to be justified on the basis of Argentina’s economic crisis
and debt default - Assets belonging to a foreign State may be seized only if they
are not destined for the performance of that State’s public purposes
Tribunale di Roma, 22 July 2002 (order)
Mauri and Others v. the Republic of Argentina 225
Article 11 of the Lateran Treaty between Italy and the Holy See concluded
in Rome on 29 February 1929 stating that the central bodies of the Catholic
Church are exempted from any interference by the Italian State - Whether this
Article precludes the exercise of Italian criminal jurisdiction for offences hav-
ing effects on the Italian territory - Distinction between non interference and
immunity from jurisdiction - The Vatican Radio may not be considered as a
central institution taking part in the government of the Catholic Church in the
exercise of its universal spiritual mission - Treaty provisions amounting to a
CONTENTS IX
limitation to State sovereignty should be restrictively interpreted - Article 31 of

the Vienna Convention on the Law of Treaties
Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516
Re: Tucci, Borgomeo and Pacifici 227
XI. HUMAN RIGHTS

Article 14 (Personal Domicile) of the Italian Constitution - Right to respect
for private life - Article 8 of the European Convention on Human Rights and
Fundamental Freedoms - Article 17 of the International Covenant on Civil and
Political Rights - Articles 7 and 52 of the Charter of Fundamental Rights of the
European Union
Corte Costituzionale, 24 April 2002, No. 135 231
Article 6 paragraph 2 of the Treaty on European Union - Preliminary ruling of

the Court of Justice of the European Communities - Article 1 paragraph 1 of the
First Protocol to the European Convention on Human Rights and Fundamental
Freedoms - Direct applicability - Compatibility of land planning with the right
of property
Corte di Cassazione (Sez. I civile), 19 July 2002, No. 10542
Muscas and Others v. Comune di Cagliari 234
Article 2 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 - Right to life - Deprivation of
life - Lawfulness of the use of force and firearms by law enforcement officials
- Absolute necessity - Article 53 Italian Criminal Code
Corte di Cassazione (Sez. IV penale), 2 May 2003, No. 20031
Re: Fusi 237
Right of Property - “Occupation-expropriation” rule - Article 1 of the First

Protocol to the European Convention on Human Rights and Fundamental
Freedoms - Role of the case-law of the European Court of Human Rights
Corte di Cassazione (Sezioni Unite civili), 14 April 2003, No. 5902
Stea-Schiralli v. Comune di Modugno 241
Article 6 paragraph 1 of the European Convention on Human Rights and Fun-

damental Freedoms - Right to “reasonable time” in the length of proceedings
- Just satisfaction - Establishment of the alleged non-pecuniary damage - In-
terpretation of the European Convention on Human Rights and Fundamental
Freedoms - Effects of judgments of the European Court of Human Rights
- Law No. 89 of 2001 (“Legge Pinto”)
Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No. 1338
Balsini v. Ministero della Giustizia
Lepore v. Ministero della Giustizia
Corbo v. Ministero della Giustizia
X CONTENTS
Corte di Cassazione (Sezioni Unite civili), 27 Nov. 2003-26 Jan. 2004, No.
1341
Lepore-Lepore v. Ministero della Giustizia 245
XII. INTERNATIONAL CRIMINAL LAW 252
XIII. INTERNATIONAL RESPONSIBILITY 252
XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

ECONOMIC MATTERS
Co-operation with the International Criminal Tribunal for the Former Yugosla-
via (ICTY) on enforcement of sentences - Recognition of the judgments of the
ICTY - Whether the national authorities have the power to convert, by adopting
the “exequatur” order, the sentence pronounced by the ICTY into a national
sentence of a lesser term of imprisonment - Agreement between Italy and the
United Nations of 6 February 1997 - Interpretation of an agreement authenti-
cated in two languages - Interpretation of conventional rules in the light of legal
rules of the State of the judge - Interpretation of conventional rules in the light
of relevant rules contained in United Nations Security Council Resolution No.
827(1993) adopting the Statute of the ICTY
Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377
Re: Jelisic 252
Execution of letters rogatory - Whether copies require official authentication

for their admissibility as evidence - 1959 European Convention on Mutual As-
sistance in Criminal Matters - Relationship between treaty law and domestic
law - Treaty between Italy and Switzerland concluded in Rome on 10 Septem-
ber 1998 which supplements the European Convention on Mutual Assistance
in Criminal Matters and facilitates the application of the principles contained
therein - Letters rogatory are governed by the law of the requested State ac-
cording to a universal principle of international law - Interpretation of a treaty
in the light of any subsequent practice in its application - Article 31, paragraph
3(b) of the Vienna Convention on the Law of Treaties - Schengen Agreements
Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576
Re: Monnier
Corte di Cassazione (Sez. I penale), 8 November 2002, No. 37774
Re: Strangio and Others 256
XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW

Regional competence to undertake international agreements - “Letter of intent”
between the Veneto Region and Argentina of 31 March 1999 - Principle of
“loyal cooperation” between State and Regions
Corte Costituzionale, 30 January 2003, No. 13
Presidente del Consiglio dei Ministri v. Regione Veneto 259
CONTENTS XI
DIPLOMATIC AND PARLIAMENTARY PRACTICE

(edited by Lara Appicciafuoco, Pietro Gargiulo, Giuseppe Nesi, Marco Pertile and
Valeria Santori)
II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

1. RESERVATIONS TO TREATIES 265

1. SOVEREIGNTY OVER US AND NATO MILITARY BASES 266
X. TREATMENT OF ALIENS AND NATIONALITY

1. DIPLOMATIC PROTECTION 266
2. RIGHT OF ASYLUM 267
XI. HUMAN RIGHTS

1. TORTURE AND OTHER CRUEL, INHUMAN AND/OR DEGRADING TREATMENT 270
XIII. INTERNATIONAL RESPONSIBILITY

1. INTERNATIONAL LIABILITY 270
2. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS 271

ECONOMIC MATTERS
1. SECURITY CO-OPERATION 273
A. The “Total Information Awareness” Project and the Right to Privacy 273
B. Fight against Terrorism and Right to Privacy 274
2. DEVELOPMENT CO-OPERATION 275
A. Human Rights Violations and Aid Suspension: The Cases of Cuba and
Vietnam 275
3. IMMIGRATION 276
XVII. INTERNATIONAL ORGANIZATIONS

1. UNITED NATIONS 278
A. Justice and the Rule of Law: The Role of the United Nations 278
B. Annual Report of the Security Council to the General Assembly 281
C. Security Council Reform 282
D. International Court of Justice Advisory Opinion on Israel’s “Separation
Wall” 285
2. EUROPEAN UNION 286
A. Human Rights Protection 286
B. International Monitoring of Elections: The Case of Venezuela 286
XX. WAR, NEUTRALITY, AND DISARMAMENT

1. THE IRAQI CRISIS 287
A. Use of Italian Infrastructures 287
B. Legal Justification of the Use of Force 288
XII CONTENTS
C. The Multinational Intervention in Iraq 288

D. The Italian Participation in the Multinational Force 289
E. Multilateral Participation in the Management of the Iraqi Crisis 291
AGREEMENTS TO WHICH ITALY IS A PARTY

(edited by Federico Casolari, Marcello Di Filippo, Marco Gestri and Marina
Mancini)
A) AGREEMENTS SIGNED BY ITALY, PUBLISHED IN THE GAZZETTA

UFFICIALE IN 2003
IV. DIPLOMATIC AND CONSULAR RELATIONS 295
VI. LAW OF THE SEA 296
VII. ENVIRONMENT 298

1. IMMIGRATION AND EMIGRATION 298
XI. HUMAN RIGHTS 298

ECONOMIC MATTERS
1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION 299
2. TAXATION 299
3. INVESTMENTS 299
4. ECONOMIC DEVELOPMENT AND DEVELOPMENT CO-OPERATION 301
5. DEBT CONSOLIDATION AND CANCELLATION TREATIES 302
6. TRANSPORT, TRAFFIC, COMMUNICATION 304
7. SOCIAL AND HEALTH MATTERS 305
8. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 306
9. LEGAL AND JUDICIAL CO-OPERATION 308
10. CO-OPERATION AGAINST TERRORISM 309
11. MILITARY AND SECURITY MATTERS 309
12. FRIENDSHIP AND CO-OPERATION TREATIES 313
13. DIPLOMATIC CONFERENCES AND INTERNATIONAL MEETINGS 314
14. NEIGHBOURLY RELATIONS 314

1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS 315
3. NATO 316
4. OTHER INTERNATIONAL AGENCIES 316
XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING 317

CONTENTS XIII
XX. WAR, NEUTRALITY, AND DISARMAMENT 319
B) AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2003, THE ENTRY INTO

FORCE OF WHICH WAS ANNOUNCED IN THE GAZZETTA UFFICIALE IN 2003

ECONOMIC MATTERS
1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION 319
2. TRANSPORT, TRAFFIC, COMMUNICATION 319
3. SOCIAL AND HEALTH MATTERS 320
4. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION 320
5. LEGAL AND JUDICIAL CO-OPERATION 321
6. CO-OPERATION AGAINST TERRORISM 321
7. NEIGHBOURLY RELATIONS 321

LEGISLATION
(edited by Pia Acconci, with the exception of legislation on Diplomatic and
Consular Relations, Air and Space Law, and Nationality edited by Chiara
Battistini, legislation on Environment edited by Massimiliano Montini, legislation
on Immigration and Emigration, Use of Force Short of War and Peace-Keeping,
and War, Neutrality, and Disarmament edited by Gianluca Rubagotti)
IV. DIPLOMATIC AND CONSULAR RELATIONS 323
VII. ENVIRONMENT 324
IX. AIR AND SPACE LAW 326

1. NATIONALITY 327
2. IMMIGRATION AND EMIGRATION 331
XI. HUMAN RIGHTS 335

ECONOMIC MATTERS
1. FOREIGN TRADE 337
2. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES CONCERNING
POLITICAL AND MILITARY CO-OPERATION 338
XIV CONTENTS
3. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING

ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT 338
4. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES ESTABLISHED FOR
THE PURPOSES OF CULTURAL CO-OPERATION 340

1. WORLD HEALTH ORGANIZATION 340
2. INTERNATIONAL MONETARY FUND 341
XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING 341
BIBLIOGRAPHIES
ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW
2003 347
(edited by Giulio Bartolini, Federico Lenzerini and Massimiliano
Montini)
REVIEW OF BOOKS 375
MANUEL DÍEZ DE VELASCO, Instituciones de derecho internacional público

(Principles of Public International Law), 14th ed., Madrid, Editorial Tecnos S.A.,
2003 - JULIO D. GONZÁLEZ CAMPOS, LUIS I. SÁNCHEZ RODRÍGUEZ and PAZ ANDRÉS
SÁENZ DE SANTA MARÍA, Curso de derecho internacional público (Course of
Public International Law), 3rd ed., Madrid, Civitas Ediciones S.L., 2003 (Benedetto
Conforti); MARIA ROSARIA MAURO, Gli accordi bilaterali sulla promozione e la
protezione degli investimenti (Bilateral Agreements on the Promotion and Protection
of Investments), Torino, Giappichelli, 2003 (Giorgio Sacerdoti); PIA ACCONCI,
Il collegamento tra Stato e società in materia di investimenti stranieri (The Link
between the State and Companies regarding Foreign Investments), Padova, Cedam,
2002 (Giorgio Sacerdoti).
BOOKS RECEIVED 383
INDEX 385
LIST OF ABBREVIATIONS
Periodicals*
AFDI Annuaire Français de Droit International

AJIL American Journal of International Law
ASIL American Society of International Law Proceedings
AVR Archiv des Völkerrecht
BISD GATT – Basic Instruments and Selected Documents
BYIL British Yearbook of International Law
CI La Comunità Internazionale
CML Rep. Common Market Law Reports
CML Rev. Common Market Law Review
Columbia JTL Columbia Journal of Transnational Law
Cornell ILJ Cornell International Law Journal
CS Comunicazioni e Studi
CYIL Canadian Yearbook of International Law
DCI Diritto del Commercio Internazionale
DCSI Diritto Comunitario e degli Scambi Internazionali
DM Diritto Marittimo
DPCE Diritto Pubblico Comparato ed Europeo
DUE Il Diritto dell’Unione Europea
EC Bull. Bulletin of the European Communities
ECLR European Competition Law Review
ECR European Court Reports
EdD Enciclopedia del Diritto
EG Enciclopedia Giuridica (Treccani)
EHRR European Human Rights Reports
EJIL European Journal of International Law
EL Rev. European Law Review
ETS European Treaty Series
Foro It. Foro Italiano
Giur. Cost. Giurisprudenza Costituzionale
Giur. It. Giurisprudenza Italiana
GU Gazzetta Ufficiale della Repubblica Italiana
GYIL German Yearbook of International Law
*
The present list covers only the most frequently cited periodicals.
XVI LIST OF ABBREVIATIONS
Harvard ILJ Harvard International Law Journal

HRLJ Human Rights Law Journal
ICJ Pleadings International Court of Justice, Pleadings, Oral
Arguments, Documents
ICJ Reports International Court of Justice, Reports of Judgments,
Advisory Opinions and Orders
ICLQ International and Comparative Law Quarterly
ILM International Legal Materials
ILR International Law Reports
Int. Lawyer International Lawyer
Int. Org. International Organization
IYIL Italian Yearbook of International Law
JDI Journal du Droit International
JICJ Journal of International Criminal Justice
JIEL Journal of International Economic Law
JWT Journal of World Trade
Leiden JIL Leiden Journal of International Law
Max Planck UNYB Max Planck Yearbook of United Nations Law
NILR Netherlands International Law Review
Nss. DI Novissimo Digesto Italiano
NYIL Netherlands Yearbook of International Law
OJ EC/OJ EU Official Journal of the European Communities/
Official Journal of the European Union
PCIJ Series Permanent Court of International Justice, Series
RBDI Revue Belge de Droit International
RCADI Recueil des Cours de l’Académie de Droit
International de La Haye/Collected Courses of the
Hague Academy of International Law
RCGI Rivista della Cooperazione Giuridica Internazionale
RDE Rivista di Diritto Europeo
RDI Rivista di Diritto Internazionale
RDIPP Rivista di Diritto Internazionale Privato e Processuale
RECIEL Review of European Community and International
Environmental Law
RGA Rivista Giuridica dell’Ambiente
RGDIP Revue Générale de Droit International Public
RIDPC Rivista Italiana di Diritto Pubblico Comunitario
RIDU Rivista Internazionale dei Diritti dell’Uomo
RMUE Revue du Marché Unique Européen
RTDH Revue Trimestrielle des Droits de l’Homme
Schw. ZIER Schweizerische Zeitschrift für Internationales und
Europäisches Recht
Texas ILJ Texas International Law Journal
LIST OF ABBREVIATIONS XVII
UNTS United Nations Treaty Series

Yale JIL Yale Journal of International Law
YEEL Yearbook of European Environmental Law
YEL Yearbook of European Law
YIEL Yearbook of International Environmental Law
YIHL Yearbook of International Humanitarian Law
YILC/ACDI Yearbook of the International Law Commission/
Annuaire de la Commission du droit international
ZAÖRV Zeitschrift für Ausländisches Öffentliches Recht und
Völkerrecht
Italian legal acts
Law Legge (Act of Parliament)

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

Corte d’Appello Court of Appeals
Corte di Cassazione Court of Cassation
TAR Administrative Tribunal
Consiglio di Stato Council of State (Administrative Jurisdiction Supreme
Court)
Corte Costituzionale Constitutional Court
ARTICLES
REFLECTIONS ON STATE RESPONSIBILITY FOR THE BREACH
OF POSITIVE OBLIGATIONS: THE CASE-LAW
OF THE EUROPEAN COURT OF HUMAN RIGHTS
BENEDETTO CONFORTI*
1. INTRODUCTION
The European Court of Human Rights (the “Court”) has used very often the
notion of positive obligation, i.e. the obligation of the State to protect a person
against violations of human rights committed by individuals or other entities. Posi-
tive obligations may also be called obligations of prevention, if the terminology of
the International Law Commission is adopted. In the words of the Commission,
obligations of prevention “[…] require States to take all reasonable or necessary
measures to prevent a given event […]”.1
In some cases the Court has inferred a positive obligation from articles of the
European Convention on Human Rights (the “Convention”) that were exclusively
couched in terms of a negative duty. This is the case, for instance, in relation to Ar-
ticle 3 – the prohibition of torture and inhuman or degrading treatment – or Article
8 – non-interference with private and family life. In some other cases, the State is
expressly bound by the Convention either to abstain from itself infringing directly
the human right or to prevent someone else’s infringement of the right. The best ex-
ample of an express obligation of prevention is offered by Article 2, first sentence of
§ 1, according to which “everyone’s right to life shall be protected by law [...]”.
This essay is focused specifically on the case-law of the Court regarding Ar-
ticle 2, since it offers the most interesting examples of decisions in the matter of
positive obligations.2 There is reference made to other articles of the Convention
*
Of the Board of Editors; and Former Judge, European Court of Human Rights. This paper
was presented at a Conference on Issues of State Responsibility Before International Judicial Insti-
tutions, organized by Professors M. Fitzmaurice and D. Sarooshi in London in 2003. The proceed-
ings of this Conference are due to be published by Hart Publishing. We gratefully acknowledge the
permission of Professor D. Sarooshi to publish this paper in this volume of the Yearbook.
1
ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Com-
mentary to Article 14, § 3, Official Records of the General Assembly, Fifty-Sixth Session, Sup-
plement No.10 and Corrigendum (A/56/10 and Corr.1). See also, generally, The Report of the
International Law Commission on the Work of its Fifty-Third Session which contains the Draft
Articles on State Responsibility and the Resolution adopted by the General Assembly, A/RES/
56/83 taking note of the articles.
2
Judgments and decisions on admissibility of the Court will be quoted by mentioning the
date and the name of the parties only, since they can easily be found on the web-site of the Court
available at http://www.echr.coe.int/Eng/Judgments.htm.
4 ARTICLES
where relevant. Moreover, the conclusions reached in relation to Article 2 could be

applied, mutatis mutandis, to positive obligations pertaining to other parts of the
“Convention”. The case-law of the previously existing European Commission of
Human Rights (the “Commission”) will also be taken into account.
The ultimate goal of this paper is to contribute to the theory of State responsi-
bility for internationally wrongful acts, in particular as far as the role of the princi-
ple of causation is concerned.
2. THE CASE-LAW OF THE COURT
The Court has defined the positive obligation under Article 2 in the following
terms:
“The first sentence of Article 2 § 1 enjoins the State not only to re-
frain from the intentional and unlawful taking of life, but also to take
appropriate steps to safeguard the lives of those within its jurisdic-
tion”.3
“This involves a primary duty on the State to secure the right to life
by putting in place effective criminal-law provisions to deter the
commission of offences against the person backed up by law enforce-
ment machinery for the prevention, suppression and punishment of
breaches of such provisions”.4
“For a positive obligation to arise, it must be established […] that the

authorities knew or ought to have known at the time of the existence
of a real and immediate risk to the life of an identified individual from
the criminal acts of a third party and that they failed to take measures
within the scope of their powers which, judged reasonably, might
been expected to avoid that risk”.5
The second among the above cited dicta is self-evident. If relevant criminal
legislation does not exist or is even inadequate, an individual cannot be deterred
from committing an act which amounts to a violation of Article 2. The same can be
3
See, among others, the following judgments: LCB v. UK, Judgment of 9 June 1998, §
36; Osman v. UK, Judgment of 26 October 1998, § 115; Kiliç v. Turkey, Judgment of 28 March
2000, § 62; Keenan v. UK, Judgment of 3 April 2001, § 88; Mastromatteo v. Italy, Judgment of
24 October 2002, § 67. See also the decision on admissibility in Bromiley v. UK, Decision of 23
November 1999.
4
Keenan case, ibid., § 89.
5
Ibid., § 89, quoting Osman v. UK, cit. supra note 3, § 116.
STATE RESPONSIBILITY FOR THE BREACH OF POSITIVE OBLIGATIONS 5
said of Article 3 and, as far as the protection of private and family life so requires,
Article 8.
As far as Article 2 is concerned, no evident cases exist wherein the lack or the
inadequacy of the legislation has been taken into account. Perhaps the only case
which can be quoted is Kiliç v. Turkey.6 Here the Court decided that the life of the
applicant’s brother – a journalist working in the South-Eastern part of Turkey for
a newspaper voicing Kurdish opinions and who was found shot dead on his way
home from work – had not been properly protected. The Court observed in its de-
cision that many defects, and in particular the lack of serious investigations when
murders of alleged supporters of the PKK occurred in the South-Eastern part of
Turkey (and they occurred very often), undermined the effectiveness of criminal
law protection in this region.7 This part of the decision can, it is argued, be inter-
preted in the sense that the provisions of Turkish criminal law were unable to deter
people from committing these kinds of murders in the South-Eastern region of the
country.8
By contrast, a clear case of inadequacy of criminal legislation, leading to a find-
ing of violation of Article 3, is A v. UK.9 Here the Court was asked to find a viola-
tion of Article 3 because of the failure on the part of the State to protect a child from
ill-treatment by his step-father. After having decided that the ill-treatment reached
the level prohibited by Article 3 (the child had been severely beaten), the Court
noted that under English law it is a defence to a charge of assault on a child on the
part of his parents that the treatment in question amounted to “reasonable chastise-
ment”. It also noted that, in the trial before the national court, the jury had acquitted
the step-father and that even the Government “accepted that the English law cur-
rently fails to provide adequate protection to children and should be amended”. In
conclusion, the Court decided that the positive obligation under Article 3 had been
breached.10
Similarly, X and Y v. The Netherlands11 is a case involving breach of a posi-
tive obligation owed by the State, pursuant to Article 8, due to the lack of relevant
criminal legislation. Miss Y, a handicapped 16 year old girl, had been allegedly
raped, but was unable, due to her mental condition, to bring the complaint herself.
Acting on her behalf, her father had filed a complaint with the local police station in
order to institute criminal proceedings. However, the proceedings had been discon-
6
Cit. supra note 3.
7
Ibid., §§ 71-75.
8
As a second argument, the Court held that Turkey had failed to provide for individual
and preventive measure of protection, notwithstanding the frequent request of protection by the
victim (see §§ 65-68). This part of the decision fits rather in the third dicta of the Court quoted
in the text.
9
Judgment of 23 September 1998.
10
Ibid., §§ 9-24.
11
Judgment of 26 March 1965.
6 ARTICLES
tinued since according to the Netherlands Criminal Code in force at the time of the
incident, the legal representative of the victim was not allowed to lodge a complaint
if the victim was over the age of sixteen or placed under a guardianship. The Court
held that respect for private life, in a case like the one above, can only be assured
by criminal-law provisions, since it is only these kind of provisions that provide
the “effective deterrence [which] is indispensable in this area”. As such, the Court
concluded that the positive obligation of the State to protect the private life of the
second applicant had been violated.12
According to the third of the above quoted dicta, a test of “foreseeability of
the event” and a test of “reasonableness” of preventive measures are applied by the
Court in order to find a breach of Article 2. The State is responsible if the authori-
ties “knew or ought to have known” the risk to the life of a person and they failed
to take measures which, “judged reasonably”, might have prevented the occurrence
of the lethal event.
The Court has applied these two tests on a number of occasions. However, to the
knowledge of the present author, only once has it reached the conclusion that Article
2 was violated because of the lack of measures necessary to avoid a foreseeable risk.
This was already exemplified by the above-mentioned Judgment in Kiliç v. Turkey,
concerning the murder of a journalist in the South-Eastern part of Turkey. Addition-
ally, the Court held that Turkey had not taken preventive and appropriate measures
of protection, notwithstanding the frequent requests for protection by the victim. In
the opinion of the Court, the event was predictable due to the situation in the South-
Eastern region where security forces were accused of committing all kinds of illegal
activities, including the elimination of alleged supporters of the PKK.13
No cases concerning other obligations of prevention, in particular obligations
to prevent torture or inhuman or degrading treatments (Article 3) or interference in
private or family life (Article 8) can be mentioned.
Sometimes the Court – in addition to or – as a specification of the test of “fore-
seeability” has used the test of causality. By applying Article 2, it has tried to ascer-
tain whether a causal link between the event and the omission – i.e., between the
death of a person or a severe life-threatening injury, and the omission of preventive
measures on the part of the State – could be established. The case of L.C.B. v. UK14
is an example of this approach.
In L.C.B. v. UK the applicant claimed that she had developed leukaemia, during
her childhood, due both to her father’s exposure to radiation (he was a serviceman
12
Ibid., §§ 23-30. The Court was also asked to find a violation of Article 3. In the opinion
of the present author it was exactly a case of breach of the obligation to protect a person against
inhuman or degrading treatment inflicted by another person, indeed. On the contrary, the Court
examined the case under Article 8, and consequently held that it had not to examine the applica-
tion under Article 3 (see § 34).
13
Cit. supra note 3, §§ 65-68.
14
Cit. supra note 3.
stationed on Christmas Islands at the time of nuclear testing) and the failure of au-
thorities in the UK to warn her parents of the possible risks for the health of their
subsequently conceived children. The Court stated that
“having examined the expert evidence submitted to it, the Court is not
satisfied that it has been established that there is a casual link between
the exposure of a father to radiation and leukaemia in a child subse-
quently conceived […]. The Court could not reasonably hold, there-
fore, that […] the UK authorities could or should, on the basis of this
unsubstantiated link, have taken action in respect of the applicant”.15
Another clear reference to causality appears in the case-law of the abolished

Commission. In the case of Tugar v. Italy, the Commission declared inadmissible
the application of an Iraqi national who stepped on a mine while clearing a mine-
field in the Chowman Valley in Iraq after the first Gulf war. The applicant – having
suffered severe injuries and the amputation of a leg – contended that since Italy was
the State that had permitted the sale of mines to Iraq without adopting any controls
or effective arms transfer licensing system (the seller had also been found guilty of
illegal arms trafficking to Iraq) that it had failed to take preventive measures against
the risk of an “indiscriminate” use of such arms. The Commission held:
“In the present case [...] the applicant’s injury can not be seen as a
direct consequence of the failure of the Italian authorities to legislate
on arms transfers. There is no immediate relationship between the
mere supply, even if not properly regulated, of weapons and the pos-
sible ‘indiscriminate’ use thereof in a third country, the latter’s action
constituting the direct and decisive cause of the accident which the
applicant suffered”.16
With some hesitation the case of Mastromatteo v. Italy17 can also be cited for
present purposes. In this case the Italian authorities were accused by a father of
having violated Article 2 in relation to the murder of his son by three criminals dur-
ing a bank robbery. The criminals when leaving the bank encountered a car driven
by the applicant’s son. They attempted to take control of the car, but it appeared
that the applicant’s son tried to escape whereupon he was shot dead. At the time of
these offences, two of the three criminals had been granted prison leave – as part of
a “semi-custodial” regime – when serving sentences for armed robbery and other
offences; and the third was not in prison at the material time although he had a
number of convictions for armed robbery. According to the applicant, the authori-
15
Ibid., § 39.
16
Decision of 18 October 1995, DR 83-A, p. 29.
17
Cit. supra note 3.
8 ARTICLES
ties (i.e. the judge granting the prison leave and the semi-custodial regime) should
have foreseen that the lethal event would happen and that they had failed to take
reasonably available measures to prevent it from occurring. The Court expressly
applied the test of “foreseeability” and did not find a violation in the case.18 Inci-
dentally, however, it also pointed out that the tragic death of the applicant’s son had
been “a result of the chance sequence of events which occurred in the present case”,
a sequence which the authorities were unable to predict.19
In conclusion, it may be said that in their case-law the Court and the previously
existing Commission have set out the elements of the concept of a positive obliga-
tion, or what can alternatively be called the obligation of prevention. However this
elaboration has not been of much importance in practice, since a violation of the
Convention has been declared in very few cases. The breach of an obligation of
prevention is easy to ascertain if it is the result of the lack or inadequacy of legisla-
tion – that is, of legislative provisions deterring individuals from behaving in a way
that is condemned by the Convention. By contrast, a finding of violation is difficult
to reach when the breach is, or should be, solely the result of the negligence of the
authorities in protecting a person against the wrongful action of other persons. In
such cases the Court is satisfied only if the “foreseeability” of the wrongful event
and the “reasonableness” of the preventive measures can be proved. Moreover, it
is necessary for a link of causality to exist between the behaviour of the authorities
and the event.
The role of causality has to be stressed in ascertaining the breach of a posi-
tive obligation, since, in the view of the present author, it is the most important
and problematic element under consideration in this essay. A conclusion that
can be drawn from the Strasbourg case-law is that no violation is found in cases
where there is lack of a casual link between the behaviour of the State and the
event. The same reasoning applies to cases where the event is not “the immediate
consequence” of State behaviour, i.e. where the State omission is too remote in
the chain of the various circumstances which led to the final wrongful event. Of
course, the remoteness (understood in this essay in the literal sense as something
referring to what is far in time or space) can be ascertained only empirically, tak-
ing into account the concrete circumstances of each and every case. It is quite
impossible, and even unnecessary in a review of the case-law of the Court, to en-
ter into all the theoretical and philosophical discussions and the technicalities of
the doctrine of causation in criminal and civil law, including the numerous views
that have been expounded on the question whether an omission can be a cause.20
Couched in simple terms, in the opinion of the present author, the causation, as
18
Ibid., §§ 74-79.
19
Ibid., § 76.
20
On the subject, see HONORÉ, “Causation and Remoteness of Damage”, in TUNC (ed.),
International Encyclopaedia of Comparative Law, Tubingen, 1971, Vol. XI, Part 1, Ch. VII, §§
13, 44.
it appears in the case-law of the Court concerning the obligations of prevention,

is strictly linked to the “foreseeability” of the wrongful event. It is an ex post test
of “foreseeability” of the event: even if the event was predictable, there is still
room, even after the wrongful event occurred, for verifying its place in the chain
of events. It seems that, in these three cases reported in the preceding paragraphs,
the event was per se predictable and the reason why the Court reached a finding
of no violation was exactly the absolute lack of a causal link between the omis-
sion and the event.
3. THE CASE-LAW OF THE COURT AND THE THEORY OF STATE RESPONSIBILITY
In this section some conclusions will be drawn regarding the theory of State
responsibility for internationally wrongful acts from the above review of the case-
law of the Court.
Looking at the work of the International Law Commission on the subject, it is
worth noting that a reference, although very loose, to the causal link between the
omission and the internationally wrongful event was contained in the commentary
to Article 23 of the previous Draft Articles on State Responsibility, the Draft in-
spired by the late Italian scholar Roberto Ago.21 The entire Article 23 was expressly
devoted to the breach of an obligation to prevent a given event and perhaps one
of the reasons why it was there was exactly the necessity to stress that “a certain
causal link – indirect, of course, not direct – must exist between the occurrence of
the event and the conduct adopted in the matter by the organs of the State”.22 The
rule of Article 23 has disappeared in the Articles that were inspired by the Special
Rapporteur James Crawford,23 and with it vanished as well the reference to the
causal link. A reference to causation can now be found in Article 31 and its com-
mentary concerning the reparation, wherein the obligation is laid down to repair
the damage “caused” by a wrongful act of the State. Clearly this is a different
aspect of causation from the one dealt with now. The former aspect – an aspect
which has been treated by international tribunals, including the Court,24 and deeply
explored in legal doctrine25 – corresponds to the parallel aspect in the law of tort in
21
YILC, 1978, Vol. II, p. 91.
22
Ibid., p. 83.
23
Cit. supra note 1.
24
For a review of the case-law of the Court on the subject, see KEMPEES, A Systematic Guide
to the Case-Law of the ECHR, The Hague, 1996-2000, sub Article 50. Of course, the decisions
relevant to causation are those allowing, or refusing to allow, pecuniary damages for material
loss suffered as a consequence of a violation of the Convention. Normally the Court awards also
a sum as compensation for damage of a non-pecuniary nature, wherein a problem of causal link
does not arise.
25
Especially in the slightly outdated, but still very stimulating, book by BOLLECKER-STERN,
Le préjudice dans la théorie de la responsabilité internationale, Paris, 1973, p. 179. As far as
10 ARTICLES
national legal orders. On the contrary, the aspect dealt with in this essay pertains
to the structure of the internationally wrongful act itself, like the parallel aspect in
national criminal law.
In the view of this author the reason for the disappearance of the old Article
23 and of any reference to the causal link, as well as the disappearance of many
rules already contained in the previous Draft, is that the present members of the
Commission are of the opinion that such rules do not pertain to State responsibility
(they were not secondary rules) but rather belong to the realm of primary rules.26
The present author confesses many difficulties in accepting the distinction between
primary and secondary rules. Unfortunately, the elaboration of such a large subject
exceeds the scope of this study.27 It is enough to stress that what has been said
thus far in this essay, shows that the problem of the causal link – like the parallel
problem in criminal law – is an element of the internationally wrongful act. In this
regard it seems appropriate to quote another Italian scholar, the late professor Ro-
lando Quadri, who opposed consistently the so-called (by Ago) “subjective element
of the internationally wrongful act”, i.e. the attribution of the wrongful conduct to
the State under international law.28 His contrasting view was that only the element
of causation was pertinent to establish State responsibility for actions or omissions
contrary to international law.29 No doubt, this is an extreme and exaggerated opin-
ion. Perhaps the best conclusion is one in the middle, i.e. that the causal link can
be taken into consideration as one of the conditions of the subjective element, the
other one being, according to Ago, the fact that the action or the omission is com-
mitted by an organ of the State. In other words, it is not sufficient – as it is said in
the general remarks to Chapter II, Article 4, of the Articles on State Responsibility
– that the act shall be considered an act of that State under international law when
“[...] the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organisation of that State, and whatever its charac-
ter as an organ of the central government or a territorial unit of that State [...]”.30 It
is also necessary that a certain link exists, as it was explained, between the conduct
and the wrongful event.
the reparation for violations of the Convention is concerned, see MAS, “Right to Compensation
under Article 50”, in MACDONALD, MATSCHER and PETZOLD (eds.), The European System for
the Protection of Human Rights, Dordrecht, 1993, p. 777 ff., p. 784.
26
Cf. CRAWFORD, “Revising the Draft Articles on State Responsibility”, EJIL, 1999, p. 435
ff., p. 441.
27
Reference is made to observations submitted by the present author in the book on Interna-
tional Law and the Role of Domestic Legal Systems, (English version of the General Course on
public international law delivered at the Hague Academy in 1988), Dordrecht, 1993, p. 171.
28
This subjective element is maintained tel quel in the new Draft of the ILC (cf. Article 2
(a)).
29
QUADRI, “Cours général de droit international public”, RCADI, 1964, III, pp. 237-483,
p. 457.
30
Draft Articles on State Responsibility, cit. supra note 1.
GOVERNMENT COLLAPSE AND STATE CONTINUITY:
THE CASE OF SOMALIA
ABDULQAWI A. YUSUF*
1. INTRODUCTION: FAILURE OR COLLAPSE?
Much has been written during the past decade about States that have suffered
from various degrees of chaos and anarchy, or whose system of governance has
been affected by widespread acts of violence or civil war. Some commentators
have characterized such States as “failed States”,1 others have referred to them as
“collapsed States”,2 while still others have used the traditional notions of internal
conflict or non-international armed conflict.3
With respect to the situation that has prevailed in Somalia since 1991, this au-
thor’s preference is for the use of the notion of “government collapse”. This clear
and uncluttered notion will be used to analyze the impact of the temporary inter-
ruption or absence of an effective central government on the identity and continuity
of an established State. This preference is equally dictated by a number of other
reasons.
First, the use of expressions such as “Failed State” to describe the absence or
ineffectiveness of government in a given State may be considered appropriate from
the stand point of political science or political journalism. It can however hardly
be justified in international law, for which “government” is but one of the essential
elements of statehood, albeit a very important one. A State may disintegrate and
break up into two or more separate States, or it may be occupied or annexed by
another State. It may also voluntarily unite or merge with an existing State to form
a single new State. But a State neither fails nor collapses, and may even continue
in existence from the stand point of international law, as will be shown later in
this article, during relatively long periods of chaos and anarchy or occupation by
another State.
* Associate Member, Institut de droit international; General Editor, African Yearbook of

International Law.
1
See for example HELMAN and RATNER, “Saving Failed States”, Foreign Policy, 1992-93,
p. 3 ff. See also MUTHARIKA, “The Role of International Law in the Twenty-First Century: An
African Perspective”, Fordham International Law Journal, 1996, p. 1706 ff.
2
See ZARTMANN (ed.), Collapsed States: The Disintegration and Restoration of Legitimate
Authority, London, 1995; YANNIS, “State Collapse and the Prospects for Political Reconstruction
and Democratic Governance in Somalia”, African Yearbook of International Law, 1997, pp. 23-
47.
3
See DAMROSCH (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts,
New York, 1993.
12 ARTICLES
Secondly, the use of these expressions has often been associated with a loose
labeling of certain States, mostly in Africa, as “failures” to justify suggestions that
they be placed under international “conservatorship” or UN Trusteeship.4 It is true
that in many African countries the State has simply failed (the word is used here in
its common sense of falling short of success or achievement in something expect-
ed) to provide its people with an adequate sense of identity or to deliver the goods.
Many African States have proven unable, since their independence in the 1960s,
to provide basic social services or to ensure the physical security of their citizens.5
But this situation cannot be equated with institutional or government collapse, or an
absence of government. It might at most qualify as a structural weakness, which if
not corrected, might lead to such collapse or render the government ineffective.
Thirdly, proposals for placing so-called failed States under UN Trusteeship or
conservatorship have been criticized as throwback to colonialism prompting one
author to claim that the primary contribution of this notion “has been to smooth the
way for advocates of the return of European colonialism and the continuation of
other dominance strategies over African peoples”.6 More important, in advancing
such ideas these authors seem to have completely overlooked that the UN Charter
explicitly provides that “the Trusteeship system shall not apply to territories which
have become Members of the United Nations, relationship among which shall be
based on respect for the principle of sovereign equality”,7 or to have underesti-
mated the difficulty of amending such a provision.
To summarize, these notions may be handy and attractive as political labels.8
but they are not certainly legal concepts that may help us analyze or better under-
stand the phenomenon of government collapse or its implications for statehood in
international law. It should however be noted that some of these catch-all terms
such as “failed States”, “collapsed States”, and “rogue States” may often obscure
complex realities in international relations which pose serious conceptual problems
for contemporary international law.
In the following pages we will first examine the background to government
collapse and its aftermath in Somalia. We will then explore in subsequent sections
the consequences of this collapse for the identity and unity of the State, for its ter-
ritorial integrity, for its international legal personality as well as for its continuity
in international law.
4
HELMAN and RATNER, cit. supra note 1, pp. 12-18.
5
YUSUF, “Reflections on the Fragility of State Institutions in Africa”, African Yearbook of
International Law, 1994, pp. 3-8.
6
RICHARDSON, “Failed States, Self-Determination and Preventive Diplomacy: Colonialist
Nostalgia and Democratic Expectation”, Temple International and Comparative Law Journal,
1996, p. 36 ff.
7
Article 78, UN Charter.
8
See YUSUF, “Somalia’s Warlords: Preying on a Failed State”, The International Herald
Tribune, 21 January 2004, p. 6.
GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF SOMALIA 13
2. BACKGROUND
The Somali Republic emerged as an independent State on 1 July 1960 fol-

lowing a merger on the same date of the former Italian and British Somalilands.9
For the first nine years after independence, the country enjoyed civilian rule and a
vibrant parliamentary democracy with relatively peaceful political elections. It was
also the first African country in which a Head of State was peacefully voted out of
office when in 1967, the former Prime Minister Dr. Abdirashid Ali Shermarke was
elected to replace Aden Abdulle Osman, the first President of the new Republic.
Following the assassination of President Shermarke by a policeman in October
1969, a group of army officers led by General Mohamed Siyad Barre staged a coup
and established a military dictatorship.
General Siyad Barre’s authoritarian rule lasted for 21 years. However, by the
time he was ousted by a motley group of guerilla armies in January 1991 there was
hardly a government in the country. His iron-clad grip on power had long slipped
and his authority had been limited for quite some time to the capital Mogadishu.10
The descent into chaos and civil war had been slow and gradual, but its origin might
be traced to the defeat of Siyad Barre`s army in the Ogaden war with Ethiopia of
1977-78. In the aftermath of the war, political repression quickly escalated, sum-
mary executions of civilians and army officers became widespread, and clan-based
militias armed by the regime started to proliferate. More importantly, serious dis-
sent appeared in the ranks of the army, the regime’s traditional power base, result-
ing in an attempted coup d’état by senior officers in April 1978. The ensuing clamp
down led to the formation in mid-1978 of the first armed opposition group, known
as the Somali Salvation Democratic Front (SSDF) with headquarters in Ethiopia
which soon started to make incursions into Somali territory and to wage a guerrilla
war against Siyad Barre’s government. As the political and economic conditions
of the country deteriorated, and Siyad Barre’s repression affected more and more
people in the country, other opposition groups came into being in the 1980s, such
as the Somali National Movement (SNM), the United Somali Congress (USC) and
the Somali Patriotic Movement (SPM), all of which were generously hosted and
helped by the Ethiopian regime of Menghitsu Haile Mariam.11
By 1990, the increasing armed forays by the above-mentioned opposi-
tion groups into various provinces of the country, coupled with the creation in
Mogadishu of a strong anti-Siyad Barre political alliance known as the “Manifesto
Group”, led to a gradual erosion of the authority of the regime and to a slow-motion
9
See generally LAITIN and SAMATAR, Somalia: Nation in Search of a State, Boulder, CO,
1987.
10
“The Mayor of Mogadishu”, The Economist, 29 September 1990, p. 47.
11
See generally, COMPAGNON, “The Somali Opposition Fronts: Some Comments and
Questions”, Horn of Africa, 1990, pp. 29-54; see also SAMATAR, Somalia: A Nation in Turmoil,
London, 1991.
14 ARTICLES
collapse of its main political prop - the armed forces. Following the infiltration of
the armed guerrillas of the USC into the outskirts of Mogadishu, and sometimes
into some of its neighborhoods, the occupation by the SNM of some key towns in
the Northwestern provinces, and the take-over by the SPM of several villages in
the South-West, a state of emergency was declared by Siyad Barre in a last-ditch
effort to salvage his government. However, as the army crumbled, and abandoned
most of its heavy weapons into the hands of the insurgents, Siyad Barre and his
clan-based loyal body guards fled Mogadishu on 26 January 1991 and took refuge
in his native Gedo region near the Kenyan border. He subsequently died in exile in
Nigeria on 2 January 1995.
The ouster of the Siyad Barre regime did not bring to an end the Somali or-
deal. It actually led to the eruption of a murderous civil war, which might best be
described as a war on the civilian population, whose first victims were the inhabit-
ants of Mogadishu.12 Thousands were massacred by the USC militias as they took
over the city and immediately went on a rampage of mass killings and murder
of innocent civilians, because of clan affiliation, as well as the looting of public
and private property. Banks, museums, State archives, government buildings and
churches were equally laid to waste while electricity and water lines were dug out
and sold.13 The subsequent split of this group into two factions respectively led
by General Mohamed Farah Aidid (USC/SNA) and Mr. Ali Mahdi (USC/SSA)
resulted in what the then Secretary-General of the UN described “as an all-out war
for control of Mogadishu” that lasted for four months in 1991 “during which time
an estimated 25,000 civilians were killed or wounded, as rival factions bombarded
each other’s positions in heavily populated areas using tanks, artillery and fleets of
‘technicals’ – pick-up trucks mounted with large-calibre machine-guns, artillery
and anti-aircraft guns”.14 Fighting also erupted between the USC, particularly the
Aidid-led faction (USC/SNA), and other armed groups that had taken control over
various regions of the country, including remnants of the Siyad Barre army in the
Gedo region and in Baidoa, as well as the SPM in the Kismayo area, and the SSDF
in the Galkayo area.
This generalized warfare, which was most often due either to the efforts by
USC/SNA to extend the areas under its control to the south and north of Mogadishu,
or to attempts by other groups, such as the remnants of Siyad Barre’s army to re-
gain control of Mogadishu, resulted in widespread destruction, devastation, the
killing of over 300,000 civilians, and the displacement of over a million others.
12
“In Somalia, Graves and Devastation”, The New York Times, 30 January 1991, p. 12.
13
See CLARK, “Debacle in Somalia: Failure of the Collective Response”, in DAMROSCH
(ed.), cit. supra note 3, p. 211 ff.; see also SINJELA, OUGUERGOUZ and YUSUF, “The UN and
Internal Conflicts in Africa: A Documentary Survey”, African Yearbook of International Law,
1994, pp. 253-283.
14
See UN Department of public Information, The United Nations and Somalia (1992-1996),
New York, 1996, p. 12, para. 13.
Lawlessness and violence blanketed entire regions with the warlords and their mi-
litias looting, plundering, and destroying the crops of local farming populations in
the southern agricultural regions causing widespread famine and starvation.15 Most
of the anarchy, lawlessness and armed conflict involving warlords and their militias
took place in Mogadishu, and in the central and southern regions of the country.
The Northeastern regions controlled by the SSDF remained relatively calm dur-
ing this period and later established self-government structures calling themselves
the “Somali State of Puntland”. The Northwestern regions also, restored law and
order under the control of the SNM, and gradually evolved their own governmen-
tal structures and declared themselves as the “Republic of Somaliland”. Unlike
however the “Puntland State”, the authorities of the “Republic of Somaliland” de-
clared secession from the rest of the country in May 1991, and continue to consider
themselves as a separate entity although not recognized as such by any State or
intergovernmental organization.
3. THE NON-EXISTENCE OF AN EFFECTIVE CENTRAL AUTHORITY (1991-2004)
Since the ouster of the Siyad Barre regime in 1991, the Somali Republic has not
had a central government with an organized administration and effective authority
over the entire territory of the country. A couple of nominal governments, whose
reach was limited to Mogadishu or to some parts of it, have claimed to represent
the country during certain periods (in particular 1991-1992 and 2000-2003), but
have never been able to exercise effective power. Throughout this period, different
parts of the country have been governed by various types of local authorities, de-
scribed by some commentators as “ranging from militias, to clan elders, to mafia-
like rackets, to fundamentalist mosques”.16 Essentially, there have been three types
of authorities in various regions, cities and towns in the country: those elected or
selected by the local population, those based on traditional clan-based governance
structures, and those created and led by a warlord and his militias.17
The first nominal government was established a few days after Siyad Barre
fled Mogadishu. It emerged as a result of an agreement between Siyad Barre’s last
Prime Minister, Omar Arteh Galeb, and one of the leaders of the USC, Ali Mahdi.
It was a self-appointed government whose control did not extend to the entire city
of Mogadishu. It was also contested and later fought by all other insurgency move-
ments including another wing of the USC itself led by General Aidid. It also failed
to obtain recognition from the international community even after having been en-
15
See, for example, PERLEZ, “Somalia Self – Destructs and the World Looks on”, The New
York Times, 29 December 1991, p. D4.
16
MENKHAUS and PENDERGAST, “Somalia, the Stateless”, Africa Report, May-June 1995,
pp. 22-25.
17
For an analysis of these structures, see infra section 5.1.
16 ARTICLES
dorsed as a Provisional Government in a meeting attended by many Somali factions

in neighbouring Djibouti in July 1991. This was mainly due to its lack of effective
authority over any significant portions of the territory of the State, including the
capital. Its lack of recognition may best be illustrated by the outcome of a case that
was brought before the UK courts in connection with a cargo of rice bought and
paid for by the government of Siyad Barre before it was toppled. As a result of the
fighting in Mogadishu, the cargo could not be delivered and had to be sold with the
proceeds (over US$ 2 million) paid into court in London. Instructed by Arteh from
a hotel room in Jeddah, Saudi Arabia, English solicitors tried to obtain the release
of the money. The British judge, however, held that there was no government of
Somalia and therefore no authority that could claim the release of the fund. Judge
Hobhouse stated inter alia that there was a difference between a constitutional gov-
ernment and an insurgency: “a loss of control by a constitutional government may
not immediately deprive it of its status, whereas an insurgent regime will require
to establish control before it can exist as a government”.18 He characterized the Ali
Mahdi-Arteh regime as being devoid of constitutional legitimacy, and questioned
the effectiveness of a Somali government that issued orders from a hotel room in
Jeddah, Saudi Arabia. He therefore concluded that the interim government of Ali
Mahdi-Arteh was not entitled to represent Somalia for the purpose of claiming
money paid into court.19
The second nominal government, led by Abdikassim Salad Hassan, emerged as
a result of the 12th national reconciliation conference held in Djibouti from March
to August 2000. Mr. Salad Hassan was selected by a provisional parliament ap-
pointed by the participants at the conference and was asked to set up a Transitional
National Government (TNG) to be based in Baidoa, and not Mogadishu, because
of the control exercised on the latter by a number of feuding warlords. But, he de-
cided to ignore the resolution of the conference and to establish his headquarters
in Mogadishu. The warlords ignored him and his government and continued to
go about their business in the capital and its neighboring regions fighting, pillag-
ing, destroying, murdering, kidnapping and carrying out their arms and drug trade
through private ports and airports, while they ensured that the main port and the
international airport of Mogadishu would remain closed. Nor was his government
recognized or even acknowledged by any of the local administrations or govern-
ments controlling various parts of the country, the most important of which were
during this period the “Somaliland government” in the Northwestern regions of the
country and the “Puntland government” in the Northeastern regions. Not unlike the
Ali Mahdi government, the nominal government led by Abdikassim Salad never
succeeded to establish any judicial or administrative structures anywhere in the
18
Republic of Somalia v. Woodhouse, Drake & Carey (Suisse) SA [1992], Weekly Law
Reports, Vol. 3, p. 744 ff.
19
For an analysis, see CRAWFORD, “Who is a Government? The Executive and the Courts”,
Cambridge Law Journal, 1993, p. 4 ff.
country; nor did it make any attempts at rehabilitating schools, hospitals or other
public infrastructure. Although its writ did not run beyond the Mogadishu neigh-
borhood, where its headquarters was located, its mere “existence” was welcomed
by the United Nations and the Organization of African Unity (whose meetings were
frequently attended by members of the government on behalf of Somalia) as a pos-
sible interlocutor.20 Its three-year term of office came, however, to an end in August
2003 without any significant accomplishments.
In the period between these two nominal governments, attempts were made by
the United Nations during the second phase of its operation in Somalia (UNOSOM
II), established by Security Council Resolution 814(1993) of 26 March 1993, to
resuscitate Somalia’s administrative and judicial systems, and to rebuild its politi-
cal institutions.21 The efforts of the UN were however stymied by the actions of
various warlords operating in Mogadishu, and in particular by the militias of the
USC/SNA led by General Aidid. In a report to the Security Council, Secretary-
General Boutros Boutros-Ghali, stated that:
“Ultimately, all the efforts being undertaken by the United Nations

in Somalia are directed towards one central goal: to assist the people
of Somalia to create and maintain order and new institutions for their
own governance. The absence of a central government has aggra-
vated the social, economic and political difficulties in the country.
In fact, the non-existence of a government in Somalia is one of the
main reasons for the now more robust role of the organization in the
country”.22
The Permanent Representative of the United States also called UNOSOM II

“an unprecedented enterprise aimed at nothing less than the restoration of an entire
country as a proud, functioning and viable member of the community of nations”.23
Faced, however, with recalcitrant warlords unwilling to reconcile, and following
the killing of Pakistani, Nepalese and US soldiers serving under UNOSOM II, the
Security Council decided to wind down first and then terminate on 31 March 1995
the UN operation in Somalia. According to the UN Secretary-General:
“Much more would have been possible if the Somali leaders and
factions had demonstrated a determination to end their armed conflict
20
For an analysis of the UN position, see infra section 5.2.
21
For an account of these efforts, see OSINBAJO, “Legality in a Collapsed State: the Somali
Experience”, ICLQ, 1996, pp. 910-923.
22
Further Report of the Secretary-General submitted in pursuance of paras. 18 and 19 of
Resolution 794(1992), UN Doc. S/25354, para. 1.
23
Doc. S/PV.3188 cited in The United Nations and Somalia (1992-1996), cit. supra note 14,
p. 44, para. 126.
18 ARTICLES
and forge political reconciliation. Much of the responsibility for the

continuing insecurity and hardships experienced by Somalia’s people
rests with the factions failure to lay down their arms”.24
Thus, the warlords and their militias did not only lay their country to waste,
causing destruction, devastation and the death of hundreds of thousands of innocent
civilians, but they also frustrated the efforts of the international community to come
to the help of their people and to provide them with much-needed assistance.
Following the withdrawal of UNOSOM II, General Aidid declared himself
“interim President” in Mogadishu in June 1995, but was soon contested by other
warlords which led to renewed fighting in the capital. He also attempted to claim
Somalia’s seat at the OAU summit meeting later that month, but the OAU rejected
his claim and decided to keep Somalia’s seat open until a generally accepted govern-
ment was established.25 Several other warlords have likewise anointed themselves as
“interim presidents” but have never been recognized either internally or externally.
4. EXTINCTION OR SUSPENDED ANIMATION?
In light of the Somali situation described above, the question arises whether the
Somali State has ceased to exist due to the lack of effective authority over its entire
territory and population. In other words, has the absence of a central government
for such a long period (13 years at the time of writing) resulted in the death of the
State?
The existence of a government or an effective government is an essential crite-
rion for statehood.26 The 1933 Montevideo Convention, which is the most widely
cited text on the subject, lays down the following qualifications for statehood: “(a)
a permanent population; (b) a defined territory; (c) government; and (d) capacity
to enter into relations with other States”.27 Although the fourth criterion regarding
“capacity to enter into relations with other States” has been criticized for not be-
ing unique to States,28 the first three qualifications are generally admitted as being
central to the legal definition of a State.
A distinction, however, needs to be made between a new entity which claims
statehood at the international level and an established State which had already ac-
quired such personality. Indeed, it may be argued that the Montevideo Convention
24
Ibid., p. 84.
25
Ibid., p. 79.
26
See CRAWFORD, “The Criteria of Statehood in International Law”, BYIL, 1976-1977, p.
116 ff.
27
Convention on the Rights and Duties of States, League of Nations Treaty Series, 1936,
Vol. 165, p. 19 ff.
28
“Capacity is not a criterion, but rather a consequence of Statehood”, CRAWFORD, cit.
supra note 26, p. 19.
is concerned with the qualifications a new entity would have to possess to claim
statehood rather than how an existing State could lose that quality. Thus, a putative
State lacking one of these basic qualifications may not meet the requirement of
statehood. If such an entity did not, for example, have a government or a defined
territory, it would be hard pressed to claim to be a State.29
For an established State however the situation is much more complex. The
issue here is the loss of Statehood rather than its acquisition. In other words, how
long could a State preserve its Statehood, despite the lack of government?
Marek, who thoroughly studied the subject of State extinction maintains that
“Customary international law does not supply any definite criterion for determin-
ing when a State ceases to exist. Obviously enough no conventional solution of the
problem has ever been undertaken. Nor are any pronouncements on the subject to
be found in international judicial decisions”.30 The issue of extinction has however
been extensively debated by publicists. Oppenheim, for example, gives a list of the
instances in which this may occur.31 The lack of government is not included in the
list. Nonetheless, it is observed elsewhere by the same author that once a State is
established, “temporary interruption of the effectiveness of its government, as in a
civil war or as a result of belligerent occupation, is not inconsistent with the contin-
ued existence of the State”.32
But, the question is: how temporary? Ten years? Twenty years or more?
In the Sambiaggio case of 1903 to which Oppenheim refers in support of his ar-
gument on temporary interruption of government, the umpire stated that Venezuela
had suffered internal disorders and revolutions within the past five years.33
A similar position was adopted by the Institute of International law, in its
Resolution of 1936 on the extinction of States. It is stated in Article 5 of the
Resolution that: “La reconnaissance de jure est irrévocable; elle ne cesse ses effets
qu’en cas de disparition définitive de l’un des éléments essentiels dont la réunion
se trouvait constatée au moment de la reconnaissance” (emphasis added). Indeed,
on the proposal of Fernand De Visscher, the operative word “définitive” was added
just before the resolution was adopted “pour la raison que cette restriction évite que
l’article 5 ne s’applique à un Etat victime des troubles passagers”.34
29
According to Crawford “the requirement that a putative State have an effective govern-
ment might be required as central to its claim to statehood”, ibid., p. 116.
30
MAREK, The Identity and Continuity of States in International Law, Genève, 1968, p. 7.
31
JENNINGS and WATTS (eds.), Oppenheim’s International Law, 9th ed., London, 1992, Vol.
I, p. 206.
32
Ibid., p. 122. See also Crawford who refers to the occupation of Ethiopia, Austria,
Czechoslovakia and Albania, in the period between 1936-1945, and notes that their legal per-
sonality was regarded, at least by the allied powers, as having been preserved despite the lack of
effectiveness, CRAWFORD, cit. supra note 26, p. 174. Equally, MAREK: “The absence of effective-
ness does not necessarily mean the extinction of a State”, cit. supra note 30, p. 8.
33
Sambiaggio case, Reports of International Arbitral Awards, Vol. 10, p. 500 ff, p. 524.
34
Annuaire de l’Institut de Droit International, 1936, Vol. II, p. 301.
20 ARTICLES
Momentary disturbances or disorders arising in the context of a civil war, where

a government is still nominally in power, but is challenged by rebel forces control-
ling parts of national territory, is not definitely the same as a total lack of central
government. The former situation had prevailed in Somalia in the late 1980s when
Siyad Barre’s government effectively controlled only some portions of the State
territory, while the rest of the country was either sporadically occupied by rebel
forces or was practically cut off from the central government.35 This is the case of
a government that is reduced to insignificance and is so weak as not to be able to
exercise authority over its entire territory, but is still nominally in power and is in-
ternationally considered to represent the State. In such cases, although there may be
a prolonged state of anarchy in some parts of the country, and lack of effectiveness
in others, the fact that authority and power are not effectively exercised by a single
government throughout the country does not lead to the extinction of the State or
to what the Institute of International Law referred to as the “definite disappearance
of one of the essential elements” of statehood.36 For traditional international law
doctrine, the usual pattern of a civil war or a revolutionary situation would be an
attack against an existing government, which after a long or short struggle would
either repel the attackers and survive or be replaced by them. In either case, most
authors expressed the view that a momentary lack of effectiveness or authority did
not lead to extinction.37
Such a situation must however be distinguished from one where the central
government completely disappears and is not immediately or for a relatively long
period of time, as in the case of Somalia, replaced by another government. In this
case, there is no single successor, but a patchwork of local governance structures,
occasional nominal governments claiming to represent the State but with no ef-
fective authority, and large pockets of anarchy and lawlessness in important areas
of the country. There is also a complete collapse of governmental structures to the
extent that the exercise of sovereignty is either fractured and divided among vari-
ous actors in different parts of the State or is totally lacking. Does this amount to
a definite disappearance of government as an essential element of statehood? As
stated by Marek, the issue of the identity and continuity of a State would not arise
“under normal circumstances”, but under “a shock grave enough to cast a doubt on
its survival”.38 This is of course the case of Somalia today. Yet, it would be difficult
to argue that there is a definite disappearance of one of the essential elements of
statehood, and consequently a loss of statehood by Somalia. First, because anarchy
and lawlessness may prevail in some parts of the country, particularly the capital
35
See “Mayor of Mogadishu”, The Economist, 29 September 1990, p. 47.
36
Cit. supra note 34.
37
See, for example, WHEATON (DANA’s edition), Elements of International Law, Boston,
1886: “The temporary suspension of that obedience and of that authority, in consequence of a
civil war, does not necessarily extinguish the being of the State”, para. 23.
38
MAREK, cit. supra note 30, p. 4.
and the surrounding provinces, but governance structures exist in other parts of the
country, and claims of authority either by nominal governments in Mogadishu or
by warlords have not been lacking. Secondly, Somalia continues to be a Member
(not in good standing, but still a member) of the United Nations, the African Union,
the Arab League, the Organization of the Islamic Conference as well as other inter-
governmental organizations. Thirdly, the international community, represented by
the above-mentioned organizations, as well as by friendly nations and neighbor-
ing States, has been constantly trying to breath new life into the comatose Somali
State and to keep it in suspended animation pending its effective revival. To this
end, National Reconciliation Conferences are periodically convened to resuscitate
central institutional structures, but the fact that the thirteenth edition of these con-
ferences has now been under way in Nairobi for over eighteen months clearly dem-
onstrates that the patient keeps relapsing into a state of coma. These factors which
have so far acted against the pronouncement of the death of the Somali Republic,
and continue to undergird its suspended animation are discussed below.
5. FACTORS UPHOLDING SUSPENDED ANIMATION
5.1. Local Governance Structures and Warlord Fiefdoms
The political situation arising from the collapse of central government struc-
tures in Somalia was described in 1995 by two particularly well-informed foreign
observers as follows:
“It is chaotic, but not chaos. It is a society without a State, but not,
as is so often reported, ‘anarchy’. Somalia today is a mosaic of fluid,
highly localized polities – some based on traditional authority, others
reflecting hybrid arrangements – that are stepping in to fill the va-
cuum created by the prolonged collapse of the state, performing many
of the most essential functions of day-to-day governance”.39
The political landscape in Somalia has not changed much since then, and may
be described as consisting of two main zones: a zone of local self-government and
a zone of warlord fiefdoms and lawlessness. The areas with local self-governance
structures are mainly in the northern part of the country and essentially consist of
the self-declared States of Puntland, in the Northeast, and of Somaliland in the
Northwest. They operate with separate constitutions and have developed private
sector led local economies and trade relations with neighboring countries. They
have their own police forces and judicial institutions as well as government depart-
ments and parliaments. Their similarities however end there.
39
MENKHAUS and PENDERGEST, cit. supra note 16, p. 22.
22 ARTICLES
Somaliland had declared secession from Somalia soon after the break-out of
the civil war in 1992 and has been seeking international recognition for the past
several years. Puntland considers itself an autonomous and self-governing Somali
State and has been advocating the idea of a new Somali Republic with a federal
structure in which it could continue to enjoy its self-government. Another major
difference is that Somaliland has made significant progress in organizing multi-
party elections and in re-establishing State institutions at all levels of government;
while Puntland has established governance structures with leaders selected through
popular conferences. The authorities in Puntland and Somaliland strongly disagree
also on the definition of their respective territories both of them claiming jurisdic-
tion over certain areas along their common border. These divergences have not so
far erupted into armed conflict, but have undermined the possibility of cooperation
towards the creation of a new Somali State out of these self-governing areas which
could gradually bring the other areas into its fold. Thus, although their existence
symbolizes, to a certain extent, the continued exercise of sovereignty by Somalis
over a large portion of their territory, albeit in a fractured manner, the “embryonic
States” of Puntland and Somaliland could either serve as building blocks for a
future federal Somali State or constitute – either one or both of them – the first
statelets to emerge from a fragmented Somali State.
The final outcome will depend not only on their own will but also on the evolu-
tion of the situation in the other Somali zone. That is the zone of warlord fiefdoms
which has its epicenter in the capital Mogadishu where there are at least six war-
lords fighting for control over sections of the city, its neigbourhoods, or in some
cases, its buildings and streets of strategic importance. A similar situation prevails
in the regions immediately to the North of Mogadishu as well as those to the South
of it. In all these areas demands for the establishment of local governance structures
have been denied by the warlords and their militias. Most of these warlords thrive
on the proceeds of illegal trade as well as on extortions and kidnappings. They have
not yet learned the complexities of self-governance or of taxation, and may there-
fore be best assimilated to “roving bandits”.40
According to Olson “Under anarchy, uncoordinated competitive theft by
‘roving bandits’ destroys the incentive to invest and produce, leaving little for
either the population or the bandits. Both can be better off if a bandit sets himself
up as a dictator – a ‘Stationary bandit’ who monopolizes, rationalizes theft in
the form of taxes”.41 In the case of the Somali warlords, “the individual fiefdoms
they have carved out are used as a base for the exploitation of confiscated proper-
ties, plantations, ports and airports, as well as for drug trafficking, the issuance
of fishing licenses for foreign concerns and for arms trade”.42 Because of these
40
See OLSON, “Dictatorship, Democracy and Development”, American Political Science
Review, 1993, pp. 567-576.
41
Ibid., p. 567.
42
See YUSUF, cit. supra note 4, p. 6.
profit-making, but illegal businesses, the warlords are opposed to the creation
of effective provincial or central governments. “None of them would, of course,
refuse if offered to head such a government, but none would accept a government
led by another”.43
The above-described chaotic Somali landscape may not have an effective cen-
tral government exercising sovereignty over the entire territory of the State, but is
not completely devoid of authority ready to claim the right to exercise such sover-
eignty, or to exercise it effectively, particularly in the case of the self-proclaimed
states of Puntland and Somaliland, on a parcel of the Somali territory. Of course,
in the case of the warlord fiefdoms, there is more lawlessness than established
authority, and whatever authority is exercised by the warlords is for the benefit of
their racketeering and other organized illegal activities. Nonetheless, the sporadic
claims to “political leadership” by certain warlords and their continued control of
important areas of the country has led the international community to acknowledge
them as actors to be reckoned with, but presumably also to be held accountable for
their involvement in violations of humanitarian and human rights law and in crimes
against humanity. Consequently, the warlords continue to play a significant role in
the attempts by the international community, and particularly by the neighboring
countries of East Africa and the United Nations, to reconcile Somali factions and to
resuscitate the moribund Somali State.44
5.2. Continued Membership in International Organizations
The main factor that has militated, throughout this period, against the death
of the Somali State for lack of a central government has been its maintenance as
a member of the United Nations and of the Organization of African Unity (now
the African Union). The UN and the OAU have not only continued to recognize
Somalia as a Member State, but have repeatedly emphasized their respect for its
unity, sovereignty and territorial integrity in order to fend off any outside pretext to
occupy part of its territory or any internal attempts at secession.45 They have also
continuously striven to revive the comatose Somali State either through direct in-
tervention to ensure peace and security and rebuild State institutions (as was done
by the UN in 1991-1994) or through the encouragement and support offered to
neighboring States to organize national reconciliation conferences.
43
Ibid.
44
See infra section 5.3.
45
See, for example, Resolution 1519(2003) adopted by the Security Council on 16 December
2003 whereby it reaffirms “the importance of the sovereignty, territorial integrity, political inde-
pendence and unity of Somalia, consistent with the purposes and principles of the Charter of the
United Nations” and reiterates its insistence that “all States, in particular those of the region,
should not interfere in the internal affairs of Somalia”.
24 ARTICLES
The resolutions of the UN Security Council and the decisions of the OAU
have played a decisive role in keeping the Somali State in suspended animation
so as to give an opportunity to the people of Somalia to get their act together
and to exercise their sovereignty through governmental institutions of their
own choice.46 This opportunity has yet to be seized by the Somali population.
Meanwhile, Somalia continues to maintain a Permanent Mission to the United
Nations and to many of its specialized agencies. For most of the period under
review, Somalia’s seat at these institutions has remained unoccupied either due to
the lack of proper credentials or to the voluntary abstention of Somali delegates
from active participation in the work of their organs. Somalia’s Permanent del-
egation to the UN in New York, headed by the Chargé d‘Affaires, Mrs. Fatoun
Hassan throughout the 1990s, decided, to avoid competing claims of representa-
tion at the General Assembly or the Security Council, to notify the Secretary-
General that Somalia would not be represented in those organs until a national
representative government came to office. As reported by Shraga: “Représentant
pour la dernière fois la Somalie à l’Assemblée générale, le chargé d’affaires so-
malien informa le Secrétaire générale que, du fait des circonstances politiques et
de l’absence de toute autorité gouvernementale représentative, aucune déléga-
tion officielle ne représenterait la Somalie à la XLVIIe session. Aucun pouvoir
n’ayant été présente à cette session ni aux suivantes, le siège de la Somalie à
l’Assemblée est resté vacant depuis”.47 Nevertheless, Somalia continued to enjoy
such residual rights of membership as having its name-plate maintained in the
General Assembly, its permanent mission listed in the UN “blue book” with full
diplomatic status, its flag flying at UN headquarters and at the headquarters of
UN agencies, and its Chargé d’Affaires having the right to request the circulation
of documents to other Member States.48
The OAU has also continuously re-affirmed its commitment to and support for
“the unity and territorial integrity of Somalia”.49 It has repeatedly rejected attempts
by warlords, or representatives of armed factions or self-declared governments to
be recognized as the legitimate representatives of Somalia. The Charter of the new-
46
“The Security Council had devoted a great deal of energy to the crisis, adopting some
20 resolutions, committing billions of dollars and establishing a major peacekeeping force”,
Statement by of Jean-David Levitte, Permanent Representative of France to the UN Security
Council, UN Press Release, SC/7178, 19 October 2001.
47
See SHRAGA, “La qualité de membre non-représenté: le cas du siège vacant”, AFDI, 1999,
p. 649 ff., p. 653. It should however be noted that in 2001 the UN Secretary-General received the
credentials of a TNG-appointed Permanent Representative to the United Nations (see infra note
52 and accompanying text).
48
See letter of Mrs. Fatoun Hassan, Chargé d’Affaires of the permanent Mission of Somalia
to the UN, to the Security Council. See Security Council Docs. S/23957 of 19 May 1992, S/
26412 of 7 September 1993, and S/26530 of 4 October 1993.
49
See for example Decision of the Assembly of Heads of State and Government, AHG/
Dec.146(XXXVI) adopted at its Thirty-Sixth Session, Lomé, Togo, July 2000.
ly-created African Union, which was also adopted at the Lomé Summit,50 provides,
as one of the basic objectives of the Union, to “defend the sovereignty, territorial
integrity and independence of its Member States”. The fact that Somalia remained
a Member of the OAU, and later joined the AU, therefore meant that the continental
organization was unwilling to entertain the secessionist aspirations of “Somaliland”
or the claims of “Puntland” leaders to represent a self-administering and stable part
of Somalia. For the OAU, the unity and territorial integrity of Somalia had to be
preserved until such time as the Somali people succeeded, with the help of neigh-
bouring African countries, particularly the IGAD (Intergovernmental Authority for
Development), to resolve their problems.
Thus, the Somali seat at OAU meetings had remained vacant through most
of the period under review. It was only after the convening of the 12th National
Reconciliation Conference by the President of Djibouti in May 2000 that the OAU
decided to “support the Somali National Conference for Peace meeting in Arta,
Djibouti, and the Somali institutions that will emanate from this Conference”.51
The UN General Assembly, taking its cue from the African Organization, similarly
decided to admit Mr. Abdikassim Salad, who was designated by the Conference as
President of a Transitional National Government (TNG), and his Prime Minister,
Mr. Ali Khalif Galaydh, to its Millenium Summit in September 2000. It was out of
frustration at the lack of a central government in Somalia, rather than an explicit
political endorsement of the TNG, that both intergovernmental organizations em-
braced the outcome of the Arta process. The Security Council resolution on the
TNG implies indeed a conditional recognition since it calls upon it “to continue, in
the spirit of constructive dialogue, the process of engaging all groups in the country,
including the northeastern and northwestern areas, with a view to preparing for the
installation of permanent governance arrangements through the democratic proc-
ess”.52 The Security Council also urged the “Transitional National Government,
political and traditional leaders and factions in Somalia to make every effort to
complete, without preconditions, the peace and reconciliation process through
dialogue and involvement of all parties in a spirit of mutual accommodation and
tolerance”. It clearly transpires from the position adopted by the Security Council
that the TNG was neither considered as a fully representative government nor as
the only and sole actor in the Somali political scene and that the international com-
munity saw a strong need for it to engage in dialogue with other actors in order to
bring about peace and permanent governance structures in the country.53
50
For the text, see African Yearbook of International Law, 2000, pp. 479-502.
51
See OAU Decision, AHQ/Dec. 146(XXXVI), July 2000.
52
See Statement by the President of the Security Council, in Security Council Doc. S/PRST/
2001/30 of 31 October 2001.
53
Ibid. See also statements made by the UK representative during the debate in the Security
Council where he declared that “He was encouraged by the idea that the Transitional Government
was a transition to a permanent government” and by the US delegate who said that “All must
26 ARTICLES
5.3. Efforts by the International Community to Resuscitate the Somali State
The absence of an effective central government in Somalia has confronted

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

political reconciliation, through broad participation by all sectors of
Somali society, and the re-establishment of national and regional in-
stitutions and civil administration in the entire country;
(d) Assistance in the re-establishment of Somali Police, as appropria-
te at the local, regional or national level, to assist in the restoration
do what they could to improve those conditions, but only the people of Somalia could reclaim
their country from chaos and create political legitimacy. No single group had yet achieved that
legitimacy, and it was not for the United State, the Security Council or any outside powers to
determine it”. Security Council, Press Release, SC/7178, 19 October 2001, pp. 8-9.
54
See, generally, The United Nations and Somalia (1992-1996), cit. supra note 14.
and maintenance of peace, stability and law and order, including in

the investigation and facilitating the prosecution of serious violations
of international humanitarian law”.55
Following the adoption of this resolution, and the Addis Abeba Agreement
concluded by Somali faction leaders on 27 March 1993, whereby they decided
to seek the assistance of UNOSOM, aid agencies and donor countries in rebuild-
ing Somalia’s political and other institutions destroyed by the conflict, the United
Nations effectively engaged in the resuscitation of police, judiciary, and prisons
institutions in Mogadishu and in the establishment of regional and district councils
in some of the other areas of Somalia.56 This experiment in nation-building by
the United Nations came to an abrupt and unsuccessful end with the withdrawal
of UNOSOM II on 3 March 1995. According to the UN Secretary-General: “The
withdrawal of UNOSOM II marked the end of a major phase of the efforts of the
international community to facilitate the search for peace and reconciliation and to
deliver humanitarian assistance”.57
In the aftermath of the UN withdrawal and the consequent deterioration of the
security situation in the country, the OAU and the neighboring member States of
IGAD (the Intergovernmental Authority for Development), of which Somalia is
still a member, redoubled their efforts aimed at bringing about the re-establishment
of a central government in Somalia through the convening of a series of national
reconciliation conferences. The results of these conferences, which in certain in-
stances reached agreements on the establishment of provisional or transitional
national authorities and agreed on a specific framework for their implementation,
have been repeatedly undermined by the reluctance of warlords to accept the rule
of law and to forego their vested interests in the control of their respective fiefdoms
and the profits derived from their illegal business activities.
A recent author has described the obstacles faced by these peace-making ef-
forts as follows:
“There is the seemingly limitless supply of arms available – both the

heavy weaponry left over from the Siyad Barre period, and the light
arms and ammunition that continue to flood in unchecked. There are
the powerful vested interests in the absence of law – warlords and
militia leaders, the young men who find living by the gun more pro-
fitable and more fun than herding camels, or who have no other em-
ployment; mafia-like gangs who run protection rackets. Another set
55
For the full text of Resolution 814(1993) of 26 March 1993, ibid.
56
For an account of UNOSOM’s institution building in Somalia under the above Security
Council mandate, see OSINBAJO, cit. supra note 21.
57
BOUTROS-GHALI, “Introduction to the United Nations and Somalia”, in The United
Nations and Somalia (1992-1996), cit. supra note 14, p. 77.
28 ARTICLES
of people who, while they need peace, have reason to fear what a rule
of law might bring, is those who have taken over property – whether
real estate in Mogadishu, pasture lands or plantations. Those who
have profited do not want the process reversed”.58
Although the UN Security Council has been acting under Chapter VII of the
Charter since 1992 with respect to the situation in Somalia, which it determined
to be a threat to international peace and security, and despite all the above-de-
scribed efforts by the OAU and neighboring countries, an effective means has
not yet been found by the international community, nor by the people of Somalia,
to remove these well-known obstacles standing in the way of resuscitating the
Somali State and bringing about peace and stability in the country. This could
be due to the lack of effective action or sanctions against the warlords, who,
instead of being held responsible for the crimes committed against their people,
are allowed to play a key role in reconciliation conferences and to stymie all ef-
forts aimed at the reconstitution of the Somali State.59 It could also be viewed as
a confirmation of the conclusion drawn by Boutros Boutros-Ghali from the UN
experience in Somalia:
“The Charter of the United Nations provides for the admission to

the international community of a country which gains the attributes
of a sovereign State, for instance, through independence or decolo-
nization. It does not, however, provide for any mechanisms through
which the international community can respond when a sovereign
State loses one of the attributes of Statehood, such as its government.
Further reflection by the international community is required on this
issue”.60
6. ANARCHY, FRAGMENTATION AND SUSPENDED ANIMATION: SOME LEGAL

IMPLICATIONS
The concept of suspended animation is not new in international law. It was

strongly criticized in 1934 by Thomas Baty, who referred to it as “the doctrine of
suspended animation”.61 According to Baty, the doctrine of suspended animation
58
LULLING, “Come Back Somalia? Questioning a Collapsed State”, Third World Quarterly,
1997, p. 287 ff., p. 298.
59
For a recent account of the illegal activities of warlords and their militias, see Report of
the Panel of Experts on Somalia Pursuant to Security Council Resolution 1474(2003), Security
Council Doc. S/2003/1035 of 4 November 2003.
60
See BOUTROS-GHALI, cit. supra note 57, p. 87.
61
BATY, “Can An Anarchy Be a State?”, AJIL, 1934, pp. 444-455.
“contradicts two fundamental propositions of the law of nations. It

places foreign nations in the necessity of seeing their intercourse
with a given territory cut off, and their rights and interests imperiled,
because it refuses to allow them either to vindicate those rights for
themselves, or to concert with an existing government their vindica-
tion against rebels. It places native populations in the impossibility of
carrying on a normal and healthy state of life, simply because of un-
substantial claims which they and their neighbors are unwilling for-
mally to give up. It therefore contradicts the liberty of foreign nations
to require that a definite territory shall have a definite government
with whom they can deal, and it contradicts the liberty of populations
to establish themselves as a new state in order to enjoy the rights and
privileges of statehood”.62
The world has radically changed since 1934, and many of the facts and as-
sumptions underlying Thomas Baty’s analysis may no longer be valid. There
is the United Nations, and above all there is the UN Charter, which has revolu-
tionized international law, and which enshrines such fundamental principles as
sovereign equality, non-use of force in international relations, non-intervention,
collective security, enforcement action with respect to threats to and breaches
of peace, and establishes certain common ends and values for all nations. These
developments may not have yet resulted in a concrete mechanism to deal with the
loss of one of the attributes of statehood, as underlined by Boutros-Ghali,63 but
they have resulted in the introduction of a rule of law in relations among member
States of the UN and a certain stability in international legal relations, in gen-
eral. Thus, Bady’s main objection to suspended animation, which is repeatedly
asserted in his article, that “it cannot be accepted as law that other states should
be bound to stand by and see their interests ruined, with no existing government
with which to negotiate, and which they can hold responsible”64 appears outdated
in the Charter era. Today, as demonstrated by the analysis of the Somali case,
suspended animation is used by the United Nations itself, and by regional ar-
rangements such as the OAU, as a legal fiction to safeguard the sovereignty and
territorial integrity of a member State that has temporarily lost its central govern-
ment while collective assistance or enforcement action is undertaken to restore
its institutions, and to enable it to perform again its international obligations and
exercise its rights. This is not completely unheard of in the annals of interna-
tional law. For Cansacchi, for example, “dans certaines circonstances une fiction
juridique de continuité étatique est reconnue, rétroactivement, par des Etats tiers
en faveur d’un Etat qui pendant une période de temps ne possédait plus une or-
62
Ibid., p. 454.
63
See text accompanying note 60 above.
64
See BATY, cit. supra note 61, pp. 451, 452 and 455.
30 ARTICLES
ganisation politique unitaire”.65 Similarly, Raestad observes that “les Etats tiers
plusieurs fois reconnaissent comme existant un Etat qui en fait s’est éteint depuis
longtemps à la suite de l’anarchie ou de la debellatio”.66
What are the legal implications of the application of the doctrine of suspended
animation in the case of Somalia? It implies, first of all, in our view, that anarchy
and fragmentation have not led to the demise of the Somali State, or at least have
not yet resulted in the loss of its international legal personality. They have, how-
ever, substantially compromised its enjoyment of some of the attributes of such
legal personality, such as the capacity to enter into relations with other States or to
conclude international treaties. Thus, as pointed out above, Somalia continues to
maintain permanent missions to the UN and to some other organizations, as well as
embassies in a number of countries,67 while a few other States68 have kept open their
embassies in Mogadishu through most of this period. This means that Somalia still
remains a member of these organizations, although not an active member, and that
its properties and embassies are respected, and safeguarded, by many of the States
with which it entertained diplomatic relations before the government collapse. It
does not however have the capacity to establish new diplomatic representations nor
to become a member of new intergovernmental organizations.69
Secondly, the implicit adoption by the international community of the doctrine
of suspended animation with respect to the situation in Somalia, and its insistence
on Somalia’s continued existence as a State, has enabled the country to preserve
its unity and territorial integrity, keep in check separatist tendencies and fend off
overt interference in its internal affairs by other States. The Northwestern regions
of Somalia, which now call themselves “Somaliland”, have, for example, been ap-
pealing to the international community, and particularly to neighboring countries,
for recognition as a separate State, since they declared secession in 1992, but their
claim has so far been rejected by all members of the United Nations and of the
African Union.70 Both organizations continue to reaffirm the importance of the sov-
ereignty, territorial integrity, political independence and unity of Somalia and their
65
According to CANSACCHI: “La fiction juridique c’est un procédé de droit par lequel on
présuppose une certaine situation comme existante, tandis que, dans la réalité des choses, elle
s’était produite différemment; cela pour réaliser des effets juridiques et politiques qui découlent
de la situation fictive et qui ne pourraient pas découler de la situation réelle”. See CANSACCHI,
“Identité et continuité des sujets internationaux”, RCADI, 1970, II, p. 1 ff., p. 40.
66
See RAESTAD, “La cessation des Etats d’après le droit des gens”, Revue de droit interna-
tional et de législation comparée, 1939, p. 441 ff.
67
For example, China, India, Saudi Arabia, Egypt, Zambia, Italy, France and Pakistan.
68
Egypt, Libya and Sudan.
69
A notable exception to this situation took place recently, when the TNG ratified the
Constitutive Act of the African Union, making Somalia a founding member of the successor
organization to the OAU.
70
Somaliland Government, Somaliland: Demand for International Recognition, Hargeisa,
2001.
determination to respect it. The UN Security Council has also reiterated on several
occasions “its insistence that all States, in particular those of the region, should not
interfere in the internal affairs of Somalia”, adding that “such interference only
further destabilizes Somalia, contributes to a climate of fear and impacts adversely
on human rights, and could jeopardize the sovereignty, territorial integrity, political
independence and unity of Somalia”.71
Thirdly, suspended animation implies that, as soon as a fully representative
Somali government is established, Somalia’s assets that had been frozen by foreign
States as well as its properties abroad will have be returned to it, since it continues
to be the same State. In the same vein, a new effective Somali authority will be
required to honor the debts and other obligations kept in abeyance throughout the
period of suspended animation. Thus, unless the current state of anarchy and frac-
tured sovereignty degenerates into a break-up of the Somali State into two or more
Somali-inhabited mini-States recognized by the international community, the issue
of succession does not arise.
Fourthly, in view of the absence of an effective government and the total col-
lapse of the judiciary, crimes against humanity or war crimes committed by the
warlords and their militias throughout the period of suspended animation may be
prosecuted and punished by third States under the principle of universal jurisdic-
tion or by an ad hoc tribunal established by the UN Security Council.
To summarize, it may be said that the 1991 government collapse and the
consequent situation of anarchy and fragmentation have not as yet resulted in the
death of the Somali State. Despite an unusually long period of lack of an effective
central authority, Somalia may still be considered to be in suspended animation,
thus ensuring for the time being its identity and continuity as a State. It is however
doubtful whether the current situation can be sustained much longer for suspended
animation can only be a markedly temporary condition in the life of a State.
7. CONCLUDING REMARK: WHICH WAY FORWARD?
The Somali State continues to be torn apart by internal forces of secession,

warlordism, anarchy, and lawlessness. Secession and fragmentation pose the grav-
est dangers to its identity and continuity as the State that has hitherto been known
as Somalia, while warlordism and lawlessness constitute the main obstacle to
peace, stability and the restoration of central authority.
The embryonic States of “Puntland” and “Somaliland”, established respective-
ly in the self-governing areas of Northeastern and Northwestern Somalia, present
both a challenge and opportunity to the future of the country. They constitute a
challenge mainly because of the secession declared by “Somaliland”, which, if
71
See, for example, Resolution 1519(2003), Doc. S/Res/1519(2003) of 16 December 2003.
32 ARTICLES
successful, could not only be imitated by “Puntland”(which is not much far behind
in the establishment of autonomous institutions); but could also lead to the perpetu-
ation of the warlord fiefdoms in the central and southern areas, or to the latter’s
fragmentation into other mini-States as well.
Conversely, the existence of these entities could be viewed as an opportunity
for the reconstitution of Somalia as a federal State. As such, they could either be a
model for other areas to follow or serve as the building blocks for a federal struc-
ture. This would not only ensure the long-term stability of a resuscitated Somali
State, but would constitute an effective remedy to the democratic deficit that con-
tributed to the collapse of the centralized State institutions of the past. It would
also represent an effective exercise of the right to self-determination not only at the
State level, but also at the sub-State level,72 thus confirming legitimacy to the new
institutions.
It is not however clear how Mogadishu and the other regions affected by anar-
chy and lawlessness could be parties to such a solution unless the problem of the
warlords is effectively dealt with. The warlords have no apparent stake in peace
and stability, or in the reconstitution of the Somali State. Their interest lies in the
continued absence of an effective central or regional authority, since it allows them
to maintain control over ports and airports in strategic areas of the country, and to
use them for illegal arms trafficking, drug trade as well as the export of products of
expropriated plantations and other properties. They are also reluctant to transform
their military domination to civilian administration, being adept at attacking, re-
pressing and destroying rather than at governing or creating public institutions.73
To remove the obstacle represented by the warlords and their militias, the role
of the international community, and particularly of neighboring countries, will
be primordial. Sanctions, isolation and criminal prosecution against the warlords
would contribute significantly to the search for peace in Somalia. The creation of
an international commission of enquiry or the establishment of an ad hoc criminal
tribunal on the crimes committed by them, the severance of all air traffic and ship-
ping links with the ports and airports under their control, the freezing of their assets
abroad, and the imposition of a travel ban are some of the possible measures that
might bring to an end to the activities of the warlords and remove their negative
impact on the process of reconciliation.74 Coupled with a political settlement based
on federal structures, this could result in a positive outcome to the Somali crisis.
The alternative to the above could either be further fragmentation and lawless-
ness perpetrated by a growing number of warlords that might eventually lead to
72
For the desirability of the exercise of self-determination at the sub-State level in Africa,
see YUSUF, cit. supra note 5.
73
To use OLSON’s words, they have not yet learned how to transform themselves from “rov-
ing bandits” to “stationary bandits”: OLSON, cit. supra note 40.
74
See Report of the Panel of Experts, cit. supra note 59, for similar recommendations par-
ticularly with regard to ports and airports.
the disappearance of the Somali State, or the adoption by the UN Security Council
of enforcement action under Chapter VII placing Somalia under full international
administrative authority. The latter would be similar to the action recently taken
with respect to East Timor or Kosovo and would result in the temporary suspen-
sion of the sovereignty of the country.75 This might not be a desirable outcome for
the Somali people, but in the absence of a better solution it might at least serve to
save a lot of Somali lives and to rescue many more from the suffering and misery
imposed on them by home-grown oppressors. This solution may also be grafted
onto the outcome of the long-running IGAD-led process whereby a new nominal
government or governmental authorities selected at the National Reconciliation
Conference in Nairobi would receive support from the UN Security Council or
from the African Union, or from both, in a new peace-enforcement operation
throughout the country.
75
For analysis of recent UN experiences in assuming full administrative authority and their
legal implications, see YANNIS, “The Concept of Suspended Sovereignty in International Law
and its Implications in International Politics”, EJIL, 2002, pp. 1037-1052.
FRAGMENTED SOVEREIGNTY?
THE EUROPEAN UNION AND ITS MEMBER STATES
IN THE INTERNATIONAL ARENA
ENZO CANNIZZARO*
1. INTRODUCTORY REMARKS
The conception of the European Union (EU) as a new international law actor
which possesses and exercises its own rights and duties autonomously is widely ac-
cepted in legal literature.1 However, the establishment of the EU as an international
law actor has certainly not extinguished the legal personality of its Member States
(MS). These continue to possess rights and duties individually at the international
level, though the scope of their action appears to be significantly curtailed. Thus, in
correspondence to the competence assigned to the EU, quite an unusual situation
seems to have arisen in the international community: instead of States as fully-
fledged legal actors, possessing the panoply of international rights and duties, we
have now a plurality of actors sharing competences and powers.
This event, the fragmentation of the overall capacity of the Member States of
the European Union, and the distribution of powers and prerogatives among a plu-
rality of subjects, is quite unprecedented in international law. It is an event which
profoundly challenges the structure and process of the international legal order and
entails an adjustment of its basic legal categories.
A line of research aimed at more precisely identifying how the EU and its MS
behave in international legal relations, in themselves and in the relations with each
other, appears relevant from both a practical and a theoretical perspective.
Practically, the sharing of competences between the EU and its MS is at the
heart of serious legal problems on the international plane. The existence of inter-
national activities carried out by a plurality of subjects that share powers and com-
petences produces overlaps and interferences and affects the very idea of unity and
coherence in the conduct of foreign relations. An analysis of the interrelations in
the behaviour of the EU and its MS is necessary in order to seize the consequences
of the co-existence of a plurality of legal persons endowed with partial competence.
*
Professor of International Law, University of Macerata.
1
Within the limited scope of the present study, no assumption is made as to the international
personality of the EU and to any relations it may have with that of the EC. The acronym EU will
be (quite a-technically) used in order to refer to the Union, including the European Community.
As the cases examined will concern almost exclusively legal positions possessed by the latter,
the vexed issue of the international personality of the EU, as distinguished from that of the EC,
can be left unprejudged.
36 ARTICLES
This analysis can reveal how international law is reacting to the sharing of compe-
tences, and which changes are occurring to its conceptual structure in order to cope
with this unique scenario.
This analysis seems promising also from a theoretical perspective. The frag-
mentation of the unitary capacity of the State, and the rise, in its place, of a plurality
of actors endowed with partial capacity, ostensibly calls into question the notion of
sovereignty: a notion that has constituted, and still constitutes today, a fundamental
paradigm of international law. Thus, to inquire how the EU and its MS behave in
international society may contribute to a closer observation of the evolution of the
notion of sovereignty: a notion about which much speculation has been made and
yet which remains mysterious in its very content.
2. A NORMATIVE NOTION OF SOVEREIGNTY
In order to introduce the analysis, a short examination of the theoretical foun-

dation of the doctrine of sovereignty seems useful.
According to this model, a sovereign State is an entity possessing plenitude of
powers within its territory. It is entitled to establish and maintain its own lines of
conduct in international relations and is only limited by obligations arising under
international law.2
This conception has reigned almost unchallenged for centuries. True, the no-
tion of sovereignty has undergone a series of vicissitudes in the history of political
and legal thought. In particular, in the transition from the absolutist State to the
more modern forms of constitutional State, with its corollaries of the distribution
of powers and competences among different organs and levels of government, the
idea of sovereignty has at times been overtly contested, in favour of the emergence
of new notions, allowing a certain pluralism in the exercise of political power.
However, it is worth noting that the doctrinal dispute about the concept of
sovereignty in a system of political pluralism has regarded almost exclusively
the notion of internal sovereignty.3 In external relations the notion of sovereignty
has continued to be regarded as the expression of the unity and full capacity of
the State as a politically organised entity. It has been almost univocally held that
sovereignty of the State in international relations is necessarily a unitary notion:
sovereignty can be acquired, transferred or extinguished in its entirety, but never
2
For a complete account of the various meanings of the term sovereignty, see VERDROSS and
SIMMA, Universelles Völkerrecht, 4th ed., Berlin, 1994, p. 25.
3
See OETER, “Souveränität und Demokratie als Probleme in der ‘Verfassungsentwicklung’
der Europäischen Union”, ZAÖRV, 1995, p. 659 ff.; DE WITTE, “Sovereignty and European
Integration: The Weight of Legal Tradition”, Maastricht Journal of European and Comparative
Law, 1995, p. 145 ff.
THE EU AND ITS MEMBER STATES IN THE INTERNATIONAL ARENA 37
divided.4 The distribution of the powers and prerogatives of the State among a
plurality of entities endowed with international personality must have appeared,
in the minds of political and legal theorists, a heresy.
In international law, the notion of sovereignty seems to express plenitude and
comprehensiveness in the exercise of political power. In the classic textbooks of
international law, and in some leading cases, sovereignty is defined by reference
to intuitive notions, such as independence, plenitude of power and exclusivity in
discharging the governmental authority of a territorial community.5 In other words,
sovereignty has constantly represented an attribute of statehood:6 an entity is sov-
ereign when it is empowered to participate on an equal footing with other nations
in the course of international affairs.
These, and similar definitions, refer not only to legal, but also to political ele-
ments. However, it is worth attempting to extract from them a normative notion of
sovereignty. Stripped of its symbolic and political meanings, sovereignty consti-
tutes the potentially unlimited capacity of an entity, which may acquire the whole
panoply of rights and duties under international law. In other words, sovereignty
is an expression that simply denotes fully-fledged entities, which can use, at their
will, all the powers and prerogatives deriving from international law.7
4
See WILDHABER, “Sovereignty and International Law”, in MACDONALD and JOHNSTON
(eds.), The Structure and Process of International Law, Dordrecht/Boston/Lancaster, 1986, p.
425 ff.; STEINBERGER, “Sovereignty”, Encyclopaedia of Public International Law, 2000, Vol. IV,
p. 500 ff.
5
See the famous dictum of the sole Arbitrator Huber in the Island of Palmas case,
Netherlands v. United States, 1928, Report of International Arbitral Awards, Vol. 2, p. 829 ff.:
“Sovereignty in the relations between States signifies independence. Independence in regard to
a portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of a State” (p. 838). In the legal doctrine of the nineteenth century the existence of
“half sovereign” entities was generally admitted, intending by that term the existence of entities
possessing full sovereignty in their internal relations, but depending on other States for what con-
cerns international relations. See for example DIENA, Diritto internazionale, Napoli, 1908, Vol. I,
p. 73, who makes a distinction between “Stati sovrani, che possono adempiere liberamente e con
massimo d’intensità le funzioni che sono proprie dello Stato ed esercitare integralmente i diritti a
questo inerenti, non solo nei rapporti interni, ma anche nei rapporti internazionali”, e “Stati semi-
sovrani, che, pur avendo in misura più o meno estesa una determinata indipendenza nei rapporti
interni, si trovano in condizioni di subordinazione ad un altro Stato per ciò che riguarda le loro
relazioni d’ordine esteriore”.
6
See the celebrated individual opinion of Judge Anzilotti in the Austria-Germany Customs
Regime case, PCIJ Series A/B, No. 41, p. 57: “Independence […] is really no more than the nor-
mal condition of States according to international law; it may also be described as sovereignty
(suprema potestas), or external sovereignty”. This was synthetically expressed by STEINBERGER,
cit. supra note 4, p. 507: “The sovereign State thus became the normal subject of international
law”.
7
See the classical definition by OPPENHEIM and LAUTHERPACHT, International Law. A
Treatise, 7th ed., London/New York/Toronto, 1948, p. 113: “Full sovereign States are perfect,
not-full sovereign States are imperfect, International Persons, for not-full sovereign States are
only in some respects subjects of International Law”. According to CRAWFORD, “The Criteria for
38 ARTICLES
This definition is tautological and merely descriptive if applied to a unitary

State. It simply denotes as sovereign any entity that possesses all the attributes of
sovereignty. Though basic, this definition appears fraught with consequences when
applied in a legal environment characterised by the sharing of competences. The
transfer of competences to the EU has in fact created a plurality of actors on the
international plane, each possessing powers and prerogatives, but none possessing
the plenitude of powers traditionally referred to with the notion of sovereignty.
3. THE THEORY OF LEGAL PERSONALITY OF INTERNATIONAL ORGANISATIONS
This situation is quite unprecedented. Little guidance, if any, can be expected

from cases regarding the legal personality of international organisations. Although
international organisations can be endowed with international powers and preroga-
tives, and can consequently be considered as endowed with legal personality, their
existence has by no means been perceived as a threat to the sovereignty of their
MS.8
There are at least two reasons for this. First, unlike States, which are fully-
fledged actors in international relations, the scope of the legal personality of inter-
national organisations is limited. Most international organisations act primarily as
a legal framework within which activities of their member States are co-ordinated.
Certainly they do not possess the plethora of powers which are put at the disposal
of States.
Secondly, and perhaps more importantly, the attribution to international organi-
sations of legal personality is commonly not considered to have curtailed the legal
capacity of their member States.9 Also in consideration of the powers transferred to
them, the capacity of international organisations to interfere with the international
position of their MS is quite limited, quantitatively and qualitatively. International
organisations are generally regarded as a new category of legal persons, whose
establishment leaves untouched the legal capacity of their MS. While most authors
are readily willing to admit that the establishment of international organisations has
drastically changed the international legal environment, and has established a new
Statehood in International Law”, BYIL, 1976-1977, p. 92 ff., p. 108: “In principle States have
plenary competence to perform acts, make treaties and so on, in the international sphere: this is
one meaning of the term ‘sovereign’ as applied to States”.
8
See SCHERMERS and BLOKKER, International Institutional Law, The Hague/London/
Boston, 1995.
9
See CRAWFORD, cit. supra note 7, p. 122, who mentions the membership of international
organisations among the restrictions which “are not regarded as derogating from formal inde-
pendence, although if extended far enough, […] may derogate from actual independence”. On
the effect of the transfer of powers to supranational organisations on the legal capacity of the MS,
see BLECKMANN, “Art. 2(1)”, in SIMMA (ed.), The Charter of the United Nations. A Commentary,
New York, 1995, p. 77 ff.
category of subjects, they are much less disposed to admit that the international
capacity of States, full actors in international law, has been curtailed correspond-
ingly.
This conceptual framework emerges from the advisory opinion of the
International Court of Justice in the Reparation for Injuries case,10 one of the few
instances in which the scope of legal personality of international organisations has
been examined, on its own and in its relation with that of States.
In this case the Court was requested to ascertain whether the UN possesses the
right to bring an international claim with a view of obtaining reparation in respect
of the damage caused to an agent of the organisation in the performance of its du-
ties. The Court made a distinction between the right to claim reparation for damage
caused to the organisation as such, and the right to claim reparation for the damage
caused to the individual, which involves two different subjects: the UN and the
State of the individual’s nationality. According to the reasoning of the opinion,
the power to bring an international claim, in both situations, was possessed by the
organisation “by necessary implication as being essential to the performance of its
duties”. Furthermore, having noted the existence of potentially conflicting rights,
namely the State’s right of diplomatic protection, and the organisation’s right of
functional protection, the Court called upon the parties concerned to find a co-ordi-
nated solution.11 Thus, although embryonic, the Court’s line of reasoning acknowl-
edged the fact that the establishment of international institutions endowed with
legal personality may entail interference with the international position of States.
The relevance of this opinion for our purposes is perceptibly diminished by the
fact that the Court did not go so far as to define the scope of the legal personality of
international organisations in its relation with that of their MS. The reason might be
that the question of determining which entity has a right to bring a claim for injuries
suffered by an individual in the service of an entity other than its national State does
not regard specifically the relation between international organisations and member
States. This question may arise when an individual in the service of an international
organisation has the nationality of a non-member State, or even when an individual
in the service of a State has the nationality of another State.
Be that as it may, the opinion has undisputedly contributed to building the
conceptual background underlying the doctrine of legal personality of international
organisations. In the Court’s view, which largely coincides with the view prevail-
10
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of
11 April 1949, ICJ Reports, 1949, p. 174 ff.
11
It is stated in the Opinion: “Competition between the State’s right of diplomatic protection
and the Organisation’s rights of functional protection might arise. […] In such a case, there is no
rule of law which assigns priority to the one or to the other, or which compels either the State or
the Organisation to refrain from bringing an international claim. The Court sees no reason why
the parties concerned should not find solutions inspired by goodwill and common sense, and, as
between the Organisation and its Members, it draws attention to their duty to render ‘every as-
sistance’ provided by Article 2, paragraph 5, of the Charter”, ibid., p. 185.
40 ARTICLES
ing in legal literature, the attribution of legal personality to international organisa-

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

OF DIVIDED SOVEREIGNTY
What changes, and even radically, the terms of the question is the establishment
of supranational organisations – like the European Union – entrusted with some
powers that are intimately connected with the exercise of governmental authority
of their Member States. The fact that these organisations discharge functions gen-
12
“[The Organisation] occupies a position in certain respects in detachment from its Members,
and […] is under a duty to remind them, if need be, of certain obligations”, ibid., p. 179.
erally entrusted to States, on the basis of their own decision-making procedures,

makes them State-like entities rather than mere international organisations.
If seen against an historical background, the relevance of this event, the disso-
lution of the unitary nature of States as international legal persons and the fragmen-
tation of powers in international relations among a plurality of entities endowed
only with a partial capacity, can hardly be underestimated. It is likely to cause a
profound impact on the evolution of international law and to call for the updating of
traditional conceptual categories such as those of legal personality and sovereign-
ty.13 It then prompts questions that are of relevance in considering the legal nature
of the EU as an actor in international relations. Is it really plausible to think that the
transfer of sovereign powers and prerogatives to supranational organisations has
left untouched the legal capacity of their Member States? Could we simply think of
the EU and its MS as distinct legal persons, exercising their own powers and pre-
rogatives in isolation from each other? Can sovereignty be split among a plurality
of entities sharing competences and powers?
13
This point assumes that international rules impose obligations and confer rights upon
subjects who effectively possess the power to implement them. I can refer to my study, “The
Scope of the EU Foreign Power”, in CANNIZZARO (ed.), The European Union as an Actor in
International Relations, Dordrecht/Boston/London, 2002, p. 397 ff. The consequence of this line
of reasoning is that, in correspondence to the transfer of normative powers to the EU, a loss of
international capacity has occurred, at least in those fields in which the competence of the EU is
exercised effectively and overtly. I am well aware that, among international lawyers, a different
view is prevailing, according to which the transfer of competence to the EU has not produced a
loss of international capacity for the MS. The transfer of normative powers to the EU is seen as
an internal event, unsuitable for unfolding consequences on the international status of the MS.
This view is based on the traditional conception of sovereignty, construed as the capacity of a cer-
tain entity to control ultimately the course of events on a given territory. Within this conceptual
perspective, it is assumed that the assignment of normative powers to an entity, such as the EU,
which does not dispose of enforcement powers, is not an event capable of exerting influence on
the international capacity of the MS. In spite of the transfer of competence, MS have still retained
the capacity to keep conduct in compliance with international obligations, eventually at the cost
of disregarding EU law inconsistent therewith. In this perspective, the capacity of the MS to con-
trol the enforcement of EU law, and, consequently, to comply with, or to breach, international law
inconsistent therewith, would constitute the proper test for identifying the sovereign entity. Yet
this view does not appear entirely persuasive. It is intimately linked to the doctrine of sovereignty
as exclusive territorial control. Whereas this conception can describe satisfactorily the relations
between sovereign entities, it appears unsuitable to make sense of the relations, more complex by
far, between States and supranational organisations. Certainly the EU does not dispose of exclu-
sive territorial control. However, in a normative perspective, which we are now exploring, it is
highly controversial that this is the proper test for identifying sovereign entities. Entities, such as
the EU, whose norms are effectively implemented throughout the territory of its MS, and which
avails itself of MS’ organs in order to secure compliance with its norms, without, or, in certain
cases, even against their will, can be reasonably deemed to exercise sovereign powers. Thus, un-
less a repatriation of powers effectively occurs, and up to that moment, it can be plausibly argued
that the MS have lost the capacity to exercise those international rights and duties which require
the use of the transferred powers.
42 ARTICLES
A positive answer to the latter question can be framed in the simplest model
conceivable in order to describe the relations between the EU and its MS on the
international plane: the model of divided sovereignty.
According to this model, each entity possesses on the international plane a
share of powers and prerogatives corresponding to its internal competence, and can
freely use them for the achievement of its aims. The model has a certain attractive-
ness in that it basically regards each entity, the EU and its MS, as partial sovereign
entities within their sphere of competences, thus preserving the autonomy in the
decision-making process of each. Interference by either entity in the conduct of the
foreign-relations power of the other is thus precluded.
Theoretically this model represents a coherent development of the notion of
international legal personality as the capacity of a certain entity to maintain its
own course of action, albeit in limited fields. If an entity has only limited capacity,
the sovereign powers with which it is endowed make it only a partially sovereign
subject.
The model of divided sovereignty presupposes that international legal posi-
tions can be split between individual entities and assigned to them in correspond-
ence to the line separating their competence on the internal plane. However, this
conception is very simplistic. It would be an error to expect that the partition of
competences on the internal plane has brought about a corresponding partition
of powers on the international plane. The case that an entity’s capacity possessed
under international law corresponds to its internal competence appears, on various
grounds, as an exception rather than the rule.
First, the process of competence-sharing on the internal plane is structurally
different from the process of attribution of rights and obligations on the interna-
tional plane. The relationship between internal competence and capacity in inter-
national relations is certainly not univocal. In some cases, the relationship is one
of correspondence, in the sense that international rules confer rights and impose
obligations upon the competent entity, either upon the EU or upon its MS. In other
cases, this relationship is more complex, either because the exercise of interna-
tional rights and duties requires actions which fall, albeit partly, within the compe-
tence of both entities, or because international law bestows rights and duties upon
an entity which does not have the competence necessary for complying therewith.
The richness and variety of the different classes of relationships between internal
competences and international position calls for a closer analysis.
Second, and perhaps more interestingly, the possession of a certain share of
rights and duties by a certain entity is not in itself an element that univocally deter-
mines its capacity to control an entire course of action in international relations. The
handling of complex legal situations may require a multiplicity of actions that fall,
according to various patterns, within the sphere of the powers of both entities. Whilst
the model of divided sovereignty can satisfactorily apply to those situations which
can be handled by one entity using its own individual powers, its application to more
complex legal situations produces shortcomings that are not easily overcome.
A third objection derives from observing how international legal situations are
frequently interconnected, so that the exercise by one entity of rights and duties
falling within its competence can produce legal effects in the sphere of the rights
and interests of the other.
All these reasons point to the inadequacy of the approach described above.
The idea that each entity individually exercises its share of international rights and
duties, according to a model of divided sovereignty, produces shortcomings and
inconsistencies. It seems incapable of plainly describing the comprehensive web
of relations between the EU and its Member States. The splitting up of sovereign
powers among a plurality of entities does not produce a plurality of partially sov-
ereign entities. While each entity, individually considered, certainly possesses a
means of action related to its competence, neither can be deemed to possess the
capacity to exercise, in isolation, its international legal powers. Some form of co-
ordination is required.
5. CO-ORDINATING THE INTERNATIONAL POWERS OF THE EU WITH THOSE OF

THE MEMBER STATES: A REAPPRAISAL
The considerations contained in the previous paragraph point to the difficulty

of conceiving of a unitary theoretical model in which the multifarious relations be-
tween the EU and the MS in the international arena can be conveniently framed. The
fact is that there is no unitary model able to capture the variety of relations between
internal competences and external legal powers. The interrelations between the EU
and the MS depend on a number of factors: on the sharing of competence on the
internal plane, but also on the structure of international legal relations. Moreover,
as the logic of the internal distribution of competence only approximately matches
the legal dynamics on the international plane, these two factors combine in a va-
riety of ways. Co-ordination must therefore be set up on a case-by-case basis, and
continuously adjusted in order to cope with the circumstances of the case. Thus, it
seems useful at this stage to consider the relations between the EU and the MS in
practice on the international plane. A major obstacle in this inquiry comes from the
scarcity and inconsistency of trends in practice. By looking at some leading cases,
we are merely endeavouring to glean some general guidelines for the study of the
interrelation between the international behaviour of the EU and its MS.
5.1. The Combined Individual Exercise of Parallel Legal Positions
First, rules of international law which confer rights or impose obligations both
on the EU and its MS ought to be considered. Norms of this type can normally
be split into a bundle of parallel rights and obligations that are possessed by each
entity, in relation to the powers and competences with which each has been respec-
44 ARTICLES
tively endowed. This situation presents an interesting relational scheme, in which

each entity’s exercise of competence constitutes a part of the more comprehensive
process of implementation of the same international norm.
In situations of this type there is generally no reason for deviating from the
principle of individual exercise. Each entity is entitled to use its powers for exer-
cising its own international rights and performing its own obligations under inter-
national law.
This does not, generally speaking, raise any difficulty in situations in which
each entity is individually considered. Thus, for example, both the EU and each of
its MS are addressed by international law rules concerning the treatment of aliens
and are required to exercise their respective competences in compliance therewith.
Both the EU and its MS are entitled to exercise rights and powers individually
concerning State succession in relation to agreements respectively concluded. Both
are bound by rules on environmental protection, on territorial application of the
law, and so on. Certainly, a uniformity of behaviour in the individual action of the
EU and its MS would be desirable. One might reasonably presume that the rules
of State succession in regard to treaties are uniformly applied by the EU and by its
MS.14 However, one could hardly assert a legal need for uniformity. Their distinct
legal personalities prevent third parties, in their relations with one type of entity,
from relying on the practice followed by the other.15
A need for uniformity nevertheless arises when the exercise of rights and per-
forming of duties under international law requires conduct which falls simultane-
ously within the competence of both entities. In such a case, the necessary conduct
on the international plane is simply obtained by adding the exercise of competences
respectively possessed by each entity. A good example of this comes from the in-
dividual, but co-ordinated, response to the enactment of the Helms-Burton Act by
the United States in 1996. The Joint Action 96/668/CE of 22 November 199616
expressly qualified the US conduct in question as internationally unlawful and set
out the legal framework in which the EC and its MS responded, individually, with
measures falling within the competence of each.17 This pattern has been maintained
14
See KUYPER, “The Community and State Succession in Respect of Treaties”, in CURTIN
and HEUKELS (eds.), Institutional Dynamics of European Integration, Dordercht/Boston/London,
1994, p. 619 ff.
15
See LOWE, “Can the European Community Bind the Member States on Questions of
Customary International Law?”, in KOSKENNIEMI (ed.), International Law Aspects of the
European Union, The Hague/Boston/London, 1998, p. 149 ff.
16
OJ EC No. L 309 of 29 November 1996. The Joint Action was based on Articles J.3, now
Article 13, and K.3, now Article 31, of the EU Treaty.
17
For the response of the EC, see Regulation (EC) 2271/96 of 29 November 1996, OJ EC
No. L 309 of 29 November 1996. Interestingly enough, this act replicates the assessment of
the unlawfulness of the United States conduct, with strict reference to the field of competence
of the EC. Although at first glance this two-step procedure bears traces of resemblance with
the procedure established under Article 301 of the EC Treaty, it would be improper to draw an
along the course of the dispute with the United States, in which each entity has
taken part individually, albeit expressing concerted views with the other.
The scheme examined so far presupposes the possibility of splitting rights and
duties into a bundle of parallel legal positions respectively possessed by each entity
in correspondence to the competences shared on the internal plane.
More complex legal situations require, however, more sophisticated behav-
ioural schemes. In the following subsections attention will be drawn to three dif-
ferent situations. The first regards situations composed of a plurality of individual
legal positions dependent on each other, and possessed either by the EU or by its
MS (subsection 5.2). The second concerns legal positions collectively possessed,
whose exercise implies a joint exercise of competence by both entities (subsection
5.3). The third pertains to international legal positions that intersect the partition of
competences between the individual entities (subsection 5.4).
5.2. Consecutive Exercise of Individual Powers
This mode of co-ordination applies to complex legal situations, composed of a

plurality of rights and obligations, each pertaining individually to either the EU or
its MS, but inter-dependent one with another. Thus, each entity, albeit in principle
exercising its own rights or obligations individually, is, by virtue of the partition of
competences, bound to act in a legal framework entirely set up by the other.
Situations of this type evidence the inadequacy of a system of shared com-
petences that deals with the complexities of international relations. In such a sys-
tem, powers are shared statically, simply by assigning certain rights to one entity.
However, the life of international relations only rarely presents a non-contextualised
exercise of powers. Not infrequently must they be exercised in the wider context of
situations that consist of a plurality of legal positions that unfold dynamically, so
that the exercise of each power finds its legal basis in the preceding one, and sets a
legal basis for the subsequent one.
These situations do not generally raise any problem when handled by subjects
possessing full capacity. A difficulty arises when competences and powers are
shared among a plurality of entities, which fall short, individually, of the powers
necessary for dealing with the situation comprehensively. In order to recast a full
analogy between them. In fact, Regulation 2271/96 was based on Articles 73 C, 113 and 235
(now Articles 57, 133 and 308) of the EC Treaty. Albeit mentioning Joint Action 96/668, it ex-
pressly attributes to it a co-ordinating role only. This is acknowledged by Joint Action 96/668,
which reads in its Preamble: “This Joint Action and the Regulation 2271/96 constitute together an
integrated system involving the Community and the Member States each in accordance with its
own powers”. This can be read as a confirmation that the EC has the power to use its competence
not only for the aims specifically assigned to it, but also in order to secure rights that it possesses
under international law (see infra).
46 ARTICLES
capacity, a co-ordinated exercise of the powers possessed by individual entities is

necessary. Single entities are thus required to contribute, according to their respec-
tive legal capacities, to the management of the situation.
Situations of this type can be conspicuously found in the law of the sea, where
the competences of the EU and of its MS are so entangled that not infrequently each
entity exercises its own powers in a legal framework that is set up by the other.18
For example, the MS have the power to determine the breadth of zones of the sea
where the EU is competent to adopt rules for the protection and exploitation of
living resources. Thus the scope of EU regulations is defined by the MS, acting
under their own international obligations.19 Although each entity is theoretically
under distinct international legal obligations, their legal positions are strictly inter-
related, and the lawfulness of the conduct of the one may represent a pre-condition
for the lawfulness of the conduct of the other.
This effect can be closely observed in the Estai case, concerning the lawfulness
of boarding and seizure measures in relation to a Spanish fishing vessel by Canada
in the high seas.
The case arose in the context of a more general dispute, between the EU and
Canada, with regard to the establishment and enforcement of the regime of fishing
quotas under the North Atlantic Fishing Organisation (NAFO). Concerned with
what it considered to be overfishing activities by Spanish and Portuguese vessels
in the NAFO Area, Canada passed legislation in 1995 providing for a unilateral
regime of quotas and for enforcement measures against fishing vessels for strad-
dling stocks in an area beyond its 200-mile jurisdictional zone. Having infringed
the Canadian regulatory measures, the Spanish fishing vessel Estai was boarded
and seized in March 1995. Spain filed an application with the International Court of
Justice.20 Following diplomatic exchanges, the dispute between the EU and Canada
on the lawfulness of the quota regime was finally settled by a bilateral agreement,
concluded on 20 April 1995.
The analysis of the dispute proves that it embodies two distinct issues. The first
concerns the lawfulness of the conservation and management measures adopted by
Canada. The second concerns the lawfulness of the enforcement measures taken
against the fishing vessel Estai. Thus, the lawfulness of Canada’s conduct depends
on two sets of international rules: those concerning the legal regime of the maritime
zone in which the conduct was carried out, and those concerning the modalities of
the use of force.
18
See, for example, Council Directive 95/21/EC of 19 June 1995 concerning the enforce-
ment, in respect of ships using Community ports and sailing in the waters under the jurisdiction
of the Member States, of international standards for ship safety, pollution prevention and ship-
board living and working conditions (port State control), OJ EC No. L 157 of 7 July 1995.
19
See, for example, the answer of the Commission to the written question P-149/01, OJ EC
No. C 235 of 21 August 2001.
20
The claim was subsequently dismissed for lack of jurisdiction. See Fisheries case (Spain
v. Canada), Judgment of 4 December 1998, ICJ Reports, 1998, p. 432 ff.
The response involves several measures. A joint action was undertaken by the
EU and its MS, aimed at reaffirming the principle of the freedom of the high seas.
Spain responded individually to the boarding and seizure measures taken against
its vessel and filed an application with the International Court of Justice.21 Finally
the EU and Canada, following an intense round of negotiations with a view to
resolving their long and complex dispute on fishing quotas, concluded an agree-
ment providing for a new system of conserving and managing fishing stocks under
NAFO provisions. Following the conclusion of the agreement, Spain and Portugal
were removed from the list of countries whose ships were subject to enforcement
measures under the Canadian Coastal Fisheries Protection Act.22
Be that as it may, it is apparent that the Spanish claim relied entirely on EU
legal claims.23 It is worth recalling that, among the arguments submitted by Canada
to the International Court, in support of its request to discontinue proceedings, was
the fact that the Spanish claim was superseded by the conclusion of the 1995 agree-
ment. In the view expressed by Canada, the dispute with Spain was dependent on
the persistence of a legal dispute with the EU such that the settlement of the latter
would have erased the former.24
21
The Spanish Memorial contains an interesting statement concerning the respective compe-
tences of the EC and its MS on the external plane: “Les compétences externes […] aux mains des
institutions communautaires et (qui) donc ne peuvent plus être exercées par les Etats membres
sont essentiellement de deux sortes: la conclusion des traités en matière de pêche en mer et la par-
ticipation en tant que membre des organisations internationales de pêche. Mais la Communauté
Européenne n’exerce pas la protection diplomatique au bénéfice des navires des Etats membres.
Cette faculté est rigoureusement réservée aux Etats membres […] en matière de protection
diplomatique, le règles générales du droit international ne son pas affectées par l’impact du droit
communautaire […]”, Memorial, ICJ Pleadings, 1998, para. 21.
22
The agreement is reproduced as an Annex to the Canadian Counter-Memorial.
23
Spanish Memorial, cit. supra note 21, para. 21.
24
The distinction between the legal positions possessed respectively by Spain and by the
EC was carefully pointed out by Remiro Brotóns, speaking on behalf of Spain in his plead-
ing before the ICJ, see ICJ Pleadings, supra note 21, p. 442. The existence of legal positions
which are dependent on each other raises the problem of the attribution of responsibility for
unlawful conduct. Assuming that the EU is directly responsible for conduct carried out by MS
organs in discharging tasks assigned to them under EU law, a distinction ought to be made be-
tween responsibility arising out of a breach of international rules which concern the exercise of
competences by the EU, and, respectively, of international rules which concern the enforcing
activity of MS organs. It is reasonable to consider that the responsibility must be attributed to
the EU in the first case; and to the MS concerned, in the second. In fact, MS organs that enforce
EU law are under distinct obligations: an obligation to carry out conduct necessary for secur-
ing compliance with EU measures; and an obligation to choose, among the various possible
means, those which are in accordance with international law. Thus, a breach of international
law flowing from conduct made compulsory under EU law, ought to be attributed to the EU;
a breach of international law which derives from conduct which is not imposed on the State’s
organs under EU law must be attributed to that State; see GAJA, “How Does the European
Community’s International Responsibility Relate to Its Exclusive Competence?”, in Scritti in
onore di Gaetano Arangio-Ruiz, Napoli, 2004, p. 747 ff.
48 ARTICLES
5.3. Joint Exercise of Powers on the International Plane
The legal positions affecting both entities’ sphere of competences, which can-
not be fragmented into a bundle of rights and obligations individually incumbent
on either, are by nature possessed by a composite actor: the EU and its MS. The
existence of situations of this type implies a collective exercise of rights and obli-
gations.25
In the field of the law of the sea we can also find examples of this type. As is
well known, the EU possesses exclusive competence for protection and exploita-
tion of living resources, while the MS are exclusively competent over other forms
of exploitation of the sea. Although each entity is entitled to individually exercise
its powers connected with its respective legal position, there is a need for a col-
lective exercise of power in situations where the competences of both the EU and
its MS are simultaneously affected. A typical case is the conduct of a third State
that has occupied a part of the high seas, thus affecting both the right of the EU
to freely regulate fishing activities in this area and the right of the MS to use it for
other purposes. If each entity were entitled to individually assert its own rights,
the conceptually unitary regime of the zone would be fragmented into a series of
sub-regimes, having a distinct discipline, in consequence of a diverging exercise of
competences by the EU and by each of its MS.
In the Estai case, for example, the EU and the MS collectively claimed that
Canada should respect the principle of freedom of the high seas. Canada’s conduct,
as outlined above, was an attempt to modify the legal regime of the high seas, under
which both the EU and its MS exercise their respective competences. Interestingly,
a note verbale, jointly issued by the EC and its MS, stated in general terms: “the
EC and its MS […] consider, in accordance with Article 189 of the United Nations
Convention, that no State may validly purport to subject any part of the high seas
to its sovereignty […]”.26
It is thus reasonable to assume that, where the exercise of rights and duties on
the international plane intersects the line dividing the competences of the EU and
those of the MS, and it is not possible to separate them into parallel, individually
25
The joint possession of rights and obligations does not automatically flow from the fact
that an international rule imposes rights and obligations upon both entities. It is necessary that
these rights and obligations cannot be individually exercised, either because each entity falls
short of the powers necessary or because an individual exercise would produce a side-effect in
the legal sphere of the other entity.
26
Note verbale of 10 June 1994 (reproduced in an Annex to the Spanish Memorial). See
also the Note verbale jointly issued on 10 March 1995, which reads: “the arrest of a vessel in
international waters by a State other than the State of which the vessel is flying the flag and un-
der whose jurisdiction it falls, is an illegal act under both the NAFO Convention and customary
international law […] This serious breach of international law goes far beyond the question of
fisheries conservation […]”.
possessed legal positions, the legal position is collectively possessed and must
therefore be collectively exercised.27
Analogous considerations can lead to the stipulation of mixed agreements.
Mixity is mandatory when neither the EU nor its MS, individually considered,
have the capacity to acquire all the rights and obligations contained in a certain
agreement. It is only the combination of their competences that gives them the
international capacity to become a party thereto. However, the conclusion of mixed
agreements does not by itself necessarily entail that rights and obligations have to
be exercised jointly. The fact that each entity only undertakes obligations falling
within its own fields of competence may be made expressly clear to third parties,
or be deduced from the competences respectively possessed.28
Irrespective of the legal nature of mixed agreements, their implementation
rarely requires action to be taken jointly by the EU and its MS.
An individual exercise of powers, by each entity with respect to its own share
of rights and obligations, would, in fact, presuppose a compartmentalisation of the
provisions of the agreement and their regrouping in a plurality of self-contained
sub-instruments between, on the one hand, the EU or each MS respectively and, on
the other, third parties. This would require re-creating, in each sub-instrument, the
symmetry of the legal positions between the parties, which was originally estab-
lished in the mixed agreement.29
This condition is however difficult to be fulfilled, legally and practically. Unless
there is clear evidence to the contrary, and beyond the individual commitments of each
entity to carry out obligations falling within its sphere of competence, the legal regime
of the agreement is a unitary one, and can hardly be split into distinct sub-regimes.
This is quite obvious for the exercise of powers expressly aimed at affecting
the legal force of the entire agreement, such as, for example, a declaration to sus-
pend or terminate the agreement as a whole.30 This is equally obvious for powers,
27
It may be worth noting that the EU considers itself addressed by the whole body of in-
ternational customary rules on the protection of fundamental human rights, irrespective of any
reference to the competence possessed on the internal plane. This assumption has been based on
the inseparable character of these rules, whose rights and obligations cannot be split according to
the field of respective competence.
28
Thus, the legal nature of mixed agreements is not univocal. While some may be viewed
as a unitary agreement concluded by the Euro-group, others can be more appropriately de-com-
posed in a bundle of bilateral relations incumbent respectively with the EU or with each of its
MS. See on these aspects, ROSAS, “Mixed Union – Mixed Agreements”, in KOSKENNIEMI (ed.),
cit. supra note 15, p. 125 ff.
29
According to GAJA, “The European Community’s Rights and Obligations under Mixed
Agreements”, in O’KEEFFE and SCHERMERS (eds.), Mixed Agreements, Deventer, 1983, p. 133
ff., p. 138: “The test for deciding whether the Community’s participation is independent from that
of the Member States appears to be the separability of the part of the agreement which imposes
obligations and gives rights to the Community from the other parts of the same agreement”.
30
See the Decision 91/586/ECSC, EEC, of the Council and the Representatives of the
Governments of the Member States, meeting within the Council of 11 November 1991 suspending
50 ARTICLES
such as the power to invalidate a mixed agreement on the grounds that it allegedly
conflicts with jus cogens; even if this refers to specific provisions, it invalidates the
entire agreement.
A careful inquiry into the rules of the law of treaties results in widening the
set of powers which require a joint exercise. Certain powers, although expressly
directed to producing effects only with respect to specific provisions falling within
the competence of the acting entity may have a spill-over effect and affect provi-
sions falling within the competence of the other.31
The rules on reservations and objections thereto constitute an example of this
effect. Although they produce effects only in bilateral relations, between the party
who makes a reservation and the party who accepts it or who objects to it, the le-
gal regime of reservations does not appear to be easily reconcilable with a shared
partnership.32
the application of the Agreements between the European Community, its Member States and
the Socialist Federal Republic of Yugoslavia, OJ EC No. L 315 of 15 November 1991, and
the Decision 91/587/ECSC of the Representatives of the Governments of the Member States,
meeting within the Council of 11 November 1991 denouncing the Agreement between the
Member States of the European Coal and Steel Community and the Socialist Federal Republic
of Yugoslavia, ibid., p. 47.
The EU and its MS have assigned to the Council, acting on majority voting, the power to
ascertain the breach of essential obligations contained in the partnership agreement concluded
between the EU and its MS with the ACP Countries on 23 June 2000, in particular of the ob-
ligations to respect fundamental human rights and principles of democracy, and to respond to
the breach by suspending or terminating the agreement. See the Internal agreement between
the representatives of the Governments of the States, meeting within the Council, on measures
to be taken and procedures to be followed for the implementation of the ACP-EC Partnership
Agreement, OJ No. L 317 of 15 December 2000. This procedure has been applied in a number
of occasions. See for example Council Decision 2001/131/EC of 29 January 2001 concluding
the consultation procedure with Haiti under Article 96 of the ACP-EC Partnership Agreement,
OJ No. L 48 of 17 February 2001; Council Decision 2002/131/EC of 21 January 2002 amending
Decision 2001/131/EC concluding the consultation procedure with Haiti under Article 96 of the
ACP-EC Partnership Agreement, OJ No. L 47 of 19 February 2002; Council Decision 2002/
274/EC of 25 March 2002 concluding consultations with Liberia under Articles 96 and 97 of the
ACP-EC Partnership Agreement, OJ No. L 96 of 13 April 2002; Council Decision 2002/148/EC
of 18 February 2002 concluding consultations with Zimbabwe under Article 96 of the ACP-EC
Partnership Agreement, OJ No. L 50 of 21 February 2002. An analogous procedure was in force
under the IV Lomé Convention; see Council Decision 1999/214/EC of 11 March 1999 on the
procedure for implementing Article 366a of the fourth ACP-EC Convention, OJ No. L 75 of 20
March 1999.
31
It seems safe to assume that, under the inadimplenti non est adimplendum rule, a certain
interchangeability of the provisions contained in a mixed agreement is unavoidable. A third
State, for example, would be entitled, unless there is a clear indication to the contrary, to suspend
a certain provision falling within the competence of one entity in response to the breach of an
obligation caused by the other. See GAJA, cit. supra note 29, p. 138.
32
See SPILIOPOULOU ÅKERMARK, “Reservation Issues in the Mixed Agreements of the
European Community”, Finnish Yearbook of International Law, 1999, p. 351 ff.
This may be observed in a number of situations. A reservation individually

made by one entity, with respect to a provision falling within its own competence,
entitles each contracting party to object to it, and thus to preclude the entire agree-
ment from entering into force between the objecting party and the reserving party.
However, the combined effect of an EU or a MS reservation and an objection
thereto with regard to the legal position of the other entity is unclear. It is certainly
unreasonable to consider that such entity’s legal position remains unscathed and
that it would acquire its own share of rights and obligations under the agreement
as if no objection existed. On the other hand, it is equally inappropriate to assume
that the objection may also have an effect on the legal position of the entity that
has not made the reservation, either by precluding the entry into force of the agree-
ment between it and the objecting party, or by considering it to be saddled with
the whole burden of rights and obligations deriving from the agreement. In mixed
agreements, the membership of each entity, the EU and the MS, can be viewed as
an essential pre-condition for the membership of the other.
Even more complicated situations may occur. Such situations further point to
the shortcomings of the unilateral use of the powers to make reservations or to
object to reservations with regard to mixed agreements. Diverging reservations, or
objections, to the same provision made by the EU and by its MS may bring about
the existence of different patterns of obligations that are inconsistent with each
other. Reservations, or objections thereto, made individually by one entity to a
provision which produces obligations incumbent upon both may make it difficult
or impossible for the other entity to comply with it, and so on.33
The examples briefly outlined above prove that powers concerning reserva-
tions and objections to mixed agreements cannot realistically be entrusted to the
individual competence of either entity. The fact is that the legal regime of reserva-
tions presupposes a conception of international agreements as a unitary body of
norms, which is unlikely to be split into a bundle of independent legal relations
according to the competences possessed by sub-entities of composite parties. All
in all, the whole regime of reservations hardly seems compatible with a partition of
competences between sub-entities of a composite actor, unless they act jointly.
Not surprisingly, trends in practice support the view that powers related to res-
ervations and objections thereto are collectively possessed and ought to be collec-
tively handled. In a series of cases, the EU has enacted decisions in order to ensure
uniform action on the part of the EU and its MS in the making of reservations or
33
See, for example, the interpretative Declaration No. 3 made by the EU and by its MS to
the Agreement for the implementation of the provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the conservation and management of strad-
dling stocks and highly migratory fish stocks, OJ EC No. L 189 of 3 July 1998: “The European
Community and its Member States understand that the term ‘States whose nationals fish on the
high seas’ shall not provide any new grounds for jurisdiction based on the nationality of persons
involved in fishing on the high seas other than on the principle of flag State jurisdiction”.
52 ARTICLES
interpretative declarations, or in objecting to reservations.34 A need for co-ordinat-

ing the use of powers related to the regime of reservations with mixed agreements
also emerges from an internal document of the Legal Service of the Commission,
even if it does not go so far as to suggest that the structure of international legal
relations deriving from the regime of reservations imposes a joint exercise of the
powers connected therewith.35
The cases above highlight the asymmetry between internal competence and
international capacity of the EU and its MS as individual international actors. Such
asymmetry may be remedied, to a certain extent, by considering the EU and its MS
as a unitary legal person, acting through the joint action of its sub-entities. This
theoretical scheme has a potentially wide field of application, and is likely to ap-
ply to a rich variety of cases in which one single entity, individually considered, is
not able to handle a certain legal situation, either because its action would produce
effects in the sphere of rights and duties possessed by the other, or because its exer-
cise requires a corresponding exercise of competence by the other.
34
See the Proposal for a Council Decision on objection to be made on behalf of the European
Atomic Energy Community to a reservation formulated by the Islamic Republic of Pakistan
at the time of its accession to the Convention on the Physical Protection of Nuclear Material,
COM(2001) 583 final. The reservation would have the effect of sensibly altering the obligation of
Pakistan in matters falling within the competence of both the Euratom and the MS. The proposal
envisages that “the EU Member States and Euratom, as parties to the Convention, should object
to Pakistan’s reservation as being incompatible with the object and purpose of the Convention
and that each Party would make the objection individually. In this context, in order to give the
objections the desired legal effect, it is important that they are submitted by 20 October 2001 at
the latest to the States”. See also the Council Decision 98/414/EC of 8 June 1998 on the ratifica-
tion by the European Community of the Agreement for the implementation of the provisions
of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the
conservation and management of straddling stocks and highly migratory fish stocks, OJ EC No.
L 189 of 3 July 1998. The decision considered that “it is […] necessary for the Community and
its Member States simultaneously to become Contracting Parties in order to carry out together
the obligations laid down in the Agreement and exercise together the rights it confers in cases of
shared competence in order to guarantee uniform application of the Agreement in the context of
the common fisheries policy”, and stated that “the instrument of ratification shall be deposited
simultaneously with the instruments of ratification of all the Member States. At the same time
the Member States shall confirm the declarations made by the Community on ratification of the
Agreement”. The declarations are reproduced in an Annex to the decision. It is worth noting that
among the declarations, some concern obligations that neatly fall within the sphere of exclusive
competence of the MS. For an example of individual reservations to mixed agreements see the
Council Decision 1999/575/EC of 23 March 1998 concerning the conclusion by the Community
of the European Convention for the protection of vertebrate animals used for experimental and
other scientific purposes, OJ EC No. L 222 of 10 August 1998.
35
Reservations and objections to reservations with regard to mixed agreements, SEC(1998)
2249 of 23 December 1998. The document focuses on the difficulties arising from the individual
handling of the powers concerning the making of reservations and objections thereto, and calls
on the EU and the MS to keep a strict co-ordination.
5.4. Individual Exercise of International Powers Intersecting the Internal

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

law.36
As further examples of intersection between international capacity and internal
competence, the cases of representation on the international scene ought to be con-
sidered. Sometimes the capacity of one entity, mainly the MS, has been used on the
international plane in order to overcome the lack of capacity of the other. Thus, the
MS have been authorised by the EU to become parties to treaties on behalf of the
EU in fields falling within EU competence when the EU could not become a party
to the treaty.37 In order to avoid misconceptions as to their respectively possessed
competences, the EU requested that the MS, when acting on behalf of the EU, de-
clare their status as agents of the Union. Whereas the legal effect of such declara-
tions is not entirely clear, they seem at least to have created third-party awareness
as to the incompetence of the MS to act on their own.38
36
This conclusion seems to have been recognised also within the internal legal order of the
EU. Article 301 of the EC Treaty establishes a two-step procedure for using Community com-
petence for sanctioning purposes. Ambiguous as the wording of the provision undoubtedly is, it
can reasonably be assumed that it refers to the possibility of using Community competence as a
means of protection of the international legal position of the MS. As the EC already possesses the
capacity to use its competence for protecting its own rights under international law, a different
interpretation would lead to the conclusion that Article 301 would curtail the scope of EC foreign
power, by interposing the necessity of a CFSP measure to a lawful exercise of Community com-
petence. I have dealt with this issue more extensively in my essay “The Scope of the EU Foreign
Power”, cit. supra note 13.
37
This procedure has been upheld by the Court of Justice in Opinion 2/91, ECR, 1993,
p. I-1061 ff. Thereafter it has been used on a number of occasions. See among the most re-
cent, the proposal for a Council Decision authorizing the Member States to sign in the interest
of the European Community the Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the
Protection of Children (the 1996 Hague Convention, COM(2001) 680 final); the proposal for a
Council Decision authorizing the Member States to sign and ratify in the interest of the European
Community the International Convention on Civil Liability for Bunker Oil Pollution Damage,
2001 (the Bunker Convention, COM(2001) 675 final); the proposal for a Council Decision au-
thorizing the Member States to ratify in the interest of the European Community the International
Convention on Liability and Compensation for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea, 1996 (the HNS Convention, COM(2001) 674 final).
In the same vein, when the competence has been transferred to the EU by its MS after the conclu-
sion of agreements to which these are parties, and the EU itself has not the capacity to become
a party, it can exercise its competence by means of its MS, acting on its behalf. The question
arises, for example, in regard to the participation of the EU to the IMF, to which now twelve MS
are parties although they, having transferred their competence to the EU, do not fill the substan-
tive conditions. See LOUIS, “Les relations extérieures de l’Union économique et monétaire”, in
CANNIZZARO (ed.), cit. supra note 13, p. 77 ff.
38
See for example, Article 2 of the Proposal for a Council Decision authorizing the Member
States to sign in the interest of the European Community the Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility
and Measures for the Protection of Children (the 1996 Hague Convention), COM(2001) 680 final.
The cases mentioned above are testimony to the existence of a practice allow-
ing the EU and its MS to act internationally, outside the scope of their respective
competences, on behalf of the other entity. These situations have been considered
as exceptional cases of dissociation between international capacity and internal
competence.39 Consequently, the exercise of powers on the international plane has
by no means necessitated a realignment of the entities’ respective, internally pos-
sessed competences.
6. CONCLUDING REMARKS: TOWARDS A SYSTEM OF MIXED SOVEREIGNTY?
It is certainly not easy to compose the cases examined in the previous para-
graphs into a coherent and comprehensive legal theory. Trends are not well set-
tled, and the borderline between the different situations is uncertain and fuzzy.
Nevertheless, an attempt may be made to draw from the above analysis some gen-
eral guidelines as to the relationship between the EU and the MS as actors on the
international plane.
Certainly, the existence of composite entities, such as the EU and the MS,
each possessing distinct legal personality but sharing powers and competences,
challenges the Hobbesian conception of the State as a personified entity, unitarily
possessing and exercising its legal powers and prerogatives, a model on which
international law has for centuries relied.40
On the other hand, at the end of the analysis, one must frankly admit that there
is no alternative conceptual model capable of capturing the richness and variety of
the ways in which the EU and the MS co-ordinate their legal position in interna-
tional relations. They act as distinct and independent legal persons, as distinct but
interrelated legal persons, or as one composite actor, according to the different situ-
ations in which their competences are respectively affected.
The various situations can be regrouped within three basic behavioural models.
The EU and the MS act as distinct and independent actors, according to a model of
divided sovereignty, in situations which fall plainly within the subjective sphere of
each entity. They act as distinct but complementary legal actors when the individu-
39
Among the cases of passive representation, the collective responsibility attributed to the
MS under the European Convention on Human Rights for activities undertaken by the EU cannot
be grouped. See European Court of Human Rights, Senator Lines GmbH v. Austria, Belgium,
Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands,
Portugal, Spain, Sweden and the United Kingdom, Decision of 10 March 2004. This situation
would be better framed in the case-law of the organs of control of the Convention, that have ruled
out the possibility that MS decline their responsibility under the Convention in consequence of
the transfer of powers to the EU.
40
See WEILER, “The External Legal Relations of a Non-Unitary Actor: Mixity and the
Federal Principle”, in O’KEEFFE and SCHERMERS (eds.), cit. supra note 29, p. 35 ff.
56 ARTICLES
al exercise of rights and obligations is conceived as a means to overcome functional

deficiencies deriving from the partition of competences. They act as sub-entities of
a composite actor in order to handle legal positions that are possessed collectively.
The lesson that can be drawn from this analysis is twofold. At first glance, one
is tempted to conclude that the partition of competences has completely fragmented
the comprehensiveness of powers traditionally associated with sovereignty. Thus,
instead of States possessing the full plethora of international prerogatives, we have
a plurality of actors sharing competences and powers; correspondingly, instead of
using legal concepts evoking comprehensiveness and plenitude of powers, such as
the concept of sovereignty, we should use concepts that are more appropriate to a
pluralistic legal environment, such as the concept of competence.
In the field of external relations this process seems to replicate the process
of distribution of powers that took place within the legal order of States once the
idea of sovereignty as a concentration of powers in the hands of the sovereign had
ceased to exist. This line of reasoning appears to challenge the conception of sover-
eignty as implying unity and comprehensiveness in the conduct of foreign-relations
power. Not unlike what happened with the power of internal representation, the
power of external representation seems to have split into a polyarchy of decision-
making powers.
Certainly, the experience of the European integration shows that the conduct of
foreign affairs does not necessarily require a system of unitary representation. Rather,
the idea is gradually gaining ground that the external relations power, no less than
other governmental powers, can be split among a plurality of independent actors, and
can be based on institutional pluralism and on the partition of competences.
This remark, however, only partially tallies with the results of our analysis.
We have seen that the idea of sovereignty as a legal category, conceived as the
possession of the full panoply of rights and duties put at the disposal of States, has
not completely disappeared. The fragmentation of powers has not brought about
a corresponding disappearance of sovereignty. This concept is still revealing its
usefulness. However, it cannot be referred to the State, conceived in its personified
unity, as the monopolistic bearer of sovereign powers. Rather, it must be referred
to a composite international actor, composed of a plurality of sub-units, each en-
dowed with international personality, and individually possessing certain powers
and prerogatives, which can be interchangeably used in a functionally co-ordinated
framework, on behalf of, and for the benefit of, the entire unit. The combined use of
individual powers distributed to the single sub-units can thus replace the complete-
ness and comprehensiveness of sovereignty.
It is useful to dwell briefly on this concept. The study of international practice
has proved that each sub-unit, the MS and the EU, can be satisfactorily described as
a sovereign entity when acting in situations that are fully dealt with by the powers
and competence individually possessed by them.
On the other hand, they must co-ordinate their actions, according to different
schemes of behaviour, when dealing with situations that cannot be fully handled
within their respective powers; situations that, in other words, affect the sphere of
competence of both, the MS and the EU.
Moreover, in the international arena the interconnection in the external conduct
taken by the EU and by its MS has met no objections, and seems to have been large-
ly accepted as an inevitable complication in the relations between these entities. It
does not seem unreasonable to assume that the EU and its MS, although in principle
acting as distinct legal persons within their respective fields of competence, tend
to act as organs of a more comprehensive entity in situations in which the rights
and obligations respectively possessed by each entity on the international plane are
interconnected. This conclusion has the effect of qualifying the assumption that the
concept of sovereignty has ceased its function. Whilst the use of this concept must
probably be stripped of many theoretical features that have marked its existence
from the beginning, its usefulness in legal discourse has not disappeared.
Thus, not only may sovereign powers be distributed among a plurality of organs
and levels of government without touching upon the very concept of sovereignty;
sovereign powers may also be distributed among a plurality of units possessing
their own legal personality. Co-ordination in the international conduct of these enti-
ties, in the forms seen above, or in other forms that will develop in future practice,
recasts the comprehensiveness of sovereignty and thus prevents the process of par-
tition of competences from bringing about a corresponding process of fragmenta-
tion of sovereignty. The plenitude and comprehensiveness formerly secured by the
unitary nature of a State as a legal person is now recast in the co-ordinated action of
a plurality of legal persons sharing powers and competences. It appears appropriate
to speak of mixed sovereignty, intending by this the circumstance where there is
no unitary manifestation of sovereignty; rather sovereignty consists of a plethora
of powers that are possessed and exercised individually, jointly or co-ordinately,
according to the structure of the legal relations at stake.
WAR IN AFGHANISTAN, SELF-DEFENCE AND QUESTIONS
OF ATTRIBUTION OF THE SEPTEMBER 11 ATTACKS
TO THE AFGHAN-TALIBAN REGIME
MARCO FRIGESSI DI RATTALMA*
1. THE REFERENCES TO SELF-DEFENCE IN RESOLUTIONS AND STATEMENTS

REGARDING THE US-LED WAR IN AFGHANISTAN
This paper examines whether the war waged by the United States of America
and other supporting States in the coalition as of 6 October 2001 against Afghani-
stan may be considered self-defence. This re-construction is necessary given the
fact that self-defence was invoked by various States as justification for the war
waged by the forces of the coalition.
References to individual and collective self-defence are to be found in a number
of Security Council resolutions. The Preamble to Resolution 1368(2001) of 12 Sep-
tember 2001, in particular, states that the Council “Recogniz[es] the inherent right
of individual or collective self-defence in accordance with the Charter”. In the Pre-
amble to Resolution 1373(2001) of 28 September 2001 the Council “Reaffirm[s]
the inherent right of individual or collective self-defence as recognized by the
Charter of the United Nations as reiterated in Resolution 1368(2001)”.
The United States of America referred to self-defence in the Joint Resolution
approved by the House and Senate of 18 September 2001, which states the Septem-
ber 11 attacks “render it both necessary and appropriate that the United States ex-
ercise its right to self-defence”.1 An equally unequivocal reference to self-defence
can be found in the letter dated 7 October 2001 to the President of the Security
Council from the US permanent representative to the Security Council. The letter
states: “[i]n accordance with Article 51 of the Charter of the United Nations, I wish,
on behalf of my Government, to report that the United States of America, together
with other States, has initiated actions in the exercise of its inherent right of indi-
vidual and collective self-defence”.2
Member States of the European Union,3 as well as Central and Eastern Euro-
*
Professor of International Law, University of Brescia.
1
ILM, 2001, p. 1282. On the Joint Resolution cf. ABRAMOWITZ, “The President, the Con-
gress and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against
International Terrorism”, Harvard ILJ, 2002, p. 71 ff.
2
UN Doc. S/2001/946, ILM, 2001, p. 1281.
3
The French Foreign Minister Védrine, for example, affirmed “Pursuant to that resolution,
and in exercise of its right of self-defence, the United States has undertaken an armed response
against Osama Bin Laden and the Al-Qaida network and against the Taliban system that supports
them”, Security Council, 4413th Meeting, 12 November 2001, UN Doc. S/PV.4413, p. 6 f.
60 ARTICLES
pean States,4 together with developing countries,5 all invoked self-defence in their
addresses to the Security Council. Norway affirmed that Resolution 1368(2001)
made it clear that the attacks constituted a threat to international peace and security,
and triggered the right to self-defence.6
Self-defence was also cited by the 19 member States of the North Atlantic
Treaty Organisation when they invoked Article 5 of their founding treaty, which
reads:
“The Parties agree that an armed attack against one or more of them
in Europe or North America shall be considered an attack against
them all and consequently they agree that, if such an armed attack
occurs, each of them, in exercise of the right of individual or collec-
tive self-defence recognized by Article 51 of the Charter of the United
Nations, will assist the Party or Parties so attacked by taking forth-
with, individually and in concert with the other Parties, such action as
it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area”.7
Self-defence was also invoked by the members of the Organisation of Ameri-

can States (OAS) in supporting “the measures […] applied by the United States of
America and other States in the exercise of their inherent right of individual and
collective self-defence”.8
2. ANALYSIS OF THE CONDITIONS FOR THE APPLICABILITY OF SELF-DEFENCE:

THE MATERIAL FACT OF AN “ARMED ATTACK”
We must ask whether the hijacking of airliners that were subsequently crashed
into the Twin Towers and the Pentagon, leading to the collapse of the Towers and
the partial destruction of the Pentagon, together with the destruction of another air-
4
Security Council, 4414th Meeting, 13 November 2001, UN Doc. S/PV.4414, p. 2.
5
Malaysia for example declared: “The use of military force is a legitimate course of action
as an act of self-defence”, UN Doc. S/PV.4414, p. 23 f.
6
UN Doc. S/PV.4413, cit. supra note 3, p. 10.
7
See Statement by the North Atlantic Council of 12 September 2001, at http://www.nato.int/
docu/pr/2001/p01-124e.htm. It has been suggested by CERONE, “Acts of War and State Respon-
sibility in ‘Muddy Waters’: The Non-state Actor Dilemma”, ASIL Insights, Terrorist Attacks on
the World Trade Center and the Pentagon, at http://www.ASIL.org/insights.htm, that “Clearly
Nato has determined that the US has been subjected to an armed attack sufficient to give rise to
the right of self-defence under international law as recognized in the UN Charter”.
8
Cf. Resolution RC.24/Res.1/01, OEA/Ser.F/II.24, CS/TIAR/RES.1/01, 16 October 2001.
See also MONTALVO, “Inter-American Regional Security Against Terrorism: A Shield and a
Sword”, ASIL Insights, Terrorist Attacks on the World Trade Center and the Pentagon, cit. supra
note 7.
SELF-DEFENCE AND ATTRIBUTION OF THE SEPTEMBER 11 ATTACKS 61
liner which crashed in Pennsylvania, may be considered an “armed attack” against

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

THE SYMBIOTIC RELATIONSHIP BETWEEN OSAMA BIN LADEN AND THE
TALIBAN REGIME
Even if Article 51 of the UN Charter is silent on this matter, many have argued
that a further prerequisite for self-defence is that an armed attack be attributable to
a State. This is because Article 51 establishes an exception to the prohibition of the
use of force enshrined in Article 2, paragraph 4, which is directed expressly against
“members” (States).12 More concretely, the question of the imputation of the armed
9
I consider here the “material profile” of the notion of “armed attack”. Instead the question
of the attribution of the attack to the Afghan regime against which, together with Bin Laden’s
followers, armed force has been used can only be contemplated if the answer to the first question
whether the attacks of 11 September 2001 can be considered an armed attack under Article 51
is positive.
10
CONDORELLI, “Les attentats du 11 septembre et leurs suites: où va le droit international?”,
RGDIP, 2001, p. 829 ff., p. 845.
11
See LAMBERTI ZANARDI, La legittima difesa nel diritto internazionale, Milano, 1972, p.
229.
12
Ibid., p. 230.
62 ARTICLES
attack to a State is inevitably important in view of the fact that the use of armed
force in self-defence is generally exercised against an individual State or at the very
least within the territory of a State. Since the use of force is legitimate only if it is
justified by the goal of self-defence against attack by another State it is necessary
to be able to attribute the attack to the specific State in question.
As the US permanent representative to the Security Council noted, the United
States began a war on 6 October 2001 essentially against the “Al-Qaeda terrorist
training camps and military installations of the Taliban regime in Afghanistan”.13
Subsequent accounts have shown that the war was also waged against the Afghan-
Taliban army and against Bin Laden’s militia.
To judge whether the use of armed force in Afghanistan and against Afghani-
stan was lawful we must first establish whether the terrorist attacks are attributable
to the Afghan-Taliban regime. To do this we must reconstruct in as much detail as
possible the events and facts as they occurred historically.
First of all, the attacks of 11 September 2001 were attributed by various
States, primarily the United States and the United Kingdom, to the terrorist or-
ganisation Al-Qaida.14 This organisation is present in numerous States and may
be described as a multinational of terror. The war waged by the United States of
America was directed against Al-Qaida members and installations specifically
located in Afghanistan insofar as this State has for many years been the home
and the operational base of this group’s senior members and its leader Osama Bin
Laden in particular.
Well before the September 11 attacks the UN Security Council had made
known and condemned the very close contacts between Osama Bin Laden and the
Taliban regime. The Council had also repeatedly pointed out the presence of ter-
rorist training camps in Afghanistan and ordered the ruling Taliban regime to close
them down. In Resolution 1333(2000) of 19 December 2000, the Council called on
the Taliban under Chapter VII to
13
Cit. supra note 2.
14
On 2 October 2001, as can be deduced from NATO Secretary Robertson’s statement, the
Atlantic Council determined that the United States of America had proved, through the inves-
tigations of the State Department and the Defence Ministry that the terrorists who perpetrated
the 11 September attacks belonged to Al-Qaida. The statement reads: “The facts are clear and
compelling. The information presented points conclusively to an Al-Qaida role in the 11 Sep-
tember attacks. We know that the individuals who carried out these attacks were part of the
world-wide terrorist network of Al-Qaida, headed by Osama Bin Laden and his key lieutenants
and protected by the Taliban”: cf. ILM, 2001, p. 1268. The UK Government’s document entitled
Prime Minister’s statement to Parliament on the September 11 attacks (4 October 2001), at http:
//www.pm.gov.uk/output/Page 1606.asp, affirms: “First, it was Osama Bin Laden and Al-Qaida,
the terrorist network which he heads, that planned and carried out the atrocities on 11 September;
second, that Osama Bin Laden and Al-Qaida were able to commit these atrocities because of
their close alliance with the Taliban regime in Afghanistan which allows them to operate with
impunity in pursuing their terrorist activity”.
“cease the provision of sanctuary and training for international ter-

rorists and their organizations, take appropriate effective measures
to ensure that the territory under its control is not used for terrorist
installations and camps, or for the preparation or organization of ter-
rorist acts against other States or their citizens, and cooperate with
international efforts to bring indicted terrorists to justice”.
Similar orders were to be found in Resolution 1267(1999) of 15 October 1999

(para. 1) and in Resolution 1214(1998) of 8 December 1998 (para. 13). The failure
to comply with these orders was defined as a threat to the peace by the Security
Council.15
In addition, the Security Council had, on several occasions, ordered the Taliban
to hand over Osama Bin Laden, who had also been alleged by the United States to be
responsible for the attacks of 7 August 1998 against the US embassies in Kenya and
Tanzania.16 The Security Council had specifically declared that the failure to hand
over Bin Laden was a threat to the peace under Article 39 of the UN Charter.17
We must therefore bear in mind that the Security Council – the most important
organ for international security – considered the conduct of the Taliban regime in
its failure to close the terrorist camps and to hand over Osama Bin Laden such as
to justify the adoption of measures under Chapter VII of the UN Charter, including
the use of armed force.
The close links between Bin Laden’s group and the Taliban highlighted by
the Security Council were confirmed by various sources. In the mentioned UK
Government’s document entitled “Prime Minister’s statement to Parliament” (4
October 2001) we find confirmation that:
“The closeness of Bin Laden’s relationship with the Taliban is also

plain. He provides the Taliban with troops, arms and money to fight
15
The Preamble to Resolution 1333(2000) of 19 December 2000 states: “[T]he failure of
the Taliban authorities to respond to the demands in para. 13 of Resolution 1214(1998) and in
para. 2 of Resolution 1267(1999) constitutes a threat to international peace and security”, while
the second Resolution “demands also that the Taliban stop providing sanctuary and training for
international terrorists and their organizations and that all Afghan factions cooperate with efforts
to bring indicted terrorists to justice” (para. 14).
16
Cf. the eighth statement of the Preamble to Security Council Resolution 1267(1999). The
allegations also concerned the conspiracy to kill US citizens abroad. The United States had of-
ficially requested that the Taliban hand over Osama Bin Laden (S/1999/1021).
17
The Preamble to Resolution 1333(2000) reads: “[T]he failure of the Taliban authorities to
respond to the demands in paragraph 13 of Resolution 1214(1998) and in paragraph 2 of Resolu-
tion 1267(1999) constitutes a threat to international peace and security”, while the second resolu-
tion “demands that the Taliban turn over Osama Bin Laden without further delay to appropriate
authorities in a country where he has been indicted, or to appropriate authorities in a country
where he will be returned to such a country, or to appropriate authorities in a country where he
will be arrested and effectively brought to justice”.
64 ARTICLES
the Northern Alliance. He is closely involved with the Taliban’s mili-

tary training, planning and operations. He has representatives in the
Taliban’s military command structure. Forces under the control of
Usama Bin Laden have fought alongside the Taliban in the civil war in
Afghanistan. The Taliban regime, for its part, has provided Bin Laden
with a safe haven within which to operate, and allowed him to establish
terrorist training camps. They jointly exploit the Afghan drugs trade. In
return for active Al-Qaida support the Taliban allow Al-Qaida to oper-
ate freely, including planning, training and preparing for terrorist activ-
ity. In addition they provide security for the stockpiles of drugs”.
In a related document by the UK Government entitled “Responsibility for the

terrorist atrocities in the United States, 11 September 2001 – an updated account”18,
we also read: “Usama Bin Laden and the Taliban have a close alliance on which both
depend for their continued existence. They also share the same religious values and vi-
sion” (para. 11) and that: “A former government official in Afghanistan has described
the Taliban and Usama as ‘two sides of the same coin. Usama cannot exist in Afghani-
stan without the Taliban and the Taliban cannot exist without Usama’” (para. 19).
Moreover, according to the Russian Foreign Minister, Serghei Ivanov, Osama
Bin Laden and the Taliban “are almost one and the same”. Intelligence indicates
that Osama was appointed inspector general of the Taliban armed forces.19
Other sources confirmed that there was a very close relationship between the
Taliban led by Mullah Omar, on the one hand, and Bin Laden and his followers on
the other. CIA chief Tenet stated that “[t]he Taliban and Bin Laden have a symbiotic
relationship. Bin Laden gets safe haven and in return he gives the Taliban help in
fighting its civil war”.20
In his book “Taliban. Militant Islam, Oil and Fundamentalism in Central Asia”,
Ahmed Rashid, who is considered the most important scholar to have published on
the Taliban regime, provides various clues which shed light on this close relation-
ship. From Rashid, we learn that:
“Bin Laden endeared himself further to the leadership by sending

several hundred Arab-Afghans to participate in the 1997 and 1998
Taliban offensives in the north. These Wahabbi fighters helped the
Taliban carry out the massacres of the Shia Hazaras in the north.
Several hundred Arab-Afghans, based in the Rishkor army garrison
outside Kabul, fought on the Kabul front against Masud. Increasingly,
18
See http://www.pm.gov.uk/output/Page 3682.asp.
19
See ANSA, 26 September 2001, 03738. ZCZC0136/SXB.
20
Statement by DCI Tenet to the Senate Select Committee on Intelligence (SSCI) on the
“Worldwide Threat 2001: National Security in a Changing World” (7 February 2001) at http:
//www.cia.gov/cia/public_affairs/speeches/2001/UNCLASWWT_02072001.htlm.
Bin Laden’s world view appeared to dominate the thinking of senior

Taliban leaders […] After the Africa bombings the Taliban became
increasingly vociferous against the Americans, the UN, the Saudis
and Muslim regimes around the world. Their statements increasingly
reflected the language of defiance Bin Laden had adopted and which
was not an original Taliban trait”.21
The book also notes that:
“The nineteen suicide attackers […] belonged to the Al-Qaida or-

ganization, which is based in Taliban-ruled Afghanistan and led by
Osama Bin Laden […] Yet Al-Qaida could not have spent the years
of planning and organization that went into the attacks without a safe
sanctuary where everything it needed was available – training, fund-
ing, communications, and inspiration. The long years of Western
neglect have allowed the Taliban to turn Afghanistan into just such
a sanctuary for extremist groups from more than two dozens coun-
tries. Al-Qaida, with its 2,500-3,000 fighters in Afghanistan drawn
from at least 13 Arab countries and its global network spread over 34
countries, is only the tip of a very large iceberg […] Afghanistan has
become the hub of a worldwide terrorist network”.22
Moreover, Islamic fundamentalists, indicted with terrorism, have confirmed

that Al-Qaida was part of the Taliban regime.23
In the face of this evidence the statements by the Taliban designed to depict
Bin Laden as a mere “guest” of the regime appear puzzling at the very least. As the
UN Secretary-General’s personal representative and head of the special mission for
Afghanistan, F. Vendrell, noted, for the Taliban “Mr. Bin Laden was a guest, that
had become a resident of Afghanistan prior to the Taliban taking control, and that
no longer had communication with his followers”.24
4. THE ROLE OF OSAMA BIN LADEN IN THE AFGHAN-TALIBAN GOVERNMENT
After reconstructing the facts, I now propose to answer the question regarding
the imputation of the armed attack to the Taliban regime. I also wish to state at this
21
RASHID, Taliban. Militant Islam, Oil and Fundamentalism in Central Asia, London, 2000,
p. 139 f.
22
Ibid., p. vii f.
23
See El País, 20 October 2001, p. 16.
24
Press briefing by Secretary-General’s personal representative and head of special mission
to Afghanistan, 25 February 2000 (www.un.org/News/briefings/docs/2000).
66 ARTICLES
point, as we shall see, that I believe that the armed attack can be attributed to the
Taliban regime by applying the ordinary notion of “armed attack” and therefore
without revising or expanding the notion, as others have proposed and for the most
part feared.
Let me premise that, from a strictly formal point of view, we do not know
whether a law or provision belonging to the rather impenetrable legal system of the
Afghan-Taliban State attributed specific powers and duties to Bin Laden (and/or to
other Al-Qaida leaders), which would enable us to define him formally as a State
organ.
Even if this were not the case, it would not prevent us from considering Bin
Laden and his collaborators as organs of the Afghan State. An authoritative legal
interpretation on the subject of State responsibility has emphasised that “[o]n sait
que l’organisation effective d’un Etat peut fort bien ne pas correspondre, dans une
mesure plus ou moins importante, à ce qui est prévu par les lois de cet Etat”.25 Article
4, paragraph 2 of the Draft Articles on Responsibility of States for Internationally
Wrongful Acts, which the International Law Commission adopted at its 53rd session
(2001),26 appears to conform to this interpretation when it states: “An organ includes
any person or entity which has that status in accordance with the internal law of the
State” and later clarifies in the commentary to this article that “[i]n some systems the
status and functions of various entities are determined not only by law but also by
practice, and reference exclusively to internal law would be misleading”.27
In terms of “practice”, and therefore in historical, political and factual terms,
Afghanistan seems dominated by a regime, by a system of power in which both the
Taliban element and the Al-Qaida element led by Bin Laden appear to come to-
gether and fuse inextricably. These elements appear to form a single governmental
authority, a single “State”.
It appears that the reconstruction and the facts described above can lead us to
determine that Bin Laden and the other senior members of Al-Qaida in Afghanistan
were part of “the government machinery, the authority or set of authorities which
hold the summa potestas (sovereignty) in each community, the group of people that
exercise political power”28 alongside the Supreme Taliban leaders and, moreover,
to all effects, held high ranks. Historically and politically we can observe a sort of
total symbiosis between one group and the other.
25
CONDORELLI, “L’imputation à l’Etat d’un fait internationalement illicite: solutions clas-
siques et nouvelles tendances”, RCADI, 1984, VI, p. 1 ff., p. 55.
26
Report of the International Law Commission on the Work of its Fifty-Third Session
(2001), at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm.
27
Commentaries to the Draft Articles on Responsibility of States for Internationally Wrong-
ful Acts, adopted by the International Law Commission at its Fifty-Third Session (2001), para.
11, at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm.
28
GIULIANO, SCOVAZZI and TREVES, Diritto internazionale. Parte generale, Milano, 1991,
p. 80 (I translate).
The case at issue therefore differs markedly from those examined in the two
leading cases of the International Court of Justice on the subject of State respon-
sibility; namely the decision of 24 May 1980 in the case of the United States
Diplomatic and Consular Staff in Tehran29 and the decision of 27 June 1986 in
the case of the Military and Paramilitary Activities in and against Nicaragua.30 In
these cases one of the discussion points was whether the Islamic militants or the
Contras, respectively, could trigger the responsibility of Iran or the United States
by virtue of being organs or de facto agents acting on the instructions, or under
the direction or control of the State – as envisaged by Article 8 of the 2001 Draft
Articles.
In the present case, however, we have a group of people who participate in the
Government of a State in top ranking positions, albeit – as far as we know – without
formal attribution of the corresponding status of senior organs. This is therefore not
a case to be assessed in light of Article 8 of the 2001 Draft Articles, but rather, as I
have said, of Article 4, paragraph 2 of the same Draft Articles.
On this point it is worth emphasising that the new version of the Draft Articles
on State Responsibility appears to be more suitable than the preceding one, which
dates back to 1996,31 to providing a comprehensive legal framework as regards
State responsibility for internationally wrongful acts given the varied, fluid and, in
many respects unforeseeable, nature of State organisation.
“Applying” to the present case the 1996 Draft Articles, we would incur a se-
rious difficulty, since Article 5 of that Draft stated that: “For the purposes of the
present articles, conduct of any State organ having that status under the internal law
of that State shall be considered as an act of the State concerned under international
law […]”. The provision could be read as excluding from being considered an or-
gan of the State any person or entity that would be considered as such in light of the
practice of a given State but not in light of the law of that State.
On the other hand, it is unlikely that assistance could be found in establish-
ing the Afghan fact at issue in Article 8(a) of the 1996 Draft Articles. This article
provided for the figure of a de facto agent of the State; in other words “he who acts
in actual fact on behalf of the State”. At any rate, this last provision deals with the
conduct of a person or an entity acting on behalf of and thus under the overall con-
trol of a State or more tellingly, as expressly stated in the new Article 8 of the 2001
Draft Articles “on the instructions of, or under the direction or control of, that State
in carrying out the conduct”.
The latter article cannot be used to deal with a fact such as the one being exam-
ined, in which the conduct is caused by organs which are de facto at the summit of
the State hierarchy and which, rather than receiving instructions, impart them and,
29
ICJ Reports, 1980, p. 35 ff.
30
ICJ Reports, 1986, p. 13 ff.
31
Cit. supra note 26.
68 ARTICLES
rather than acting under the direction and control of the State, direct and control
the State.32
The new version of the Draft Articles appropriately allows for attribution to
a State also of conduct by the highest State organs that de facto govern a given
territorial unit. We have said that Osama Bin Laden and the other senior Al-Qaida
leaders were amongst the highest organs of the Afghan-Taliban State. In addition, it
is generally believed that Osama Bin Laden and the abovementioned senior leaders
planned the September 11 terrorist attacks, which were subsequently executed by
terrorists belonging to Al-Qaida.
It therefore seems that the fact at issue may be linked to the definition con-
tained in letter f) of UN General Assembly Resolution 3314(XXIX) of 14 Decem-
ber 1974, whereby “the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against another
State of such gravity as to amount to the acts listed above” constitutes an act of
aggression. Moreover this specific form of aggression constitutes a fact justifying
the use of force in self-defence. The International Court of Justice has clarified
that the sending of armed bands as defined above constitutes (or may amount to)
an armed attack under Article 51 of the Charter. In the event of such an act, re-
course to self-defence by an attacked State is permissible against the State which
sent the armed band.
In its decision of 27 June 1986 in the case of the Military and Paramilitary
Activities in and against Nicaragua, the International Court of Justice ruled that
the notion of “armed attack” under Article 51 includes the sending of armed bands
to the territory of another State when such an operation, in terms of its scale and
effects, would have been defined as an “armed attack” had it been carried out by
regular armed forces.33
32
Reference is made to GAJA, “In What Sense Was There an ‘Armed Attack’?”, Discussion
Forum-The Attack on the World Trade Center: Legal Responses, at http://www.ejil.org/forum-
WTC/ny-gaja.html, who was the first scholar to interpret the present case by linking the Al-Qa-
ida leaders operating in Afghanistan to the Taliban State. I also agree with Gaja that reference
cannot be made in this case to Articles 9 and 10 of the ILC Draft Articles. Article 9, which
attributes to a State the conduct of a group of persons which exercised de facto “elements of
governmental authority” in the absence of official authorities and in circumstances that justified
the exercise of said authority, cannot apply as it is clear that terrorist activities are not “elements
of governmental authority” as provided for by Art. 9. Article 10, entitled “Conduct of an insur-
rectional or other movement”, is not relevant here, first of all because in the case at issue there
was no insurrection and, moreover, because Al-Qaida did not oppose the Taliban regime, but
was in fact, as we have seen, a part of it. In contrast MURPHY, “Terrorism and the Concept of
‘Armed Attack’ in Article 51 of the UN Charter”, Harvard ILJ, 2002, p. 41 ff., starts from the
same premise of the close links between Al-Qaida and the Taliban, but ends up, surprisingly,
attributing responsibility for the attacks on the Taliban on the basis of Article 9 of the ILC Draft
Articles.
33
Cit. supra note 30, para. 195.
Applying the above decision to the case in question, it can be stated that the
United States lawfully used armed force in self-defence against the Afghan-Taliban
regime, i.e. against that composite reality in which the Taliban element and the Al-
Qaida element fused together. Osama Bin Laden, one of the most senior leaders of
this regime, sent a terrorist group, or “armed band” in the words of Resolution 3314
of 1974, which then carried out the terrorist acts of 11 September 2001. Given their
scale and effects these acts would certainly have been defined as an “armed attack”
had they been carried out by regular armed forces.34
5. CRITICISM OF THE THESIS SUPPORTING THE EXISTENCE IN THIS SPECIFIC CASE

OF MERE “INDIRECT AGGRESSION” (SUPPORT TO ARMED BANDS)
All that has been said so far leads me to disagree with those who evaluate the
present facts as an indirect armed aggression, i.e. support given by a State to armed
bands operating against another State rather than, as I have proposed, as the send-
ing of armed bands.35
We have seen that among the various forms of aggression, UN General As-
sembly Resolution 3314(XXIX) of 14 December 1974 envisages the “sending by
or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another State of such gravity as to amount to
the acts listed above”. The above definition ends with the words “or its substantial
involvement therein”.
We have also seen that the International Court of Justice considered the notion
of “armed attack” under Article 51 to include the sending of armed bands to the ter-
ritory of another State when such an operation, in terms of its scale and its effects,
would have been classified as an armed attack had it been carried out by regular
armed forces.
34
As this paper was going to press, a number of studies were published in support of this
thesis. REISMAN, “In Defense of World Public Order”, AJIL, 2001, p. 833 ff., p. 834, notes that
“the enemy has chosen to infiltrate or conceal itself in apparently neutral countries from which
it can conduct a dirty war, targeting and revelling in massive civilian destruction”. SLAUGHTER
and BURKE-WHITE, “An International Constitutional Moment”, Harvard ILJ, 2002, p. 1 ff., p. 20,
observe that “The question thus concerns the specific relationship between Taliban officials and
Al-Qaida members. Are they distinguishable? Or are they activities so intertwined at an indivi-
dual level that they are impossible to separate?”. BROTÓNS is even more explicit in “Terrorismo,
mantenimento de la paz y nuevo orden”, Revista española de derecho internacional, 2001, p. 125
ff.
35
On the concept of indirect armed aggression, see THOMAS-THOMAS-SALAS, The Interna-
tional Law of Indirect Aggression and Subversion, Dallas, 1966; LAMBERTI ZANARDI, cit. supra
note 11, p. 248 f.; SCISO, “Legittima difesa ed aggressione indiretta secondo la Corte internazio-
nale di giustizia”, RDI, 1987, p. 627 ff.
70 ARTICLES
Here I must add that the Court again explained in its judgment of 27 June 1986
in the case of the Military and Paramilitary Activities in and against Nicaragua
that the notion of “armed attack” under Article 51 does not include support by a
State to rebels in the form of the provision of weapons or logistical assistance or
other support.36
It follows that, while constituting a breach of the prohibition to interfere in the
internal affairs of another State, thereby legitimising the use of countermeasures,
the State which has been the victim of indirect armed aggression cannot act in self-
defence and use armed force against a State which provides said support to a group
of rebels or terrorists.
A number of scholars consider the present facts as falling under the notion
of indirect armed aggression, in other words as support or assistance by a State
to armed bands operating against another State. Some in particular believe that,
following the tragic events of 11 September 2001, the resolutions of the Security
Council have broadened the notion of armed attack as the prerequisite to the use of
force in self-defence to include the conduct of a State consisting of “harbouring” or
“aiding and abetting” international terrorism.37 In other words, in the view of these
scholars, we are witnessing the inclusion of indirect armed aggression under the
notion of “armed attack”.
Although this thesis is of undoubted interest as it offers a number of points
for reflection, it cannot be shared, as I shall show below. It does, however, have
the merit firstly of pointing to an undeniable trend. Various States, particularly the
United States of America, strongly support the idea that the conduct of a State har-
bouring terrorist groups – not to mention financing, helping or otherwise protecting
them – that commit grave acts of terrorism against another State should trigger the
latter State’s right to act in self-defence against the former State. So, after declaring
that the attacks of September 11 “render it both necessary and appropriate that the
United States exercise its rights to self-defence”, the Joint Resolution of the US
Congress of 18 September 2001 further affirms that “the President is authorized to
use all necessary and appropriate force against those nations, organizations, or per-
sons he determines planned, authorized, committed, or aided the terrorist attacks
that occurred on September 11, 2001, or harboured such organizations or persons,
in order to prevent any future acts of international terrorism against the United
States by such nations, organizations or persons”.38
This idea is certainly not new, and it has been defended with particular vigour
by Israel in the Security Council as justification for its use of force against terrorist
36
Cit. supra note 30, para. 195. Cf. CORTEN and DUBUISSON, “Opération ‘liberté immua-
ble’: une extension abusive du concept de légitime défense”, RGDIP, 2002, p. 51 ff., p. 56.
37
See especially CASSESE, “Terrorism is Also Disrupting Some Crucial Legal Categories
of International Law”, in Discussion Forum-The Attack on the World Trade Center: Legal Re-
sponses, cit. supra note 32, p. 5. See also CORTEN and DUBUISSON, cit. supra note 36, p. 54 ff.
38
Cit. supra note 1, emphasis added.
groups located in Arab States which carried out terrorist attacks against Israel by
moving from the territory of those States.39
Moreover, it should not be forgotten that other States have argued in other
contexts that indirect armed aggression may be considered an armed attack under
Article 51 and therefore legitimise an armed response against a State which per-
petrates such aggression.40 The decision of the International Court of Justice of 27
June 1986 was highly criticised by Judge Schwebel in his dissenting opinion due to
the fact that, in his view, the affirmation that the sending of armed bands but not the
support to such bands was to be considered an armed attack legitimising the use of
military force in self-defence – especially in the case of substantial and specialist
support – was too drastic and “aprioristic”.41
39
On 1 October 1985, Israeli military aircrafts carried out strikes on the PLO’s headquarters
in Tunis. Israel claimed that the bombing was justified due to the fact that Tunisia harboured ter-
rorists who had perpetrated terrorist attacks in Israel. The Israeli representative to the Council
stated that: “A country cannot claim the protection of sovereignty when it knowingly offers a
piece of its territory for terrorist activity against other nations, and that is precisely what hap-
pened here. Tunisia knew very well what was going on in this extraterritorial base, the planning
that took place there, the missions that were launched from it, and the purposes of those missions:
repeated armed attacks against my country and against innocent civilians around the world. Tu-
nisia, then, actually provided a base for murderous activity against another State and, in fact, the
nationals of many States who are the objects and victims of this terrorist organization. The pro-
tection of sovereignty cannot be claimed by any Government when it makes available such facili-
ties, especially against the State that must protect itself”, 4 October 1985, UN Doc. S/PV.2615,
p. 86 f. For various references to the Israeli position on this matter, cf. CASSESE, “Article 51”,
in COT and PELLET, La Charte des Nations Unies, 2nd ed., Paris, 1991, pp. 777-784. It should
be noted that Israel’s argument has undoubtedly been supported by such scholars as BROWNLIE,
The Rule of Law in International Affairs, The Hague, 1998, p. 205, who observes that “[a]nother
permutation of facts concerns the situation in which a State tolerates the presence of armed bands
which launch armed attacks against a neighbouring State. There can be little doubt that action by
way of self-defence is justified in such cases but the response must be proportionate”.
40
Cf. LAMBERTI ZANARDI, cit. supra note 11, pp. 248-261, who, in analysing particularly
the work of the Special Committee on the Question of Defining Aggression, notes (p. 254, note
172) that some (mostly Western) States “expressed their doubts or dissent” on the idea proposed
by others whereby a State that is a victim of terrorist acts carried out by irregular bands supported
by another State could never invoke self-defence against the latter.
41
Dissenting Opinion of Judge Schwebel, para. 171: “Moreover, let us assume, arguendo,
that the Court is correct in holding that provision of weapons or logistical support to rebels of
themselves may not be tantamount to armed attack (an assumption which I do not share, not
least because the term ‘logistic support’ is so open-ended, including, as it may, the transport,
quartering and provisioning of armies). It does not follow that a State’s involvement in the send-
ing of armed bands is not to be construed as tantamount to armed attack when, cumulatively, it
is so substantial as to embrace not only the provision of weapons and logistical support, but also
participation in the re-organization of the rebellion; provision of command-and-control facilities
on its territory for the overthrow of the Government of its neighbour by that rebellion; provision
of sanctuary for the foreign insurgent military and political leadership, during which periods it is
free to pursue its plans and operations for overthrow of the neighbouring Government; provision
of training facilities for those armed bands on its territory and the facilitation of passage of the
foreign insurgent to third countries for training”.
72 ARTICLES
On the other hand there is no denying that a larger number of States have op-
posed this position within the Security Council42 and in other contexts.43
The resolutions adopted by the Security Council after September 11 undoubt-
edly clarify that terrorist attacks of such proportions constitute a “threat to the
peace” under Article 39 of the Charter in that they legitimise the Security Council
to take all actions envisaged by Chapter VII, and also constitute “armed attacks”
under Article 51 and therefore legitimise the use of force in self-defence against a
State which committed such attacks, or participated therein. They do not, however,
contain sufficiently clear elements to conclude that these resolutions were intended
to affirm that even a State’s mere “toleration” in its territory of terrorist groups that
have carried out attacks against another State constitutes conduct falling under the
notion of “armed attack” and as such justifying recourse to self-defence against the
acquiescent State.44 According to these resolutions, such acquiescence is without
doubt a threat to the peace and legitimises actions on the part of the Council under
Chapter VII but does not appear to constitute an “armed attack” justifying the use
of force in self-defence.
I am aware that the resolutions mentioned above, which are in some respects
ambiguous, may lend themselves to being interpreted differently. In my view, how-
42
UN Doc. S/PV.2615, cit. supra note 39, p. 86 f. Referring again to the abovementioned
Israeli bombing of the PLO’s headquarters in Tunis the Security Council rejected the Israeli
position and voted Resolution 573(1985) with the USA abstaining. The resolution condemned
“vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in fla-
grant violation of the Charter of the United Nations, international law and norms of conduct”
and defined the raid a “threat to peace and security in the Mediterranean region”. For further
references to declarations by States against the Israeli position, see CASSESE, cit. supra note 39,
pp. 780-784.
43
Cf. LAMBERTI ZANARDI, cit. supra note 11, p. 255, in his conclusions on the review of
opinions expressed by various States to the Special Committee on the Question of Defining
Aggression states “we can deduce an orientation to exclude indirect armed aggression from the
notion of armed attack under Article 51”.
44
See especially Resolutions 1368(2001) and 1373(2001). These clearly call on States to
refrain from various wrongful acts including “organising, instigating, assisting or participating
in terrorist acts in another State or acquiescing in organized activities within its territory directed
towards the commission of such acts” (Preamble to Resolution 1373 of 2001) pursuant to Resolu-
tion 2625(XXV) of the UN General Assembly of 24 October 1970. This occurred in the context
of resolutions striving mainly to establish in very general terms how to combat all forms of
international terrorism, which were defined as a threat to the peace and to international security
(Preamble to Resolutions 1368 and 1373). It follows that all conduct listed above legitimises the
Council to adopt all means under Chapter VII, including the authorisation of the use of armed
force. The reference to self-defence, although present – as we have seen supra in the main text,
section 1 – in the preamble to these resolutions, is to be considered as referring to the specific
situation being examined by the Council, i.e. the attacks of 11 September and the USA’s pos-
sible response against the Afghan-Taliban regime. It is worth noting that some of the forms of
State conduct listed above – such as “organizing terrorist acts” or “participating in terrorist acts”
– amount to “armed attack” and as such legitimise the use of force against them. See also CORTEN
and DUBUISSON, cit. supra note 36, p. 56.
ever, any interpretation that does not fit, as we have just seen, the position adopted
so far by the majority of States would require a clearer and more unequivocal
practice.
That said, there is no reason to exclude as a possible development the fact that
the political influence of such devastating events as the attacks of September 11
which – it is worth underlining – constitute a turning-point in the history of human-
ity, may lead a large number of States to accept the second orientation whereby the
very fact of harbouring terrorist groups which commit grave attacks against a State
legitimises the use of force in self-defence against the harbouring State.45
However it seems to me a little premature to conclude that there has been such
a development and we must wait a little longer to leave the practice to settle in
order to evaluate it more accurately.
In any case, it seems that the orientation at issue disregards the historical fact
of the complete, profound and evident symbiosis between the Taliban regime and
Osama Bin Laden’s terrorist group. If we accept this state of affairs and if we do not
contest the fact that it was Bin Laden who sent the terrorists to carry out the attacks
against the United States, then the attacks are clearly imputable to Afghanistan.
In other words this is a case of State terrorism. We can therefore conclude that
the terrorist State was a legitimate target of American armed response without hav-
ing to expand or broaden the notion of “armed attack”.46
6. THE RECOGNITION BY THE SECURITY COUNCIL OF THE ENTITLEMENT IN THE

SPECIFIC CASE TO SELF-DEFENCE
Let me now turn to analyse the time factor of the self-defence action, which is
inextricably intertwined with the role of the Security Council’s function of main-
taining peace and international security.
Some scholars have contested the legality of the American action in this re-
spect. They have argued that the US-led war which began on 2 October 2001 was
unlawful in that it was a response to an aggression – the September 11 attacks
– which was complete and over. Therefore the armed response was in breach of
45
Cf. CASSESE, cit. supra note 37.
46
The historical fact of the complete symbiosis between the Taliban regime and Al-Qaida
and its legal consequences is not accounted for by CORTEN and DUBUISSON, cit. supra note 36, p.
68 f. The authors reject as the most unlikely the hypothesis that the Taliban controlled Al-Qaida,
and mention the hypothesis that Al-Qaida controlled the Taliban and finally the hypothesis that
“aucun des deux groupes ne contrôlait véritablement l’autre”. With regard to these hypotheses
the authors merely observe “le régime des Taliban ne pourrait en aucun cas se voir attribuer un
quelconque acte d’une organisation qu’il ne contrôle pas, qu’il s’agisse ou non des attentats du 11
septembre”. In point of fact this reasoning is too mechanical and disregards the fact that Al-Qaida
and the Taliban belonged to the same sovereign power centre, i.e. the Afghan-Taliban State.
74 ARTICLES
the prohibition of reprisals pursuant to Article 2, paragraph 4 of the UN Charter.

It was also claimed that the American action could not be legitimised by the goal
of preventing further attacks since Article 51 of the Charter does not envisage an-
ticipatory self-defence. Hence, only the Security Council had the authority in such
circumstances to decide on an armed response against Afghanistan.47
It is not possible here to dwell on the complex interpretation of the problems
underlying this hypothesis, especially those regarding the admissibility of pre-emp-
tive self-defence.48 In any case, even if we accept the validity of the premise on
which the above hypothesis is based, we must also examine the specific circum-
stances of the case at issue.
Not only did the Security Council, as we have seen, recognise ex ante that there
existed the prerequisites for the use of force in self- defence49 in this specific case,
but it also fully endorsed ex post the armed response of the USA and its allies.
In the Preamble to Resolutions 1378(2001) of 14 November 2001, 1586 (2001)
of 20 December 2001 and 1390(2002) of 28 January 2002, we read that the Secu-
rity Council “support[s] international efforts to root out terrorism, in keeping with
the Charter of the United Nations”.
These declarations are to be found in the resolutions adopted after 2 October
2001, the date that the United States and its allies initiated the armed response, and
must therefore be referred precisely to this use. It may be argued that these are only
indications. However, this does not alter the truth of the reasoning.
Given the fact that the Security Council substantially legitimised – ex ante and
ex post – the US war in Afghanistan we can but recognise in general the legality of
the action itself.50 There is nothing to stop others contesting the opportunity of the
47
See in particular VILLANI, “Riflessioni sul ruolo dell’Onu per il mantenimento della pace e
la lotta al terrorismo nella crisi afgana”, Volontari e terzo mondo, 2001, p. 9 ff., p. 13.
48
See BOWETT, Self-Defence in International Law, Manchester, 1958, pp. 187-192; MC
DOUGAL and FELICIANO, Law and Minimum Public Order, New Haven, 1961, pp. 232-241;
STONE, Aggression and World Order, Berkeley, 1958, p. 44; AGO, “Addendum to Eight Report
on State Responsibility”, YILC, 1980, Vol. II, p. 64 ff.; KELSEN, The Law of the United Nations,
New York, 1950, p. 797 f.; ARANGIO-RUIZ, “Difesa legittima (diritto internazionale)”, Nss. DI,
Torino, 1960, Vol. VI, p. 631 ff.; WEHBERG, “L’interdiction du recours à la force. Le principe et
les problèmes qui se posent”, RCADI, 1951, I, p. 1 ff., p. 81; D’AMATO, “Israel’s Air Strike upon
the Iraqi Nuclear Reactor”, AJIL, 1983, p. 584 ff.; WRIGHT, “The Cuban Quarantine”, AJIL,
1963, p. 546 ff.; DINSTEIN, War, Aggression and Self-Defence, 3rd ed., Cambridge, 2001, pp.
182-191; O’CONNELL, “The Myth of Pre-emptive Self-defence”, ASIL Presidential Task Force
on Terrorism, August 2002, available at http://www.asil.org/taskforce/index.htm; “Agora: Future
Implications of the Iraqi Conflict”, AJIL, 2003, p. 553 ff.; “Agora (Continued): Future Implica-
tions of the Iraqi Conflict”, AJIL, 2003, p. 803 ff.
49
See supra note 1. See also BYERS, “Terrorism, the Use of Force and International Law
after 11 September”, ICLQ, 2002, p. 401 ff.
50
Similarly SICILIANOS, “L’autorisation par le Conseil de sécurité de recourir à la force: une
tentative d’évaluation”, RGDIP, 2002, p. 5 ff., p. 47, notes that “[…] la référence à la légitime
défense constitue provisoirement une couverture juridique (et politique) certaine de l’opération
action in political or military terms.51 But it is more difficult to contest its legality
since the body which is clearly authorised to decide thereon at an international level
legitimised its use in this particular case.52
‘Infinite Justice’”. Likewise SCOVAZZI, “Una fase di crisi nel sistema di mantenimento della pace
delle Nazioni Unite”, Affari esteri, 2002, p. 372 ff., p. 401.
51
Cf. CHARNEY, “The Use of Force Against Terrorism and International Law”, AJIL, 2001,
p. 835 ff., p. 838, stating that “[i]nvolvement of the Security Council in the use of force in re-
sponse to the September 11 attacks would have avoided further undermining the benefits the
United Nations system can provide to all”.
52
See VILLANI, cit. supra note 47, p. 16 f.
THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION
ON LEGALITY OF ARREST:
CAN AN INTERNATIONAL CRIMINAL COURT
ASSERT JURISDICTION OVER ILLEGALLY SEIZED OFFENDERS?
ANDREA CARCANO*
1. INTRODUCTION
The issue of the jurisdiction by a court over illegally seized offenders is a

topic often debated among international lawyers. According to Francis Mann, kid-
napping is an international wrong, and the application of the principle ex iniuria
ius non oritur requires that jurisdiction over a kidnapped accused should not be
exercised.1 In the same vein, Michael Sharf has recently suggested that “an inter-
national criminal tribunal would have to dismiss a case where the defendant has
been abducted in violation of international law”.2 By contrast, Ian Brownlie has
argued that “while international responsibility may arise as a consequence of the
illegal seizure of offenders, the violation of the law does not affect the validity of
the subsequent exercise of jurisdiction over them”.3
Because the issue remains highly controversial, it is clearly relevant to explore
how an international criminal court such as the International Criminal Tribunal
for the former Yugoslavia (“ICTY”) has approached it. On one hand, the ICTY
is charged with the responsibility for prosecuting individuals accused of serious
violations of humanitarian law; on the other, as a tribunal established by the United
Nations (“UN”), it is expected to enforce the principles of international law and
guarantee full respect for the human rights of each accused. Normally, these two
obligations are readily reconciled in accordance with the requirements of fair trial,
but in determining jurisdiction over illegally seized offenders their reconciliation
becomes more difficult. One obligation seems to support setting aside jurisdiction;
the other, exercising it. Can these two obligations be reconciled? If not, should the
ICTY simply decline jurisdiction whenever an accused is illegally apprehended?
Would such an approach amount to the de facto acquittal of individuals accused of
crimes of concern to the international community such as genocide, crimes against
*
Associate Legal Officer at the ICTY (Chambers). The opinions expressed in this article
are those of the author and should not be attributed to the institution with which he is associ-
ated.
1
MANN, “Reflections on the Prosecution of Persons Abducted in Breach of International
Law”, in DINSTEIN (ed.), International Law at a Time of Perplexity, The Hague, 1989, p. 407 ff.
2
SCHARF, “The Tools for Enforcing International Criminal Justice in the New Millennium”,
De Paul Law Review, 2000, p. 968.
3
BROWNLIE, Principles of Public International Law, 6th ed., Oxford, 2003, p. 314.
78 ARTICLES
humanity and war crimes, which would be against the raison d’être of the ICTY?
Or, should the ICTY assert its jurisdiction over the accused regardless of the man-
ner in which they are seized? Would this amount to condoning, or even encourag-
ing, illegal conducts in contradiction of the ICTY’s status and identity as a UN
tribunal?
This article will discuss how the Appeals Chamber of the ICTY has addressed
these general issues in its recent decision entitled “Decision on Interlocutory Ap-
peal Concerning Legality of Arrest” in the Nikoliü case.4 In this decision, which
is probably the most comprehensive rendered so far by an international court
on this topic, the Appeals Chamber dismissed an interlocutory appeal lodged
by Dragan Nikoliü (“Nikoliü”), a military commander of a detention camp,5
challenging the ICTY’s jurisdiction on the ground that his arrest followed from
an unlawful act of kidnapping. The Appeals Chamber considered whether the
ICTY had jurisdiction over Nikoliü notwithstanding the apparent violation of
State sovereignty and human rights involved in his capture and answered in the
affirmative.
This article will also briefly consider the main legal findings of the Trial Cham-
ber’s decision6 in order to provide the basis for the issues addressed in the appeal,
and will explore some of the Trial Chamber’s findings, which, although largely
refined in the Appeals Chamber’s reasoning, are interesting from an international
law perspective. Finally, as the issue at hand may arise again before the ICTY, or
one of the other international criminal courts, a brief analysis of the impact that the
Appeals Chamber’s decision may have as precedent on the development of inter-
national criminal law will be offered.
2. THE BACKGROUND AND THE TRIAL CHAMBER ’S DECISION
After being taken away by unknown individuals from his house in the State
of Serbia and Montenegro,7 Nikoliü was arrested by the NATO Stabilisation Force
(“SFOR”) at its headquarters in Bosnia and Herzegovina on or about 20 April 2000,
and then brought to the ICTY, where he had his initial appearance on 28 April
4
Prosecutor v. Dragan Nikoliü, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal
Concerning Legality of Arrest of 5 July 2003 (“Nikoliü decision”).
5
On 4 September 2003, Dragan Nikoliü pleaded guilty to crimes against humanity. On 18
December 2003, he was sentenced to 23 years of imprisonment. Against the length of this sen-
tence, Nikoliü has lodged and appeal, which at the time of completion of this note (November
2004) is still pending before the Appeals Chamber.
6
Prosecutor v. Dragan Nikoliü, Case No. IT-94-PT, Decision on Defence Motion Challeng-
ing the Exercise of Jurisdiction by the Tribunal of 9 October 2002.
7
As the name of the Federal Republic of Yugoslavia (FRY) has been officially changed on
4 February 2003 and now is Serbia and Montenegro, this article will only refer to Serbia and
Montenegro.
THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION 79
2000.8 On 17 May 2001, counsel for Nikoliü (“Defence”) filed a motion before the
Trial Chamber to which the case had been assigned (Trial Chamber II), challenging
his arrest on the ground that it followed from an unlawful act of kidnapping. On
29 October 2001, the Defence filed a second motion to the same effect, but set out
more precisely the issues involved. During the interim, the pre-trial Judge (Judge
Hunt), in an attempt to simplify and expedite the procedure, recommended that the
parties reach agreement on the facts in the case and narrow the issues in dispute.9
The parties accordingly agreed10 that: (i) Nikoliü had been forcibly and against his
will taken from Serbia and Montenegro where he was living and transported into the
territory of Bosnia and Herzegovina; (ii) Nikoliü’s apprehension and transportation
were carried out by unknown individuals having (to his knowledge) no connection
with SFOR or the ICTY’s Office of the Prosecutor (“OTP”); (iii) in his interview
with the OTP, Nikoliü asserted that he had been handcuffed and put into the trunk
of a car, after which those unknonwn individuals handed him over to SFOR; (iv)
Nikoliü was arrested and detained in Bosnia and Herzegovina by SFOR; and (v)
that, as reported by a particular news agency, certain individuals had been tried and
sentenced in Serbia and Montenegro for acts related to Nikoliü’s apprehension.11
With the parties in agreement about the main facts in the case, the Trial
Chamber ruled on the Defence motions on 9 October 2002 addressing the legal
issues arising from those facts. First, as to the Defence’s argument that there was
a linkage between SFOR and Nikoliü’s kidnappers, since SFOR knew of the
unlawful conduct and ratified it by arresting Nikoliü, the Trial Chamber found
that such linkage had not, from a legal point of view, been established. Using,
as a reference, the test set out in Article 11 of the ILC Draft Articles on State
Responsibility (“Draft Articles”)12 for the attribution of the conduct of private
individuals to a State, the Trial Chamber held that Nikoliü’s kidnapping cannot be
imputed to SFOR because the latter had neither expressly approved nor adopted it
and that, as suggested by the Prosecution, SFOR was simply a passive beneficiary
of the conduct in question. Therefore, while finding that Nikoliü had been abducted
from Serbia and Montenegro by unknown individuals and transferred to Bosnia and
Herzegovina, the Trial Chamber concluded that “neither SFOR nor the Prosecution
8
Cit. supra note 6, paras. 3 and 15.
9
Prosecutor v. Dragan Nikoliü, Case No. IT-94-PT, Direction of the pre-trial Judge of 6 July
2001.
10
Cit. supra note 6, paras. 17-22.
11
Regrettably, as it would have shed light on the real reasons for the kidnapping and the link-
age between the kidnappers and SFOR, the parties never provided the Trial Chamber with a copy
of the judgment of the Serbian court convicting these individuals. Perhaps the Trial Chamber
should have issued (proprio motu) an order seeking the cooperation of Serbia and Montenegro to
obtain a copy of that judgment, which is, presumably, a public document.
12
Draft Articles on State Responsibility for Internationally Wrongful Acts, adopted by the
ILC at its Fifty-Third Session in 2001 (UN GAOR, 56th Session, Supp. No. 10 (A/56/10), chp.
IV.E.2).
80 ARTICLES
were involved in these acts” and that once Nikoliü had “come into contact with
SFOR”, SFOR was obliged to arrest, detain and transfer him to the Hague”.13
Secondly, contrary to what had been asserted by the Defence, the Trial
Chamber found that there was no violation of Serbia and Montenegro’s sovereignty.
According to the Trial Chamber, the ICTY stands in a vertical relationship with
respect to States because it constitutes an “enforcement measure” of the Security
Council under Chapter VII of the UN Charter, and, therefore, “in this vertical
context, sovereignty by definition cannot play the same role”.14 Thus, when seeking
to capture a fugitive in order to enforce an ICTY arrest warrant, the ICTY and
SFOR agents would be authorised to enter the territory of a State regardless of the
latter’s consent.
Thirdly, with respect to the complaint that Nikoliü’s human rights had been
violated, the Trial Chamber noted that the issue was one of concern as Nikoliü
appeared to have been the victim of some violence. The Trial Chamber, in
accordance with the dictum of the ICTR Appeals Chamber in Barayagwiza15 stated
that, regardless of what entity it was that committed human rights violations, the
ICTY should decline jurisdiction in cases of very serious mistreatment of the
accused.16 With regard to the case before it, however, the Trial Chamber limited
itself to find (without explanation) that the facts as agreed upon by the parties did
not reveal that the mistreatment suffered by Nikoliü was of such a serious nature
as to warrant the dismissal of the Indictment.17 For this, and the other reasons
described above, including the agreed facts, the Trial Chamber concluded that
there did not exist a “legal impediment to the Tribunal’s exercise of jurisdiction
over the Accused”.18
On 7 November 2002, Nikoliü filed a notice of appeal against the Trial
Chamber’s decision pursuant to Rule 108 or Rule 72.19 The Appeals Chamber
dismissed it (Judge Shahabuddeen dissenting), explaining that Rule 108 governs
only the filing of notices of appeal from judgment on the merits and not inter-
locutory appeals, and that Rule 72 gives a right to lodge an interlocutory appeal
against jurisdiction only in instances challenging an indictment on the ground
13
14
Ibid., para. 100.
15
Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision of 3 No-
vember 1999, para. 74.
16
For a comprehensive analysis of the Trial Chamber’s approach on this point see SLUITER,
“International Criminal Proceedings and the Protection of Human Rights”, New England Law
Review, 2003, p. 935 ff., pp. 944-947.
17
18
Ibid.
19
Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Notice of Appeal from the Judge-
ment, pursuant to Rule 108 of the Rules of Evidence and Procedure, of Trial Chamber II dated the
9th day of October 2002 concerning the Defence Motion Challenging the Exercise of Jurisdiction
by the Tribunal of 7 November 2002.
that the indictment is not concerned with individuals, crimes, periods, or places
covered by the corresponding Articles (Articles 1 to 7) of the ICTY Statute but
not where the challenge concerns only the legality of the arrest.20 The Appeals
Chamber suggested, however, that the appeal should have been lodged under
Rule 73. This rule provides for a right of interlocutory appeal to the Appeals
Chamber if the relevant Trial Chamber certifies that the issue before it is one that
“would significantly affect the fair and expeditious conduct of the proceedings or
the outcome of the trial” and for which “an immediate resolution by the Appeals
Chamber may materially advance the proceedings”.21 Accordingly, the Defence
sought22 and obtained certification from the Trial Chamber under Rule 73,23 and
finally, on 27 January 2003, lodged its appeal challenging jurisdiction pursuant
to Rule 73.24
3. THE APPEALS CHAMBER ’S DECISION
On appeal, the Defence sought the dismissal of the Indictment against Nikoliü
and the immediate return of Nikoliü to Serbia and Montenegro. It submitted that
the Trial Chamber erred by not attributing the conduct of Nikoliü’s kidnappers
to SFOR and, by extension, to the OTP, as SFOR was aware of the unlawful and
violent abduction and therefore, by taking him into custody, SFOR had colluded
with the kidnappers, condoning their crime. The Defence claimed that, contrary to
the Trial Chamber’s findings, SFOR had breached Serbia and Montenegro’s sov-
ereignty and that the kidnapping was an egregious violation of Nikoliü’s human
rights and requested that the Appeals Chamber redress these violations by setting
aside the Tribunal’s jurisdiction to hear the case.25 In rebutting these submissions,
the Prosecution mainly relied on the conclusions reached by the Trial Chamber.
It also submitted that SFOR’s conduct (or that of individuals acting on its behalf)
20
Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Decision on Notice of Appeal of 9
January 2003, p. 2.
21
Rule 73(B) of the ICTY Rules reads: “Decisions on all motions are without interlocutory
appeal save with certification by the Trial Chamber, which may grant such certification if the
decision involves an issue that would significantly affect the fair and expeditious conduct of the
proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an
immediate resolution by the Appeals Chamber may materially advance the proceedings”.
22
Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Motion for Certification and Relief
under the Provisions of Rules 73 and 127 of the Rules of 14 January 2003.
23
Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR72, Decision to Grant Certification to
Appeal the Trial Chamber’s “Decision on Defence Motion Challenging the Exercise of Jurisdic-
tion by the Tribunal” of 17 January 2003.
24
Prosecutor v. Dragan Nikoliü, Case No. IT-94-AR73, Appellant’s Brief on Appeal Against
a Decision of the Trial Chamber Dated 9th October 2002 of 27 January 2003.
25
Ibid., pp. 3-7.
82 ARTICLES
could not be attributed to the OTP, as there is no agency relationship between the
OTP and SFOR, notwithstanding their close cooperation.26
The Appeals Chamber began its analysis of the case by clarifying and priori-
tizing the issues before it. It noted that, since the Defence was claiming that the
setting aside of jurisdiction is the appropriate remedy to redress violations of State
sovereignty and/or human rights, it had to first determine whether (and under which
circumstances) jurisdiction should be set aside in such a case and, second, whether
the conduct of Nikoliü’s kidnappers could be attributed to SFOR and by extension
to the OTP. In the Appeals Chamber’s view, only if there was a clear rule providing
for the setting aside of jurisdiction in cases of violation of State sovereignty or of
an accused’s human rights, would it be necessary to examine whether the facts of
the case fall under that rule27 and whether the conduct of private individuals could
be attributed to the entity in question or not. It then proceeded to examine whether
such a rule existed in customary international law.
3.1. Jurisdiction in Cases of Violation of State Sovereignty
As to whether a violation of a State’s sovereignty justifies jurisdiction being set

aside, the Appeals Chamber noted first that it was a novel issue with little guidance
to be found in the Statute or the Rules of the ICTY, or in the case law of the inter-
national tribunals. It remarked that Article 29 of the ICTY Statute, while placing
upon all States of the international community a duty to cooperate with the ICTY’s
orders and requests for assistance (including those concerned with the arrest of sus-
pects), does not indicate what remedies are available in cases of non-compliance
by the State whose assistance is sought. The ICTY Statute, indeed, does not specify
whether the kind of cooperation required of States by the Security Council involves
allowing SFOR (or individuals acting on its behalf or in its interests) to enter the
territory of a State to apprehend a fugitive as if SFOR were an enforcement agency,
without first alerting the State in question and obtaining some sort of explicit or
tacit authorisation, or, at the very least, a post facto approval.
By adopting this cautious interpretation, the Appeals Chamber seems to have
rejected the Trial Chamber’s view that the ICTY’s agents, or SFOR would have
been entitled to undertake enforcement operations to apprehend a fugitive because
the ICTY itself is an “enforcement measure” under Chapter VII of the UN Charter
and stands in a vertical relationship with respect to States. Indeed, while, as a mat-
ter of policy, the search for international fugitives suspected of very serious crimes
should be facilitated by States as much as possible, and the doctrine of universal
26
Prosecutor v. Dragan Nikoliü, Case No. IT-94-2-AR73, Prosecution Response to “Ap-
pellant’s Brief on Appeal Against a Decision of the Trial Chamber Dated 09 October 2002” of 3
February 2003.
27
jurisdiction and the special status of the ICTY as a Security Council body may lend
some support to the Trial Chamber’s view, this doctrine is not spelled out clearly
in the Dayton Peace Agreement, the ICTY Statute, or the related Security Coun-
cil resolutions, nor is it expressed in customary international law. As the Appeals
Chamber is not a legislative body, it could not establish such a doctrine. Had it
done so, it would probably have been criticised (except by the OTP) for going well
beyond the limits of its judicial function.
In the absence of clear guidance from the lex specialis (ICTY Statute and
Rules) and its own case law, the Appeals Chamber turned to the practice of States
to assess whether a rule of customary law could be said to exist. It first examined
some cases in which jurisdiction had not been set aside, despite an apparent viola-
tion of State sovereignty. It started with the Argoud case. In this case, the French
Cour de Cassation (Criminal Chamber) considered that it retained jurisdiction
over the accused, a French citizen, arrested by French agents in German territory
without the consent of the German authorities because it would be for the State
(Germany) whose sovereignty has allegedly been breached to complain about
the violation of its sovereignty and demand reparation at the international level
(which Germany never formally did).28 The Appeals Chamber discussed next the
decision of the German Federal Constitutional Court (Bundesverfassungsgericht)
in the Stocke case. In this case, the German Constitutional Court rejected the ap-
peal of the accused Stocke, a German national residing in France, who claimed
that he had been deceptively brought to German territory, finding that, according
to international practice, courts of law would generally decline jurisdiction in
cases of kidnapping only if another State had protested against the kidnapping
and sought the return of the accused; it noted that this had not happened in this
case.29 Lastly, the Appeals Chamber recalled the controversial decision of the US
Supreme Court in United States v. Alvarez-Machain. It took notice of the fact that
in that case, the US Supreme Court asserted its jurisdiction over the accused even
though the latter, a Mexican citizen, may have been abducted in violation of gen-
28
In Re Argoud, Court of Cassation, Judgment of 4 June 1964, ILR, Vol. 45, p. 97. The
Cour de Sûreté, the lower court, had actually noted that the State concerned (Germany) had not
lodged any formal complaint and that ultimately, the issue was dealt with through diplomatic
means.
29
See respectively Decision of 17 July 1985, Az: 2 BvR 1190/84, Bundesverfassungsgericht
(Federal Constitutional Court), para. 1(c) and Judgment of 2 August 1984, Az: 4 StR 120/83,
Bundesgerichtshof (Federal Court of Justice), para. 2(b). The Bundesgerichtshof had found
that the jurisdiction of German courts would only have been put into question had the French
Republic requested reparation for an alleged violation of the French-German extradition treaty.
The case was then brought to the European Commission of Human Rights (“Commission”): see
Stocke v. Federal Republic of Germany, Decision of 9 July 1987. The Commission declared it
admissible and, in turn, referred it to the European Court of Human Rights (“ECHR”). The lat-
ter dismissed it without passing on, however, the issue here discussed. See Stocke v. Germany,
Judgement of 18 February 1991, para. 54.
84 ARTICLES
eral international law, and notwithstanding that Mexico had requested the return
of the accused.30
Next, the Appeals Chamber dealt with those cases in which jurisdiction had not
been exercised because of a complaint by the State in which the abduction occurred
or due to the irregularities of the arrest. It recalled that Jacob-Salomon, an ex-Ger-
man citizen, abducted from Swiss territory to face trial in Germany on a charge
of treason, was released by the German authorities following a strong protest by
the Swiss Government seeking his return.31 It referred to the more recent State v.
Ebrahim case, in which the Supreme Court of South Africa released an accused on
the ground that he had been kidnapped from Swaziland by the security services.32 It
also mentioned the Bennet case, in which the House of Lords granted the appeal of
a New Zealand citizen, who, after being arrested in South Africa, was deceptively
brought to the United Kingdom under the pretext of being deported to New Zea-
land, on the ground that the method employed by the police disregarded existing
extradition procedures and constituted, therefore, an abuse of process.33
Lastly, the Appeals Chamber discussed the Eichmann and Barbie cases, which
are concerned with the same kinds of crime as those falling within the ICTY’s juris-
diction. With regard to Eichmann, it observed that the Supreme Court of Israel had
asserted its jurisdiction over the accused notwithstanding the breach of Argentina’s
sovereignty involved in this abduction from its territory by Israeli secret agents.
It recalled that the Supreme Court of Israel34 had justified the kidnapping of the
accused on the grounds that he was “a fugitive from justice” charged with crimes
“of an international character […] condemned publicly by the civilized world”;35
that Argentina had “condoned the violation of her sovereignty and ha[d] waived
her claims, including that for the return of the appellant”; and that “any violation
therefore of international law that may have been involved in this incident ha[d]
thus been removed”.36 With respect to Barbie, the Appeals Chamber recalled that
the French Cour de Cassation (Criminal Chamber) asserted its jurisdiction over
the accused despite the claim that he was a victim of a disguised extradition, on
30
United States v. Alvarez-Machain, 1992, 504 US 655. See also United States v. Matta-Bal-
lesteros, 1997, 71 F.3d 754, and United States v. Noriega, 1997, 11th Cir., 117 F.3d 1206.
31
See PREUSS, “Settlement of the Jacob Kidnapping Case (Switzerland-Germany)”, AJIL,
1936, p. 123 ff., and ID., “Kidnapping of Fugitives from Justice on Foreign Territory”, AJIL,
1935, pp. 502-507.
32
State v. Ebrahim, Supreme Court (Appellate Division), Opinion of 16 February 1991,
ILM, 1992, pp. 890-899.
33
Re Bennet, House of Lords, Judgment of 24 June 1993, All England Law Reports, 1993,
pp. 138-139. See also LOWE, “Circumventing Extradition Procedures is an Abuse of Process”,
Cambridge Law Journal, 1993, pp. 371-373.
34
FAWCETT, “The Eichmann Case”, BYIL, 1962, pp. 181-215.
35
People of Israel v. Eichmann, Supreme Court of Israel, Judgment of 29 May 1962, ILR,
1968, p. 5 ff., p. 306.
36
Ibid.
the basis, inter alia, of the special nature of the crimes allegedly committed by the
accused, namely, crimes against humanity.37
On the basis of this case law, the Appeals Chamber determined that two princi-
ples found support in State practice. First, that the special character and, arguably
the seriousness, of universally condemned crimes such as genocide, crimes against
humanity and war crimes, authorises the exercise of jurisdiction over illegally
seized persons accused of such crimes. Second, that, absent a complaint by the
State whose sovereignty has been breached or in the event of a diplomatic resolu-
tion of the breach, a court of law would not need to decline jurisdiction because the
initial iniuria has been cured. Thus, according to the Appeals Chamber, under cus-
tomary international law, a court of law could assert its jurisdiction over an illegally
apprehended offender if he is accused of universally condemned offences, and the
State in whose territory the abduction occurred, has not lodged a complaint. The
Appeals Chamber did not indicate, as it was not necessary for it to do so, whether
jurisdiction could still be asserted in the absence of these elements namely in cases
of less serious crimes, or in the presence of a complaint by a State over a breach of
its sovereignty. It would have been somewhat pointless however, for the Appeals
Chamber to have conducted such a detailed analysis of State practice and to have
made the above findings, had it believed that jurisdiction could be asserted in all
circumstances. Furthermore, it is arguable that the Appeals Chamber, by stressing
the particular nature of the crimes which the kidnapped accused had been charged
with, and the necessity of having the consent (explicit or implicit or post facto) of
the State in whose territory the seizure had occurred, thereby implicitly rejected
that the US Supreme Court ruling in Alvarez-Machain was a reflection of custom-
ary law. In that decision, the criteria highlighted by the Appeals Chamber for the
exercise of jurisdiction had not been fulfilled; it is possible that the decision was
nevertheless referred to by the Appeals Chamber as illustrating the US approach to
the issue in order to distinguish it from that adopted by other States. In any event,
the decision of the Appeals Chamber indirectly confirmed the view expressed in the
doctrine that, in international law, “enforcement jurisdiction may not be exercised
in the territory of any other State without the consent of that State”.38
In explaining why it adhered to this emergent principle of customary interna-
tional law, the Appeals Chamber held that universally condemned offences are “a
matter of concern to the international community as a whole”, and that “there is a
legitimate expectation that those accused of these crimes will be brought to justice
swiftly. Accountability for these crimes is a necessary condition for the achieve-
37
Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Bar-
bie, Court of Cassation (Criminal Chamber), Judgment of 6 October 1983, ILR, 1988, p. 124 ff.,
pp. 130-131. See also CONFORTI, International Law and the Role of Domestic Legal Systems,
Leiden, 1993, p. 157.
38
LOWE, “Jurisdiction”, in EVANS (ed.), International Law, Oxford, 2003, p. 345 ff., p.
351.
86 ARTICLES
ment of international justice, which plays a critical role in the reconciliation and
rebuilding based on the rule of law of countries torn apart by international or inter-
necine conflicts”.39 It balanced this expectation with the principle of State sover-
eignty in holding that the damage caused to international justice by not apprehend-
ing fugitives is comparatively higher than the damage (if any) to the sovereignty
of a State caused by a limited intrusion into its territory, particularly when such an
intrusion occurs after the State has defaulted on its obligations with respect to the
International Tribunal. The Appeals Chamber concluded that jurisdiction should
not be set aside when the breach of a State’s sovereignty is brought about solely by
the need to arrest international fugitives. It clarified that this interpretation was all
the more justified by the fact that, in the present case, the State whose sovereignty
had been allegedly breached had not lodged a complaint and could thus be consid-
ered to have acquiesced in the Tribunal’s exercise of jurisdiction. This clarification
appears particularly significant. It is not certain that the ICTY would always have
jurisdiction in cases of violation of State sovereignty. For instance, were Serbia
and Montenegro to sue SFOR’s Members before the International Court of Justice
(“ICJ”) and claim successfully that its sovereignty had been breached and obtain
the restitution in integrum, the ICJ could order the ICTY to send the accused back
to his State of origin. Although that State would be obliged, in turn, to give the
accused back to the ICTY because of its obligation to cooperate under Article 29
of the ICTY Statute and the primacy that the ICTY enjoys over national courts, it
would be difficult for the ICTY to assert its jurisdiction after a clear finding by the
ICJ that international law had been breached.
The Appeals Chamber concluded that jurisdiction need not be set aside in this
case, because the accused was charged with universally condemned offences and
no complaint had been lodged by the State from which the accused was abducted.
Therefore, the issue of whether the conduct of Nikoliü’s kidnappers could be at-
tributed to SFOR, and, by extension, to the OTP became a moot point.
3.2. Jurisdiction in Cases of Human Rights Violations
In the second part of its decision, the Appeals Chamber discussed whether
human rights violations merit jurisdiction being set aside. It supported the Trial
Chamber’s view that, in cases involving very serious mistreatment, cruel or de-
grading treatment, or torture of the accused, jurisdiction may not be exercised.
In support of this view, it quoted the Toscanino case, in which the US Court of
Appeal held that “we view due process as now requiring a court to divest itself of
jurisdiction over the person of a defendant where it has been acquired as the result
of the Government’s deliberate, unnecessary and unreasonable invasion of the ac-
39
cused’s constitutional rights”.40 It also recalled the dictum of the ICTR Appeals
Chamber in Barayagwiza, in which the Chamber stated that a court “may decline
to exercise jurisdiction in cases where to exercise jurisdiction in light of serious and
egregious violations of the accused’s rights would prove detrimental to the court’s
integrity”.41
Following this approach, the Appeals Chamber found that in cases of egregious
human rights violations “[i]t would be inappropriate for a court of law to try the
victims of these abuses”.42 It added, perhaps in order to clarify why in a UN court,
which is expected to condemn all human rights violations, only egregious viola-
tions committed against an accused would warrant the setting aside of jurisdiction,
that a “correct balance must […] be maintained between the fundamental rights
of the accused and the essential interests of the international community in the
prosecution of persons charged with serious violations of international humanitar-
ian law”.43 The Appeals Chamber concluded that the factual context of Nikoliü’s
arrest (as agreed upon by the parties) was not of such seriousness as to warrant the
setting aside of jurisdiction, even if the conduct of the unknown individuals were
to be attributed to SFOR.
While the principle developed by the Appeals Chamber whereby jurisdiction
will be set aside only in cases of egregious human rights violations seems reason-
able and well grounded in national and international practice, its practical applica-
tion remains far from easy, as there is no clear-cut definition of “egregious” human
rights violations; thus it is difficult to distinguish them from the “non-egregious”.
As the Appeals Chamber rightly stressed in its decision, the extent of the human
rights violations necessary for the setting aside of jurisdiction depends on the vari-
ous circumstances of each case and cannot be made in abstracto. Some guidance
may be drawn from international practice, particularly the jurisprudence of the
various human rights bodies (e.g. the European Court of Human Rights and the UN
Human Rights Committee). Ultimately, however, the assessment of the gravity of
the human rights violations will be made by the judges called to rule on it accord-
ing to their perception of the facts. This assessment will in turn also be influenced
by the ability of counsel to present the facts of the case in a way favourable to their
client. In this regard, the strategy of the agreed facts (though recommended but not
imposed by the pre-trial Judge), which was employed by the Defence in this case,
does not seem particularly useful to influence the Judges’ perception of the facts
in the case in a manner favourable to the accused. The Prosecution can only agree
in order to avoid the dismissal of the case with those versions of the facts that, in
one way or another, would reduce the seriousness of the facts and limit its involve-
ment. But an agreement of that kind would be of little help to the accused, because
40
1974, 2nd Cir. 500 F.2d 267, p. 275.
41
42
43
Ibid.
88 ARTICLES
it would limit the possibility of the judges to take a strong position in favour of the
accused and set aside jurisdiction.
Lastly, while the Appeals Chamber has clearly stated that it will not tolerate
egregious human rights violations in the process of arresting individuals, it did
not discuss whether there should also be a remedy for lesser violations. This is
understandable because the issue had become moot and, in any case, there was
no apparent linkage between SFOR and the kidnappers so that the latter’s actions
remained acts of private individuals with no relevance at the international level.
Nevertheless, the International Tribunal, in order to avoid the impression that it
condones them, should also have ways to remedy non-egregious human rights
violations. Such a system may provide, for instance, for the granting of monetary
compensation or a reduction of the sentence when a Chamber finds that the accused
has been a victim of human rights violations. For instance, Article 85 of the Statute
of the International Criminal Court (“ICC”) provides that: “Anyone who has been
the victim of unlawful arrest or detention shall have an enforceable right to com-
pensation”. A similar provision, with the addition of an indication as to the form of
compensation should and could be adopted by the ICTY.
4. THE IMPACT OF THE NIKOLIû DECISION ON INTERNATIONAL CRIMINAL LAW
Having described and commented upon the main aspects of the Nikoliü deci-
sion, it remains to be examined whether this decision, which is arguably well bal-
anced and sufficiently protective of the accused’s human rights, could influence
future cases so as to contribute positively to the development of international crimi-
nal law. This influence would depend first on whether the international and national
criminal courts perceive the decision as reflecting a rule of customary international
law; and secondly, on the legal strength or persuasive force of the decision within
the mechanism of international criminal justice. The latter point, not often ad-
dressed in the relevant literature, requires further explanation.
The mechanism of international criminal justice includes several recently
established international criminal courts. They are: the ICTY, the ICTR, the ICC,
the Special Court for Sierra Leone (“Sierra Leone Court”), and the East Timor
Panels. The defining aspect of this mechanism is that it constitutes a process of
adjudication and progressive self-institutionalisation, by which the goal of an
international justice for international crimes is brought about.44 This mechanism,
it should be clarified, is not a system, at least when compared with national legal
systems, because of its rudimentary and fragmented nature and the lack of an
international legislature coordinating it and harmonising its development as a
44
See the definition of “Mechanism” in The New Oxford Dictionary of English, Oxford,
1998, pp. 1148-1149.
whole. The above mentioned courts share, however, common characteristics in

that they are international judicial bodies, are charged with the prosecution of the
same kinds of crime (i.e. genocide, crimes against humanity and war crimes),
are established under international law and apply, inter alia, principles of inter-
national criminal law. National courts, although formally not part of this mecha-
nism, act as part of it to the extent that they foster the goal of prosecuting crimes
of international concern.
Although one cannot expect the same level of coordination that one would
find in a domestic legal system, certain aspects of the mechanism of international
criminal justice facilitate the circulation of decisions and the interplay and mu-
tual influence among the courts participating in it. These interactions will most
certainly increase when, in the years to come, all the courts composing it will be
fully operational. On the basis of these features (which include both legal provi-
sions and practical factors), judicial decisions (including the Nikoliü decision),
even if not formally a source of law, may influence the development of inter-
national criminal law. Some examples and explanations of how this can happen
follow.
For example, at the ICTY, absent any specific provision in the Statute, the Ap-
peals Chamber has ruled on the legal effect of its decisions. In its judgment in the
Aleksovski case,45 the ICTY Appeals Chamber determined that its decisions were
binding on itself and on the Trial Chambers. It held that “the Appeals Chamber
should follow its previous decisions, but should be free to depart from them for
cogent reasons in the interests of justice”,46 and that “a proper construction of the
Statute requires that the ratio decidendi of its decisions is binding on Trial Cham-
bers”.47 The Appeals Chamber clarified that the Trial Chambers were bound to fol-
low its rulings because of its status as a higher court, the need to ensure certainty
and predictability in the application of the law, and the right of the accused to have
like cases treated alike.48 In this context it should also be recalled that although
the Aleksovski Appeals Chamber did not address this issue, the decisions of the
ICTY Appeals Chamber also affect the ICTR Appeals Chamber and vice-versa.
This happens not only because of the similarities in the applicable law between the
two tribunals, but also because the judges composing the ICTR and ICTY Appeals
Chambers are the same and, thus, as a matter of consistency, they tend to adopt the
same approaches.49 That, in turn, influences the jurisprudence of the ICTR Trial
Chambers through the process of appellate review.
45
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgment of 24 March 2000.
46
Ibid., para. 107.
47
Ibid., para. 113.
48
Ibid.
49
As an example of the influence of the ICTY Appeals Chamber’s jurisprudence on the
ICTR Appeals Chamber, see, for instance, Musema v. Prosecutor, Case No. ICTR-96-13-A,
Judgment of 16 November 2001, paras. 18-20, 36, 46, 68, 354, 361, 369, 381 and 387.
90 ARTICLES
Furthermore, Article 20 of the Statute of the Sierra Leone Court provides that
the judges of the Appeals Chamber, when affirming, revising or reversing the Trial
Chambers’ decisions, “shall be guided by the decisions of the Appeals Chamber of
the International Tribunals for the former Yugoslavia and for Rwanda”.50 Although
the word “guided” in Article 20 allows for some flexibility, the use of the verb
“shall” in the same article makes it mandatory for the Appeals Chamber of the
Sierra Leone Court to consider the ICTY and ICTR Appeals Chambers’ jurispru-
dence. As a result, the Sierra Leone Court judges appear bound to take the ICTY
and ICTR Appeals Chambers’ jurisprudence into account when deciding similar
cases, and, whenever they choose not to follow a given precedent, which deals with
the same legal issues, they may be required, in order to show their compliance with
their obligations under the Statute, to give reasons for deciding not to follow it.
In addition to such instances of the regulated uses of previous decisions, and
other instances where the principle embedded in a judicial decision may be regarded
as reflective of a rule of customary international law, judicial decisions (including the
Nikoliü decision) operate, to a greater or lesser degree, with persuasive force. This
rests on several reasons. First, the ratio decidendi of a decision may appear cogent and
comprehensive or explanatory of a given point of law to other courts called to address
the same or similar issues. Secondly, a decision may have been rendered by an appel-
late body, which enjoys greater authority being at the highest of the hierarchy within
a court. Thirdly, the judges composing a given chamber (Trial Chamber or Appeals
Chamber) may be well respected authorities on the area of law dealt with in the deci-
sion. Fourthly, the parties may rely on such precedents in their pleadings and thereby
influence the courts before which they appear. Fifthly, courts may rely on previous
decisions to strengthen their decisions in order to avoid the negative impression that
they simply create law as they go and to ensure coherence, certainty and predictability
in the law which, particularly in criminal law, are paramount. Finally and importantly,
certain decisions may be followed particularly in matters of human rights because
courts may consider that they are under the obligation to decide like cases alike.51
As an example of how a judicial decision may operate with persuasive force,
one may consider how the Nikoliü decision could be followed by an ICC Chamber,
arguably the Pre-Trial Chamber or if an appeal is raised, by the ICC Appeals Cham-
ber. According to Article 55(1)(b) and (d) of the ICC Statute, a person subject to an
investigation under the ICC Statute “shall not be subject to arbitrary arrest or deten-
tion” and “shall not be subjected to any form of coercion, duress or threat, to torture
or any other form of cruel, inhuman or degrading treatment or punishment”. Even
50
Article 20(3) of the Statute of the Special Court of Sierra Leone reads: “The Judges of the
Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber
of the International Tribunals for the former Yugoslavia and for Rwanda. In the interpretation
and application of the laws of Sierra Leone, they shall be guided by the decisions of the Supreme
Court of Sierra Leone”.
51
CROSS and HARRIS, Precedent in English Law, Oxford, 1991, p. 3.
though State parties to the ICC have the task of executing requests for arrest and
surrender in accordance with their national law,52 an accused could, arguably, file a
motion under Article 55(1)(b) or (d) claiming that his rights have been violated by
the officials of the State party arresting him (inside or outside the territory of the
State party). In ruling on such a claim, the ICC Pre-Trial Chamber called to rule
on it could take into account the Nikoliü decision, as an example of how to remedy
egregious human rights violations. For, while Article 85 of the Statute provides a
remedy for unlawful arrest in that “[a]nyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation”, there is noth-
ing in the Statute indicating how to remedy human rights violations as egregious as
those envisaged in Article 55(1)(b). In these circumstances, counsel for the accused
would probably emphasise the remedy of setting aside jurisdiction advocated in
the Nikoliü decision. The Pre-Trial Chamber requested to rule on a motion lodged
pursuant to Article 55 may also consider that it is under the obligation to treat like
cases alike and it would be unfair for an accused before the ICC to receive less
protection than in another international criminal forum such as the ICTY.
Likewise, national courts, when called to decide cases involving crimes of
international concern or raising certain aspects of international criminal law, may
be influenced by the content of international decisions. Again, even if not seen
as entirely reflective of customary international law, national courts may find in
international decisions a viable example of how to confront issues of international
criminal law pending before them.53
For the foregoing reasons, there is a strong possibility that the Nikoliü decision,
as a decision rendered by the Appeals Chamber of an international criminal court,
will circulate widely within the mechanism of international criminal justice and have
an impact on the development of international criminal law. This may happen not
only because the Nikoliü decision may be regarded as reflective of customary law, but
also because of its legal strength as a judicial decision and its persuasive force.
5. CONCLUSIONS
In light of the foregoing analysis, the Nikoliü decision is notable, in particular,

for the following reasons.
52
YOUNG, “Surrendering the Accused to the International Criminal Court”, BYIL, 2001, p.
317 ff., p. 348.
53
To see an example of how an international decision may influence a national court, see
how a first instance court and an appeals court have taken into account the jurisprudence of the
ICTY, in interpreting the doctrine of command responsibility set out in the American Torture
Victim Protection Act of 1991 (TVPA) in William Ford v. JS Garcia, United States Court of Ap-
peal, 11th Cir., Judgment of 30 April 2002, and the Separate Opinion of Judge Barkett, available
at http://www.law.emory.edu/11circuit/apr2002/01-10357.opn.html.
92 ARTICLES
First, the Nikoliü decision offers, arguably for the first time in international
criminal law, a relatively comprehensive test for determining when the ICTY has
jurisdiction over accused persons (apparently) illegally seized. According to the
Appeals Chamber, the ICTY is authorised to assert its jurisdiction over an illegally
seized accused if: (i) the State where the seizure occurs has expressly consented
to or has acquiesced in the Tribunal’s exercise of jurisdiction by not lodging a
complaint; and (ii) the human rights violations suffered by the accused are not
egregious. In cases of egregious human rights violations, jurisdiction should be
declined. This test relies on emerging principles of customary international law,
adapted to the context of an international criminal tribunal. In this process of adap-
tation, the Appeals Chamber has balanced seemingly conflicting principles, name-
ly: the inviolability of State sovereignty; the need to ensure the prosecution of those
accused of crimes of international concern; and the respect of their human rights.
The above-mentioned resulting test appears to have reconciled them. A finding that
the ICTY has jurisdiction regardless of the way in which an accused is brought
under its jurisdiction would have failed to respect the human rights of the accused
and could have been used as a cover for very serious illegalities not worthy of a
United Nations court. Likewise, a finding that the ICTY has to set aside jurisdiction
in every instance of the infringement of an accused’s rights would also have been
problematic. First, not all human rights violations entail the same remedy because
they are not of the same seriousness, and, secondly, such an approach would have
frustrated the expectations of the international community for the apprehension and
prosecution of international fugitives.
Secondly, the Nikoliü decision, despite upholding the exercise of jurisdiction
in the circumstances of the case, does not seem to condone illegality in arrest. The
Appeals Chamber stressed the importance of the consent (albeit ex post facto) of
the State in which the accused was seized and pointed out that it felt authorised
to exercise jurisdiction because the State involved had acquiesced. The Appeals
Chamber has taken a strong position in favour of the human rights of the accused
by stating that, regardless of the seriousness of the crimes attributed to him or her,
jurisdiction must be declined in cases of an egregious violation of the human rights
of the accused. However, although the Appeals Chamber did not have to decide
on the point, it remains necessary for the ICTY, in order to avoid the impression
of condoning non-egregious human rights violations, to establish a mechanism to
remedy them as well. This would be realised through the adoption in the Rules of
Procedure and Evidence, if not in the Statute, of a new provision allowing for some
form of compensation in cases of arbitrary arrest. Article 85 of the ICC Statute may
be a basis for this. Compensation may take the form of a reduction of the sentence
in cases of conviction or, in cases of acquittal, of a monetary grant.54
54
Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Appeals Chamber,
Decision (Prosecutor’s Request for Review or Reconsideration) of 31 March 2000, para. 74.
Finally, the Nikoliü decision is likely to have a significant impact on the inter-
national criminal justice mechanism and may thus contribute to a certain uniform-
ity of approach among these courts. This will be not only because the decision may
be regarded as reflective of customary law, but because of its legal strength as a
judicial decision emanating from the senior Chamber of the ICTY and its persua-
sive force. It will then be of particular importance, not only for all Chambers of that
institution, but also for the Appeals Chambers of the Special Court, and indeed for
other international and national criminal courts.
NOTES AND COMMENTS
CULTURE AND TRADE? A EUROPEAN WAY “TOWARDS
AN INTERNATIONAL INSTRUMENT ON CULTURAL DIVERSITY”
ROSTAM JOSEF NEUWIRTH*
1. INTRODUCTION
In a Communication to the Council and the European Parliament, entitled

Towards an international instrument on cultural diversity, the Commission has
formally restated the importance of the global debate on cultural diversity and
herewith joined the calls for the adoption of a standard-setting instrument on cul-
tural diversity.1 These calls, as the Commission’s document mentions, consist until
now of various statements or reports prepared by the G8 (Okinawa, 2000), the
Council of Europe (Declaration on cultural diversity, December 2000), the United
Nations Educational, Scientific and Cultural Organisation (Universal Declaration
and Action Plan on Cultural Diversity, November 2001), the United Nations and
the International Telecommunication Union (ITU) through the World Summit on
the Information Society (WSIS). In a footnote, further references to other contribu-
tions made by various national and international bodies to this debate such as the
Organisation Internationale de la Francophonie (OIF) and the International Net-
work on Cultural Policy (INCP), the International Network for Cultural Diversity
(INCD) and, at last, the Sectoral Advisory Group on International Trade (SAGIT)
can be found. The INCD and the SAGIT have already prepared and published draft
instruments which provide a useful basis for future debates and subsequent nego-
tiations for an international instrument on cultural diversity.2
By joining this debate, the Commission has raised considerable expectations
with regard to possible answers for the current difficult situation provoked by the
apparently concurrent global objectives of the globalisation of the economy, and
respect and support for cultural diversity. From this perspective, the shining halo
that surrounds the Commission’s Communication is somewhat dimmed by its lack
*
Ph.D Researcher at the European University Institute (Florence).
1
Communication from the Commission to the Council and the European Parliament, To-
wards an international instrument on cultural diversity, COM(2003) 520 final of 27 August 2003
(hereinafter “Communication”).
2
See International Network for Cultural Diversity (INCD), Draft Convention on Cultural
Diversity, available at http://www.incd.net/draft.html (see also the final draft version, the so-
called Proposed Convention on Cultural Diversity, available at http://www.incd.net/docs/
CCDJan2003Final.pdf), and The Cultural Industries Sectoral Advisory Group on International
Trade (SAGIT), An International Agreement on Cultural Diversity – A Model for Discussion,
September 2002 (hereinafter “SAGIT Report”), available at http://www.dfait-maeci.gc.ca/tna-
nac/documents/sagit_eg.pdf.
98 NOTES AND COMMENTS
of ambition and the limited scope of the arguments that it presents. This some-
what critical evaluation is based on three basic points. The first is to be found in
the relative neglect of the so-called global “culture and trade” debate, or, in other
words, attempts to overcome the prevalent, i.e. dichotomous, perception of cultural
policies, on the one hand, and trade policies, on the other. This perception and the
clear-cut separation that resulted therefrom has become increasingly obsolete in
light of twentieth-century technological innovations of various kinds, introduced at
breakneck speed and which have contributed to the emergence of the unique char-
acter of certain cultural goods and services, commonly referred to as the “cultural
industries”.3 Furthermore, the nexus between culture and trade raises important
questions concerning Community competences. A second point is that the Com-
munication, to the detriment of coherence in EU policy making, does not seem to
take into due account either its own historical evolution from the Treaty Establish-
ing the European Coal and Steel Community and the Rome Treaty to a Draft Treaty
Establishing a Constitution for Europe, or the recent actions and initiatives taken at
European level, notably a report on cultural industries and a Resolution on Televi-
sion without Frontiers, both adopted by the European Parliament. Consequently,
as a third, and final, point, the Communication inevitably seems too modest in the
conclusions it advocates for the drawing-up of a standard-setting instrument on
cultural diversity.4 Hence, the three points for a critique concern the complex rela-
tionship of the concept of cultural diversity vis-à-vis the domains of human rights,
democratic governance, trade and sustainable development. However, before these
points for a critique are presented, I will shortly summarise the main points made
in the Commission’s Communication.
2. COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE

EUROPEAN PARLIAMENT: TOWARDS AN INTERNATIONAL INSTRUMENT ON
CULTURAL DIVERSITY
2.1. The Communication’s Content Revisited
As mentioned at the beginning, the Communication first outlines the context

of the attempt to establish an international standard-setting instrument on cultural
diversity by referring to several initiatives of some selected international and re-
gional organisations, both public and private, involved in the international debate
on cultural diversity. Based on these references, the Communication restates the
international debate on cultural diversity as follows:
3
See, e.g., UNESCO, Culture, Trade and Globalization: Questions and Answers, Paris,
2000; see also PAUL, “Cultural Resistance to Global Governance”, Michigan Journal of Interna-
tional Law, 2000, p. 22 ff.
4
See Communication, cit. supra note 1, pp. 9-10.
CULTURE AND TRADE? 99
“Such progressive affirmation of cultural diversity at international

level is a contributing answer to growing concerns of civil society
and governments regarding the preservation of cultural diversity (as a
common heritage of humankind, in a similar manner to biodiversity)
as well as the promotion of living cultures and creative capacity. In
both dimensions, cultural diversity tends to integrate global strategies
of sustainable development. Public authorities are increasingly sensi-
tive to the need to develop intercultural dialogue, with a view to foster
peace, security and stability at global level”.5
In the following, the Communication promotes UNESCO among the organisa-

tions referred to, not only as the leading authority in the field of cultural diversity,
but also as the most prominent aspirant for the role of host institution to such an
instrument. In their choice, the drafters of the Communication seem to follow a
certain logic, which derives from the universal vocation of UNESCO, as laid down
in its constitutional mandate to:
“[C]ontribute to peace and security by promoting collaboration

among the nations through education, science and culture in order
to further universal respect for justice, for the rule of law and for the
human rights and fundamental freedoms which are affirmed for the
peoples of the world, without distinction of race, sex, language or
religion, by the Charter of the United Nations”.6
Second, the Communication outlines the parameters for a Community involve-

ment in the preservation and promotion of cultural diversity, which, according to
the Commission, are “among the founding principles of the European model”.7 To
underline these principles, the Communication quotes Article 151 of the Treaty
Establishing the European Communities (TEC) and Article 22 of the Charter of
Fundamental Rights of the European Union as well as their mention in the recent
Draft Treaty Establishing a Constitution for Europe.8 However, although the state-
ment about cultural diversity being a founding principle of the European model
may well be true in general, the quoted references are highly misleading. This is
because Article 151 was introduced for the first time into the Community’s treaty
5
Ibid., p. 2.
6
Article 1(1) of the Constitution of the United Nations Educational, Scientific and Cultural
Organisation, adopted in London on 16 November 1945, UNTS, Vol. 4, p. 275 ff.
7
See the Communication, cit. supra note 1, p. 3.
8
Treaty Establishing the European Community, OJ EC No. C 325 of 24 December 2002;
see also Part II, Article II-22 (“Cultural, religious and linguistic diversity”) and Part III, Article
III-181 (“Culture”) of the Draft Treaty Establishing a Constitution for Europe, OJ EC No. C 169
of 18 July 2003.
structure as Article 128 with the 1992 Maastricht Treaty and Article 22 of the Char-
ter proclaimed in Nice on only 7 December 2000, by the European Parliament, the
Council and the Commission.9 Before the entry into force of the Maastricht Treaty,
the Community had – at least in strictly legal terms, apart from the exception for
“national treasures possessing artistic, historic, or archaeological value” in Article
36 (now Article 30) TEC – made no explicit legal reference to culture or cultural
diversity. The Communication’s formulation must therefore be read as meaning the
affirmation of various long-standing aspirations, efforts and practices in the process
of European integration.10
Based on the provisions in Article 151 TEC, the text of the Communication
distinguishes an internal and an external dimension of cultural cooperation. From
an internal perspective, it reads, Article 151 has permitted the development of
cultural actions, such as the Culture 2000 Programme, but also guaranteed that
cultural considerations be taken into account in other areas of Community ac-
tion, such as, for instance, industrial policy in the case of the MEDIA PLUS Pro-
gramme, and the free movement of services within the internal market in the case
of the Television without Frontiers Directive. With regard to the external dimen-
sion, it quotes the obligation of the Community and the Member States to foster
co-operation with third countries and the competent international organisations
in the sphere of culture (Article 151(3)). Paragraph 3 mentions as an example the
Council of Europe, whose regional vocation seems to limit its role in the context
of an international instrument on cultural diversity.11 It would thus be useful to find
more specific guidance as to what “competent international organisations” means.
A similar wording is found in Article V of the WTO Agreement, which calls on
the General Council to “make appropriate arrangements for effective cooperation
with other intergovernmental organizations that have responsibilities related to
those of the WTO”. In times of increasing mutual interdependence and growing
complexity characterising the governance of global affairs, the line between the
different competences conferred upon the various international agencies is becom-
ing more difficult to draw. In the field of the Community’s external actions, the
Communication mentions the cooperation with the African, Caribbean and Pacific
States (ACP) in the framework of the successor agreement to the Lomé Conven-
tions, the so-called Cotonou Agreement.12 The Cotonou Agreement, it should be
added, mentions in Article 27 that:
9
Solemn Proclamation of the European Parliament, the Commission and the Council of 7
December 2000, OJ EC No. C 346 of 4 December 2000.
10
For an account of these practices, see, e.g., DUMOULIN, “Europe de la culture, culture
européenne”, Journal of European Integration History, 1999, p. 7 ff.
11
But see note 61.
12
Partnership Agreement between the Members of the African, Caribbean and Pacific Group
of States of the One Part, and the European Community and its Member States, of the Other Part,
signed in Cotonou on 23 June 2000, OJ EC No. L 317 of 15 December 2000, pp. 3-286 (and Final
Act, pp. 287-353).
“Cooperation in the area of culture shall aim at:

(a) integrating the cultural dimension at all levels of development
cooperation;
(b) recognising, preserving and promoting cultural values and identi-
ties to enable inter-cultural dialogue;
(c) recognising, preserving and promoting the value of cultural herit-
age; supporting the development of capacity in this sector; and
(d) developing cultural industries and enhancing market access op-
portunities for cultural goods and services”.
Especially lit. d) of Article 27 highlights the economic aspects of cultural

cooperation as they are inherent in the cultural industries. The Communication
also refers to the cultural component in the cooperation between the EU and the
Mediterranean as initiated in 1995 by the Barcelona Declaration. The Barcelona
Declaration also combines various economic and cultural dimensions, such as the
role of the mass media in the dialogue and understanding of their respective cul-
tures and the progressive establishment of a free trade area.13 To this end, the EU
has committed itself to actively promoting such interaction, in particular through
the ongoing MED-Media programme. Moreover, the Communication refers to the
field of information society where it mentions the “eEurope initiative” and its im-
portance for the promotion of cultural diversity through the use of information and
communication technologies.14
Following this short presentation of the actions taken by the EU, the Com-
munication stresses the importance of coherence between internal and external EU
policies. It is unfortunate that, in this respect, the text appears rather fragmented
and confusing. First, it states the significance of EU policy coherence by reference
to multilateral agreements, such as those administered by the WTO and the World
Intellectual Property Organisation (WIPO). With regard to WIPO, it stresses that
such international instrument should “neither interfere nor prejudice with on-going
discussions notably within the WIPO Intergovernmental Committee on Genetic
Resouces, Traditional Knowledge and Folkore/Traditional Cultural Expressions”.15
However, one can only speculate about the hidden meaning behind the words
“interfere” or “prejudice” when they are raised in the context of policy coher-
13
Barcelona Declaration, adopted at the Euro-Mediterranean Conference – 27-28 November
1995.
14
Communication, cit. supra note 1, p. 3; see also Communication from the Commission to
the Council, the European Parliament, the Economic and Social Committee and the Committee
of the Regions, eEurope 2005: An information society for all – An Action Plan to be presented in
view of the Sevilla European Council, 21-22 June 2002, COM(2002) 263 final of 28 May 2002,
p. 8, stating that “In summary, broadband enabled communication, in combination with conver-
gence, will bring social as well as economic benefits. It will contribute to e-inclusion, cohesion
and cultural diversity”.
15
Communication, cit. supra note 1, p. 4.
ence. Moreover, doubts are reinforced in the next paragraph, which recalls the EU
General Affairs Council’s conclusions of 1999, which are still valid in the ongoing
negotiations and read as follows: “During the forthcoming WTO negotiations, the
Union will ensure, as in the Uruguay Round, that the Community and its Member
States maintain the possibility to preserve and develop their capacity to define and
implement their cultural and audio-visual policies for the purpose of their cultural
diversity”.
In this statement the clear overlap between the specific objectives of the
UNESCO Universal Declaration on Cultural Diversity surface, namely, the devel-
opment of viable local cultural industries and the improvement of the distribution
of cultural works at the global level, and the competences of the WTO. As a conse-
quence, the last sentence of the concluding quote of the part of the Communication
on the Community involvement constitutes the wrong signal, when it states that, in
their informal meeting in Thessaloniki in May 2003, Culture Ministers remarked
that “The basic international forum for cultural policies cannot be the WTO”.16
That is to say that, while it is definitely legitimate and even logical for Ministers of
Culture to stress that the WTO cannot be the forum for the formulation of cultural
policies, due to its specialisation on the field of international trade and commerce, it
is also clear that, deriving from the Council conclusions cited above, in the pursuit
of the objectives laid down in cultural policies and, particularly, in their implemen-
tation, there is a much greater implication for the powers attributed to, and perhaps
also a need for the expertise of, the WTO.
An interesting precedent of such overlap between cultural and commercial
policies, and more coherent policy-making through inter-agency cooperation, is
provided by the history of the adoption of the 1950 Agreement on the Importation
of Educational, Scientific and Cultural Materials (“Florence Agreement”).17 The
Florence Agreement, aimed at facilitating the international circulation of educa-
tional, scientific, and cultural materials, was prepared by the UNESCO Secretariat
and, before its final adoption, was submitted to a meeting of the contracting parties
of the GATT for revision.18 Therefore there is not only a need for the expertise of
the WTO in the field of trade, but also, at the same time, there exists a real danger
that the objectives laid down in cultural policies become impaired and nullified by
changes to the international trading regime under the auspices of the WTO. In this
context, it must be added that the Communication also disregards many questions
16
Ibid.; for useful background information on the meeting, see the webpage of the Greek
Presidency, “Informal Council of EU Ministers of Culture and Audiovisual: Summary of the
Discussion by the Presidency”, 24-25 May 2003, at http://www.eu2003.gr/en/articles/2003/5/
26/2897.
17
Agreement on the Importation of Educational, Scientific and Cultural Materials, with An-
nexes A, B, C, D and E and Protocol annexed, 1950, UNTS, Vol. 131, p. 25 ff.
18
See UNESCO, A Guide to the Operation of the Agreement on the Importation of Educa-
tional, Scientific and Cultural Material, 4th ed., Paris, 1969, p. 5.
related to Community competences concerning the growing sensitivity towards

cultural goods and services as well as cultural diversity in the negotiation of inter-
national trade agreements, first introduced in the provisions of the Common Com-
mercial Policy (CCP) by the Treaty of Nice and further complemented in the Draft
Treaty Establishing a Constitution for Europe.19
In the third part, the Communication discusses the possible added value of a
new instrument on cultural diversity on the international plane. Its main reference
document is a study by UNESCO, discussing the various technical and legal aspects
relating to the desirability of a standard-setting instrument on cultural diversity.20
For the cleavage between culture and trade, the document recalls that: “[Finally],
cultural policies, which are the true driving forces in cultural diversity, should fos-
ter the production and dissemination of diversified cultural goods and services”.
Relying on the Universal Declaration on Cultural Diversity, the study also
highlights the desire to transcend the opposite interests of advocates of cultural
goods and services and of champions of human rights through the lens of their
complementarity.21 In substantive terms, the study isolates four main options for
a possible application of an international standard-setting instrument. These four
options are:
(1) A new comprehensive instrument on cultural rights, relying by and large
on existing legal documents such as the Universal Declaration of Human Rights
(1948), the International Covenant on Civil and Political Rights (1966) and the
International Covenant on Economic, Social and Cultural Rights (1966);
(2) An instrument on the status of the artist, aimed at regulating internationally
the professional status of creators and artists, which, so far, is only insufficiently
achieved. The various aspects of labour rights of artists and creators, such as their
social benefits, tax status, or conditions for remuneration, could be dealt with by
UNESCO, possibly in cooperation with the International Labour Organisation
(ILO);
(3) A new Protocol to the Florence Agreement, which would extend the ap-
plication of the existing agreement to cultural and perhaps even educational and
scientific services. It is interesting to note that under this option a formal link to the
WTO dispute settlement system is proposed as a remedy in case of international
disputes arising from the application of this agreement and the new protocol. How-
19
See Article 133(6) of the Treaty Establishing the European Community, cit. supra note 8,
and especially Article II-217(4) of the Draft Treaty Establishing a Constitution for Europe, cit.
supra note 8.
20
UNESCO, Preliminary Study on the Technical and Legal Aspects Relating to the Desir-
ability of a Standard-Setting Instrument on Cultural Diversity, Executive Board, 166th Session,
UNESCO Doc. AX 166 EX/28 of 12 March 2003.
21
See also Communication, cit. supra note 1, p. 5, interpreting the UNESCO study as iden-
tifying “a gap in international law, which an instrument could fill, which is cultural diversity in
the context of globalisation [...]”.
ever, this normative solution seems to be dismissed largely on grounds that it would
be too restrictive on cultural diversity;
(4) The protection of the diversity of cultural contents and artistic expressions
reflected in cultural industries is presented as a means to confront the threats of
globalisation. Under this option, the instrument would be aimed at guaranteeing
protection for cultural diversity by taking into account different aspects of cultural
activity. It enlists not only the promotion of a dynamic interaction among the dif-
ferent cultural contents and artistic expressions and between them and other closely
related domains, such as multilingualism, development of local contents, partici-
pation in cultural life, and access to multiple source cultures mainly through the
media, but also individual rights of creators and artists as well as the free circula-
tion of individuals, goods, services and knowledge while preserving stable areas of
identity and creativity.22
Among the four options, the Communication emphasises the preference ex-
pressed by the UNESCO Secretariat for option No. 4. This preference is compre-
hensible, since it may be considered the most comprehensive, or even the panacea
to most of the current problems related to cultural diversity on the international
level. Its inclusive character, comprising the most important aspects of the three
other options, makes it an attractive goal to pursue. Unfortunately, it is also the
most ill-defined option, since it remains silent about the substantive and formal set-
ting in which such an instrument would be placed. Nonetheless, it draws some of
the most important contours for a future instrument on cultural diversity.
In the fourth part, the Communication sets forth the guiding principles for a
future instrument. The first and most important statement concerns the precise le-
gal character of the instrument. The Commission rightly considers it necessary to
adopt a legally binding instrument as opposed to other “soft” forms of international
law. Second, the instrument “should be based on and fully respect human rights”,
including cultural rights, as developed both in the Universal Declaration of Human
Rights and the Universal Declaration on Cultural Diversity.23 Third, it is deemed
useful for the purposes of this note to reproduce in full the Communication’s rel-
evant passage with regard to the principal objectives and conditions. These objec-
tives and conditions shall:
“– Promote cultural diversity;

– Contribute to the dialogue between cultures and to mutual under-
standing and respect;
– Develop international cultural co-operation, aimed at boosting the
exchanges of cultural goods and services, including those in prov-
enance of developing countries. In this respect, regular meetings be-
22
UNESCO, Preliminary Study on the Technical and Legal Aspects Relating to the Desir-
ability of a Standard-Setting Instrument on Cultural Diversity, cit. supra note 20, pp. 5-7.
23
tween professionals of Parties should take place in order to contribute

to the definition and elaboration of instruments and frameworks of
co-operation at international level (regional and/or bilateral). The
cultural dimension of co-operation actions will be promoted, includ-
ing the need through education to foster mutual knowledge of cultural
identities as a condition for the intercultural dialogue;
– Favour the development of cultural policies and instruments at na-
tional, regional and international level;
– Provide a focal point and a forum for Members to discuss and
debate cultural policies, increase knowledge in this respect and ex-
change best practices;
– Provide technical assistance and expertise to the Members, with a
view to the development of cultural policies adapted to each specific
situation;
– Establish an institutional framework to monitor the state of cultural
diversity in the world, e.g. an international observatory or monitoring
mechanism of cultural diversity and cultural exchanges, and engage
in the elaboration and definition of indicators and international stand-
ards in the field of cultural diversity. Such structure could for example
prepare a yearly ‘state of cultural diversity’ report, on the basis of
each Party’s report”.24
Without going into any further details, it can be said that the broad require-
ments that such an instrument should fulfil with regard to cultural diversity are
mentioned therein. Nonetheless, as regards the promotion of cultural diversity,
mentioned in Indent 1, the goal of the preservation of cultural diversity should
be added.25 In the context of culture, the link between the past and the present as
a necessary precondition for the shaping of the future is – like in environmental
matters – a crucial element for the goals linked to cultural diversity.26 For the sake
of interpretive consistency, the argument of a dialogue between cultures and the
enhancement of mutual understanding and respect, as laid down in Indent 2 and
placed in opposition to the hardly desirable consequences that the theory of a “clash
of civilizations”27 entails, should therefore be complemented by a reference to in-
24
Ibid., pp. 6-7.
25
Further down in the text, the Communication states: “The preservation and promotion
of cultural diversity is a fundamental principle that must be reflected in international law and
policy”, pp. 7 and 10.
26
Cf. BROWN WEISS, In Fairness to Future Generations: International Law, Common Patri-
mony and Intergenerational Equity, New York, 1989, writing inter alia that “Future generations
need to inherit a diverse cultural resource base”, p. 257.
27
See HUNTINGTON, “The Clash of Civilisations”, Foreign Affairs, 1993, p. 22 ff.; but see,
e.g., HAVEL, “Transcending the Clash of Cultures: Democracy’s Forgotten Dimension”, Journal
of Democracy, 1995, p. 3 ff., and SAN SUU KYI, “Transcending the Clash of Cultures: Freedom,
ternational peace and security. Indent 3 derives its importance from the mention of
cultural goods and services, hereby referring to the economic dimension of cultural
diversity and pointing to an eventual involvement, whether desired or not, of the
WTO. Unfortunately, in the last but one paragraph, this acknowledgment is dimin-
ished or even weakened by the statement that: “Furthermore, such an instrument
would not affect and be without prejudice to the international legal framework ap-
plicable to exchanges of cultural goods and services – in particular as regards their
trade and intellectual property aspects”.28
The phrase “would not affect and be without prejudice” could also be interpret-
ed as meaning that – as a consequence – such an instrument be without any value
for the international legal framework and only add to the embarras de richesse of
international treaties and instruments. However, I will come back to this problem
below.
Perhaps inspired by the debate engendered by the EU White Paper on Govern-
ance,29 Indents 4, 5 and 6 can be read as trying to introduce elements of (multilevel)
governance into the debate by favouring the development of cultural policies at
various levels and creating a forum for discussion and debate linked in a network
for the exchange of knowledge and best practices. Included in this broader spec-
trum of cooperation is the provision of technical assistance and expertise. The last
principle concerns the establishment of an international observatory or monitoring
mechanism of cultural diversity. This proposal must also be welcomed, but with
regard to the monitoring of the “state of cultural diversity” in the world, many open
questions remain.30
Following these deliberations on the main objectives and conditions, the
Communication recalls in its conclusions the desirability of an international in-
strument on cultural diversity, requiring a common response from the EC and its
Member States. Based on the many references to various problems and aspects
of cultural diversity, the Commission follows, by and large, the reasoning of the
Culture Ministers, according to which an international instrument in UNESCO
may provide the appropriate legal answer at the international level. The Commu-
nication therefore stresses the importance for the EC to play an active role in the
forthcoming UNESCO General Conference and its aftermath. For these purpose,
based on the aforementioned deliberations, the initial elements for a declaration
on behalf of the EC and its Member States with a view to the presentation of a
common position on the issue related to the drawing-up of a standard-setting in-
Development and Human Worth”, ibid., p. 11 ff., as well as SAID, “The Clash of Ignorance”, The
Nation, 22 October 2001.
28
29
Commission of the European Communities, European Governance – A White Paper,
COM(2001) 428 final of 25 July 2001.
30
One such problem is found in the insufficient availability of commensurable statistical
data; see also the comments infra note 86.
strument on cultural diversity are outlined for the forthcoming UNESCO General
Conference.31
2.2. A Short Critique
At its 32nd session, held in October 2003, the UNESCO General Conference
not only adopted the Convention for the Safeguarding of the Intangible Cultural
Heritage but also decided that cultural diversity should be the subject of a conven-
tion under the (provisional) title “Convention on the Protection of the Diversity of
Cultural Contents and Artistic Expressions”.32 Therefore, it is likely that the argu-
ments presented in the Communication will be transposed into a common position
and eventually a negotiating mandate. In the light of the evolution of the matter, the
Communication must be generally welcomed as a basis for discussion and further
debate on the issue of cultural diversity. However, in substance it lacks several im-
portant elements, which will be briefly summarised here.
First, concerning the context of the debate, it was stated that the Communication
does not sufficiently take into account the culture and trade debate, or, in particu-
lar, the parallel WTO negotiations round (Doha Round). The WTO negotiations,
which were originally scheduled to end in 2004, have recently encountered serious
difficulties during the Fifth Ministerial Meeting in Cancún.33 This was because the
two events, the debate for an international standard-setting instrument and the ne-
gotiations for a successful conclusion of the Doha Round, are more closely related
than one might initially think. Cultural diversity also plays a privileged role in the
complex relation between international trade and international peace and security.34
In fact, cultural diversity in its broadest sense may prove to be the “missing link” in
the economic theory of comparative advantage as the basis for derivative attempts
to enhance welfare effects through the removal of trade barriers.35 The considera-
31
Communication, cit. supra note 1, pp. 9-10.
32
UNESCO, Report of Commission IV, UNESCO General Conference, 32nd Session,
Paris, 2003, UNESCO Doc. 32 C/74 of 16 October 2003, pp. 13-26 and p. 27, writing that the
General Conference “Decides that the question of cultural diversity as regards the protection of
the diversity of cultural contents and artistic expressions shall be the subject of an international
convention”.
33
See the Ministerial Statement of 14 September 2003 at http://www.wto.org; see also “Can-
cun’s charming outcome – Breakdown in Cancun”, The Economist, 20 September 2003.
34
See, e.g., BAUDIN, Free Trade and Peace, Paris, 1939.
35
See also International Telecommunication Union (ITU), The World Summit on the Infor-
mation Society (WSIS) Draft Plan of Action, Doc. WSIS/PC-3/DT/5 (Rev. 1)-E of 14 November
2003, para. 24, writing that “Cultural and linguistic diversity, while stimulating respect for cul-
tural identity, traditions and religions, is essential to the development of an Information Society
based on the dialogue among cultures and regional and international co-operation. It is an impor-
tant factor for sustainable development”.
tion of this link is of outstanding importance, given the Communication’s attempt

to connect the issue of cultural diversity to the one of sustainable development.36
Similar attempts underlie its reference document, the Universal Declaration on
Cultural Diversity, when it states in Article 3 (“Cultural diversity as a factor in de-
velopment”) that: “Cultural diversity widens the range of options open to everyone;
it is one of the roots of development, understood not simply in terms of economic
growth, but also as a means to achieve a more satisfactory intellectual, emotional,
moral and spiritual existence”.37
In the present context is seems more appropriate to also think of it in terms of
economic growth, which provides the engine for development. In connection with
Article 8, it is also interesting to note the description of the cultural industries in a
recent edition of the ACP-EU Courier, which reads:
“Phénomène social aux caractéristiques très diverses et aux multiples

ramifications, les industries culturelles doivent être étudiées à travers
les divers sous-secteurs qui les composent. Au fil du temps, une prise
de conscience de plus en plus forte des enjeux liés aux ‘industries
culturelles’ a abouti à l’idée que culture et développement sont in-
timement liés”.38
Complementing the role of the cultural industries for development, Article 9

emphasises the role of cultural policies as catalysts of creativity as follows:
“While ensuring the free circulation of ideas and works, cultural

policies must create conditions conducive to the production and dis-
semination of diversified cultural goods and services through cultural
industries that have the means to assert themselves at the local and
global level. It is for each State, with due regard to its international
obligations, to define its cultural policy and to implement it through
the means it considers fit, whether by operational support or appropri-
ate regulations”.
All these quotes raise, explicitly or implicitly, important questions concerning

issues that clearly touch upon, or even fall within, the competences of the WTO.
36
37
Cf. G8, Okinawa Charter on Global Information Society (Okinawa, 23 July 2000), paras.
39 and 41, declaring that “[C]ultural diversity is a source of social and economic dynamism
which has the potential to enrich human life in the 21st century, as it inspires creativity and
stimulates innovation” and that “[E]xperience shows that diversity can arouse interest, engender
initiative and be a positive factor in communities seeking to improve their economies, particu-
larly when assisted by the extraordinary means of the IT society”.
38
See, e.g., PAGNIET, “Industries de la culture et développement”, Le courrier: Afrique,
Caraibes, Pacifique, Communauté européenne, 2002, No. 194, p. 42 ff.
Regarding the Community involvement, the Communication is fairly disap-

pointing. Although, it generally recognises that several rules and instruments exist
at the Community level which fall within the scope of a possible future interna-
tional instrument on cultural diversity, it does not give any examples of these or
at least mentions only a few precedents. Indeed, the Community experience has
contributed some useful answers to many open questions in the gray area of dual
economic and cultural considerations that are awaiting a solution at the interna-
tional level. An illustrative list of such examples include contributions, mainly of
the ECJ, to the non-discrimination (or national treatment) principle and quantita-
tive restrictions and measures having an equivalent effect,39 the difficult, but often
crucial, goods/service distinction, for instance, in the case of broadcasting,40 the
treatment of specific categories of goods and services of dual, economic and cul-
tural character (e.g. books and newspapers),41 the role of state aid (e.g. in the AV
and cinema sector),42 the regulation of content (e.g. the TWF Directive),43 as well as
the problem of media concentration,44 to mention but a few aspects of interest here.
39
See, e.g., the Sunday Trading Case (Case 145/88, Torfaen Borough Council v. B & Q plc.,
ECR, 1989, p. 3851 ff.), the German Beer Case (Case 178/84, Commission v. Germany, ECR,
1987, p. 1227 ff.), the Cassis de Dijon judgment (Case 120/78, Rewe-Zentral AG v. Bundesmo-
nopolverwaltung für Branntwein, ECR, 1979, p. 649 ff.).
40
See, e.g., Case 155/73, Sacchi, ECR, 1974, p. 409 ff. and Case 148/91, Verenigung Ve-
ronica Omroep Organistatie v. Commissariaat voor de Media, ECR, 1993, p. 487 ff.
41
See, e.g., Joined Cases 43/83 and 63/82, Vereniging ter Bevordering van het Vlaamse
Boekwezen, VBVB, and Vereniging ter Bevordering van den Belangen des Boekhandels, VBBB v.
Commission, ECR, 1984, p. I-19 ff.; Case 229/83, Association des Centres distributeurs Édouard
Leclerc and Others v. SARL “Au blé vert” and Others, ECR, 1985, p. I-1 ff.; Case 360/92, Pub-
lishers Ass’n v. Commission, ECR, 1995, p. I-23 ff.; Case 39/96, Koninklijke Vereniging ter be-
vordering van den belangen des Boekhandels v. Free Record Shop, ECR, 1996, p. I-2303 ff. and
Case C-9/99, Echirolles Distribution SA v. Association du Dauphiné, Association des Libraires
de Bandes Dessinées, Patrick Corbet and Union des Libraires de France, ECR, 2000, p. I-8207
ff.; Case 269/83, Commission of the European Communities v. French Republic, ECR, 1984, p.
843 ff. and Case 18/84, Commission of the European Communities v. French Republic, ECR,
1985, p. 1339 ff.
42
Communication from the Commission to the Council, the European Parliament, the Eco-
nomic and Social Committee and the Committee of the Regions on certain legal aspects relating to
cinematographic and other audiovisual works, COM(2001) 534, OJ EC No. C 43 of 16 February
2002, and European Parliament resolution on the Commission communication on certain legal
aspects relating to cinematographic and other audiovisual works, COM(2001) 534, C5-0078/
2002 – 2002/2035(COS); see also Case T-46/97, SIC – Sociedade Independente de Comunicação
SA v. Commission of the European Communities, ECR, 2000, p. II-2125 ff. and Case T-95/96,
Gestevisión Telecinco SA v. Commission of the European Communities, ECR, 1998, p. II-3407 ff.
43
See, e.g., the Green Paper on the Convergence of the Telecommunications, Media and
Information Technology Sectors, and the Implications for Regulation – Towards and Information
Society Approach, COM(97) 623 of 3 December 1997.
44
Case T-221/95, Endemol Entertainment Holding BV v. Commission of the European Com-
munities, ECR, 1999, p. II-1299 ff. and Case T-251/00, Lagardère SCA & Canal + SA v. Com-
mission of the European Communities, ECR, 2002, p. II-4825 ff.
The Communication’s greatest deficiency in this respect is thus the total absence
of the domain of competition law, which is of particular relevance for cultural di-
versity, as expressed in terms of media pluralism and current threats caused by an
increasing multinational concentration in the media sector.45 In the context of this
deficiency, however, it must be acknowledged that competition law is not explicitly
mentioned in the constitutional mandate of UNESCO.
The absence of various experiences directly or indirectly linked to the objectives
pursued under the issue of cultural diversity helps to explain why the Communica-
tion does not add very much of value to a future new instrument on cultural diver-
sity. In particular, it seems to follow the 4th option formulated by UNESCO, which is
the most comprehensive in terms of goals but which equally lacks clarity in terms of
the means for their implementation. The same criticism must therefore apply to the
guiding principles, which are as a whole complete, but again lack realistic and crea-
tive responses for problems regarding their substantive and institutional implemen-
tation. Therefore, at this stage, it also seems premature to conclude that UNESCO
may prove to be the appropriate legal answer at the international level.
These flaws inherent in the Communication will now be mirrored against, first,
the broader “culture and trade debate”, then against other recent documents at the
European level and, finally, against various existing proposals and options for the
implementation of an international instrument on cultural diversity.
3. CULTURAL DIVERSITY IN LIGHT OF THE GLOBAL “CULTURE AND TRADE”

DEBATE
The past century has, on the one hand, faced a constant growth in interna-
tional legal instruments governing the realm of international trade.46 At the same
time, the number of legal documents preserving and promoting the issue of “cul-
ture” at the international level has also increased.47 With a few exceptions, both
realms have continued their expansion based on the legal principle of expressio
unius est exclusio alterius48 (the choice of one part of an alternative excludes the
45
But see European Parliament resolution on media concentration, 20 November 2002,
P5_TA(2002)055 4, and European Parliament resolution on the risks of violation, in the EU
and especially in Italy, of freedom of expression and information, 22 April 2004, P5_TA-
PROV(2004)0373.
46
See, e.g., REICH, “Institutions for International Economic Integration: From Diplomacy
to Law: The Juridicization of International Trade Relations”, Journal of International Law and
Business, 1996, p. 775 ff., and DEMARET, “The Metamorphoses of the GATT: From the Havana
Charter to the World Trade Organization”, Columbia JTL, 1995, p. 123 ff.
47
See, e.g., the reference to instruments listed in Appendix 4 in UNESCO, Desirability of
Drawing up an International Standard-Setting Instrument on Cultural Diversity, UNESCO Gen-
eral Conference, 32nd Session, Paris, 2003, UNESCO Doc. 32 C/52 (18 July 2003).
48
See MOSLER, “General Principles of Law”, Encyclopaedia of Public International Law,
1984, Vol. 7, p. 89 ff., mainly at pp. 92-93.
other).49 Only gradually has a change in perception occurred, as is expressed for

the realm of international trade by Bruce Jamieson:
“Trade is not an end in itself, but the means to a broader objective – a

better society. The significance of cultural works is also social and po-
litical as well as economic. The pursuit of national cultural objectives
is just as important as foreign and trade policy objectives. Cultural
goods and services are not like other forms of merchandise. Cultural
diversity is preferable to homogeneity. Governments have an impor-
tant role to play in promoting and preserving cultural diversity”.50
From the perspective of culture, the same shift can be identified in a recent
UNESCO publication, which states that:
“The issue of ‘culture and trade’ has now acquired prime strategic
significance. Cultural goods and services convey and construct cul-
tural values, produce and reproduce cultural identity and contribute to
social cohesion; at the same time they constitute a key free factor of
production in the new knowledge economy. This makes negotiations
in the cultural field extremely controversial and difficult”.51
Thus, in the overall trade linkage debate,52 culture and trade have achieved
a primordial significance. As one of the main common reference points for both
realms, the concept of “cultural diversity” seems to have crystallised.
Another important concept, however, which transcends the traditional and
exclusive approach to culture and trade, is to be found in the concept of “cultural
industries”. The dual economic and cultural character of the sectors that the cultural
industries comprise has been subject to a century of various kinds of research.53
In their characteristic trait of technology-prone products, especially in the new
technological possibilities of producing, reproducing and disseminating cultural
49
One exception is found in the so-called “Florence Agreement”, see supra note 18.
50
JAMIESON, “Trade Liberalization: Culture, Identity and Social Cohesion”, Trade Policy
Research, 2001, p. 73 ff.
51
UNESCO, Culture, Trade and Globalization: Questions and Answers, cit. supra note 3,
p. 9.
52
See, e.g., TRACHTMAN, “Institutional Linkage: Transcending ‘Trade and…’”, AJIL, 2002,
p. 77 ff.
53
A well-known early study is the article by Walter Benjamin; see BENJAMIN, “Das Kunst-
werk im Zeitalter seiner technischen Reproduzierbarkeit”, in TIEDEMANN and SCHWEPPEN-
HÄUSER (eds.), Walter Benjamin – Gesammelte Schriften, 2nd ed., Frankfurt, 1978, Vol. I, p. 436
ff.; see also GARNHAM, Capitalism and Communication: Global Culture and the Economics of
Information, London, 1990; THROSBY, Economics and Culture, Cambridge, 2001, and STEINERT,
Culture Industry, Cambridge, 2003.
content through the cultural industries, they have contributed to forming a mutual
approach between the previously separate spheres of culture and trade.
This approach originated in the beginning of the 20th century, through the
gradual marriage between cultural and economic aspects in the cultural industries,
contradicting the longstanding traditional perception of the need for a clear-cut
separation of cultural from “ordinary” commercial products. In legal terms, this
traditional perception is exemplified in the Institutiones of the Roman jurist Gaius
(130-180 BCE), who qualified a category of things including some cultural objects
which cannot be the object of exchange, or of any legal commercial transaction
(res extra commercium or res quarum commercium non est).54 A similar approach
prevailed at the time of the drafting of the 1948 General Agreement on Tariffs and
Trade (GATT), where the particular exception of Article IV GATT, dedicated to
screen quotas for cinematograph works, was justified by the argument that films
have a closer regulatory connection to domestic cultural policies rather than to
economics and trade.55 Nonetheless, it can be argued that the limited exception for
cinematograph works in the context of the GATT provides a first legal contact point
for cultural and commercial considerations.
Even before the time of drafting of the GATT, however, numerous people chal-
lenged this traditional view. For instance, André Malraux’s concluding statement
in L’esquisse d’une psychologie du cinéma is well known.56 Other statements that
highlight the economic aspects of the culture industry can be traced back as early
as to the year 1926 in the United States of America, when the motion picture was
described as “the latest form of silent salesman”, referring to experiences with the
impact of unconscious “trade propaganda”, namely the effects that films have on
the sales on other goods – an effect that was summed up in the slogan “trade fol-
lows the film”.57 Nonetheless, the economic effect of culture is not unilinear, so that
it simply helps to boost the sales of various goods and services in external trade.
The economic aspect of culture also unfolds in the opposite direction, shifting from
the interest of the producer to that of the consumer. The International Covenant
on Economic, Social and Cultural Rights, for instance, recognises the “right of
54
See POSTE, Gaii Institutionum Iuris Civilis Commentarii Quatuor or Elements of Roman
Law by Gaius, Oxford, 1871, p. 130 ff., and KASER, Römisches Privatrecht, 15th ed., München,
1989, pp. 90-91.
55
JACKSON, World Trade and the Law of GATT, Indianapolis, 1969, p. 293.
56
MALRAUX, L’esquisse d’une psychologie du cinéma, Paris, 1939, concluding that “par
ailleurs, le cinéma est une industrie”.
57
See KLEIN, “What Are Motion Pictures Doing for Industry”, Annals of the American
Academy of Political and Social Sciences, 1926, p. 79 ff.; see also TICHENOR, “Motion Pictures
as Trade Getters”, ibid., p. 84 ff., and MAYER, “American Motion Pictures in World Trade”,
Annals of the American Academy of Political and Social Sciences, 1947, p. 31 ff., p. 34, quot-
ing Elmer Davis, writing that “[T]here has never been a more effective salesman for American
products in foreign countries than the American motion picture”.
everyone to take part in cultural life”.58 As the title of the Covenant suggests, there
is a clear link between economic (social) and cultural aspects. In this sense, the
exercise of the right of everyone to take part in cultural life clearly has economic
repercussions, when it comes, for example, to the purchase of a cinema ticket, a
television set, a CD, a DVD, or a book.
In light of these developments, the WTO Panel’s statement in the Canada
– Periodicals case that “cultural identity was not at issue” when dealing with a
Canadian regime for newspapers and magazines is surprising on account of its re-
actionary nature.59 Such approach is regrettable since cultural identity is not only of
cultural but equally of economic relevance. The relevance becomes obvious in the
right of access to culture which extends to the issue of cultural diversity. The basis
for this link is provided by Article 5 (“Cultural rights as an enabling environment
for cultural diversity”) in connection with Article 6 (“Towards access for all to
cultural diversity”) of the UNESCO Universal Declaration on Cultural Diversity
which stipulates that:
“While ensuring the free flow of ideas by word and image care
should be exercised that all cultures can express themselves and
make themselves known. Freedom of expression, media pluralism,
multilingualism, equal access to art and to scientific and technologi-
cal knowledge, including in digital form, and the possibility for all
cultures to have access to the means of expression and dissemination
are the guarantees of cultural diversity”.60
Moreover, in Article 8 (“Cultural goods and services: commodities of a unique

kind”), the Declaration pays tribute to the specificity of cultural goods and services
as “vectors of identity, values and meaning”. Similarly, the Council of Europe has
dedicated some space in its version of a Declaration on Cultural Diversity to the
dual cultural and economic challenge in the context of cultural diversity, notably
by:
“Recognising that the development of new information technologies,

globalisation and evolving multilateral trade policies have an impact
on cultural diversity;
and, more specifically, that:
58
See Article 15 of the International Covenant on Economic, Social and Cultural Rights, GA
Res. 2200 (XXI), UN GAOR, 21st Session, Suppl. No. 16, p. 49, UN Doc. A/6316, 1966, entered
into force on 3 January 1976.
59
Canada – Certain Measures Concerning Periodicals (Complaint by the United States),
Doc. WT/DS31/R of 14 March 1997, para. 5.45.
60
UNESCO Universal Declaration on Cultural Diversity, adopted by the 31st Session of the
UNESCO General Conference, Paris, 2 November 2001.
Cultural and audiovisual policies, which promote and respect cultural

diversity, are a necessary complement to trade policies;
Cultural diversity has an essential economic role to play in the devel-
opment of the knowledge economy. Strong cultural industries which
encourage linguistic diversity and artistic expression, when reflecting
genuine diversity, have a positive impact on pluralism, innovation,
competitiveness and employment;
Culturally diverse forms of production and practices should not be
limited but enhanced by technological developments
Wide distribution of diverse cultural products and services, and ex-
change of cultural practices in general, can stimulate creativity, enhance
access to and widen the provision of such products and services;
Public service broadcasting plays an important role for the safeguard-
ing of cultural diversity;
Education, training of professionals and users of new services, and
reinforcement of cultural and audiovisual production are notable fac-
tors in the promotion of cultural diversity”.61
Last but not least, it is important to mention the new UNESCO Convention
for the Safeguarding of the Intangible Cultural Heritage, adopted in October 2003
which is currently in the process of ratification.62 The Convention is the first legally
binding instrument for the safeguarding of intangible cultural heritage, which it de-
fines as follows: “The ‘intangible cultural heritage’ means the practices, representa-
tions, expressions, knowledge, skills – as well as the instruments, objects, artefacts
and cultural spaces associated therewith – that communities, groups and, in some
cases, individuals recognize as part of their cultural heritage”.63
By developing inventories of intangible cultural heritage, the Convention will
not only contribute positively to the preservation of cultural diversity but will also
assume a gap-filling role for an area hitherto insufficiently recognised by various in-
struments in the field of intellectual property rights. In particular, the gap-filling role
extends to, what has been termed “commodification of intangible cultural property”,
namely, the “conversion of intangible cultural property into items of economic
worth that can be traded for commercial gain”.64 This touches upon, and critically
61
Council of Europe Declaration on Cultural Diversity, adopted by the Committee of Min-
isters at the 733rd Meeting on 7 December 2000, paras. 2.1-2.6.
62
Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003,
Doc. MISC/2003/CLT/CH/14.
63
Article 2(1) of the Convention for the Safeguarding of the Intangible Cultural Heritage,
cit. supra note 62.
64
See PATERSON and KARJALA, “Looking Beyond Intellectual Property in Resolving Pro-
tection of the Intangible Cultural Heritage of Indigenous Peoples”, Cardozo Journal of Interna-
tional and Comparative Law, 2003, p. 633 ff.
challenges, the formal distinction between an idea and its expression, of which only
the latter is granted copyright protection.65 In turn, however, and not without sig-
nificance for a convention on cultural diversity, the cited convention raises further
important questions about the mutual relations between the competences of WIPO,
the WTO (as the administrator of the TRIPS Agreement), and UNESCO.
These few selective examples of references to the various links between cul-
tural and economic aspects in connection with cultural diversity seem to justify
broader policy considerations. This justification applies, first of all, to the Commis-
sion of the European Communities, whose agenda gradually evolved from a mainly
economic to a broader, and hopefully more coherent, set of tasks under the “new”
Constitution. Therefore, instead of adding one more instrument to the sphere of
culture, serious efforts ought to be made to enhance the functioning of the interna-
tional legal order as a whole. This goal can be achieved through a better coherence
in policy making and the bridging of the gap between culture and trade.
4. “COHERENCE” IN EUROPEAN POLICY MAKING
When I speak of “coherence” in EU policy making in the present context, I

refer not only to the Commission’s explicit goal to “reinforce attempts to ensure
policy coherence and identify long-term objectives” as outlined in the White Pa-
per on Governance, but more specifically to the culture/trade dichotomy that is
rooted deeply in European thinking.66 This dichotomous thinking, as expressed in
the principle expressio unius est exclusio alterius, is paraphrased in the competing
efforts to base European integration on either culture and education or trade and
commerce. This age-old schizophrenia is laid down metaphorically in the words
– wrongly attributed to Jean Monnet – “Et si c’était a refaire, je recommencerais
par la culture”.67 Instead, these words must be read as pointing to a deeper truth,
namely, that any integration project, if it wants to succeed, must be based on simul-
taneous cultural and commercial efforts in the spirit of their complementarity. What
is needed is thus not a schizophrenic mind, but, instead, more of an institutionalised
process within the framework of which apparently contradictory interests or objec-
tives can be transformed into mutual gain for all the actors involved.
In the context of cultural diversity as a founding principle of the history of
European integration,68 this valuable insight was expressed in the words of Stefan
65
Cf. Article 9(2) of the TRIPS Agreement.
66
See Commission of the European Communities, European Governance – A White Paper,
COM(2001) 428 final of 25 July 2001, p. 6.
67
See DUMOULIN, cit. supra note 10, p. 16.
68
See KAEGI, “Discordia Concors: Vom Mythos Basels und von der Europa-idee Jacob
Burckhardts”, in SIEBER (ed.), Discordia Concors – Festgabe für Edgar Bonjour zu seinem sie-
bzigsten Geburtstag am 21. August 1968, Basel, 1968, Vol. 1, p. 131 ff., mainly pp. 132-152.
Zweig in 1920 when commenting on Romain Rolland’s Jean Christophe, as fol-

lows:
“Par une fatalité necessaire, nous ne connaissons, au début de

l’existence – et beaucoup, leur vie durant –, notre propre pays que
du dedans, et l’étranger, que du dehors; c’est seulement lorsque
nous connaissons aussi notre pays de l’extérieur, et l’étranger de
l’intérieur, dans les coeurs de ces enfants, qu’il nous est possible de
voir avec des yeux d’Européen, qu’il nous est possible de considérer
les différents peuples comme des unités indispensables, vivant côte a
côte et se complemetant mutuellement”.69
About 30 years later, the Treaty Establishing the Coal and Steel Community
was obviously inspired by this language, when it states in its Preamble that:
“Resolved to substitute for age-old rivalries the merging of their es-

sential interests; to create, by establishing an economic community,
the basis for a broader and deeper community among peoples long
divided by bloody conflicts; and to lay the foundations for institutions
which will give direction to a destiny henceforward shared”.
In fact, the intentions laid down in the Preamble were later complemented
by the Treaty Establishing the European Economic Community, which stated its
determination to “lay the foundations of an ever closer union among the peoples
of Europe”. In this context, regret must be expressed that the Convention on the
European Constitution has by and large disregarded in its proposed Preamble
the extreme importance and historical value of the respective Preambles for the
continuous evolution of European integration. Instead, the historical and cultural
heritage of the different Preambles, drafted not without poetic style, seems to have
been summed up and substituted by, or rather sacrificed for, a more “advertorial”
motto called “united in diversity”.70 Additionally, the new Constitution has, by way
of Article 59, introduced the possibility of a voluntary withdrawal from the Union,
which deprives the EU – in stark contrast to the growing awareness about Europe’s
absolutely unchangeable common geography – of the necessary stable framework
for the forging of a truly shared destiny and at the same time an indispensable ele-
ment for the factual recognition of the cultural diversity of its various component
parts.
69
ZWEIG, Romain Rolland, Paris, 2000, p. 218 (first published as ZWEIG, Romain Rolland:
Der Mann und das Werk, Frankfurt, 1921).
70
Preamble, Article 3 and Article IV-1, Draft Treaty Establishing a Constitution for Europe,
cit. supra note 8.
From this short comparative survey, covering the early origins to the latest
developments in European integration, it derives that in fact there exists not only
a desire to perceive apparently contradictory concepts as complementary, but even
– as was shown above – a real necessity, rooted in the changes in our immediate
environment, as, for instance, the technological innovations in the cultural industry
prove. Hence, in return from this short excursus to the present issue of an inter-
national standard-setting instrument on cultural diversity, it is interesting to see
to what extent the Commission’s Communication is considerate of its immediate
policy environment and respects, in particular, the institutional balance in terms of
the work done by one of its sister institutions, the European Parliament.
4.1. European Parliament Resolution on the Revision of the TWF Directive
For an evaluation of the coherence enshrined in the Commission’s Commu-

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

tor for “democracy, diversity of opinion, pluralism and cultural diversity” while
equally contributing to “technological innovation, economic growth, the creation
of jobs and the functioning of the single market”.75 The strong interdependence be-
tween cultural and economic factors, as a result of a constant convergence between
the various sectors, is repeatedly invoked in the following, especially in the context
of the e-Commerce Directive, the Directive concerning copyright related to satel-
lite broadcasting and cable retransmission as well as in the broader context of the
objectives set out in the Lisbon European Council Conclusions.76 The latter restates
the economic aspect of the “right of access to cultural life”77 and the value that the
cultural (or content) industries add to cultural diversity as follows:
“Businesses and citizens must have access to an inexpensive, world-

class communications infrastructure and a wide range of services.
Every citizen must be equipped with the skills needed to live and
work in this new information society. Different means of access
must prevent info-exclusion. The combat against illiteracy must be
reinforced. Special attention must be given to disabled people. Infor-
mation technologies can be used to renew urban and regional devel-
opment and promote environmentally sound technologies. Content
industries create added value by exploiting and networking European
cultural diversity. Real efforts must be made by public administra-
tions at all levels to exploit new technologies to make information as
accessible as possible”.78
The Resolution also refers to the special role that public service broadcasting
plays in the formation of public opinion and the dissemination of cultural diversity
as well as the provision of market access on an equal footing.79 In this respect, it
is adequate to recall the specific character of the cultural industries, which – due
to their cultural content and particular “public good” character – may not be left
75
Resolution TWF, cit. supra note 71, Point D.
76
Ibid., paras. 4 and 11; see also Indent 63 of the Directive 2000/31/EC of the European Par-
liament and of the Council of 8 June 2000 on certain legal aspects of information society services,
in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ
EC No. L 178 of 17 July 2000, and see Council Directive 1993/83/EEC of 27 September 1993 on
the coordination of certain rules concerning copyright and rights related to copyright applicable
to satellite broadcasting and cable retransmission, recalling in Indent 3 that “broadcasts transmit-
ted across frontiers within the Community, in particular by satellite and cable, are one of the most
important ways of pursuing these Community objectives, which are at the same time political,
economic, social, cultural and legal”.
77
See Article 15 of the International Covenant on Economic, Social and Cultural Rights, cit.
supra note 58.
78
Presidency Conclusions, Lisbon European Council, 23-24 March 2000, para. 9.
79
Resolution TWF, cit. supra note 71, Point H.
entirely to the play of free market forces.80 As threats to the values attached to cul-
tural diversity, the Resolution mentions certain technological developments which
result in so-called “gatekeeper” positions and the possibility of encryption, and last
but not least, a growing media concentration of ownership and control in television
broadcasting,81 which are all capable of halting the free flow of information and
threatening media pluralism as a conditio sine qua non of cultural diversity.82
Further useful suggestions contained in the Resolution in light of cultural di-
versity are the necessity to preserve the integrity of broadcast works, especially
through a clear-cut separation of advertising and programmes, which may be un-
dermined by recent technological innovations such as split-screen advertising or
product placement.
As a last important aspect of cultural diversity, the Resolution also addresses
the controversial issue of quotas reserved for “European works” and, perhaps to a
lesser extent, “independent producers”.83 In this context, it is necessary to recall
one of the Communication’s main principles for an international instrument on
cultural diversity, which is the one underscoring the need to boost the exchanges
of cultural goods and services, including those coming from developing countries.
In the long-term, a better mutual understanding can only be achieved, and hence a
“clash of ignorance” avoided, by creative efforts leading to a more balanced offer
of cultural goods and services from all over the world, and not only of at least 50%
European origin and close to another 50% of American origin.
4.2. European Parliament Resolution on Cultural Industries
The European Parliament has also paid tribute to the cultural industries in a sin-
gle resolution.84 The Resolution on Cultural Industries is based on a Report of the
80
For an economic critique of media products, see, e.g., BAKER, “Giving the Audience What It
Wants”, Ohio State Law Journal, 1997, p. 311 ff., and ID., “An Economic Critique of Free Trade in
Media Products”, North Carolina Law Review, 2000, p. 1357 ff., as well as SUNSTEIN, “Television
and the Public Interest”, California Law Review, 2000, p. 499 ff., stating inter alia that “[t]he eco-
nomic ideal of ‘consumer sovereignty’ is ill-suited to the communications market. It follows that,
at least in the near term, the changes introduced by the emerging communications system do not
justify abandoning the idea that broadcasters should be required to promote public interest goals”.
81
See also European Parliament Resolution on Media Concentration, P5_TA(2002)0554.
82
Resolution TWF, cit. supra note 71, Points J and L; see also LLORENS-MALUQUER,
“European Responses to Bottlenecks in Digital Pay-TV: Impacts on Pluralism and Competition
Policy”, Cardozo Arts and Entertainment Law Journal, 1998, p. 557 ff.
83
For a critical evaluation of content regulation in Canada, see, e.g., ACHESON and MAULE,
The Culture of Protection and the Protection of Culture – A Canadian Perspective in 1998, Ot-
tawa, 1998, p. 1, and ACHESON, MAULE and FILLEUL, “Folly of Quotas on Films and Television
Programmes”, The World Economy, 1989, p. 515 ff.
84
European Parliament Resolution on Cultural Industries, P5_TA-PROV(2003)0382 (4
September 2003).
same name drafted by the rapporteur Myrsini Zorba on behalf of the European Par-
liament Committee on Culture, Youth, Education, the Media and Sport, which must
be especially welcomed as a positive initiative.85 A first positive element is that
with the use of the concept “cultural industries” the EU is led to contribute to the
elaboration of a common vocabulary, or an interpretative concept, helping to avoid
misunderstandings and to prepare the ground for consensus in a future international
debate on the broader culture and trade problems.86 It may be added here that in
the context of NAFTA, an exception exists for the “cultural industries” between
Canada and the United States,87 but other regions in the world are using a similar
vocabulary to address these global problems.88 As one element, the Report:
“[U]rges the Commission to bring EUROSTAT cultural industries

statistics in line with international standards, and to search for ad-
ditional and systematic information on the use or consumption of
cultural products, by enhancing responsibilities of the European Au-
diovisual Observatory and other specialised bodies”.89
The conformity with international standards and other kinds of information on

the use of cultural products are among the foundations for an institution that can
successfully monitor the state of cultural diversity, as claimed in the Commission’s
Communication.
The second positive element of the Report is – based on the choice of the con-
cept of cultural industries – the dual, but balanced, economic and cultural approach
85
European Parliament, Committee on Culture, Youth, Education, the Media and Sport,
Report on Cultural Industries, A5-0276/2003 Final (14 July 2003); see also Working Document
on Cultural Industries (12 March 2003) and Working Document 2 (Part I and II) on Final Report
on the Questionnaire on Cultural Industries (11 April 2003).
86
The problem of an economic evaluation of the elastic concept of culture is aggravated by
the insufficient availability of or the availability of insufficiently commensurable statistical data
about specific markets of cultural goods and services. This difficulty is most acute in the sphere
of the cultural industries and partly due to private enterprise and the absence of state-controlled
levy of data, and partly due to definitional problems; see, e.g., GARNHAM, “The Economics of the
US Motion Picture Industry”, in INGLIS (ed.), Capitalism and Communication: Global Culture
and the Economics of Information, London, 1990, p. 169 ff., pp. 170-171; TOWSE, Creativity,
Incentive and Reward: An Economic Analysis of Copyright and Culture in the Information Age,
Cheltenham, 2001, pp. 30-33, and THROSBY, cit. supra note 53, p. 114.
87
Cf. Article 2107 of the North American Free Trade Agreement between the Government
of Canada, the Government of Mexico and the Government of the United States, 17 Decem-
ber 1992, ILM, 1993, p. 605 ff. (note that Article 2107 was carried over almost in an identical
wording from Article 2012 of Canada-United States Free Trade Agreement (CUSFTA), done at
Ottawa on 22 December 1987 and on 2 January 1988, and done at Washington, DC and Palm
Springs, 23 December 1987 and 2 January 1988, ILM, 1988, p. 281 ff.).
88
See, e.g., GALPERIN, “Cultural Industries Policy in Regional Trade Agreements: The Cases
of NAFTA, the European Union and MERCOSUR”, Media, Culture & Society, 1999, p. 627 ff.
89
Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, p. 11, pt. 14.
to the issue. This becomes obvious in the methodology applied in the approach to
the issue, which included a questionnaire sent out to some 200 international or-
ganisations, European cultural or trade federations, culture-related associations as
well as national organisations, universities and individual experts and consultants.90
Moreover, the document obviously relies on a wide array of documents as legible
in the Preamble of the Report. References in the Preamble include various docu-
ments by the Council and the Commission and the inclusion of the Opinion given
by the EP Committee on Industry, External Trade, Research and Energy.91
Consequently, the wide consultation process and the inter-institutional sensi-
tivity have led to an extremely well-balanced approach to the issue of cultural in-
dustries and have rendered the report worthy of the cultural industries’ underlying
dynamic semantic and practical meaning stemming from its oxymoronic character.
These qualities emerge, for instance, in the considerations that “Europe’s cultural
industries reflect its national diversity and this represent an added value to Euro-
pean identity” and that they are works of artistic creation having “unique properties
due to their dual cultural and economic aspects” which not only reserve them a
primary role in expressing European identities but also make necessary for them a
specific treatment as opposed to the play of free market forces.92 To cut a long story
short, the Report gives a remarkable listing of the issues that are at stake and can be
considered as highly useful in the wider international debate on cultural diversity.
4.3. European Parliament Resolution on Preserving and Promoting Cultural

Diversity
Most recently, the European Parliament has summarised the most important
aspects of the EU debate on issues related to cultural diversity in a resolution,
adopted on the basis of a report by Christa Prets.93 Based on a comprehensive list
90
Working Document on Cultural Industries, cit. supra note 85, p. 2.
91
Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, pp. 5-6 and
19-21, quoting inter alia the resolution of the Council of January 1997 on horizontal aspects of
culture, OJ EC No. C 36 of 5 February 1997, Communication of the Commission of 11 December
2002 on industrial policy in an enlarged Europe, the Resolution of the Council of 19 December
2002 implementing the work plan on European co-operation in the field of culture: European
added value and mobility of persons and circulation of works in the cultural sector, COM(2002)
714 of 11 December 2002, a Commission Working Staff Paper on “Cultural, the Cultural Indus-
tries and Employment”, SEC(1998) 837 of 14 May 1998 and the EP Resolution of 12 March
2003 on the General Agreement on Trade in Services (GATS) within in the WTO, including
cultural diversity, P5_TA-PROV(2003)0087 (12 March 2003).
92
Final Report on the Questionnaire on Cultural Industries, cit. supra note 85, p. 6.
93
European Parliament resolution on preserving and promoting cultural diversity: the role
of the European regions and international organisations such as UNESCO and the Council of
Europe, P5_TA-PROV(2004)0022 (14 January 2004) and European Parliament, Committee on
Culture, Youth, Education, the Media and Sport, Report on preserving and promoting cultural
of relevant reference documents, the report refers to the wide range of problems in-
volved in the wider culture and trade debate at the European and international level.
The report stresses the idea that “cultures are constantly subject to a changing and
moving process and that this dynamism is an impulse for human progress”. Based
on this conceptual clarification, the report systematically exposes the complexity of
the causal relationships between cultural and economic forces across a great variety
of fields and issues, including, for instance, human and, especially, cultural rights,
intercultural dialogue, cultural identity, sustainable development, and media plural-
ism. With respect to the project for an international instrument on cultural diver-
sity, perhaps the most important consideration is that: “Obligations stemming from
agreements reached within multilateral organisations complement those resulting
from agreements reached within the WTO framework”.94
Although the report fails to specify the precise ramifications of this considera-
tion, it must, nonetheless, be understood as an essential element in future action in
the process of a draft convention on cultural diversity.
4.4. Resumé on the Current State of the Debate
From this short overview of recent documents produced by the European in-
stitutions, especially the European Parliament, we can see that the EU is in a good
position to provide a dense web of experiences on the issue of cultural diversity, in
particular as regards their mixed cultural and economic aspects. From this it derives
that – at this early stage in the drafting process for an international standard-set-
ting instrument on cultural diversity – a broader view, taking into account as many
aspects as possible, seems not only natural but even empirically necessary. This
broader view implies the discussion and careful weighing against each other of the
advantages and disadvantages of a limited number of options for the implementa-
tion of the goals attached to cultural diversity, to which we can now turn.
5. VARIOUS OPTIONS FOR AN INTERNATIONAL INSTRUMENT ON CULTURAL

DIVERSITY
5.1. Considering the Context and Adjusting the Options
Given the complexity of the issue due to the diverse interests and aspects that
are at stake, the approach to the adoption of an international standard-setting in-
strument on cultural diversity must be sensitive to the wider political context. The
diversity: the role of the European regions and international organisations such as UNESCO and
the Council of Europe, A5-0477/2003 (15 December 2003).
94
Ibid., pts. J and I.
wider context of such an instrument has been described in another feasibility study
for an instrument on cultural diversity as follows:
“The short-term objective of the new instrument would be to ensure

that the diversity of cultural expression is preserved and promoted
in the face of the challenge posed by globalization, given that the
achievement of this objective is essential to preserving and promoting
the diversity of cultures and thus cultural diversity itself [...] [T]his
goal should be highlighted in the new instrument by underscoring
how closely it is linked to other societal objectives, such as democrat-
ic expression, social cohesion and economic development, without,
however, turning the instrument into a text on democratic governance
or economic development per se”.95
In this quote, the necessity to take a holistic approach, looking at the wider
political and legal environment, or perhaps the international legal order as a whole,
surfaces. Such holistic approach is advocated by the extremely elastic and inclu-
sive meaning of the concept of culture itself.96 As a second element of culture, the
dynamic nature of the concept must be mentioned which consists in the permanent
strive for improvement. This element surfaces in an even older definition, given in
a dictionary of 1793, which reads:
“Culture: the improvement [ennoblement] or refining of the total

mental and bodily forces of a person or a people; so that the world
includes not only the enlightening or improving of understanding
through liberation from prejudices, but also polishing, namely [in-
creased] improvement and refinement, of customs and manners”.97
The inclusive character and the strive for improvement inherent in the concept
of culture can therefore be taken as the starting point for a standard-setting instru-
ment on cultural diversity at the international level.
Along the gap between the respective realms of culture and trade, there exists a
cleavage of jurisdiction in the international legal order, which, in institutional terms,
can be presented in a simplified manner as separating the UN system, or at least
95
See BERNIER and RUIZ FABRI, Evaluation of the Legal Feasibility of an International
Instrument Governing Cultural Diversity, Groupe de travail franco-québécois sur la diversité
culturelle, 2002, pp. 26-27.
96
The comprehensive nature of “culture” emerges, for example, in an early attempt to define
the concept provided by E.B. Tylor who wrote in 1871 that “Culture, or civilisation, [...] is that
complex whole which includes knowledge, belief, art, law, morals, custom, and any other capa-
bilities and habits acquired by man as a member of society”, cited in KROEBER and KLUCKHOHN,
Culture – A Critical Review of Concepts and Definitions, New York, 1952, p. 81.
97
Ibid., p. 38.
some of its specialised agencies, from the World Trade Organization.98 Nonethe-
less, the increasing complexity of regulatory challenges and the growing mutual
interdependence shows that no action can be taken in one realm without having
some effects in the other. This simple rule of causality must be kept in mind when
analysing the options for the substantive rules and the formal, institutional setting of
an instrument on cultural diversity.
5.2. Outlining the Options
In line with the objectives and conditions that must be met, as outlined in the
various documents referred to above, three main, but nonetheless simplified, op-
tions for the adoption of an instrument on cultural diversity can be identified. The
first option is that such an agreement be adopted under the auspices of the WTO,
second under a specialised international agency, such as UNESCO, or under an
entirely new, still to be established, international agency or organisation. As a third
and final option, a scenario of inter-agency delegation or sharing of powers can
be imagined. Such an approach could be realised through a general instrument on
cultural diversity administered by UNESCO, complementing the existing human
rights body, and a more specific text, dealing with the cultural industries, adopted
under the aegis of the WTO. This last option, however, depends largely on the per-
ception of the international legal order as a whole and the respective competences
or powers attributed to its component parts. In connection with these options, it is
understood that the choice for the proper forum depends largely on the envisaged
regulatory scope of such an agreement. Or, in other words, the substantive rules
determine the institutional framework and vice versa.
From the perspective of the instrument’s potential substantive, i.e. regulatory,
content, it seems that current and future problems press for the adoption of an
instrument aimed at filling the lacunae or else remove the potential conflicts that
currently prevail between the acquis of international human rights law, on the one
hand, and that of international economic law, on the other. This seems to be the
message contained in the INCD Draft99 and SAGIT Report,100 as well as even, al-
98
For a good visualisation of the UN system and its current relation to the WTO, see the
Organisation Chart of the UN System, at http://www.un.org/aboutun/chart.html.
99
In an earlier version, the INCD Draft notes that “[t]here are two key problems that have
emerged in the WTO context concerning cultural goods and services. The first concerns the failure
of WTO dispute bodies, in the cases that have involved cultural goods and services, to acknowl-
edge that forms of artistic and cultural expression are more than commercial goods, products,
or services even where they compete in the market place. The second has to do with uncertainty
about when a particular form or artistic and cultural expression will be considered a good, service
or both. We note that the demarcation line, if any, between cultural goods and services, is still an
open question for the WTO”, available at http://www.mca.org.au/r18910.htm, para. 14.
100
The SAGIT Report states that “there is also the related question of the relationship of the
though in more modest ways, in the UNESCO Universal Declaration on Cultural

Diversity and its Action Plan.101 Together with broader principles linked to cultural
diversity, the main focus of the instrument is therefore on the so-called “gray area”
between economic and cultural forces, as they merge in the concept of the cultural
industries. In institutional terms, the substantive regulatory challenge intrinsic in
the dual economic and cultural character of the cultural industries is mirrored in
attempts to interlock the respective competences of UNESCO with those of the
WTO. In this sense, the Preamble of the INCD Draft states:
“Recognizing the need for effective and appropriate means for pre-
venting and settling disputes concerning measures adopted in accord-
ance with the provisions of this Convention;
Desiring to establish a mutually supportive relationship with the
World Trade Organization (WTO), and the World Intellectual Prop-
erty Organization (WIPO) (as well as other relevant international
organizations the United Nations Educational, Scientific and Cultural
Organization (UNESCO) will be added as well, if it is not the host
organisation of the Convention)”.102
Based on the previous analysis, the SAGIT Report notes that the “first and most
obvious option to consider was an instrument negotiated in the first instance within
the WTO itself”, but later it dismisses the argument due to a possible danger of
overloading the multilateral trading system with responsibilities which go beyond
its constitutional mandate.103 At this stage, however, no clear preference should be
formulated, although the principal options can be fleshed out in a short overview.
Several recommendations have been made in various forms that would
render the WTO more sensitive towards cultural issues in general and cultural
diversity in particular. Possible legal solutions could take the form of an excep-
tion,104 an Annex,105 a waiver,106 an understanding, an amendment of Article IV
obligations and commitments of a new instrument with other international obligations, particu-
larly existing and future rights and obligations under international trade agreements”, cit. supra
note 2, p. 3.
101
See especially Articles 3, 8, and 10-11 of the UNESCO Declaration and Points 12, 16, 17,
and 20 of the Action Plan, cit. supra note 14.
102
INCD Draft Convention on Cultural Diversity, cit. supra note 2, Preamble, Indents 13
and 14.
103
See SAGIT Report, cit. supra note 2, p. 8.
104
See, e.g., HAHN, “Eine kulturelle Bereichsausnahme im Recht der WTO?”, ZAÖRV,
1996, p. 315 ff.
105
See Communication from Switzerland (GATS 2000: Audio-visual services), S/CSS/W/74
(4 May 2001), para. 19.
106
See, e.g., CARMODY, “When ‘Cultural Identity Was not at Issue’: Thinking About Canada
– Certain Measures Concerning Periodicals”, Law and Policy in International Business, 1999,
p. 231 ff.
GATT,107 or else an entirely new agreement, such as the TRIPS Agreement, under
the auspices of the WTO. Other possible solutions include an enabling clause
following the example of the 1979 Decision on Differential and More Favour-
able Treatment, Reciprocity and Fuller Participation of Developing Countries,108
which authorises contracting parties to accord differential and more favourable
treatment to developing countries on a discriminatory basis, or else a so-called
“cultural integration clause” like the one found in Article 151(4) TEC, that would
oblige the WTO, and especially its DSB, to take the issue of cultural diversity
into account in other areas administered under the auspices of the WTO Agree-
ment. The final legal technique would ultimately depend on the concept and scope
chosen for the various cultural concerns. The clear advantage of the WTO as the
forum for addressing the issue of cultural diversity is the obvious marriage of cul-
tural with economic concerns that is still widely absent in the international legal
order. Moreover, since the creation of the WTO, the DSB has shown some growing
sensitivity for so-called non-trade issues based on a more coherent interpretation
of international treaties other than those administered by the WTO by invoking the
Vienna Convention on the Law of Treaties.109 Notwithstanding this progress, the ex-
pertise of the WTO for cultural issues naturally remains limited by its constitutional
mandate. This inconvenience would argue in favor of a limitation of the scope of
such endeavour to the goods and services comprised in the cultural industries.110
For the consideration of a broader scope of cultural diversity, it is precisely the
constitutional mandate of UNESCO that would argue for its administration of a
standard-setting instrument on cultural diversity.111 On the other hand, the danger
implicit in its mandate is that it widely excludes the economic implications and
particularly the lack of “teeth” due to the absence of an efficient and rigid dispute
107
See, e.g., NEUWIRTH, “The Cultural Industries and the Legacy of Article IV GATT: Re-
thinking the Relation of Culture and Trade in Light of the New WTO Round” (Paper presented
at the Conference on Cultural Traffic: Policy, Culture, and the New Technologies in the Euro-
pean Union and Canada, Carleton University, 22-23 November 2002), available online at http:
//www.carleton.ca/ces/papers/november02/Neuwirth.pdf.
108
Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Partici-
pation of Developing Countries, GATT Doc. L/4903 (28 November 1979), GATT, 26th Supp.
BISD, 1980, p. 203.
109
See, e.g., United States – Section 110(5) of the US Copyright Act, Panel Report, Doc.
WT/DS160/R of 15 June 2000, mainly at paras. 6.43-6.69, 6.92, 6.166, and 6.200; for the broader
trend, see SEROIN, “L’application des regles d’interprétation de la Convention de Vienne sur les
droit des traités dans le cadre de l’ALÉ, de l’ALÉNA, du GATT et de l’OMC”, Revue juridique
Thémis, 2000, p. 227 ff.
110
For a useful definition of the cultural industries, see Article 2107 of the NAFTA, cit. supra
note 87.
111
But see the EU-Position on the Reform and Development of UNESCO (15 December
1999), available online at http://www.unesco.org/webworld/taskforce21/-documents/eu_re-
form_en.shtml, criticising inter alia UNESCO’s proliferation of programme activities and, as a
result, the loss of its unique profile.
resolution body, such as the DSB of the WTO. This point is the strongest argu-
ment in favour of the creation of an entirely new agency or body in charge of the
monitoring, preservation and promotion of cultural diversity. This is precisely what
the SAGIT Report suggests, namely, the creation of a Cultural Dispute Resolution
Body, which would provide the first dispute settlement mechanism in cases that
involve the issue of cultural diversity.112 Nevertheless, it could be asked why the
wheel needs to be reinvented when such a body could also be established within
UNESCO, thereby limiting the danger of a further fragmentation of the interna-
tional legal order. Moreover, even as a new and independent institution it would
still lack the efficiency of the WTO DSB based on its economic incentives (i.e. the
threat of retaliatory measures) to comply with its rulings. Another danger linked to
the constitutional mandate of UNESCO is found in the volatile and elastic meaning
the adjective “cultural” adds to any noun. For instance, Yvonne Donders has found
for the concept of “a right to cultural identity” that:
“It appeared that the right to cultural identity in international law

was only possible in a document which is not legally binding (the
UNESCO Declaration) or has a limited scope (the Framework Con-
vention). The concept of cultural identity is considered too vague, and
the implications of the right are unclear and unpredictable”.113
Per analogiam to cultural identity, a similar fate can therefore be expected for
the issue of cultural diversity. These threats of a dubious legal utility and practica-
bility are real whence the correct statement of the desirability of a legally-binding
instrument for cultural diversity.
As the third and final option, a form of inter-agency cooperation or interinsti-
tutional comity could be envisaged. Under such an option one could consider, for
example, the possibility of a “preliminary ruling” by a UNESCO panel of experts
on cultural diversity each time that measures addressing a set of cultural concerns
that ought to be specified are at stake. It would be also possible to combine ele-
ments of the three principal options, such as the creation of a new and independent
Centre on Cultural Diversity along the lines of the International Trade Commis-
sion (ITC). Such a centre could be affiliated with the WTO and UNESCO through
agreement and would not only provide technical assistance for the preservation and
promotion of cultural diversity but also closely monitor the developments in this
field and offer its expertise in case of conflict or litigation. At this stage, serious
thought should also be given to the principle of interinstitutional comity, following
the rationale underlying the subsidiarity principle, namely, that competence must
112
SAGIT Report, cit. supra note 2, p. 8.
113
See DONDERS, “The Development of the Right to Cultural Identity in Human Rights
Law”, in DONDERS, HENRARD, MEIJKNECHT and TEMPELMAN (eds.), Law and Cultural Diver-
sity, Utrecht, 1999, p. 65 ff., p. 92 f.
be attributed in accordance with the expertise of each international organisation.

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

instrument on cultural diversity, it must be repeated here that the recent Commu-
nication of the Commission marks an important step in the international debate on
cultural diversity. Indeed, the experience behind the evolution of the European Un-
ion, as shown by reference to a few selected and mostly recent documents drafted
by its institutions, seems to have much to offer when presented in a neutral, i.e.
globally acceptable, way. In turn, the international debate on cultural diversity pro-
vides useful insights and incentives for the organisation of the EU’s internal affairs.
In sum, in a global environment, external and internal affairs must be considered
to be entangled in a constructive dialectical process of mutual enrichment. From
the concept of cultural diversity, it derives further that numerous possibilities exist
for the achievement of the objectives linked to an international standard-setting
instrument on cultural diversity. The main purpose in this note is to point out a few
of the main options while especially following the underlying meaning attached to
“culture”, i.e. the holistic strive for refinement. From this it derives that each choice
needs to be evaluated carefully for possible consequences within the broader con-
text. It cannot be excluded, or rather it remains to be hoped, that more ambitious
projects, such as a long anticipated reform of the UN system as the framework for
the international legal order, will emerge from the current debate.
Based on its own experience, the European contribution to the current efforts
towards such instrument needs to be based on much broader considerations. These
considerations must, first and foremost, recognise that in order to succeed with
noble aspirations they need to materialise in one way or the other. For culture,
one way of materialising proceeds through the economics of various goods and
services, whence the need for a recognition of the wider culture and trade de-
bate highlighting the dual economic and cultural aspects attached to the concept
of cultural diversity. Second, the contribution must carefully consider the wider
context for such an instrument. In times of increasing complexity, relinquishing
a new dynamic of causality, solutions must be sought through the perspective of
complementarity as opposed to a clear-cut separation or even opposition. Today,
based on the drastic changes in our perceptive tools, the awareness that no policy,
or any measure, taken in one field remains without effects for all residual fields is
expected to be recognised. It is in its inclusive character that the EU’s strength lies.
Seen from this angle, the Communication’s contribution to the international debate
on cultural diversity is far too modest. Various important aspects linked to cultural
diversity, such as the broader nexus between culture and trade, but also, more spe-
cifically, the work of single Directorates and other institutions, such as the realm of
competition law, have not been taken into sufficient consideration.
Last but not least, as an expression of this assertion, as the guardian of the
treaties, the Commission must in all its actions recall its origins in the past when
addressing the future. Most unfortunately not enshrined in, or carried over to, the
recent Preamble of the future Constitution, the Preamble of the Treaty Establish-
ing the European Coal and Steel Community still recalls that its signatories, the
founding fathers, were “Considering that world peace can only be safeguarded by
creative efforts commensurate with the dangers that threaten it”.114 More than half a
century later, the same reasoning extends mutatis mutandis to the preservation and
promotion of cultural diversity.
114
Indent 1 of the Preamble of the Treaty Establishing the European Coal and Steel Com-
munity, Paris, 18 April 1951.
THE UNESCO DECLARATION CONCERNING
THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE:
ONE STEP FORWARD AND TWO STEPS BACK
FEDERICO LENZERINI*
1. INTRODUCTION
On 17 October 2003 the UNESCO General Conference adopted by consensus

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

heritage has evolved through two parallel but separate contexts, which relate, re-
spectively, to peacetime and armed conflicts. For this reason, it appears opportune
to analyse these two contexts separately, and then to concentrate on the interactions
which exist between them.
2.1. Prohibition of Intentional Destruction of Cultural Heritage in Peacetime
There are several manifestations of international practice which demonstrate

the existence of an obligation of customary international law that is binding on
all governmental entities6 which maintain control over a given territory, requiring
them to refrain from performing acts of wilful destruction on cultural heritage of
outstanding value located in such a territory during peacetime.7 Even in 1935, the
Roerich Pact, a regional treaty concluded between the USA and other American
States, proclaimed the principle that museums, monuments, and scientific and cul-
tural institutions are to be protected as part of “common heritage of all people”.8
This principle has been incessantly reaffirmed by UNESCO since the early 1950s,
in several pertinent recommendations9 and international binding legal instruments.
6
International practice in the field of State responsibility clearly demonstrates that the recog-
nition of a governmental entity as internationally responsible is mainly based on the substantive
element of effective territorial sovereignty, and not on the formal recognition of statehood by the
other members of the international community or in the context of international organizations;
see FRANCIONI and LENZERINI, cit. supra note 2, p. 629 f.
7
See, in this sense, ibid., p. 630 ff.
8
See Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,
Washington, 15 April 1935, available at http://www.icrc.org/ihl.nsf.
9
For a detailed examination of the relevant part of these recommendations, see FRAN-
CIONI, “Principi e criteri ispiratori per la protezione internazionale del patrimonio culturale”, in
FRANCIONI, DEL VECCHIO and DE CATERINI (eds.), Protezione internazionale del patrimonio
culturale: interessi nazionali e difesa del patrimonio comune della cultura, Milano, 2000, p. 14
f.; the author of this article rightly notes that the relevance of these recommendations, for the
DECLARATION ON INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE 133
These include the Preamble of the 1954 Hague Convention on the protection of
cultural property in the event of armed conflicts10 and, more specifically, the 1972
World Heritage Convention, whose Preamble proclaims the existence of a univer-
sal interest in the protection of cultural heritage:
“[T]he existing international conventions, recommendations and

resolutions concerning cultural and natural property demonstrate
the importance, for all the peoples of the world, of safeguarding this
unique and irreplaceable property, to whatever people it may belong
[…] [P]arts of the cultural or natural heritage are of outstanding inter-
est and therefore need to be preserved as part of the world heritage of
mankind as a whole […] [I]t is incumbent on the international com-
munity as a whole to participate in the protection of the cultural and
natural heritage of outstanding universal value”.11
In addition, even the UNESCO Convention on the Protection of the Underwa-

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

the authoritative nature of UNESCO recommendations (which represent almost the
totality of nations) and the high rate of ratification to the World Heritage Conven-
tion,13 provides clear “evidence of a belief that this practice is rendered obligatory
by the existence of a rule of law requiring it”.14 Thus, it proves the existence in
the international community of a general opinio juris on the binding character of
the prohibition of acts of deliberate destruction of cultural heritage of major value
for humanity.15 This conclusion is reinforced by the unanimous and unequivocal
condemnation expressed by the entire international community with regard to the
wanton destruction of the giant Afghan Buddhas of Bamyan perpetrated by the
Taliban regime in March 2001.16 In May of the same year, focusing on the religious
character of many cultural sites (such as the Buddhas of Bamyan), the UN General
Assembly, after having condemned “all acts of threats of violence, destruction,
damage or endangerment, directed against religious sites as such, that continue to
13
The 1972 World Heritage Convention has been ratified by 177 States (updated 28 Novem-
ber 2003); see http://www.unesco.org/whc/nwhc/pages/doc/main.htm.
14
See International Court of Justice, North Sea Continental Shelf Cases, Judgement of 20
February 1969, ICJ Reports, 1969, p. 44, para. 77.
15
See, in this sense, FRANCIONI and LENZERINI, cit. supra note 2, p. 636. The authors add
that “[t]his conclusion is reinforced by the fact that protection of cultural heritage as a matter
of public interest, and not only as part of private property rights, is recognized in most of the
mature domestic legal systems of the world. No civilized State, in the sense of Article 38(c) of
the Statute of the International Court of Justice, recognizes the right of the private owner of an
important work of art to destroy it as part of the exercise of a supposedly unlimited right of pri-
vate property. Catalogue and inventory of national treasures are generally intended to limit such
private rights in view of safeguarding the public interest to the conservation and transmission of
the cultural patrimony to future generations”; this practice reflects the global perception of the
objective intrinsic value of cultural heritage, which transcends any kind of “private” power, both
individual property or national sovereignty, in view of the need to safeguard the collective inter-
est to its preservation. Contra, see O’KEEFE, “World Cultural Heritage: Obligations to the Inter-
national Community as a Whole?”, ICLQ, 2004, p. 189 ff., p. 208. See also the view expressed by
WANGKEO, “Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During
Peacetime”, Yale JIL, 2003, p. 183 ff.; according to this author, relevant practice “indicate[s] that
it would be lawful to destroy relics if doing so would help the state meet basic survival needs or
improve people’s way of life […]. In contrast, […] it would not be lawful to destroy or negatively
affect cultural heritage for iconoclastic reasons” (p. 273). Although at first sight this position may
appear quite peculiar, it could be interpreted as implying the fact that the destruction of a cultural
asset may be considered lawful when (and only when) a preventive assessment of the value of
the good to be destroyed and the degree of improvement that would be attained with regard to
another fundamental value by means of the destruction (i.e. enhancement of living conditions
and/or enjoyment of human rights) demonstrates that the latter supersedes the former; such an
interpretation seems to be confirmed by the fact that, at the very end of the same article, the au-
thor states that “there should be a presumption against destroying relics […] and […] the needs
of living people should always come first” (ibid., p. 274). There is no doubt that, in principle, this
latter sentence should inform the implementation of any international legal provision.
16
See, more comprehensively, FRANCIONI and LENZERINI, cit. supra note 2, p. 621.
occur in the world”,17 called “upon all States to exert their utmost efforts to ensure
that religious sites are fully respected and protected in conformity with internation-
al standards and in accordance with their national legislation and to adopt adequate
measures aimed at preventing such acts or threats of violence […]”.18
Similar statements of condemnation were pronounced by, inter alia, UNESCO,
ICOMOS, other international organizations and many individual States.19
2.2. Prohibition of Intentional Destruction of Cultural Heritage in the Event of

Armed Conflicts
Another customary principle which relates to the prohibition of acts of destruc-

tion against cultural heritage operates during armed conflicts. The existence of this
principle can be based on a constant and unambiguous practice developed in the
context of international law, and it is thus generally accepted by scholars.20 This
practice is almost one century old, since its first relevant example can be traced
back to 1907, when the Hague Conventions on land warfare and on naval bombard-
ment affirmed the principle that historic monuments and buildings dedicated to art
and science ought to be spared of military violence.21 It has been constantly restated
since 1945, when the Nuremberg Military Tribunal stated that, given the transposi-
17
See “Protection of religious sites”, GA Res. 55/254 of 31 May 2001, para. 1.
18
Id., para. 2.
19
See FRANCIONI and LENZERINI, cit. supra note 2, p. 636.
20
See NAHLIK, “La protection internationale des biens culturels en cas de conflit armé”,
RCADI, Vol. 120, I, 1967, p. 65 ff., pp. 89 and 145; FRIGO, La protezione dei beni culturali nel
diritto internazionale, Milano, 1986, p. 62 ff.; FRANCIONI, “Patrimonio comune dell’umanità,
sovranità e conflitti armati”, Studi Senesi, 1992, p. 7 ff., p. 13 ff.; MEYER, “The 1954 Hague Cul-
tural Property Convention and Its Emergence into Customary International Law”, Boston Uni-
versity International Law Journal, 1993, p. 349 ff., p. 362; MOSE, “The Destruction of Churches
and Mosques in Bosnia-Herzegovina: Seeking a Rights-Based Approach to the Protection of
Religious Cultural Property”, Buffalo Journal of International Law, 1996, p. 180 ff., p. 184 f.;
KASTENBERG, “The Legal Regime for Protecting Cultural Property During Armed Conflict”,
Air Force Law Review, 1997, p. 277 ff.; LIPPMAN, “Art and Ideology in the Third Reich: The
Protection of Cultural Property and Humanitarian Law of War”, Dickinson Journal of Interna-
tional Law, 1998, p. 1 ff., p. 97; CARDUCCI, “L’obligation de restitution des biens culturels et des
objects d’art en cas de conflit armé: droit coutumier et droit coventionel avant et après la Conven-
tion de La Haye de 1954”, RGDIP, 2000, p. 289 ff.; FRANCIONI and LENZERINI, cit. supra note 2,
p. 636 ff.; GIOIA, “The Development of International Law relating to the Protection of Cultural
Property in the Event of Armed Conflict: The Second Protocol to the 1954 Hague Convention”,
IYIL, 2001, p. 25 ff., p. 26.
21
See respectively Articles 27 and 56 of the Regulations annexed to the Hague Convention
IV (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) and Article 5
of the Convention (IX) concerning Bombardment by Naval Forces in Time of War, both available
at http://www.icrc.org/ihl.nsf.
tion, by 1939, of the main principles proclaimed by the 1907 Hague conventions
into customary international law, the pillage of public and private property had
been recognized as a crime prior to the entry into force of the Charter of London
(the Statute of the Tribunal). Consequently, those who were prosecuted for those
kinds of acts, even if committed before the entry into force of the Charter, could not
invoke the principle of the prohibition of retroactive punishment.22 With the same
premise in mind, an identical conclusion would be reached with regard to the delib-
erate destruction of cultural heritage (as included in the concept of public or private
property), since both pillage and destruction are acts of dominion over an object
which presupposes the exercise of the same degree of power over the object itself.
In the second half of the Twentieth Century, the principle in point was first reaf-
firmed by the 1954 Convention on the protection of cultural property in the event of
armed conflicts,23 which specifically deals with the prohibition of acts of destruction
perpetrated in wartime against cultural heritage, and, afterward, by the 1977 Proto-
cols to the 1949 Geneva Conventions on humanitarian law.24 In more recent times,
the same concept has been reiterated by Article 20(e)(iv) of the 1996 International
Law Commission Draft Code of Crimes Against the Peace and Security of Mankind,
which includes among war crimes all acts of “seizure of, destruction of or wilful
damage done to institutions dedicated to religion, charity and education, the arts and
sciences, historic monuments and works of art and science”,25 followed by the Stat-
ute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), whose
Article 3(d) includes the acts of “seizure of, destruction or wilful damage done to
institutions dedicated to religion, charity and education, the arts and sciences, his-
toric monuments and works of art and science” among the violations of the law or
customs of war.26 According to the Tribunal, the act of destruction or wilful dam-
22
See United States v. Carl Krauch, Trials of War Criminals Before the Nuremberg Military
Tribunals Under Control Council Law No. 10, Vol. 7, 1952, p. 1081 ff., p. 1131; United States
v. Alfried Krupp et al., Trials of War Criminals Before the Nuremburg Military Tribunals Under
Control Council Law No. 10, Vol. 9, 1950, p. 1327 ff., p. 1340. See, more comprehensively, LIPP-
MAN, cit. supra note 20, p. 49 f.
23
See supra note 10.
24
See Protocol Additional to the Geneva Convention of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I), UNTS, Vol. 1125, p. 5,
whose Article 53 states that “[w]ithout prejudice to the provisions of the Hague Convention for
the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other
relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed
against the historic monuments, works of art or places of worship which constitute the cultural or
spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make
such objects the object of reprisals”. See also, with an almost identical content (except that for
the reference to reprisals), Article 16 of the Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), UNTS, Vol. 1125, p. 609.
25
The text of the Draft Code is available at http://www.un.org/law/ilc/texts/dcode.htm.
26
The text of the Statute is available at http://www.un.org/icty/basic/statut/statute.htm.
age to institutions dedicated to religion “has […] already been criminalized under
customary international law”.27 The Tribunal also held that the criminal character
of deliberate acts of destruction of cultural heritage (of religious character) during
armed conflicts may be founded not only on Article 3(d) of the Statute (and on the
corresponding customary provision), but even in Article 5(h) (which deals with the
concept of “crimes against humanity”, that it is also the object, in equivalent terms,
of customary provisions), in the sense that the conduct in point,
“when perpetrated with the requisite discriminatory intent, amounts

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

purposes, or historical monuments.32
A possible objection could be raised with regard to the scope of applicability of
the customary principle which prohibits the deliberate destruction of cultural herit-
age in wartime, in the sense that one could argue that such applicability should be
limited only to international armed conflicts, and its scope could not be extended to
non-international wars. This objection, however, clearly appears poorly founded to
anyone who takes into account the most recent developments in the field of human-
itarian law. As a matter of law, the main principles of humanitarian law (including
the prohibition of deliberate destruction of cultural heritage) that were originally
applicable only in the event of an international armed conflict, have now extended
their scope also to internal wars. This is demonstrated by the 1999 Second Proto-
col to the 1954 Hague Convention33 as well as by the Statutes of the ICTY,34 the
International Criminal Tribunal for Rwanda (ICTR),35 the International Criminal
Court,36 and the Special Court for Sierra Leone.37
With regard particularly to the subject matter of the present article, the coin-
cidence between international and non-international armed conflicts has also been
pointed out by the ICTY in the leading Tadic case:
“The emergence of international rules governing internal strife has

occurred at two different levels: at the level of customary law and at
that of treaty law. Two bodies of rules have thus crystallised, which
are by no means conflicting or inconsistent, but instead mutually
support and supplement each other. Indeed, the interplay between
these two sets of rules is such that some treaty rules have gradually
become part of customary law. This holds true for common Article 3
of the 1949 Geneva Conventions […] but also applies to Article 19 of
the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict of 14 May 1954 […]”.38
32
For the text of the Statute, see ILM, 1998, p. 999 ff.
33
See Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Prop-
erty in the Event of Armed Conflict, cit. supra note 10, particularly Article 22(1).
34
See supra note 26.
35
See Statute of the International Criminal Tribunal for the Prosecution of Persons Respon-
sible for Genocide and Other Serious Violations of International Humanitarian Law Committed
in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such viola-
tions committed in the territory of neighbouring States, between 1 January 1994 and 31 Decem-
ber 1994, 8 November 1994, available at http://www.ictr.org.
36
See supra note 32.
37
See Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002,
available at http://www.icrc.org/ihl.nsf.
38
See Prosecutor v. Dusko Tadic (Appeals Chamber, 2 October 1995), ILM, 1996, p. 32,
para. 98. Article 19 of the 1954 Hague Convention (see supra note 10) extends the protection
provided for by the Convention itself with regard to cultural property to the case “of an armed
2.3. The Interactions between the Prohibition of Destruction of Cultural Heritage

in Peacetime and in the Event of Armed Conflicts
As it emerges from the two previous subsections, acts of intentional destruc-

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

in its territory, destroys a cultural asset belonging (from a social or anthropological
point of view) to its enemy faction, must be considered as included in the above
prohibition, since relevant international law does not allow any distinction among
the possible acts of destruction of cultural objects during non-international armed
conflicts, nor contemplates any possible interference with the scope of such princi-
ple that may be produced by the factual characteristics inherent to a given situation
(except in the case that the relevant cultural assets are used for military purposes).
3. THE NEGOTIATIONS LEADING TO THE DECLARATION
After the Brussels meeting of the group of experts of December 2002, the
successive negotiations leading to the adoption of the UNESCO Declaration on
intentional destruction of cultural heritage followed an unusual procedure, since
the Draft Declaration was never discussed by the Plenary Conference, but only
by a strictly limited group of Member States. A first informal intergovernmental
meeting took place in Paris on 26 September 2003. The draft text that was submit-
ted to the few delegations involved in this meeting significantly diverged from the
one elaborated by the Brussels experts, as the word “shall”, previously included in
a number of provisions relating to the duties of member States, had been replaced
with the term “should” by the UNESCO Secretariat. The meeting did not produce
any concrete outcome, since the State-oriented position supported by the majority
was strongly opposed by some participants (namely Belgium, Italy and Hungary),
that were oriented towards the adoption of a text emphasizing the relevance of
cultural heritage as a value belonging to humanity as a whole as well as, at the
same time, attributing significance to local communities which reflect their identity
in their own cultural heritage. The second round of negotiations, also involving
a limited number of UNESCO members, took place in October 2003, during the
work of the General Conference. At that stage the State-oriented vision of certain
members prevailed, and some major changes to the text originally drafted by the
Brussels experts were made.
The Draft text was submitted for the first time to the Plenary Conference on
the day scheduled for the adoption of the Declaration, with no time left for further
discussion. The Draft was thus adopted as it was. This course of action raises seri-
ous doubts as to whether the content of the Declaration actually reflects the feeling
of the international community concerning its subject matter.
4. THE DECLARATION: A CRITICAL APPRAISAL
As it emerges from the evolution which led to the adoption of the Declaration,
it had originally been conceived as a firm and unconditioned condemnation of any
act of deliberate destruction of cultural heritage, emphasizing the fact that such acts
constitute an intolerable offence to the international community as a whole. To use
a euphemism, the Declaration expresses this principle quite softly, simply pointing
out that “[t]he international community recognizes the importance of the protection
of cultural heritage” (Article I). In addition, it is quite clear that, from a legal point
of view, the main purpose which should have been pursued by the Declaration was
to condemn the acts of destruction of cultural heritage perpetrated in the territory of
the acting State, pursuant to the idea according to which such heritage constitutes a
value transcending its territorial location and belonging to the humanity as a whole.
As a matter of law, there was no need to create a legal instrument condemning such
kinds of acts when performed in the territory of another country; it is well known
that this course of action was already prohibited by international law, since it con-
stitutes an intolerable violation of the sovereignty of the territorial State.
Article III(1) of the Declaration points out that “States should take all appropri-
ate measures to prevent, avoid, stop and suppress acts of intentional destruction of
cultural heritage, wherever such heritage is located”.40 Although this latter sentence
actually includes the acts of destruction perpetrated by a State in its own territory,
this principle was not explicitly mentioned in the provision nor was it expressed
with due emphasis, strongly impairing the effective significance of the whole Dec-
laration. In addition, the provision in point, as well as the near totality of the other
provisions included in the Declaration, is further weakened by the use of the term
“should”. Such term is totally unnecessary in a declaration of principles, since by
its soft-law nature this kind of instrument is not capable of creating international
obligations of binding character, and the frequency of its use in the Declaration on
the intentional destruction of cultural heritage clearly demonstrates that the main
preoccupation of most of the negotiators was to preserve their domestic interests
rather than to produce an instrument having the effective scope of safeguarding a
value belonging to the international community as a whole.
Despite the constant use of the conditional “should”, Article III also requires
States, to “adopt the appropriate legislative, administrative, educational and techni-
cal measures, within the framework of their economic resources, to protect cultural
heritage” and to “revise them periodically with a view to adapting them to the
evolution of national and international cultural heritage protection standards”. In
addition, States are also called to “endeavour, by all appropriate means, to ensure
respect for cultural heritage in society, particularly through educational, aware-
ness-raising and information programmes”, and to endorse the reinforcement of the
legal regime of protection of cultural heritage both at the international and national
level.41 Also, Article V reiterates the rule, crystallized in general international law,
40
Emphasis added.
41
Article III(4) states that “States should: (a) become parties to the 1954 Hague Convention
for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999
Protocols and the Additional Protocols I and II to the four 1949 Geneva Conventions, if they
concerning the obligation of safeguarding cultural heritage in the event of armed

conflict, stating that “States should take all appropriate measures to conduct their
activities in such a manner as to” respect such obligation, consistently with relevant
international law.
Articles VI and VII, which respectively deal with State responsibility and in-
dividual criminal responsibility, are undoubtedly the most significant provisions of
the Declaration. According to the first one,
“[a] State that intentionally destroys or intentionally fails to take

appropriate measures to prohibit, prevent, stop, and punish any
intentional destruction of cultural heritage of great importance for
humanity, whether or not inscribed on a list maintained by UNESCO
or another international organization, bears the responsibility for such
destruction, to the extent provided for by international law”.
Article VII requires States (using, of course, the conditional “should”) to “es-
tablish jurisdiction over, and provide effective criminal sanctions against, those
persons” responsible for acts of intentional destruction of cultural heritage. Un-
fortunately, the significance of these provisions is seriously impaired by the fact
that both were eventually deprived of a sentence, included in the original Draft,
according to which they would have applied also when the acts of destruction
regarded “such cultural heritage which is of special interest for the community
directly affected by such destruction”;42 the deletion of this sentence represents a
serious regression of the UNESCO policy in the field of cultural diversity, whose
significance43 is based, inter alia, on the fact that international importance of cul-
tural heritage may not only be linked to its possible outstanding universal value,
but also on its particular relevance for the people that created and maintained it.
In addition, Article VII was also deprived of the reference to the application of the
principle of universal jurisdiction with regard to the perpetrators of acts of deliber-
ate destruction of cultural heritage, which was originally included in the draft text
elaborated by the Brussels experts.44
have not yet done so; (b) promote the elaboration and the adoption of legal instruments providing
a higher standard of protection of cultural heritage; and (c) promote a coordinated application of
existing and future instruments relevant to the protection of cultural heritage”.
42
See UNESCO Doc. 32 C/25 of 3 October 2003, on file with the author.
43
See the 2001 UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9.
44
Article VII, as elaborated by the Brussels experts, was divided into two parts, and
stated as follows: “1. UNESCO Member States should take all necessary steps, in accord-
ance with international law, to establish jurisdiction over, and provide effective penal sanc-
tions for those persons who commit or order to be committed acts of intentional destruction
of cultural heritage of great importance for humanity, including such cultural heritage which
is of special interest for the community directly affected by such destruction. 2. For the pur-
poses of a more comprehensive protection, each UNESCO Member State is encouraged
The last three articles relate, respectively, to the necessity of promoting coop-
eration between States for the protection of cultural heritage (Article VIII), to the
consistency of the Declaration with the principles on human rights and international
humanitarian law (Article IX),45 and to the opportunity of ensuring “the widest pos-
sible dissemination of this Declaration to the general public and to target groups,
inter alia, by organizing public awareness-raising campaigns” (Article X).
After its adoption, the content of the Declaration was criticized by a number of
States; their observations were put on the records of the General Conference. Italy,
for example, supported by Hungary, expressed its regret “that the consensual text
agreed upon was not sufficiently advanced”46 and “wished that UNESCO would
engage in a more binding legal text on the intentional destruction of cultural herit-
age in the near future, particularly on account of the fact that the scope of most of
its provisions was weakened during the final steps of its preparation”.47 In addition,
Belgium, Hungary and Italy expressed “their regrets about the deletion of the refer-
ence to the cultural heritage ‘of special interest for the community affected by its
destruction’ under articles VI and, in particular, VII of the text, thus weakening the
weight of the Declaration”.48
5. CONCLUSION
No doubt the UNESCO Declaration Concerning the Intentional Destruction of

Cultural Heritage represents a step forward in the context of the international pro-
tection of cultural heritage, by the very fact of its own adoption and existence. Also,
the idea underlying the Declaration constitutes a welcome progress in the frame-
work of international law. At the same time, nevertheless, its content shies away
from the required progress in international law that inspired the Declaration (in a
word, from its own rationale). In certain ways it may even be seen as a regression
if compared with the recent evolution of the matter in international practice, since
it does not adequately acknowledge the most relevant outcomes achieved by the
to take all necessary steps, in accordance with international law, to establish jurisdiction over, and
provide effective penal sanctions for those persons who are found present on the territory of this
State, regardless of their nationality and the place where such act occurred, who commit or order
to be committed acts referred to in Paragraph 1 of this Article”. See supra note 5.
45
Article IX states that, “[i]n applying this Declaration, States recognize the need to respect
international rules related to the criminalization of gross violations of human rights and interna-
tional humanitarian law, in particular, when intentional destruction of cultural heritage is linked
to those violations”. During the meeting of 26 September 2003, a couple of delegates proposed to
use the term “should” even with regard to this provision; the strong opposition of Italy prevented
the Declaration from stating that States “should” respect human rights and humanitarian law.
46
The text of the Italian statement condensed the oral intervention made by the Italian del-
egate Professor Francioni at the Conference. The text is on file with the author.
47
Id. (emphasis added).
48
Id.
development of such practice, ultimately represented by the unanimous condem-

nation by the whole international community of the deliberate destruction of the
Buddhas of Bamyan as well as by the growing relevance attained by the protection
of cultural heritage in the context of international criminal law. This development
demonstrates that the process started at the beginning of the Twentieth Century,
which has progressively increased the level of protection of cultural heritage in
the framework of the international legal order, has today reached its completion,
leading to a significant evolution of the matter in the context of customary law. In
particular, the general perception of the universal significance of cultural heritage
as a value belonging to the international community as a whole (and, as such, tran-
scending national interests) has developed. Thus, the significance of cultural herit-
age is at present perceived not only as a value for the very identity of the people
which created it, but also as one of the building blocks in the construction of the
international concept of cultural diversity, which has come to be recognized as “the
common heritage of humanity and should be recognized and affirmed for the ben-
efit of present and future generations”.49 The management by a State of a cultural
asset of significant value which is located in its territory has thus emerged from the
area of domestic jurisdiction and has been raised to the level of “common concern
of mankind”,50 founded in the concept of erga omnes obligations, which safeguard
the interests of the international community as a whole.51 As a consequence, an
obligation exists in contemporary international law binding States to ensure, both
in peacetime and in the event of armed conflict, the preservation of cultural assets
of relevant value for their intrinsic historic, social, anthropological, aesthetic and,
in a word, cultural significance. States that commit deliberate acts of destruction
49
See UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9, Article 1.
On the value of cultural diversity in contemporary international law, see LENZERINI, “Riflessioni
sul valore della diversità culturale nel diritto internazionale”, CI, 2001, p. 671 ff.
50
The concept of “common concern of mankind” is especially used in the field of environ-
mental protection, particularly by the Convention on climate change (United Nations Framework
Convention on Climate Change, 1992, available at http://unfccc.int/resource/conv/conv.html,
Preamble) and by the Biodiversity Convention (see Convention on Biological Diversity, 1992,
available at http://www.biodiv.org, Preamble). See BASLAR, The Concept of the Common Herit-
age of Mankind in International Law, The Hague, 1998; with reference to cultural heritage see
FRANCIONI, cit. supra note 20, p. 7 ff.
51
The principle of erga omnes obligations was proclaimed by the International Court of
Justice in the Barcelona Traction, Light and Power Co. case (ICJ Reports, 1970, p. 3), which
stated that “an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection;
they are obligations erga omnes. Such obligations derive, for example, in contemporary interna-
tional law, from the outlawing of acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person, including protection from slavery and
racial discrimination” (para. 33-34).
or damage against their own cultural heritage violate customary international law,
which prohibits such acts both in the event of armed conflict and in times of peace,
and are thus internationally responsible (before any other State and the relevant
international organizations) for having breached a common value belonging to the
international community as a whole. When faced with this remarkable progress, the
UNESCO Declaration appears to be a rather slight document and it even falls short
of reflecting current practice, construing all the relevant State obligations as fee-
ble duties and omitting to include references to principles of extreme importance
(e.g., the reference to cultural heritage having special relevance for the community
specially affected by its destruction). In light of this, even if we concede that the
Declaration, for its own existence, has delivered modest progress, we cannot ignore
the fact that UNESCO has lost a precious occasion for using the momentum created
by the destruction of the Buddhas of Bamyan in order to bring about a significant
improvement in the framework of the international protection of cultural heritage.
THE ESTABLISHMENT OF THE SECRETARIAT
OF THE ANTARCTIC TREATY
PATRIZIA VIGNI*
On 16 June 2003, the XXVI Antarctic Treaty Consultative Meeting (ATCM),

held in Madrid, established the Secretariat of the Antarctic Treaty (hereafter the Sec-
retariat). This can be considered the most important achievement of the Antarctic
Treaty System (ATS) since the adoption of the Madrid Protocol on Environmental
Protection in 1991.1 The establishment of the Secretariat is another manifestation
of the ability of the ATS to develop progressively from a basic treaty framework to
a complex quasi-institutional regime.2
The need for an organ to support the Antarctic Treaty Consultative Parties
(ATCPs) in the organisation of the ATCMs and to provide a permanent link be-
tween the Parties in the intersessional periods had been stressed by some ATCPs
since the beginning of the 1980s. In order to understand better how the XXVI
ATCM managed to establish the Secretariat, it is useful to begin with a brief ac-
count of the negotiating history.3
The formal negotiations for the creation of such an organ started at the XVII
ATCM, held in Venice in 1992, under the chairmanship of Professor Francesco
Francioni, professor of international law at the University of Siena and member of
the Italian Delegation. This meeting established a working group, which was aimed
at instituting the Secretariat and that was able to present a draft document two years
later. This document was annexed to the Final Report of the XVIII ATCM, held in
Kyoto in 1994, and established some articles concerning the legal capacity, func-
tions and financial scheme of the Secretariat.4 However, due to the opposition of
some Parties (in particular, the United Kingdom) with regard to the possibility of
establishing the permanent seat of the Secretariat in Buenos Aires, the negotiations
were interrupted until the XXIV ATCM, held in St Petersburg in 2001, when the
*
Researcher, University of Siena.
1
Adopted in Madrid on 4 October 1991, ILM, 1991, p. 1455 ff.
2
For an overview of the new trends of the ATS toward a form of partial institutionalisation,
see FRANCIONI, “A Decade of Development in Antarctic International Law”, in FRANCIONI and
SCOVAZZI (eds.), International Law for Antarctica, 2nd ed., The Hague, 1996, p. 1 ff., and GAU-
TIER, “Institutional Developments in the Antarctic Treaty System”, ibid., pp. 31-47.
3
For an overall analysis of the negotiations relating to the establishment of the Antarctic
Treaty Secretariat, see SCOTT, “Institutional Developments within the Antarctic Treaty System”,
ICLQ, 2003, pp. 473-487.
4
A further elaboration of the possibility of establishing a secretariat of the Antarctic Treaty
results in a doctrinal work of Professor Francioni. See FRANCIONI, “Establishment of an Antarc-
tic Treaty Secretariat: Pending Legal Issues”, in VIDAS (ed.), Implementing the Environmental
Protection Regime for the Antarctic, Dordrecht, 2000, p. 125 ff., pp. 132-140.
British Delegation (the most long-lasting objector) announced that its government
intended to join consensus.5 Once the seat of the Secretariat was agreed, it was
necessary to address the difficult questions regarding the status, functions and fi-
nancing of the Secretariat.
The interest of the ATCPs in the creation of the Secretariat is patently shown
by the fact that, after the St Petersburg meeting, intense negotiations immediately
started in order to achieve this goal within a short time period.6 An informal meet-
ing was organized by Argentina in June 2002 in Buenos Aires. Italy continued
to play an active role and Professor Francesco Francioni was appointed as the
Chairman of the meeting. The Consultative Parties highlighted the essential issues
concerning the Secretariat: 1) the constitutive instruments; 2) the legal personality
and/or capacity of the Secretariat; 3) its functions; 4) the financing mechanism; and
5) the privileges and immunities that had to be ensured to the Secretariat’s staff in
the host country by a headquarters agreement (HQA).
With regard to the issue of the form of the constitutive instruments, the ATCPs
took into consideration quite a large range of possible acts.7 Some Parties thought
that it was necessary to adopt a specific protocol since the creation of the Secre-
tariat implied the establishment of a new international entity. Against this view,
other Parties pointed out that the aim of the Antarctic Treaty was not to establish
an international organisation for Antarctica. Thus, the Secretariat would never have
been an international entity. Evidently, the choice of the constitutive instrument of
the Secretariat was strongly related to the issue of the legal personality or capacity
of the Secretariat and the legal status of the ATS itself. Although the recognition of
the international personality of the Secretariat could provide it more power and in-
dependence, it was evident that the ATCPs did not intend to recognise the full inter-
national legal capacity of the Secretariat.8 This conclusion can also be inferred from
the types of functions that the Parties proposed to attribute to the Secretariat. Such
5
In St Petersburg, the XXIV ATCM adopted Decision 1(2001) which confirmed that the
Secretariat would have its seat in Buenos Aires and stressed the urgent need to pursue the de-
velopment of modalities and agreements for its establishment, in US Department of State, The
Handbook of the Antarctic Treaty System (hereafter Antarctic Handbook), 9th ed., Washington
DC, 2002, p. 133.
6
One of the most important occasions, where the issue of the establishment of the Antarctic
Treaty Secretariat was discussed, was the international conference, held at Wilton Park (UK) in
November 2001 and entitled “40 Years On: The Antarctic Treaty System in the 21st Century”.
This conference was organised by the Fridtjof Nansen Institute of Oslo and the Polar Regions
Section of the UK Foreign and Commonwealth Office for the fortieth anniversary of the entry
into force of the Antarctic Treaty. Some important papers were presented to disseminate informa-
tion about the ATS. See FRANCIONI, “The Antarctic Treaty Secretariat: What Will Be Its Role
and Responsibilities?”. The papers of the Wilton Park’s conference have not been published. The
present author is grateful to Professor Francioni for having provided her a copy of his contribu-
tion.
7
See FRANCIONI, cit. supra note 4, pp. 132-135.
8
See FRANCIONI, cit. supra note 6.
THE ESTABLISHMENT OF THE SECRETARIAT OF THE ANTARCTIC TREATY 149
functions were of an administrative and operational character rather than a political

and decision-based nature. In the view of these Parties, the constitutive instrument
should have been a measure adopted under Art. IX(1) of the Treaty, in accordance
with the distinction made by Decision 1(1995).9 This decision reorganises the sta-
tus of the acts, adopted by the ATCM. It distinguishes such acts from each other to
form three categories: “Measures”, which become binding after the approval of all
ATCPs; “Decisions” that have an operative nature and, thus, are immediately bind-
ing; and Resolutions, which have hortatory character only.10 Although it was clear
that the adoption of a Measure aimed at establishing the Secretariat would prevent
the immediate functioning of this organ, the choice of a Decision was not accept-
able from a strictly legal point of view. In fact, the creation of the Secretariat could
not be conceived as a measure of purely internal organization of the ATCM; it did
require the approval of national governments because of the financial commitments
that it implied. At the end of the Buenos Aires Meeting it was clear that the proposal
of adopting a separate protocol was set aside. In any case, the choice between a
Measure and a Decision was still disputed.11
Another issue, which still remained pending at the end of the informal meeting,
concerned the entity or the person that should conclude the HQA on behalf of the
ATCPs. In international practice, Secretariats usually sign these types of agree-
ments together with the host country. Since the ATCPs did not want to attribute this
power to the Secretariat because they considered the recognition of such power a
sort of acknowledgment of its international personality, an alternative option was
that all the members of the ATCM sign the agreement. This would lead to the odd
situation where Argentina should sign the HQA twice, as a member of the ATCM
and as the host State. Other Parties suggested that the Chairman of the ATCM
should sign the agreement. However, this suggestion evoked strong opposition
from those Parties that did not want to consider the ATCM as a separate body with
respect to the contracting States.
The conclusions of the informal meeting were set down in the Report of the
Chairman and were presented as a working paper at the XXV ATCM, held in War-
saw in September 2002.12 The ATCM confirmed Professor Francioni as the Chair-
man of the Working Group on the Secretariat.
The XXV ATCM was of crucial importance to the definition of a very contro-
versial issue: the legal nature of the constitutive instruments. As affirmed above, it
was unclear whether a Measure was more appropriate than a Decision. Such choice
could strongly affect the time at which the Secretariat would start to function. For
9
See Antarctic Handbook, cit. supra note 5, p. 130.
10
For an analysis of the object and purpose of Decision 1(1995), see FRANCIONI, cit. supra
note 2, p. 12.
11
For a view in favour of the adoption of a Decision establishing the Secretariat in order to
accelerate the effective functioning of the Secretariat itself, see SCOTT, cit. supra note 3, p. 487.
12
XXV ATCM/WP 044.
this reason, the Working Group decided to follow a two-step procedure: a Measure
would be adopted in order to establish the Secretariat permanently. Simultaneously,
such organ would work on the basis of a Decision establishing the provisional ap-
plication of the Measure. The ATCPs also decided that the HQA would constitute
part of the package of the constitutive instruments together with the Measure and
the Decision.
The text of the HQA was almost totally drafted by the Parties at the Warsaw
meeting. In particular, the legal capacity of the Secretariat was defined in a provi-
sion of the agreement.13 The Secretariat, as an organ of the ATCM, would have
legal personality and capacity to perform its functions in the territory of Argentina.
Nevertheless, consensus was not reached with regard to whom should conclude
the HQA together with Argentina. Although the majority of States agreed that the
Chairman of the ATCM should sign the agreement, others (in particular, Russia)
still objected that the ATCM did not have international personality and, thus, could
not be a party to an international treaty.14
Notwithstanding these substantive achievements, some fundamental issues still
remained unsettled in Warsaw. The most important debatable point concerned the
budget and the cost-sharing mechanism to fund the Secretariat.15 Whilst some Par-
ties thought that this organ had to be financed by all the ATCPs by means of equal
contributions, some Parties preferred an equitable approach, based on the effective
capability of States. Both these criteria of cost-sharing were legally justifiable. The
equal-sharing principle was in line with the fundamental assumption of the ATS
that the Consultative Parties must have the same rights and duties. Conversely, the
equitable-sharing criterion was justifiable on the basis of the most concrete assess-
ment that took into account both the amount of the activities, carried out by the
nationals of each Consultative Party in Antarctica, and the real capability of States
to contribute to the financing of the Secretariat.16
To help resolve these outstanding issues, Argentina organised a second infor-
mal meeting in Buenos Aires in April 2003. Professor Francioni, who was again
elected as the Chairman, organised the meeting into two groups. The legal group
completed the drafting of almost all the constitutive instruments although some
doubts still remained. Firstly, even if consensus was reached with regard to the
legal effects of the HQA, which would enter into force only when the Measure,
establishing the Secretariat, was approved by all the ATCPs, controversy contin-
ued over the issue of who should sign this agreement on behalf of the contracting
13
Art. 2 of the Draft Headquarters Agreement, annexed to the Report of the Chairman of the
Working Group on the Antarctic Treaty Secretariat, done in Warsaw on 19 September 2002.
14
See para. 40 of the Final Report of the XXV ATCM.
15
Some proposals for the regulation of the budget of the Secretariat were set down in a pa-
per, presented by Argentina and Australia. See XXV ATCM/WP 046.
16
These different criteria of cost-sharing and their possible application were highlighted by
Professor Francioni at the Wilton Park’s conference. See FRANCIONI, cit. supra note 6.
States. Moreover, the status of the Secretariat’s staff was uncertain. Although it
was clear that staff could not be considered employees of any State party to the
Antarctic Treaty, including Argentina, some Parties did not want to define these
employees as international civil servants.17 Finally, the problem of the interses-
sional functioning of the Secretariat was still unresolved. Since the Secretariat is an
organ of the ATCM, which is not a permanent entity, questions arose about whom
the Secretariat should consult in cases of uncertainty on how to act during the peri-
ods between two consecutive consultative meetings. It is evident that all the doubts
that remained were due to the concern of some Parties that the recognition of the
autonomy of the ATCM would entail a preliminary step towards the establishment
of an international organisation for Antarctica.
The second group had the hard task of resolving the problem of the financing
of the Secretariat.18 It achieved a very important goal: consensus on the rationale
on which cost sharing would be based. The Parties agreed that national contribu-
tions would be divided into two parts (the percentage of each part was not de-
cided): one part would be paid in accordance with the criterion of equal sharing,
the other part under other criteria such as the scale of Antarctic scientific activi-
ties (as is provided for with regard to the financial contributions of the Scientific
Committee on Antarctic Research-SCAR) and each country’s actual capacity to
pay.19
Another important point concerning financial issues, which was stressed in
Buenos Aires, was that Parties should declare in advance if, and if so, what amount,
they would make contributions to the budget of the Secretariat. Such information
was necessary in order to determine, firstly, the amount of the variable part of
States’ contributions and, secondly, the type and the extent of the expenses that the
Secretariat could afford with the available funds.
The Report of the Chairman of the Second Informal Meeting of Buenos Aires
highlighted the above-mentioned, still-pending points. Moreover, it had eight an-
nexes that respectively corresponded to: 1) a draft Measure for the establishment
of the Secretariat; 2) the draft HQA; 3) a draft Decision on the interim functioning
of the Secretariat; 4) the draft Financial Regulations; 5) the draft Staff Regulations;
6) a proposal of the provision (Art. 4) of the Measure, that established the general
duty of Parties to contribute to the Secretariat’s budget on the basis of the double
criterion of equal and variable cost-sharing; 7) a draft Decision for the apportioning
of contributions; and 8) the SCAR scale of contributions as a possible example for
the future scale of contributions of the Secretariat.
17
Strong objections relating to the issue of the status of the Secretariat’s staff were raised,
in particular, by Norway.
18
This group took the name of Committee of the Whole and was chaired by Mr. Jan Huber
of the Dutch Delegation.
19
One must highlight that this solution had been already suggested by Professor Francioni at
the Wilton Park’s conference. See FRANCIONI, cit. supra note 6.
This report was presented at the XXVI ATCM, held in Madrid in 2003, as a
working paper of the Working Group on the establishment of the Secretariat.20 The
ATCM devoted the first week of the meeting to the issue of the establishment of the
Secretariat. The Meeting also elected Professor Francioni as the Chairman of the
Working Group. In order to resolve the controversial issues that still existed, the
Chairman established small contact groups that included those Parties, which had
conflicting positions. Although such effort implied long and intense negotiations, it
led to the approval of the very problematic question concerning the person that had
to sign the HQA on behalf of the ATCPs. The States that, in Warsaw, had rejected
the idea that this agreement could be concluded between Argentina and the ATCM
(considering that this power of the ATCM would change the nature of the ATS by
transforming it into a sort of international organisation), withdrew their reserva-
tions by stating clearly that nothing in the HQA could be construed as modifying
the ATCM’s status as defined in Art. IX of the Antarctic Treaty. The redrafted text
of the HQA was approved by the ATCM and annexed to the Measure establishing
the Secretariat.
Further contact groups were created by Professor Francioni in order to deal
with both financial matters21 and the problem of the functioning of the Secretariat
in the interim period before the approval, by all the ATCPs, of the Measure estab-
lishing this organ.22
The “financial” group developed the fruitful results achieved at the second
Buenos Aires meeting. Firstly, consensus was reached with regard to the percent-
age of 50% that would determine the equal part and the variable part of States’
contributions. Secondly, the Parties agreed that the criterion for determining the
variable part of the contributions would not make reference to the SCAR scale, but
would be based on the extent of national Antarctic activities, taking into account
the capacity of each State to pay.23 For this purpose, five categories of contributors
were established to which each State could freely choose to belong. Finally, the
“financial” group formulated an initial scale of contributions that was added to the
Decision concerning the provisional functioning of the Secretariat.
The contact group that had the task of drafting the decision concerning the
interim period regime dealt with some important points: a) the functioning of the
Secretariat during the interim period, which should take place, as far as possible,
in accordance with the provisions concerning the definitive establishment of the
20
XXVI ATCM/WP 05.
21
This group was chaired by Mr. Jan Huber of the Dutch Delegation.
22
The group that dealt with the issue of the interim functioning of the Secretariat was chaired
by Mr. Michel Trinquier of the French Delegation. For an analysis of the work of this group, see
the Report of the Chairman of Working Group 1 on the Secretariat of the Antarctic Treaty, XXVI
ATCM/IP 125.
23
India presented a paper in order to stress the view that the actual capacity of the Parties to
pay had to be assessed by each Party. See XXVI ATCM/IP 110.
Secretariat; b) the provisions for the initial financing of the Secretariat on the basis
of voluntary contributions, which should ensure some certainty in the estimation
of the budget of the Secretariat; and c) the acceptance of the offer of the Argentine
Republic to apply the HQA provisionally, which consisted of a letter of commit-
ment from the Argentine Republic. This letter was annexed to the Decision on
provisional application of the Measure establishing the Secretariat.
Finally, Financial and Staff Regulations were taken into account. In particular,
the latter had a still-pending issue concerning the status of the Secretariat’s staff.
The ATCM decided to avoid the expression “international civil servants” in order
to satisfy the exigencies of those Parties that could not accept, under their national
legislation, that an international employee could exist without being associated
with an international organisation. In this case, the bifocal approach demonstrated
its effectiveness in resolving the problem of the legal nature of the ATCM and its
organ in the manner that it did, in 1959 during the negotiations of the Antarctic
Treaty, in order to deal with the issue of sovereignty claims over Antarctica.
By contrast, the issue concerning consultations during the intersessional periods
has remained unsettled. Although in Madrid most Parties highlighted the need to
have a common convenor to coordinate such consultations, none of them considered
necessary to establish a permanent body, such as a standing committee, from which
the Secretariat could seek advice. Other Parties stressed the importance of conferring
with all Consultative Parties in some cases.24 The Chairman highlighted that this could
now be facilitated by the use of electronic instruments of communication. The issue
of intersessional consultations will continue to be discussed at the next ATCMs.25
In short, the instruments that were adopted by the XXVI ATCM, to establish
the Secretariat, are: a) Measure 1(2003) on the “Secretariat of the Antarctic Treaty”,
with an Annex containing the “Headquarters Agreement for the Secretariat of the
Antarctic Treaty”; b) Decision 1(2003) on “Apportioning Contributions to the Sec-
retariat of the Antarctic Treaty”, with a Schedule on “Method for Calculating the
Scale of Contributions”; c) Decision 2(2003) on “Provisional application of Meas-
ure 1 (2003)”, with one Annex on “Initial Scale of Contributions to the Budget of
the Secretariat of the Antarctic Treaty”, and another Annex containing a “Letter of
Commitment of the Argentine Republic”; d) Decision 3(2003) on “Staff Regula-
tions of the Secretariat of the Antarctic Treaty”, with an Annex of the said “Staff
Regulations”; e) Decision 4(2003) on “Financial Regulations for the Secretariat of
the Antarctic Treaty”, with an Annex of the said “Financial Regulations”.26
24
In regard to the issue of intersessional consultations, see para. 24 of the Final Report of
the XXVI ATCM.
25
At the XXVII ATCM, held in Cape Town in May 2004, Japan, Argentina, and Aus-
tralia made some proposals relating to intersessional consultations. However, no agreement was
reached by the Consultative Parties.
26
These documents were annexed to the Final Report of the XXVI ATCM: Measure 1(2003)
is in Annex A; Decisions 1, 2, 3, and 4 are in Annex B.
The newly established Secretariat of the Antarctic Treaty is a small organ that
has mainly administrative functions. Its fundamental tasks are to facilitate the or-
ganisation of the ATCMs and to support both the ATCM and the Committee on
Environmental Protection (CEP). It also ensures that records are kept of all the acts
adopted during the meetings, assists the ATCM in revising the Recommendations,
adopted under Art. IX of the Antarctic Treaty,27 and updates the Handbook of the
Antarctic Treaty System, which is a publication that collects all the Antarctic acts.28
For these purposes, it is going to substitute the Depositary State of the Antarctic
Treaty, which is the United States. Moreover, it will be a channel for the exchange
of information between the ATCPs, but it will also contribute to the dissemination
of information concerning the ATS and the activities of the State Parties in Ant-
arctica with respect to the whole international community. The peculiarity of the
Secretariat mainly consists in the fact that it is an organ without a body.29 In fact,
the ATCM, on the authority of which the Secretariat strongly depends, consists of
the representatives of the ATCPs that meet yearly. Nevertheless, one can observe
that the creation of this organ will transform many bilateral or multilateral State
relationships into supranational contacts. For example one can mention the new
manner in which the exchange of information will be carried out, in particular with
regard to the reports that States Parties must annually present to the CEP under Art.
17 of the Madrid Protocol and the information concerning monitoring activities.
The function of the Secretariat of collecting these data can be considered an initial,
although extremely simplified, form of supranational control.30
One must admit that the independence of the Secretariat is considerably lim-
ited. In fact, it has legal personality and capacity only to perform its functions in
27
Since 2001 a contact group has reorganised the measures that were adopted by the ATCM
before the approval of Decision 1(1995). This contact group, chaired by the Dutch Delegation,
was established by Resolution 1(2001) during the XXIV ATCM, held in St Petersburg. See Ant-
arctic Handbook, cit. supra note 5, p. 130.
28
So far, the Antarctic Handbook has not been a legal source, but it has only had an instru-
mental character. So, the legal acts that are included in the Handbook cannot be considered au-
thoritative copies of the measures adopted by the ATCM. The authoritativeness of such measures
derives from their inclusion in the final reports of the ATCMs. When the Secretariat, which is an
organ of the ATCM, takes care of collecting Antarctic instruments, the copies of the Antarctic
acts that it will disseminate will indisputably have an authoritative status.
29
Actually, other international treaties, such as the Convention on Climate Change, have a
secretariat to which no international organisation corresponds (the Climate Change Convention
was signed in Rio on 9 May 1992, ILM, 1992, p. 849 ff.). The Climate Change Secretariat coop-
erates with the Conference of the Parties, which is not a permanent international institution. Nev-
ertheless, one must observe that the Climate Change Convention and its Secretariat are strictly
connected with the UN. In fact, this Secretariat was established by a common deliberation of the
Conference of the Parties and the UN General Assembly. Therefore, the regime, which originated
from the Climate Change Convention, has an international organisation to which it can, at least,
make reference. By contrast, the ATS cannot rely on any international entity. For an analysis of
the different types of secretariats, see FRANCIONI, cit. supra note 6.
30
For this view see ibid.
Argentina. Moreover, such capacity can only be exercised to the extent authorized
by the ATCM. However, the Secretariat, as such, enjoys privileges and immunities
as an organ of the ATCM. The privileges and immunities of its staff correspond to
the privileges and immunities of diplomatic personnel.31 Until the Measure enters
into force, Decision 2(2003) obliges the Secretariat to apply the Measure, the Staff
Regulations and the Financial Regulations on a provisional basis, to the extent that
this is possible.
The creation of such organ does not correspond to the complete institutionalisa-
tion of the ATS in the same way as the establishment of the CEP by the Madrid Pro-
tocol has not completely filled the lacuna of an international system of supervision
within the Antarctic regime.32 Nevertheless, considering the significantly different
views of States Parties and the long and intense negotiations that were necessary to
achieve this goal, one must conclude that the establishment of the Secretariat has
been perceived as an act of major political and diplomatic importance. Its existence
and functioning will certainly contribute to the development of a legal regime,
such as the ATS, that has so far been quite successful. This is captured in Professor
Francioni’s remarks, in his Report as the Chairman of the Working Group on the
Secretariat of the Antarctic Treaty, that the establishment of such an organ is proof
of “the will of all Consultative Parties to move toward further strengthening of the
mechanism of international cooperation represented by the Antarctic Treaty”.
31
A controversial issue that was not resolved in Madrid concerns the possibility of the Secre-
tariat and its Staff of enjoying privileges and immunities in the country which hosts the ATCM. In
fact, States Parties host the annual meetings, following the English alphabetic order. The ATCM
did not extend such immunities of the Secretariat to countries other than Argentina. It let each
party choose whether or not to recognise these privileges vis-à-vis the Secretariat. This problem
was raised by Professor Francioni in his paper, presented at the Wilton Park’s conference and still
seems to call for a solution. See ibid.
32
For the view that the institutionalisation of the ATS is scarce and ineffective, see SCOTT,
cit. supra note 3, p. 477.
THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (2003)
TULLIO TREVES*
1. During 2003 certain developments, not connected with cases, are related
to the composition of the Tribunal, the policy concerning its jurisdiction and its
financial regulations.1
The composition of the Tribunal underwent a change. After less than one year
of tenure, Judge Lennox Fitzroy Ballah of Trinidad and Tobago passed away on
29 March 2003. He was replaced by Mr. Anthony Amos Lucky, of Trinidad and
Tobago also, elected by a Special Meeting of State Parties to the United Nations
Convention on the Law of the Sea convened on 2 September 2003.
As regards the general problems that the Tribunal is facing, in a statement
made at the Plenary Meeting of the UN General Assembly on 24 November 2003,
the President of the Tribunal, Judge L. Dolliver M. Nelson, took the opportunity to
make some remarks concerning the potential of the Tribunal to exercise jurisdiction
under the Law of the Sea Convention. He stated that:
“32 States Parties have made written declarations relating to the set-
tlement of disputes under Article 287 of the Convention and that 19
States Parties have chosen the Tribunal as the means or one of the
means for the settlement of disputes concerning the interpretation or
application of the Convention. It is to be hoped that an increasing
number of States will utilize the possibility offered by Article 287 of
the Convention of choosing means for the settlement of disputes con-
cerning the interpretation or application of the Convention as stated
in the draft resolution. Another alternative that States may use is to
confer jurisdiction on the Tribunal through international agreements.
Several such multilateral agreements have already been concluded”.
He then remarked:
“[T]he cases dealt with by the Tribunal to date have been largely con-
*
Judge at the International Tribunal for the Law of the Sea; Professor of International Law,
University of Milano “Statale”.
1
We will use “the Tribunal” as an abbreviation for the International Tribunal for the Law of
the Sea; however, in some quotations in the text the abbreviation “ITLOS” is used. For previous
reviews, see TREVES, “The International Tribunal for the Law of the Sea (1996-2000)”, IYIL,
2000, pp. 233-240 (TREVES, “ITLOS 1996-2000”); ID., “The International Tribunal for the Law
of the Sea (2001)”, IYIL, 2001, pp. 165-174 (TREVES, “ITLOS 2001”); ID., “The International
Tribunal for the Law of the Sea (2002)”, IYIL, 2002, pp. 207-218 (TREVES, “ITLOS 2002”).
fined to instances where the Tribunal has been granted special jurisdic-
tion – the prompt release of vessels and crews and the prescription of
provisional measures. It is fitting for me to bring to the attention of the
Distinguished Delegates that the Tribunal has competence under the
Convention, and remains ready, to resolve a much wider range of dis-
putes concerning the interpretation or application of the Convention”.2
As far as the Financial Regulations are concerned, they were adopted at the 13th
Meeting of the State Parties to the UN Law of the Sea Convention in 2003.3 They
are the result of work undertaken by the Tribunal (especially the Registry and the
Financial Committee) on the basis of discussions held over various sessions of the
Meeting of State Parties.4 Up to their entry into force, the Financial Regulations of
the United Nations have been applied mutatis mutandis. The main new element is
that: “The financial period shall consist of two consecutive calendar years, begin-
ning with the year 2005” (Article 2). As for the budget for 2004, submitted in 2003,
it will be the last one-year budget submitted to the Meeting of the State Parties.
2. As regards case-related activities, in 2003 the Tribunal decided only one

case. This is the Case concerning Land Reclamation by Singapore in and around
the Straits of Johor (Malaysia v. Singapore).5 The dispute was submitted by Malay-
sia to an arbitration tribunal to be constituted under Annex VII to the Convention
on 4 July 2004 (the Annex VII tribunal). Arbitration was the only possibility for a
unilateral application, as neither Malaysia nor Singapore had made a declaration
under Article 287. The Law of the Sea Tribunal (the Tribunal) was requested to
prescribe provisional measures under Article 290, para. 5, of the Convention. It
read out its Order on 8 October 2003.6
In previous cases, in which the Tribunal had had to deal with requests for pro-
visional measures under Article 290, para. 5 (the Saiga case,7 the Southern Bluefin
2
Paras. 15 and 16 of the speech on agenda item 52(a), available on the Tribunal’s website
http://www.itlos.org.
3
The text can be read in Doc. SPLOS/2003/WP.3, available on the Tribunal’s website.
4
For a summary of the procedure followed, see International Tribunal for the Law of the Sea
Yearbook, 2001-2003, p. 64.
5
The decisions of the Tribunal as well as written and oral pleadings concerning this case,
as well as the other cases submitted to the Tribunal, are available on the Tribunal’s website. The
publication in printed form appears in ITLOS Reports of Judgments, Advisory Opinions and
Orders.
6
The Order is available on the Tribunal’s website and in ITLOS Reports of Judgments,
Advisory Opinions and Orders, 2003, p. 10. It was adopted unanimously. President Nelson and
Judge Anderson appended Declarations. Ad hoc Judges Hossain and Oxman appended a Joint
Declaration and Judges Chandrasekhara Rao, Ndiaye, Jesus, Cot and Lucky appended Separate
Opinions.
7
TREVES, “ITLOS 1996-2000”, cit. supra note 1, p. 235.
THE LAW OF THE SEA TRIBUNAL (2003) 159
Tuna cases8 and the MOX Plant case),9 the request for provisional measures was
submitted to the Tribunal on the same day as the notification instituting proceedings
before the arbitration tribunal. In this case, however, the request was not submitted
until 2 months (from 4 July to 5 September) had elapsed since that date. As will be
seen later, this caused unusual time constraints for the Tribunal and had an impact
on the discussion in relation to the question of the urgency of the measures.
The case, as submitted by Malaysia to the Annex VII arbitral tribunal, con-
cerned, firstly, the delimitation of an area of territorial sea located between certain
points set out by the parties in their Agreement of 7 August 1995, although no
action to delimit the area was taken in the end. Secondly, Malaysia requested a
declaration that Singapore had breached its obligations under the Law of the Sea
Convention and under general international law by its initiation and continuation
of land reclamation activities without due notification and full consultation with
Malaysia. As a consequence of these breaches, Malaysia requests, inter alia, sus-
pension of land reclamation activities until an adequate impact assessment has been
published, and that Singapore afford Malaysia all relevant information and revise
its land reclamation plans in accordance with the results of the assessments (para.
22 of the Order). The provisional measures requested by Malaysia of the Law of the
Sea Tribunal consisted of requiring that Singapore: a) suspend its land reclamation
activities in the vicinity of the maritime border with Malaysia or in areas claimed
by it; b) provide Malaysia with full information on current and projected works; c)
afford Malaysia full opportunity to comment on the works; and d) agree to negoti-
ate with Malaysia on all remaining unresolved issues (para. 23 of the Order).
The Order of the Tribunal is particularly interesting as regards the determina-
tion of prima facie jurisdiction, the assessment of the urgency of the measures and
the contents of the measures prescribed.
3. Singapore argued that the Annex VII tribunal lacked prima facie jurisdiction
in light of Article 283, para. 1, of the Convention, which requires, when a dispute
arises, that “the parties to the dispute shall proceed expeditiously to an exchange of
views regarding its settlement by negotiation or other peaceful means”.
In fact, as it emerges from the Tribunal’s Order, Malaysia had on several oc-
casions notified Singapore of its concerns regarding the latter’s land reclamation
works, and requested meetings with senior officials, while Singapore had replied
that it would be ready to negotiate only once Malaysia had specified its concerns.
Only after Malaysia had instituted proceedings by requesting the constitution of
the Annex VII arbitral tribunal did Singapore propose a meeting. Malaysia agreed
to participate under the condition that it would be without prejudice to its right to
8
Ibid., p. 237.
9
TREVES, “ITLOS 2001”, cit. supra note 1, p. 169.
proceed with the arbitration. The meeting was held on 13 and 14 August 2003. A
few days later, Malaysia notified Singapore that it would not continue the discus-
sions unless Singapore suspended its reclamation works.
The Tribunal remarked that the discussions of 13-14 August 2003 were held
after Malaysia had instituted proceedings and that: “[A]ccordingly, the decision of
Malaysia to discontinue the discussion does not have a bearing on the applicability
of article 283 of the Convention” (para. 50).
Recalling statements made in the Southern Bluefin Tuna10 and MOX Plant cas-
es, according to which “a State Party is not obliged to continue with an exchange
of views when it has concluded that the possibilities of reaching agreement have
been exhausted”,11 the Tribunal stated that: “in the circumstances of the present
case Malaysia was not obliged to continue with an exchange of views when it
concluded that the exchange could not yield a positive result” (para. 48), and that,
consequently, the requirement of Article 283 was satisfied (para. 51).
Singapore argued that, after Malaysia’s acceptance of Singapore’s proposal
to negotiate, “a consensual process of negotiation had commenced” and that “as
a legal consequence, both States had embarked upon a course of negotiation un-
der article 281 of the Convention in an effort to arrive at an amicable solution of
the dispute between them” (para. 53).12 This meant, in Singapore’s opinion, that
the parties had excluded “any further procedure” and that the Annex VII arbitral
tribunal lacked jurisdiction.13 The Tribunal dismissed this contention (which is
reminiscent of arguments developed in the Annex VII arbitral tribunal award of
2000 on the Southern Bluefin Tuna cases)14 by observing that the parties had agreed
that the discussions in August 2003 would be without prejudice to Malaysia’s right
10
Order of 27 August 1999, para. 60, ITLOS Reports of Judgments, Advisory Opinions and
Orders, 1999, p. 295.
11
Order of 3 December 2001, para. 60, ITLOS Reports of Judgments, Advisory Opinions
and Orders, 2001, p. 107.
12
Article 281, para. 1, reads as follows: “If the States Parties which are parties to a dispute
concerning the interpretation or application of this Convention have agreed to seek settlement
of the dispute by a peaceful means of their own choice, the procedures provided for in this Part
apply only where no settlement has been reached by recourse to such means and the agreement
between the parties does not exclude any further procedure”.
13
See the pleading of Professor Michael Riesman, counsel for Singapore, on 26 September
2003, Doc. ITLOS/PV/03/03, p. 35. It reads, in part: “From a legal standpoint, Malaysia com-
menced a process of negotiation under Article 281. Singapore, as part of the negotiations, made
materials available that it would not otherwise have had to. Malaysia took the materials and then
disrupted the negotiations before there was a sufficient opportunity to explore whether those
negotiations, if conducted in good faith, could produce an amicable settlement of differences,
including resolving the question of the suspension of works. Having selected a mode of dispute
resolution, Malaysia cannot unilaterally terminate it without the consent of Singapore before the
negotiation has an opportunity to achieve a settlement”.
14
Southern Bluefin Tuna cases (Australia and New Zealand v. Japan), Award on Jurisdiction
and Admissibility of 4 August 2000, ILM, 2000, p. 1359, espec. paras. 56-59.
to proceed with the arbitration and to its request for provisional measures to the
Tribunal (para. 56).
Consequently, as “no other objection to jurisdiction ha[d] been raised by Singa-
pore” (para. 58), the Tribunal found that the Annex VII arbitral tribunal would have
prima facie jurisdiction (para. 59).
4. Various questions arose as regards the requirement of the urgency of provi-

sional measures, specifically mentioned in Article 290, para. 5, of the Law of the
Sea Convention.
Firstly, Singapore contended that there was no need to prescribe provisional
measures as, according to Annex VII, the arbitral tribunal had to be constituted
not later than on 9 October 2003. In fact, the time used for the negotiations of
August 2003 (held, as remarked, after the request for the establishment of the
arbitral tribunal) had compressed the time available for such establishment ac-
cording to Annex VII, Article 3. The hearings before the Tribunal were held on
25, 26 and 27 September 2003, so that it was evident that only a very short time
would elapse between the date of the reading of the Order and 9 October, the latest
date on which the President of the Tribunal could announce the composition of the
Annex VII arbitral tribunal.15 The Tribunal dismissed this argument of Singapore
considering that:
“[U]nder article 290, paragraph 5, of the Convention, the Tribunal is

competent to prescribe provisional measures prior to the constitution
of the Annex VII arbitral tribunal, and […] there is nothing in article
290 of the Convention to suggest that the measures prescribed by the
Tribunal must be confined to that period” (para. 67);
“[…] the said period is not necessarily determinative for the assess-
ment of the urgency of the situation or the period during which the
prescribed measures are applicable and […] the urgency of the situa-
tion must be assessed taking into account the period during which the
Annex VII arbitral tribunal is not yet in a position to ‘modify, revoke
or affirm those provisional measures’” (para. 68).
Implicitly recalling that provisional measures prescribed under para. 5 of Arti-

cle 290 of the Convention in the Southern Bluefin Tuna cases had been revoked by
the Annex VII arbitral tribunal as from the date of the award of the latter,16 and that
15
In fact, less than 24 hours elapsed between the reading of the Order on 8 October and the
announcement of the composition of the arbitral tribunal on 9 October.
16
Award of 4 August 2000, cit. supra note 14, paras. 66, 67 and 72(2).
in the MOX Plant case they had been affirmed by the Annex VII arbitral tribunal,17
the Tribunal considered further that “the provisional measures prescribed by the
Tribunal may remain applicable beyond that period” (para. 69).
The Tribunal then dismissed Malaysia’s claim for provisional measures in
relation to the suspension of those land reclamation works conducted in areas of
the territorial sea claimed to be Malaysia’s. In the view of the Tribunal, “the exist-
ence of a claim to an area of territorial sea is not, per se, a sufficient basis for the
prescription of provisional measures under article 290, para. 5, of the Convention”
(para. 71).
The Tribunal added that:
“[T]he evidence presented by Malaysia does not show that there is a

situation of urgency or that there is a risk that the rights it claims with
respect to an area of territorial sea would suffer irreversible damage
pending consideration of the merits of the case by the Annex VII ar-
bitral tribunal” (para. 72).
Malaysia’s main contention was that Singapore had breached a number of obli-
gations arising from provisions of the Convention concerning the protection of the
environment (Articles 123, 192, 194, 198, 200, 204, 205, 206 and 210) “and the
precautionary principle, which under international law must direct any party in the
application and implementation of those obligations”(para. 74). Singapore argued
in response that there was “no room for applying the precautionary principle for the
prescription of provisional measures” (para. 75).
The hearings brought about a certain simplification of the areas of disagree-
ment. The Tribunal placed on record a number of “assurances” and “commitments”
made by Singapore in its oral pleadings (see paras. 81 and 88 of the Order). These
included: the confirmation of an offer to share information; the offer of full oppor-
tunity to comment on the reclamation works; the readiness and willingness to ne-
gotiate; the readiness to re-examine its works and to consider necessary and proper
steps, including suspension, if Malaysia could point to “some specific and unlawful
effect”; the acceptance of a proposal by Malaysia that the two countries jointly
sponsor and fund a scientific study by independent experts; and that pending the
completion of the joint study “no irreversible action would be taken” as regards the
stone revetment around Area D (which was of particular concern to Malaysia).18
Singapore qualified its commitments stating that they were without prejudice
to the right of continuing reclamation works to be conducted, however, “in accord-
17
Permanent Court of Arbitration, The MOX Plant case, Arbitral Tribunal Constituted Pur-
suant to Article 287 and Annex VII of the UN Law of the Sea Convention, Order of 24 June 2003,
Suspension of Proceedings and Request for further Provisional Measures, ILM, 2003, p. 1187,
para. 64 of the reasons and para. 2 of the operative part. See also infra section 6.
18
See paras. 76-80 and 85-87 of the Order.
ance with international best practice and the rights and obligations of both parties
under international law” (para. 89). The Tribunal commented that:
“[H]aving regard to the obligation of the parties not to aggravate the

dispute pending its settlement, the parties have the obligation not to
create an irremediable situation and in particular not to frustrate the
purpose of the study to be undertaken by a group of independent ex-
perts” (para. 90).
The Tribunal then went on to state that the two parties “share the same marine
environment in and around the Straits of Johor” (para. 91), and repeated the state-
ment made in the MOX Plant case that:
“[T]he duty to cooperate is a fundamental principle in the prevention

of pollution of the marine environment under Part XII of the Con-
vention and general international law and […] rights arise therefrom
which the Tribunal may consider appropriate to preserve under article
290 of the Convention”.19
In responding to the claim by Malaysia that Singapore’s land reclamation

works had “affected Malaysia’s rights to the natural resources within its territorial
sea and violated its rights to the integrity of the marine environment in those areas”
and to the opposite view of Singapore that the land reclamation works “have not
caused any significant impact on Malaysia and that the necessary steps were taken
to examine possible adverse effects on the surrounding waters” (paras. 93-94), the
Tribunal continued its argument along the pattern inaugurated in the MOX Plant
Order by placing commitments on record. While not accepting the claimant’s view
that there was urgency to prescribe measures for preserving the marine environ-
ment,20 it stated, however, that rights that may be considered appropriate for pro-
tection by provisional measures may derive from the violation of the obligation of
cooperation.
After observing that “an assessment concerning the impact of the land reclama-
tion works on waters under the jurisdiction of Malaysia has not been undertaken
by Singapore” (para. 95), and that “it cannot be excluded that, in the particular
circumstances of this case, the land reclamation works may have adverse effects on
19
Para. 92 of the Order, quoting para. 82 of the MOX Plant case Order of 3 December 2001,
cit. supra note 12.
20
This point is made only partially (as regards measures concerning areas of territorial sea
claimed by Malaysia) in para. 72 of the order quoted supra in the main text. As far as the request
for the suspension of land reclamation works in other areas is concerned, the lack of proven
urgency is not set out explicitly in the order. It seems to be the unarticulated premise of the meas-
ures deriving from lack of cooperation prescribed by the Tribunal. See the Separate Opinion of
Judge Chandrasekhara Rao, para. 38.
the marine environment” (para. 96), the Tribunal stated that “in the view of the Tri-
bunal, the record of this case shows that there was insufficient cooperation between
the parties up to the submission of the Statement of Claim on 4 July 2003” (para.
97). The Tribunal ruled that, even though
“[T]he last public sitting of the hearing showed a change in the at-
titude of the parties resulting in the commitments which the Tribunal
has put on record, and that it is urgent to build on the commitments
made to ensure prompt and effective cooperation of the parties in the
implementation of their commitments” (para. 98);
“given the possible implications of land reclamation on the marine

environment, prudence and caution require that Malaysia and Singa-
pore establish mechanisms for exchanging information and assessing
the risks or effects of land reclamation works and devising ways to
deal with them in the areas concerned” (para. 99).
5. The above considerations are the basis for the operative part of the Order. It
consists, first of all, in the prescription of provisional measures, that, developing
the pattern inaugurated with the measures prescribed in the MOX Plant case, set out
a procedure to be followed cooperatively by the parties. The provisional measures,
designated as such and introduced by the term “prescribes”, are set out in para.
106(1) (the operative paragraph). They are as follows:
“Malaysia and Singapore shall cooperate and shall, for this purpose,
enter into consultations forthwith in order to:
(a) establish promptly a group of independent experts with the man-
date
(i) to conduct a study, on terms of reference to be agreed by Malaysia
and Singapore, to determine, within a period not exceeding one year
from the date of this Order, the effects of Singapore’s land reclama-
tion and to propose, as appropriate, measures to deal with any adverse
effects of such land reclamation;
(ii) to prepare, as soon as possible, an interim report on the subject of
infilling works in Area D at Pulau Tekong;
(b) exchange, on a regular basis, information on, and assess risks or
effects of, Singapore’s land reclamation works;
(c) implement the commitments noted in this Order and avoid any
action incompatible with their effective implementation, and, without
prejudice to their positions on any issue before the Annex VII arbitral
tribunal, consult with a view to reaching a prompt agreement on such
temporary measures with respect to Area D at Pulau Tekong, includ-
ing suspension or adjustment, as may be found necessary to ensure

that the infilling operations pending completion of the study referred
to in subparagraph (a)(i) with respect to that area do not prejudice
Singapore’s ability to implement the commitments referred to in
paragraphes 85 to 87”.
It has to be noted that this measure is in full conformity with the unprecedented
Joint Declaration by the two ad hoc Judges. In such declaration they state, inter
alia:
“What is most urgently required to protect the respective rights of the

parties pending a decision by the Annex VII arbitral tribunal is the
establishment of a joint process for addressing their most immediate
concerns in this regard that builds on their respective statements and
implements their duty to cooperate. Two elements are particularly
important. The first is the establishment of a common base of infor-
mation and evaluation regarding the effects of the land reclamation
projects that can command the confidence of both parties. The second
is that they are expected to consult with a view to reaching a prompt
agreement on such temporary measures with respect to Area D at
Pulau Tekong, including suspension or adjustment, as may be found
necessary to ensure that the infilling operations pending completion
of the joint study with respect to that area do not prejudice Singa-
pore’s ability to implement its commitments”.
It must be added that, according to the Separate Opinion of Judge Cot, the sus-
pension of the infilling in Area D would have been the most appropriate measure to
prescribe, even though in any case it was, in Judge Cot’s view, Singapore’s obliga-
tion. In his view, there is, in the Order, a certain degree of uncertainty as regards
the measure in which the infilling in Area D must be suspended or slowed down,
pending the result of the study by the group of experts.
The operative part of the Order also contains a paragraph 2, according to which
the Tribunal: “Directs Singapore not to conduct its land reclamation in ways that
might cause irreparable prejudice to the rights of Malaysia or serious harm to the
marine environment, taking especially into account the reports of the group of in-
dependent experts”.
This is the first time the Tribunal uses the term “directs” in the operative part
of an Order in proceedings on a request for provisional measures. The Tribunal, in
conformity with Article 290 of the Convention, ordinarily uses the operative term
“prescribes”, and has also used the term “recommends”.21 There is no explanation
21
See M/V “Saiga” No. 2, Order of 23 February 1998, ITLOS Reports of Judgments, Advi-
sory Opinions and Orders, 1998, p. 18, para. 51(2). See the Declaration of Judge Vukas, ibid.,
for the use of the term “directs” in the text of the opinion, nor in the declarations
and separate opinions. It could be argued that the fact that this paragraph is not
cast as a “provisional measure”, as para. 1 is, entails that this is not such a measure
and the binding effect set out in Article 290, para. 6, does not apply to it. It might,
nevertheless, be argued that the term “directs” has a strong compulsory meaning,
so that it is more difficult to contend that this provision has a lesser binding effect
than the one introduced by the term “prescribes”, in which case it would hold the
same meaning as regards a provision using the term “recommends”.
6. It seems relevant to indicate briefly the developments in 2003 of the MOX

Plant and Land Reclamation cases submitted to the Tribunal under Article 290,
para. 5. Especially as regards the MOX Plant case, these developments show very
interesting jurisprudential connections between different tribunals seized in differ-
ent phases of the same case.
As far as the MOX Plant case is concerned,22 pleadings on jurisdiction and on
the merits were exchanged by the parties (Ireland and the United Kingdom) before
the Annex VII arbitral tribunal23 in writing, and orally during hearings held in June
2003. The Tribunal did not, however, consider it possible to make an award on the
merits or even on jurisdiction. In its Order No. 3 of 24 June 200324 it decided to
suspend proceedings on jurisdiction and on the merits. It nonetheless made a deci-
sion on provisional measures.
The arbitral tribunal remarked that problems existed as a result of the fact that
both parties to the dispute are members of the European Community, which is it-
self a party to the Law of the Sea Convention. Among these questions there were
those of the standing of Ireland to institute proceedings in reliance upon the Con-
vention and of the United Kingdom to respond, and those concerning the division
of competences between the European Union and its Member States in respect to
the Convention, and the matters which, by agreement of the parties, are subject to
the exclusive jurisdiction of the European Court of Justice under European Com-
munity law. The arbitral tribunal observed that only the European Court of Justice
could determine which (or whether all) of the provisions on which Ireland relied
concerned matters in relation to which competence had been transferred to the Eu-
ropean Community. If the interpretation of the Convention between Member States
p. 41, para. 3, and also the Dissenting Opinion of Judge Eiriksson to Order of 27 August 1999 on
the Southern Bluefin Tuna cases, ITLOS Reports of Judgments, Advisory Opinions and Orders,
1999, p. 336.
22
For the proceedings for provisional measures before the Tribunal, see TREVES, “ITLOS
2001”, cit. supra note 1, pp. 169-173.
23
On whose composition, see TREVES, “ITLOS 2002”, cit. supra note 1, p. 207.
24
Available, with the text of written and oral pleadings, at http://www.pca-cpa.org. The order
is reprinted in ILM, 2003, p. 1187.
fell within the exclusive competence of the European Court of Justice, this would
exclude the arbitral tribunal’s jurisdiction by virtue of Article 282 of the Conven-
tion (see especially para. 20 of the Order).
The arbitral tribunal decided to suspend proceedings on the basis of the fol-
lowing further arguments, which seem as much relevant from the viewpoint of the
relationships between international tribunals as they are from that of the respective
competences of the European Community and its Member States. The Order of 24
June 2003 stated:
“Although it is possible that the Tribunal might conclude from

the arguments of the Parties that at least certain provisions of the
Convention do not fall within the exclusive jurisdiction and com-
petence of the European Communities in the present case, it would
still not be appropriate for the Tribunal to proceed with hearings on
the merits in respect of any such provisions. For one thing, it is not
at all clear at this stage that the Parties are able to identify with any
certainty what such provisions might be; and the Tribunal is in no
better position. For another, there is no certainty that any such pro-
visions would in fact give rise to a self-contained and distinct dis-
pute capable of being resolved by the Tribunal. Finally, the Tribunal
notes that, whatever the Parties may agree in these proceedings as
to the scope and effects of European Community law applicable in
the present dispute, the question is ultimately not for them to decide
but is rather to be decided within the institutions of the European
Communities, and particularly by the European Court of Justice”
(para. 26).
Furthermore,
“The Tribunal observes that the resolution of the essentially internal

problems within the European Community legal order may involve
decisions that are final and binding. The Tribunal further observes
that its decision, including a decision on jurisdiction, will be final and
binding on the Parties by virtue of Article 296 of the Convention and
Article 11 of Annex VII to the Convention” (para. 27);
“In the circumstances, and bearing in mind considerations of mutual

respect and comity which should prevail between judicial institutions
both of which may be called upon to determine rights and obliga-
tions as between two States, the Tribunal considers that it would be
inappropriate for it to proceed further with hearing the Parties on the
merits of the dispute in the absence of a resolution of the problems
referred to. Moreover, a procedure that might result in two conflicting
decisions on the same issue would not be helpful to the resolution of

the dispute between the Parties” (para. 29).
As regards provisional measures, the arbitral tribunal was seized with a request
of Ireland for the prescription of provisional measures further to those of the (Law
of the Sea) Tribunal. The arbitral tribunal observed that the fact that proceedings had
been suspended constituted a change of circumstances which “would, if necessary,
warrant modification of the provisional measures prescribed by ITLOS in accord-
ance with Article 290, para. 5, of the Convention” (para. 40). It then remarked that:
“Although the language of Article 290 is not in all respects identical

to that of Article 41 of the Statute of the International Court of Jus-
tice, the Tribunal considers that it should have regard to the law and
practice of that Court, as well as to the law and practice of ITLOS, in
considering provisional measures” (para. 41).
After observing that neither Article 290 of the Convention, nor Annex VII or
the Rules of Procedure of the arbitral tribunal expressly govern applications for the
prescription of provisional measures, and that in such a situation, under its Rules,
the arbitral tribunal shall decide only after consulting the parties, the Order states:
“In that connection, the Tribunal notes that according to Article 89,
para. 5, of the ITLOS Rules of Procedure, it is open to ITLOS to
prescribe measures different in whole or in part from those requested.
A similar provision is contained in Article 75, para. 2, of the Rules
of Court of the International Court of Justice. The Tribunal, having
drawn these provisions to the attention of the Parties without com-
ment from either, considers that it is also competent to prescribe pro-
visional measures other than those sought by any Party” (para. 43).
After these remarks, which seem significant as to the relevance of the Rules
of the Tribunal and of the ICJ in arbitral proceedings brought under the Conven-
tion, the Tribunal dismissed the request of new provisional measures sought by
Ireland. Even though the arbitral tribunal had before it a greater volume of material
than the Law of the Sea Tribunal had had, it did “not consider that such material
leads it to reach any different conclusion as to the question of discharges from the
MOX Plant, so far as it concerns the period prior to the decision on the merits”
(para. 61). Consequently, the arbitral tribunal was “not satisfied that in the present
circumstances there is an urgent and serious risk of irreparable harm to Ireland’s
claimed rights, which would justify it in prescribing provisional measures relating
to discharges from the MOX plant” (para. 62).
The arbitral tribunal did, however, affirm the provisional measures (consisting in
setting up a mechanism for cooperation) prescribed by the Law of the Sea Tribunal in
its Order of 3 December 2001 (point 2 of the operative paragraph). As it was “consist-
ent with the practice of ITLOS that each party should submit reports and information
on compliance with the Tribunal’s Order” (para. 68), it requested the parties to report
on compliance with the provisional measures (point 7 of the operative paragraph).
The Tribunal also requested the Parties “to take such steps as are open to them sepa-
rately or jointly to expedite the resolution of the outstanding issues within the institu-
tional framework of the European Communities; and to notify the Tribunal and each
other of all relevant developments” (point 6 of the operative paragraph).
Such reports were in fact submitted. In its Order No. 4 of 14 November 2003,25
the arbitral tribunal took note of the information provided by Ireland that the Euro-
pean Commission had decided to commence proceedings against Ireland in respect
of Community law issues, and that, according to a letter from Ireland’s Agent, “it
is apparent that the resolution of the Community law issues will have to await a
decision of the European Court of Justice”. Accordingly, it requested the tribunal
to suspend its proceedings until the European Court of Justice has given its judg-
ment. On this basis, the arbitral tribunal decided to suspend the proceedings until
the European Court of Justice has given its judgment or until the Tribunal otherwise
determines. The ITLOS provisional measures affirmed in Order No. 3 remain in
force, and so the obligations to report under such measures, to which is added the
decision that reports on the proceedings before the European Court of Justice must
be submitted. Both reports must be submitted every six months.
As regards the Land Reclamation by Singapore in and around the Straits of
Johor case, the Annex VII arbitral tribunal was designated, according to the pro-
visions of the said Annex, by the President of the Tribunal. It is composed of Mr.
M.C.W. Pinto (Sri Lanka, President), Mr. Kamal Hossein (Bangla Desh, appointed
by Malaysia), Professor Bernard H. Oxman (USA, appointed by Singapore), Pro-
fessor Ivan Shearer (Australia) and Sir Arthur Watts (United Kingdom). The Initial
Report on the implementation of the Tribunal’s Order, whose submission the Tri-
bunal had requested pursuant to Article 95, para. 1, of its Rules (in subpara. 3 of
the operative paragraph of its Order of 8 October 2003), for no later than 9 January
2004, was in fact submitted to the Law of the Sea Tribunal on that date by the two
parties jointly. This is unprecedented, as hitherto each party has submitted such re-
ports separately. In meetings held in November and December 2003 the parties set
up the “Group of Experts” mentioned in the provisional measures of the Tribunal,
and adopted detailed terms of reference for the Group and considered an initial
statement by Singapore on infilling in Area D. Moreover, the parties agreed on draft
Rules of Procedure for the Annex VII arbitral tribunal. The parties also envisaged
that pleadings on issues of substance before the Annex VII arbitral tribunal would
be deferred until completion of the work of the Group of Experts.
25
Order of 14 November 2003, Further Suspension of Proceedings on Jurisdiction and Mer-
its, available at http://www.pca-cpa.org.
THE ACTIVITY OF THE INTERNATIONAL LAW COMMISSION
DURING ITS 55TH SESSION
MASSIMO IOVANE*
I. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS
1. At the present session, the Commission considered and adopted draft Arti-
cles 1, 2 and 3 proposed by the Special Rapporteur, Giorgio Gaja. These articles
deal with general principles corresponding to those considered in chapter one of the
draft articles on “Responsibility of States for internationally wrongful acts”. The
Commission also adopted the commentaries to the said draft articles.
Article 1 defines the scope of the entire draft articles. They are limited to those
issues where an international organization may be held responsible under interna-
tional law. Therefore, the responsibility or liability of international organizations
according to municipal law is not covered by the draft articles. Similarly, the draft
articles will not concern questions of liability for injurious consequences not pro-
hibited by international law.
The cases in which an international organization incurs international responsi-
bility are dealt with in paragraph 1 of Article 1. The Commentary makes clear that
the normal case will be that of an organization directly committing an internation-
ally wrongful act. In addition, the Commentary envisages the rather theoretical
possibility that an international organization may be held responsible if it aids, as-
sists, directs, controls or coerces another organization or a State into committing an
internationally wrongful act. Lastly, responsibility arising from the commission of
an internationally wrongful act by another international organization of which the
first organization is a member is taken into consideration.
Paragraph 2 of Article 1 states that the draft will cover another question which,
in our opinion, is of more practical importance; namely, the responsibility of a State
for a wrongful act committed by an international organization of which it is a mem-
ber. In fact, in most cases it may prove difficult to distinguish with any precision
the activity of an international organization from that of its members. For instance,
operational activities of international organizations are often carried out by their
member States. Moreover, some international organizations do not possess a com-
plete institutional framework. Finally, the financial autonomy of an organization is
limited, and member States may thus be called upon to pay for loss and damages
caused by the organization’s wrongful activity.
Actually, relations between States and international organizations in the field of
international responsibility may turn out to be quite complex. A range of problems
*
Professor of International Law, University of Napoli “Federico II”.
are likely to arise, especially in connection with the attribution of an internationally

wrongful act. While declaring that the present draft should not include in principle
questions of attribution of conduct to a State, the Commission does not rule out the
possibility of elucidating some particular aspects in this regard. They include the ques-
tion of the responsibility of a State which aids, assists, directs, controls or coerces an
international organization in committing an internationally wrongful act, and the ques-
tion of a State or a State organ acting as an organ of an international organization.
2. Article 2 addresses the fundamental question of the definition of “interna-

tional organization” for all the purposes of the draft. There are three essential ele-
ments to the definition chosen by the Commission.
First of all, the term “international organization” refers to an international
organization established by a treaty or other instrument governed by international
law. According to the Commission, this definition is preferable to the other expres-
sion “intergovernmental organization” for several reasons, above all because an in-
creasing number of international organizations comprise entities other than States
as well as States among their members. This definition also makes it possible to
cover those international organizations which are established by States on the in-
ternational plane without a treaty, but through a resolution adopted by the General
Assembly of the United Nations or by a conference of States. On the other hand,
organizations set up through instruments governed by municipal law are totally
excluded from the present draft’s scope.
Secondly, the draft will consider only wrongful acts committed by those inter-
national organizations possessing international legal personality. As explained in
the Commentary, whether an international organization possesses legal personality
or not is a question to be decided through objective criteria. In other words, inter-
national legal personality is acquired by the sole fact that an international organi-
zation has been created, and is endowed with organs effectively carrying out the
organization’s institutional duties at the international level. No formal recognition
is required of that personality by the injured State before it may invoke the respon-
sibility of a given international organization. On the other hand, the legal personal-
ity of an organization which may give rise to the international responsibility of that
organization needs to be “distinct from that of its members”.
Thirdly, Article 2 points to the significant trend in practice, in which interna-
tional organizations increasingly have a mixed membership, constituted by States
and entities other than States, such as international organizations, territories, or
private parties.
3. Article 3 of the draft is modelled on Articles 1 and 2 of the articles on the

responsibility of States for internationally wrongful acts. It states the two essential
elements needed for an international wrongful act to occur. The first element is the
THE 55th SESSION OF THE INTERNATIONAL LAW COMMISSION 173
attribution of conduct to an international organization; the second is that conduct con-

stitutes the breach of an obligation under international law. Damage does not appear to
be a constituting element for international responsibility of an international organiza-
tion.
II. DIPLOMATIC PROTECTION
1. At the present session, the Commission considered the fourth report by the
Special Rapporteur, Christopher John R. Dugard, dealing with diplomatic protec-
tion of legal persons. It referred to the Drafting Committee Articles 17 to 22 of the
draft articles and provisionally adopted Articles 8, 9, and 10.
The basic rule on diplomatic protection of legal persons is set out in proposed
Article 17. It endorses the principle laid down by the International Court of Justice
in the Barcelona Traction case whereby the right of diplomatic protection in re-
spect of an injury to a corporation belonged to the State under whose laws the cor-
poration was incorporated and in whose territory it had its registered office, and not
to the State of nationality of the shareholders. Most members of the Commission
expressed the view that this formal and objective principle was a true reflection
of customary international law. Coherently, they excluded that the existence of a
genuine link should be considered a relevant factor for determining the nationality
of a corporation, while recognising that the genuine link criterion could have the
effect of discouraging the phenomenon of tax havens. According to the majority of
the Commission, the genuine link criterion would create difficulties not merely for
courts but also for States of investment.
On the other hand, it was pointed out that some States do not apply either the
place of incorporation or the place of registered office requirement. Hence, some
members emphasised the necessity of referring to other possible approaches in es-
tablishing the nationality of a corporation. This turned out to be a real problem for
the Commission. In fact, it had to suggest alternative non-formal links without, at the
same time, giving the impression of taking into account the nationality of the share-
holders controlling the corporation. To solve this problem, the Commission estab-
lished a Working Group which concluded its work by suggesting a rather ambiguous
wording to be referred to the Drafting Committee. Indeed, the formulation agreed by
the Working Group affirms that the State of nationality is the one according to whose
laws the corporation was formed and with which it has a sufficient (or close and per-
manent, administrative/formal) connection. Unless the conjunction “and” is replaced
by “or” one could get the false impression that a genuine link is effectively required
for a State to exercise diplomatic protection on behalf of a given corporation.
2. Articles 18 and 19 deal with exceptions to the general principles contained

in Article 17.
According to Article 18, the State of nationality of the shareholders is entitled

to exercise diplomatic protection on their behalf if the corporation has ceased to
exist in the place of its incorporation, or the corporation has the nationality of the
State responsible for causing injury to the corporation. In turn, Article 19 recog-
nises the right of the State of nationality of shareholders in a corporation to protect
them when they have been directly injured by the internationally wrongful act of
another State.
Of the two exceptions provided for by Article 18, only the first one met with
unanimous approval by the members of the Commission and was thus referred to
the Drafting Committee without great discussion. On the other hand, the second
exception attracted widespread criticism among the members of the Commission.
Many of them raised doubts as to whether it was already part of customary inter-
national law. As some members put it, the inclusion of the second exception in the
draft could result in long and complex proceedings and could lead to difficulties
with the rule of continuity of nationality, given that shares changed hands quickly.
At the end of the debate, the Special Rapporteur conceded that the second excep-
tion might not already be part of present customary law. Even if only as progres-
sive development, he insisted that it should nonetheless be referred to the Drafting
Committee. He also clarified that the exception in question should be used only as
a final resort, when there was no other solution provided for by the domestic order
of the wrongdoer State or in applicable bilateral and multilateral treaties.
The exception envisaged in Article 19 was formulated as a saving clause and
met with general approval in the Commission. It was considered to be none other
than the codification of a principle already set forth in the part of the draft articles
devoted to diplomatic protection of natural persons.
3. Article 20 proposed by the Special Rapporteur concerns the problem of con-

tinuous nationality of corporations. The solution envisaged by Dugard in this re-
gard requires that a State should be entitled to exercise diplomatic protection in re-
spect of a corporation only when it had been incorporated under its laws both at the
time of injury and at the date of the official presentation of the claim. However, a
problem may arise if the corporation ceases to exist in the place of its incorporation
as a result of an injury caused by an internationally wrongful act of another State.
In this case, which State is entitled to bring a claim on behalf of the corporation?
Should this right be vested in the State of nationality of the shareholders, or by the
State of nationality of the defunct corporation, or by both? The Special Rapporteur
expressed his opinion in favour of the latter alternative, which corresponded also
to the view put forward by some judges in Barcelona Traction. Some members
noticed, however, that this solution would be inconsistent with the one set out in
Article 18, where no locus standi to the State of nationality of the defunct corpora-
tion has been recognised. At the end of the debate, the Special Rapporteur recom-
mended that the text of Article 20 be referred to the Drafting Committee along the
lines he proposed, with the intention of harmonising this Article with Article 4 of
the draft about continuous nationality of natural persons.
4. Article 21 is a lex specialis clause. It states that the present articles do not
apply where the protection of corporations or shareholders is governed by special
rules of international law. What the Special Rapporteur had in mind when propos-
ing this provision was the great number of bilateral and multilateral agreements
in force on the protection of foreign investments. There was one major objection
raised by the members of the Commission with regard to Article 21. Many mem-
bers thought that diplomatic protection was a means disciplined by customary law
in order to protect individuals in the last resort. For this reason, it should not be
completely ruled out even when international treaties in force tend to avoid the
regime of diplomatic protection because of its discretionary nature. Some of them
expressed concern that the clause could even be interpreted in such a way so as to
exclude the application of the diplomatic protection of natural persons in the field
of human rights. In light of these concerns, the Commission decided to refer the
provision to the Drafting Committee with a view to having it reformulated and
located at the end of the draft articles as a “without prejudice” clause. One may
wonder why the Commission had not analysed this widespread treaty practice and
verified the possible formation of new customary principles on the relationship
between domestic courts and international proceedings in the field of the protection
of foreign investments.
5. Article 22 was proposed by the Special Rapporteur with a view to applying

the rules expounded in respect of corporations to other legal persons. This could be
the case of private universities, foundations and non-governmental organizations in-
creasingly involved in philanthropic work abroad in the field of health, welfare, envi-
ronment, and human rights. Dugard expressed the opinion that it was not possible to
draft articles dealing with diplomatic protection of every kind of legal person, as has
been done with regard to corporations. Indeed, there was no consistency or uniform-
ity among legal systems for the creation of a person by law. In such circumstances, he
thought that the only way forward was to focus attention on the corporation and then
insert a general clause which applied the principles laid down for corporation to other
legal persons. The Commission decided to refer the draft article to the Drafting Com-
mittee with a view to drafting a flexible provision, open to developments in practice
on the application of diplomatic protection to other legal persons.
6. As stated at the beginning of this section, the Commission also adopted the
texts of draft Articles 8, 9, and 10 with commentaries. They all concern the rule of
prior exhaustion of local remedies and the conditions of its application.
Article 8 codifies the general rule requiring the exhaustion of local remedies as
a prerequisite for the presentation of an international claim. Both natural and legal
persons are required to exhaust local remedies. Because the remedies available to a
foreign national inevitably vary from State to State, the Commission decided not to
provide an absolute rule governing all situations. In fact, paragraph 2 describes the
main kinds of remedies that must be exhausted in broad terms only. Both judicial
and administrative remedies must be exhausted. If the municipal law permits an
appeal to the highest court, such an appeal must be also brought in order to secure a
final decision in the matter. The injured foreign national is, however, only required
to exhaust such remedies which are available to him as of right and may result in
a binding decision. He is not required to approach the executive for relief in the
exercise of its discretionary powers.
The last important point discussed in the commentary concerns the argu-
ments that the foreign litigant must raise in order to satisfactorily lay the founda-
tion for an international claim. According to the Commission, he must raise all
the arguments he intends to raise in international proceedings in the municipal
proceedings. The foreign litigant must therefore produce the evidence available
to him to support the essence of his claim in the process of exhausting local rem-
edies. He cannot use the international remedy afforded by diplomatic protection
to overcome faulty preparation or presentation of his claim at the municipal law
level.
Article 9 enounces the classical principle that the exhaustion of local remedies
applies only to cases in which the claimant State has been injured “indirectly”,
through one of its nationals. It does not apply where the claimant State has been
directly injured, that is, when the injury has been caused to one of its organs, as-
sets, or symbols. In the case of a mixed claim, the Commission suggests that it is
incumbent upon the tribunal to examine the different elements of the claim and to
decide whether the direct or the indirect element is preponderant. Article 9 also
clarifies that a request for a declaratory judgement per se is not exempt from the
rule of exhaustion of local remedies.
The questions governed by subsequent Article 10 are far more complex. This
article codifies the exceptions to the local remedies rule. Article 10 envisages four
possible exceptions. Three of them deal with circumstances which make it unfair or
unreasonable to require that an injured foreign national exhaust local remedies; the
last one, provides for the possibility that the respondent State has waived compli-
ance with the local remedies rule.
First of all, it would certainly be unfair to claim the exhaustion of local rem-
edies when, regarding the legal system of the respondent State, there is no reason-
able possibility of an effective redress. The practice offers many examples when
this possibility may occur. Suffice it to mention the notorious lack of independence
of local courts, the existence of a consistent and well-established line of precedents
adverse to the foreign national in question, or the total inadequacy of the local sys-
tem of judicial protection.
Secondly, the requirement of local remedies may be dispensed with in cases in

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

ACTS NOT PROHIBITED BY INTERNATIONAL LAW (INTERNATIONAL LIABILITY
IN CASE OF LOSS FROM TRANSBOUNDARY HARM ARISING OUT OF HAZARDOUS
ACTIVITIES)
1. At the present session, the Commission examined the first report of the Spe-
cial Rapporteur, M. Pemmarajau Sreenivasa Rao, on the legal regime for the alloca-
tion of loss in case of transboundary harm arising out of hazardous activities.
It is worth reviewing, in particular, Part III of Rao’s report. It contains a set of

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

bers of the Commission. One may distinguish between general comments and
observations to single problems raised by the Rapporteur.
General comments by several members focused especially on the viability of
the topic. The discussion revealed the existence of divisions of opinions on the
feasibility of the project. In fact, some members maintained that the topic, par-
ticularly as it concerned the allocation of loss, was inappropriate for codification
and progressive development; while others stressed that the topic under discussion
overlaps with the rules on State responsibility for internationally wrongful acts.
Those who expressed themselves in favour of the codification, affirmed that it was
necessary to establish a link between prevention (which was the subject of the first
part of the draft articles on hazardous activities) and allocation of loss arising from
hazardous activities. It was exactly that link which underpinned the question of
compensation.
The issue of social costs was also raised during the general debate; the need
to take into account the effect of general compensation regime on encouraging or
discouraging certain beneficial activities was highlighted.
Concerning the comments on specific submissions, we may say that wide sup-
port was expressed only for some general principles such as the residual character
of the draft, the intention not to preclude the possibility of receiving better relief un-
der national law and the maintenance of the same threshold of “significant harm” as
in the draft articles on prevention. The other submissions met with less agreement.
At the end of the debate, the Special Rapporteur agreed that the various issues
raised needed further reflection. He committed to propose concrete formulations on
the different points in the course of the next report.
IV. UNILATERAL ACTS OF STATES
1. At the present session, the Commission considered the sixth report of the
Special Rapporteur, Victor Rodrìguez Cedeno. The report is mainly devoted to
one type of unilateral act, recognition, with special emphasis on the recognition of
States.
Before dealing with the topic of recognition, the Special Rapporteur reiterated
some general remarks on the subject of unilateral acts that he had already expressed
in his previous reports. He recalled the difficulties encountered by the Commission
in defining the nature of unilateral acts, due in particular to the fact that the practice
of States has not yet been sufficiently analysed. If it proved impossible to draft
specific rules of unilateral acts, he considered it not impossible to prepare some
guidelines based on general principles. Presumably (though the report is not very
clear on this point), in the Special Rapporteur’s opinion, these guidelines would
serve the sole purpose of stimulating coherent behaviour by States concerning the
nature and effects of a unilateral act. It is exactly on the basis of this practice that
he hopes to carry out the future work of codification and progressive development
of the topic in question. So, how long will it actually take for the codification of
unilateral acts to be completed?
The Rapporteur also pointed out that despite all the problems, some general prin-
ciples could already be agreed on. In the first place, a unilateral act must be formu-
lated by persons authorised to act at the international level and to bind the State they
represented. Secondly, the binding nature of a unilateral act might be based on a spe-
cific rule, acta sunt servanda taken from the pacta sunt servanda rule that governed
the law of treaties. According to the Special Rapporteur, it might also be stated as a
general principle that a unilateral act was binding on a State from the moment it was
formulated or the moment specified in the statement by which the State expressed its
will. Similarly, the act could not be modified, suspended or revoked unilaterally by its
author and its interpretation must be based on a restrictive criterion.
As far as recognition is specifically concerned, the Rapporteur stressed the
point that the effect of recognising a State or a certain situation as legally formed
is not always reached by emanating a formal act of recognition. He thus proposed
to exclude from the scope of the codification all those facts which could not be
considered as formal acts of recognition, such as implied recognition, silence, or
resolutions of international organizations. However, this decision seems to contra-
dict the subsequent findings by the same Special Rapporteur that there do not exist
any criteria governing the formulation of an act of recognition and that the form
taken by an act of recognition is of no importance.
Rodrìguez Cedeno also pointed out that, according to most scholars, the act of
recognition was declarative, and not constitutive, of the formation of a new State
and its legal personality. Why then bother to codify it? He also discussed the pos-
sibility that the recognising State must conduct itself in accordance with its state-
ment, as in the case of estoppel. Still, this possibility cannot be envisaged if the
legal effects of recognition or non-recognition have not been established first.
2. The debate which followed revealed the continued existence of strong diver-
gence among the members as to whether the topic of unilateral acts was ripe for
codification at all. Some rightly highlighted that the primary objective of a tentative
draft should not be to describe every aspect of the institution of unilateral acts, but
rather to determine what their legal effects were. Criticism was also levelled at the
Special Rapporteur because the main aspects of recognition had been dealt with on
the basis of very theoretical and abstract propositions instead of examining State
practice. Differing opinions were also expressed as to the means of future proceed-
ings. Having considered the different opinions expressed during the debate, one
gets the overall impression that the Commission has not gone any further in the
codification of the topic of unilateral acts.
It is perhaps exactly for this reason that at the present session the Commission
also decided to set up an open-ended Working Group. The Working Group was able
to adopt a compromise text and made recommendations on the method to be fol-

lowed in achieving the objectives defined in that text. Both the content of the text
and that of the recommendations seem to suggest that the work has to be started
again from the beginning!
As for the compromise text, it provides first of all for a general definition of
unilateral acts. These are conceived as statements expressing the will or consent
by which States purport to create obligations or other legal effects under interna-
tional law. Furthermore, the said text affirms that the study will also deal with the
conduct of States which, in certain circumstances, may create obligations or other
legal effects under international law similar to those of unilateral acts. In relation to
unilateral acts, the study will propose draft articles accompanied by commentaries;
whereas in relation to those other conducts, the study will examine State practice
and, if appropriate, adopt guidelines or recommendations.
Concerning the method of future work, the Working Group agreed that the next
report would be exclusively a presentation of State practice. The classification of
the assembled material should provide an answer to the fundamental issues sur-
rounding the topic, such as the nature of unilateral acts, the criteria for the validity
of the express or implied commitment of States, and the circumstances under which
any unilateral commitment may be modified and withdrawn.
All the proposals made by the Working Group were finally adopted by the
Commission.
V. RESERVATIONS TO TREATIES
1. At the present session the Commission considered the eighth report of the
Special Rapporteur, Alain Pellet, concerning the withdrawal and modification of
reservations and interpretative declarations as well as the formulation of objections
to reservations and interpretative declarations. It also referred some of the guide-
lines relating to the modification and withdrawal of reservations and interpretative
declarations (draft guidelines 2.3.5, 2.4.9, 2.4.10, 2.5.12, and 2.5.13) to the Draft-
ing Committee. Draft guidelines relating to specific aspects of the withdrawal of
reservations were only provisionally adopted.
The Special Rapporteur also proposed draft guidelines 2.6.1, 2.6.2 bis and
2.6.1 ter on objections to reservations. The Commission discussed these proposals
but did not adopt any guideline on that topic at the present session.
We will examine the draft guidelines on modification and withdrawal of reser-
vations first; once this analysis has been completed, we will follow the discussion
on the objections to reservations held by the Commission on the basis of Pellet’s
proposals.
Let us begin by recalling that, according to the Special Rapporteur, the enlarge-
ment of the scope of reservations is clearly similar to the late formulation. He thus
proposed that draft guideline 2.3.5 could simply refer to the rules applicable to the
late formulation of reservations. On the other hand, he proposed a draft guideline

2.5.12 stating that States can withdraw simple interpretative declarations whenever
they want, provided that it is done by a competent authority. Similarly, he consid-
ered that simple interpretative declarations may also be modified at any time and
proposed that draft guideline 2.4.9 should provide for this accordingly. On the other
hand, he deemed that the modification of a conditional interpretative declaration
should follow the regime applicable to the late formulation or strengthening of a
reservation and be subordinate to the lack of any objections by any of the other
Contracting Parties. This opinion is reflected in draft guideline 2.4.10. Finally, draft
guideline 2.5.13 on the withdrawal of a conditional interpretative declaration fol-
lows the rules relating to the withdrawal of reservations.
As stated at the beginning of this paragraph, all these draft guidelines were re-
ferred to the Drafting Committee by the Commission with minor formal improve-
ments.
2. Draft guidelines 2.5 to 2.5.11 adopted by the Commission during the present
session concern the withdrawal of reservations. Where possible, they tend to repro-
duce the corresponding provisions of the two Vienna Conventions on the Law of
Treaties.
Draft guideline 2.5.1 refers to the generally accepted principle that a reserva-
tion may be withdrawn at any time. Consequently, the consent of a State or of an
international organization which has accepted the reservation is not required. These
provisions, which the Commission considers to be part of customary law, stem
from the conception, endorsed by the Commission itself, that the withdrawal is a
unilateral act.
Draft guideline 2.5.2 reproduces the rule, already provided for by both Vienna
Conventions, that the withdrawal of a reservation must be formulated in writing.
The Commission makes it clear in the Commentary that it would be incongruous if
a reservation, about which there can surely be no doubt that it should be in writing,
could be withdrawn simply through an oral statement.
In this regard, the Commission also considered the possibility of admitting an
implicit withdrawal, that is a withdrawal arising from acts or conduct on the part of
a State or an international organization. Several examples of alleged implicit with-
drawal were analysed, such as the conclusion between the same parties of a subse-
quent treaty containing provisions identical to those to which one of the parties had
made a reservation, whereas it did not do so in connection with the second treaty;
the non-confirmation of a reservation upon signature, when a State expresses its
consent to be bound; time-limited reservations; and so called “forgotten reserva-
tions”. For one reason or another, the Commission denied that these cases were
true examples of implied withdrawal. In the end, it confirmed its conviction that
a withdrawal occurs only if the author of the reservation declares formally and in
writing that he intends to revoke it.
Draft guideline 2.5.3 draws attention to the need to periodically review the use-
fulness of reservations. These recommendations were inspired by the general idea
that reservations undermine the unity and integrity of the treaty regime. It is thus
beneficial for that regime if States reconsider obsolete or superfluous reservations
from time to time, with a view to withdrawing them totally or partially.
3. Draft guidelines 2.5.4 to 2.5.6 concern the procedure for the withdrawal of
reservations.
Draft guideline 2.5.4 sets out the requisites that a person must possess in order
to be competent to withdraw a reservation made on behalf of a State or an inter-
national organization. The guideline is modelled after the provisions of the Vienna
Conventions on the competence to express the consent of a State or international
organization to be bound by a treaty. In turn, these provisions were already taken
into consideration by the Commission when formulating the guidelines on the for-
mulation of reservations.
Draft guideline 2.5.5 reproduces the rule already adopted by the Commission
in relation to the formulation of reservations. It affirms the absence of conse-
quences of the violation of internal rules regarding the withdrawal of reserva-
tions at the international level. In this regard, the Commission did not rule out
the possibility that the “defective ratification” rule of Article 46 of the Vienna
Conventions might be applied in relation both to the formulation and the with-
drawal of reservations. However, it noticed that relevant rules on the withdrawal
of reservations are very seldom spelled out in formal texts of a constitutional or
even a legislative nature.
With regard to the communication of withdrawal, the Commission moved the
provisions it had adopted on the communications of reservations into draft guide-
line 2.5.6.
4. The effects of the withdrawal of a reservation are dealt with in draft guide-
line 2.5.7. There can be no doubt that the effect of withdrawal of a reservation is
to restore the original text of the treaty. However, according to the Commission a
distinction should be made between three possible situations.
In the first place, in the relations between the reserving State and the accepting
State (or international organization), the reservation ceases to be operational.
The same applies, in the second place, to the relations between the State (or
international organization) which has objected to, but not opposed the entry into
force of the treaty between itself and the reserving State.
The third situation occurs where the objecting State or international organiza-
tion had opposed the entry into force of the treaty between itself and the reserving
State or organization. In this case, the treaty enters into force on the date on which
the withdrawal takes effect.
As to the effective date of withdrawal of a reservation, draft guideline 2.5.8

states that the withdrawal becomes operative in relation to a contracting State or
international organization only when notice of it has been received by that State
or international organization. This provision is identical to the one provided for
by Article 22, paragraph 3(a) of the two Vienna Conventions. In the Commentary,
the Commission stresses that the withdrawal of a reservation immediately after
notification is given might give rise to difficulty. In such case, the Commission
suggests that a clause should be included in the treaty specifying the period of time
required to deal with the situation created by the withdrawal. In order to assist the
negotiators of treaties where this kind of problem arises, the Commission decided
to include in the Guide to Practice three model clauses (A, B, and C) on which they
could base themselves. The purpose of model clause A is to extend the period of
time required for the effective date of the withdrawal of a reservation. Model clause
B is designed to cover the opposite situation, since situations may arise in which
the parties agree that they prefer a shorter time period. Model clause C applies to
the situation in which the Contracting Parties wish to leave it to the discretion of
the reserving State or international organization to determine the date on which
withdrawal would take effect.
Draft guideline 2.5.9 establishes two exceptions to the principle set out in pre-
vious guideline 2.5.8 and in Article 22, paragraph 3(a) of the Vienna Conventions.
The first one occurs when the withdrawing State decides to set the effective
date of withdrawal at a time later than that resulting from the application of above
mentioned Article 22, paragraph 3(a). This hypothesis should not raise particular
difficulties, because the period provided is intended to enable the other parties to
be fully informed of the scope of their commitments in relation to the State (or
international organization) renouncing its reservation.
The second one concerns those cases in which the date set by the author is prior
to the receipt of notification by the other Contracting Parties. In this situation, only
the withdrawing State or international organization (and the depositary) knows that
the reservation has been withdrawn. This applies all the more where the withdrawal
is assumed to be retroactive.
5. Draft guidelines 2.5.10 and 2.5.11 deal with partial withdrawal of a reserva-
tion.
Partial withdrawal is connected with the possibility of modifying or even
replacing a reservation, provided the result is to limit its effect. According to the
Commission, there is no valid reason for preventing a State from limiting the scope
of a previous reservation by withdrawing it, if only in part. The treaty’s integrity is
better ensured thereby and it is not impossible that, as a consequence, some other
parties may withdraw the objections that they made to the initial reservation.
The modification of a reservation whose effect is to reduce its scope is subject
to the same legal regime as a total withdrawal, with the only exception of the ef-
fects of a partial withdrawal. In fact, while the second paragraph of draft guideline
2.5.10 takes account of the alignment of the rules on partial withdrawal of reserva-
tions with those that apply in the case of a total withdrawal, the effects of a partial
withdrawal are dealt with separately in draft guideline 2.5.11.
The Commentary to the latter guideline points out very clearly that a partial
withdrawal does not entail the application as a whole of the provisions to which
the reservation is related, because the reservation remains, albeit in a more limited
form. By virtue of a partial modification, the legal effect of the reservation is modi-
fied only “to the extent of the new formulation of the reservation”. Moreover, in the
case of total withdrawal, the effect is to deprive of any consequence the objections
that had been made to the reservation as initially formulated. On the contrary, there
is no reason for this to be true in case of a partial withdrawal. States and interna-
tional organizations that had made objections may perfectly well maintain their
objections if they deem it appropriate, on the understanding that the objection has
been expressly justified by the part of the reservation that has not been withdrawn.
The objecting States or international organizations may reconsider their objections
only if the motives that gave rise to them were eliminated by the modification of
the reservation. If the objection does not apply exclusively to the part of the reser-
vation which has been withdrawn, the authors of an objection are not required to
confirm it. This assumption of continuity is considered fairly reasonable, for the
partial withdrawal does not eliminate the initial reservation and does not constitute
a new reservation.
On the other hand, a partial withdrawal cannot constitute a new opportunity
to object to the reservation resulting from the partial withdrawal itself. If the Con-
tracting Parties have adapted to the initial reservation, so runs the Commission’s
argument, it is difficult to see how they can go against the new one which, in theory,
has attenuated effects.
There is nonetheless an exception to this principle, namely when a partial with-
drawal might have a discriminatory effect. This may be the case if a State or an
international organization renounced a previous reservation vis-à-vis certain parties
or categories of parties to the exclusion of others. In this situation, it would seem
necessary for those parties to be able to object to the reservation even though they
had not objected to the initial reservation when it applied to all of the Contracting
Parties together.
6. Draft guideline 2.5.11 was the last one to be adopted by the Commission on
the topic of reservations during the present session. As stated in the first paragraph,
we must now summarise the debate held in the plenary about objections to reserva-
tions.
Draft guideline 2.6.1, proposed by Pellet, defines the “objection” as a unilateral
statement purported to prevent, between the author of the reservation and the State
or organization which formulated the objection, the application of the provisions of
the treaty to which the reservation relates, to the extent of the reservation only, or
the application of the treaty as a whole between the same parties. These concepts
are confirmed by draft guideline 2.6.1 ter concerning the so called “across-the-
board” reservations. The Special Rapporteur also specifies that his definition does
not take a stance on the validity of objections.
Draft guideline 2.6.1 bis is intended to avoid confusion over terminology. It
states that “objection” may also mean a unilateral statement whereby a State or an
international organization opposes the late formulation of a reservation.
During the debate, several members were of the opinion that the definition of
objections should be broader than the one suggested by the Special Rapporteur.
They pointed out that the legal effects of an objection to a reservation under the
Vienna Conventions were uncertain. Therefore, they suggested that the definition
of objections should reflect the real intention of the objecting State and not tie that
position to the effects attributed to objections under the Vienna Conventions. In
fact, the practice of States shows that the objecting States sometimes have in mind
effects that are different from those provided for in Articles 20 and 21 of the Vienna
Conventions. In the same train of reasoning, other members noted that the defini-
tion of objections should be much more flexible.
In his response, the Special Rapporteur agreed with the opinion expressed by
the majority of the members that the intention of States or international organiza-
tions was a key element of the definition of objections. Accordingly, he proposed
a new wording for draft guideline 2.6.1, which defines the objection in a much
broader way as a unilateral statement, however phrased or named, purporting to
prevent the reservation having any or some effects.
VI. SHARED NATURAL RESOURCES
1. This topic was included in the Commission’s programme of work only last
year. Mr. Chusei Yamada was appointed as Special Rapporteur. During the present
session, the Commission considered the Special Rapporteur’s first report, which is
intended to provide the general background of his attempt of codification. Under
the topic, he proposed to cover confined transboundary groundwaters, oil and gas.
He also specified that, although sharing the same atmospheric source, confined
groundwaters were distinct from surface waters in several aspects. Moreover, as
activities on the surface of the soil could have adverse effects on groundwaters, he
also considered the possibility of regulating activities other than uses of ground-
waters. The Special Rapporteur concluded his report by indicating that he intended
to conduct studies on the practice of States with respect to uses and management,
including pollution prevention, and cases of conflicts, as well as domestic and in-
ternational law.
During the debate, most members pointed out the necessity of harmonising
the topic under considerations with other subjects, such as international liability or
the non-navigational uses of international watercourses. They also highlighted the

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

DIVERSIFICATION AND EXPANSION OF INTERNATIONAL LAW
1. At the present session, the Commission decided to establish an open-ended

Study Group on the topic and appointed Mr. Martti Koskenniemi as Chairman, to
replace the former chairman Mr. Bruno Simma.
The Study Group observed that the subject of fragmentation revealed that a
distinction ought to be drawn between institutional and substantive perspectives.
While the former focused on concerns relating to institutional questions of practi-
cal coordination and institutional hierarchy, the latter involved the consideration of
whether and how the substance of the law itself may have fragmented into special
regimes.
On the basis of this distinction, it reiterated the Commission’s intention not to
deal with questions concerning the creation of, or the relationship among, interna-
tional judicial institutions.
As regards the substantive aspects, it observed that there were at least three
different patterns of interpretation or conflict, which were relevant to the question
of fragmentation: (a) conflict between different understandings or interpretations
of general law; (b) conflict arising when a special body deviates from general law
not as a result of disagreement as to the general law but on the basis that a special
law applies; and (c) conflict arising when specialised fields of law seem to be in
conflict with each other.
The Study Group also recalled that the recommendations made by the Commis-
sion in its 2002 report showed a preference for a comprehensive study of the rules
and mechanisms for dealing with conflicts. It also agreed upon a tentative schedule
providing for the preparation of studies and outlines of the following topics: “the
function and scope of the lex specialis rule and the question of self-contained re-
gime”; “the interpretation of treaties”; “the application of successive treaties relat-
ing to the same subject matter”; “the modification of multilateral treaties between
certain of the parties only”; “hierarchy in international law: jus cogens, obligations
erga omnes, Article 103 of the Charter of the United Nations, as conflict rules”.
2. During the present session, the Study Group also examined an outline of the
Study on the lex specialis rule and self-contained regimes prepared by the Chair-
man.
There was agreement among the members on the Chairman’s conclusion that
the lex specialis rule could be said to operate in two different contexts, namely lex
specialis as an elaboration or application of general law in a particular situation
and lex specialis as an exception to the general law. A narrower view considered
lex specialis to apply only where the special rule was in conflict with general law.
It was agreed that the expository study should cover both the broad and narrow
conceptions of lex specialis. It was also decided that areas regulated by regional
law should be considered within this topic.
Concerning self-contained regimes, two problems in particular were discussed.
Firstly, it was agreed that while such regimes were sometimes identified by refer-
ence to special secondary rules contained therein, the distinction between these
two categories of rules was often difficult to apply and might not be required for
the study. Secondly, the Group emphasised the importance of general international
law, which was said to regulate those aspects of the functioning of self-contained
regimes not specifically regulated by the latter, and become fully applicable if the
self-contained regime ceased to function.
THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2003)*
FEDERICO LENZERINI** and MASSIMILIANO MONTINI***
1. INTRODUCTION
The prospect of a further development of world trade system were severely cur-
tailed by the failure of the WTO Members to reach an agreement on the hottest issues
on the agenda at the Fifth Ministerial Conference, held in Cancun in September 2003.
Many doubts now exist regarding the possibility of reaching the objectives set by the
Doha Work Program, as agreed at the Fourth Ministerial Conference held in Doha in
November 2001, which originally ought to be completed by 1 January 2005.1
This notwithstanding, figures on the state of the global economy and world
trade released by the WTO in April 2004 show that during the year 2003 the global
GDP has risen by 2.5% and world trade has grown by 4.5%, largely above the levels
observed in 2001-2002 and above the economic forecasts for 2003, although still be-
low the average annual rate of world trade growth registered from 1995 onwards.2
As to dispute settlement, the latest update provided by the WTO (current to
the year 2003)3 shows that the overall number of complaints notified to the Dis-
pute Settlement Body (DSB) since 1 January 1995 now amounts to 304 cases. The
number of Panel and Appellate Body reports adopted in the period 1995-2003 now
totals 75, while in the same period 42 solutions were mutually agreed and the other
settled or inactive disputes amounted to 24. At the reporting date (23 December
2003), a total number of 25 Panels were reported to be active.
With regard to the compliance reports adopted pursuant to Article 21.5 of the
Dispute Settlement Understanding (DSU), the figures available at the reporting
date (23 December 2003) show that no compliance panels are active. In the period
1995-2003, a total number of 12 Panel and Appellate Body compliance reports
have been adopted, while 7 Arbitrations on the level of suspensions of concessions
have been concluded and the WTO has authorised a Member to proceed to the
suspension of concessions towards other Members for the failure to comply with a
DSB decision on seven occasions.
*
Introduction and section 3 have been written by MASSIMILIANO MONTINI, sections 2 and
4 by FEDERICO LENZERINI.
**
J.D., University of Siena; Ph. D., International Law.
***
J.D., University of Siena; LL.M., University of London; Researcher, University of Siena.
1
See Cancun Ministerial Statement adopted on 14 November 2003, Doc. WT/MIN(03)/20
of 23 September 2003.
2
See WTO Press Release No. 373 of 5 April 2004.
3
See Update of WTO Dispute Settlement Cases, Doc. WT/DS/OV/18 of 23 December 2003,
available at the WTO website, www.wto.org.
The statistical figures released this year by the WTO also contain an interesting
analysis of the source of the complaints, which distinguishes between developed
and developing States. The total number of complaints filed by developed States in
the whole period 1995-2003 amounts to 188. Among those complaints, 117 were
directed against other developed States and 71 against developing States. Con-
versely, the complaints filed by developing countries over the same period reached
a total number of 110, 64 of which were directed against developed countries and
46 against other developing States. Finally, the complaints jointly filed by devel-
oped and developing States were just 6 over the same period and they were all
directed against developed countries only.
2. CASE-LAW OF THE APPELLATE BODY4
During the year 2003 the WTO Dispute Settlement Body adopted seven Ap-
pellate Body (AB) dispute settlements reports. In chronological order, the first of
these reports settled a case brought by the European Communities in 2000 against
the United States, regarding countervailing measures concerning certain steel and
food products originating in various Member States of the EC, produced by for-
merly state-owned enterprises that had been privatized.5 The United States imposed
countervailing measures on such products on the basis of the alleged existence of
subsidies for the privatized producers, and, in particular, of the benefits conferred
on such enterprises by non-recurring financial contributions granted by govern-
ments in favour of the producers before privatization had occurred. The United
States Department of Commerce (USDOC) found that subsidies existed on the
basis of the application of two methods: the “Gamma method” and the “Same
Person method”. The “Gamma method” is used to determine the extent to which a
non-recurring financial contribution granted to a state-owned enterprise should be
amortized over time to arrive at a countervailing subsidy rate. The “Same Person
method” consists in ascertaining whether the owner of the enterprise after privati-
zation is a new legal person or, on the contrary, the same legal person that received
the original subsidy before privatization. The Panel, whose report was circulated to
the WTO Members on 31 July 2002, found that the measures taken by the United
States were inconsistent with a number of provisions of the WTO legal system,
on the basis of the fact, inter alia, that where a privatization is at arm’s length and
for fair market value, “the benefit resulting from a prior subsidization bestowed
upon the state-owned producer no longer accrues to the privatized producer under
4
On this topic see Appellate Body, Annual Report for 2003, Doc. WT/AB/1 of 7 May 2004,
available at the WTO website, www.wto.org.
5
See United States – Countervailing Measures Concerning Certain Products from the Euro-
pean Communities, Report of the Appellate Body, WTO Doc. WT/DS212/AB/R of 9 December
2002, adopted on 8 January 2003.
THE WTO ACTIVITY (2003) 191
investigation”.6 The AB reversed this conclusion, stating that, although there is a

“rebuttable presumption that a benefit ceases to exist after […] a privatization [at
arm’s length and for fair market value] [,] [n]evertheless it does not necessarily do
so”,7 depending on the facts of each case. By contrast, the AB upheld the Panel’s
findings that the United States acted inconsistently with various provisions of the
Agreement on Subsidies and Countervailing Measures (SCM Agreement) “by im-
posing and maintaining countervailing duties without determining whether a ‘ben-
efit’ continues to exist” in the relevant countervailing duty determinations.8 Finally,
the AB also upheld the Panel’s conclusion that, “insofar as the United States has
infringed its obligations under the SCM Agreement […] these actions of the United
States constitute prima facie nullification or impairment of benefits accruing to the
European Communities, pursuant to Article 3.8 of the D[ispute]S[ettlement]U[nde
rstanding]; and, because the United States had failed to rebut this presumption, the
United States had in fact nullified or impaired benefits accruing to the European
Communities under the SCM Agreement”.9
In Canada – Measures Affecting the Importation of Milk and the Exportation
of Dairy Products,10 a dispute relating to export subsidies allegedly granted by
Canada on dairy products and the administration by Canada of the tariff-rate quota
on milk, based on complaints by the United States and New Zealand, went into its
third phase. In its first report (circulated on 13 October 1999) the AB, upholding
the Panel’s findings only in part, had found that Canada had violated Articles 3.3
and 8 of the Agreement on Agriculture.11 The report was adopted by the DSB on 27
October 1999. On 16 February 2001 the United States and New Zealand requested
the DSB to refer the problems relating to the implementation of the report to the
original Panel in pursuance of Article 21.5 of the Dispute Settlement Understand-
ing (DSU); the DSB referred the matter to the original Panel on 1 March 2001. The
AB (whose report was circulated on 3 December 2001) reversed the compliance
Panel’s findings that the supply of “commercial export milk” (CEM, a particular
category of milk, any quantity of which could be sold to Canadian processors for
export processing solely on the basis of terms and conditions freely negotiated
between the producer and the processor) by domestic milk producers to domestic
dairy processors “involves ‘payments’ on the export milk ‘that are financed by vir-
tue of governmental action’ under Article 9.1(c) of the Agreement on Agriculture”,12
6
See the Report of the Panel, WTO Doc. WT/DS202/R of 31 July 2002, para. 7.114.
7
See Doc. WT/DS212/AB/R, para. 127 (emphasis in the original).
8
Id., para. 160(a).
9
Id., para. 160(d).
10
Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WTO
Doc. WT/DS103/AB/RW2, WT/DS/113/AB/RW2 of 20 December 2002, adopted on 17 January
2003.
11
See WTO Doc. WT/DS/103/AB/R, WT/DS/113/AB/R.
12
See WTO Doc. WT/DS/103/AB/RW, WT/DS/113/AB/RW, para. 126.
In doing this, the AB overturned the Panel’s conclusion that Canada had acted in-
consistently with Articles 3.3 and 8 of the Agreement on Agriculture. In addition,
the AB found itself unable, “in the light of the factual findings made by the Panel
and the uncontested facts in the Panel record”,13 to complete the analysis of the
claims made by New Zealand and the United States. In light of this conclusion, on
6 December 2001 New Zealand and the United States submitted a second recourse
pursuant to Article 21.5 of the DSU, pointing out that, since the AB did not make
any findings on the claims previously raised, they continued to believe that Canada
had failed to comply with the original recommendations and rulings of the DSB.
On 18 December 2001 the matter was referred again to the original Panel, which,
in its report (circulated on 26 July 2002), concluded that Canada, through the CEM
scheme, had infringed Articles 3.3, 8 and 10.1 of the Agreement on Agriculture.14
The AB (whose report was circulated on 20 December 2002) upheld the conclusion
that Canada had acted inconsistently with Articles 3.3 and 8 of the Agreement, and
declined to rule on the Panel’s finding on Article 10.1.
On 27 January 2003 the DSB adopted the AB report (circulated on 16 January
2003) regarding the case of United States – Continued Dumping and Subsidy Offset
Act of 2000,15 based on a joint complaint brought by Australia, Brazil, Chile, the
European Communities, India, Indonesia, Japan, Korea and Thailand, and a sepa-
rate recourse by Canada and Mexico. This dispute concerned the Amendment to the
Tariff Act of 1930, enacted on 28 October 2000, usually referred to as “the Byrd
Amendment”, which regulated, on an annual basis, the distribution of “[d]uties
assessed pursuant to a countervailing duty order, an anti-dumping duty order, or a
finding under the Antidumping Act of 1921 […] to the affected domestic produc-
ers for qualifying expenditures”.16 The complainants alleged that the amendment
was inconsistent with several provisions of the GATT, the Anti-Dumping Agree-
ment, the SCM Agreement and the WTO Agreement. The Panel, whose report was
circulated to WTO Members on 16 September 2002, concluded that the Amend-
ment violated a number of provisions of the Anti-Dumping Agreement and the
SCM Agreement, as well as Article VI of the GATT 1994 and Article XVI:4 of
the WTO Agreement. The AB, on the basis of the fact that the Amendment was “a
non-permissible specific action against dumping or a subsidy”,17 upheld most of the
Panel’s findings, stating that the United States violated Articles 18.1 and 18.4 of
the Anti-Dumping Agreement, Article 32.1 and 32.5 of the SCM Agreement, and
Article XVI:4 of the WTO Agreement. It also asserted that, “to the extent that the
[Amendment] is inconsistent with provisions of the Anti-Dumping Agreement and
13
Id., para. 127.
14
See WTO Doc. WT/DS/103/RW2, WT/DS/113/RW2.
15
See WTO Doc. WT/DS/217/AB/R, WT/DS/234/AB/R.
16
See United States Tariff Act of 1930, section 754(a).
17
See Doc. WT/DS/217/AB/R, WT/DS/234/AB/R, para. 274 and para. 318.
the SCM Agreement” it nullified or impaired benefits accruing to the compliant par-
ties under those agreements.18
Another AB report relating to a dispute on anti-dumping was adopted by the
DSB on 24 April 2003. It regarded a recourse to Article 21.5 of the DSU by India,
with reference to the case of European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India,19 based on the alleged non-compli-
ance of the European Communities with the original recommendations and rulings
of the DSB. In its first report, adopted on 12 March 2001, the AB had upheld the
Panel’s finding according to which the anti-dumping investigation initiated in 1996
by the European Communities into certain imports of cotton-type bed linen from
India, which resulted in the application of the practice of “‘zeroing’ the ‘negative
dumping margins’ established for [such products] when calculating the overall rate
of dumping for bed linen”,20 was inconsistent with Article 2.4.2 of the Anti-Dump-
ing Agreement. The AB also found that the European Communities, “in calculating
amounts for administrative, selling and general costs and profits in the anti-dump-
ing investigation at issue” in the dispute, acted inconsistently with Article 2.2.2(ii)
of the same agreement.21 The compliance panel, whose report was circulated on
29 November 2002, rejected the Indian argument, concluding that the European
Communities had fully implemented the recommendations of the DSB to conform
to the Anti-Dumping Agreement.22 On appeal by India, the Panel’s findings were
challenged before the AB, which, in its report, circulated on 8 April 2003, reversed
the Panel’s finding that the European Communities did not act inconsistently with
Article 3 (paragraphs 1 and 2) of the Anti-Dumping Agreement in determining the
volume of “dumped imports” for purposes of making a determination of injury,23
since the “approach taken by the European Communities in making such determi-
nation was not based on an ‘objective examination’”24 and on “positive evidence”.
Also involving the European Communities is the third dispute on anti-dumping
whose reports have been adopted by the DSB in 2003.25 This dispute related the de-
finitive anti-dumping duties imposed by EC Council Regulation No. 1784/2000 on
imports of malleable iron tube or pipe fittings originating in a number of countries,
including Brazil.26 This latter State considered that the EC had infringed Article VI
18
Id., para. 318(c).
19
See WTO Doc. WT/DS141/AB/RW of 8 April 2003.
20
See WTO Doc. WT/DS/141/AB/R of 1 March 2001, para. 8 and para. 86(1).
21
Id., para. 86(2).
22
See WTO Doc. WT/DS141/RW of 29 November 2002.
23
Id., para. 146 and para. 183(b).
24
Id., para. 132.
25
See European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or
Pipe Fittings from Brazil, WTO Doc. WT/DS219/AB/R of 22 July 2003, adopted on 18 August
2003.
26
Council Regulation (EC) No. 1784/2000 of 11 August 2000 imposing a definitive anti-
dumping duty and collecting definitively the provisional duty imposed on imports of certain
of GATT 1994 as well as a conspicuous number of provisions of the Anti-Dumping

Agreement, alleging that the EC’s behaviour was not based on an objective inves-
tigation and evaluation of the facts both at the provisional and definitive stage of
its determination. The Panel, whose report was circulated on 7 March 2003, found
that the European Communities violated Article 2.4.2 of the Anti-Dumping Agree-
ment, “in ‘zeroing’ negative dumping margins in its dumping determination”,27 as
well as Articles 12.2 and 12.2.2 of the same Agreement for not having adequately
explained the lack of relevance or significance of factors determined not to be rel-
evant or of significant weight. Such an explanation, required by Article 3.4, in light
of Article 12.2 must be discernible from the published determination of the investi-
gating authority, and, according to the Panel, in the instant case it was not “directly
discernible from the published [EC] Provisional or Definitive Determination”.28
According to the Panel, the European Communities had not acted inconsistently
with other relevant provisions; nevertheless, it concluded that, “to the extent the
European Communities has acted inconsistently with the provisions of the Anti-
Dumping Agreement, it has nullified or impaired benefits accruing to Brazil under
that Agreement”.29 Of the seven issues appealed by Brazil, the AB rejected Brazil’s
claims with respect of six issues, and reversed the Panel’s findings with respect to
one single issue, concluding that the European Communities had infringed Articles
6.2 and 6.4 of the Anti-Dumping Agreement “by failing to disclose to the interested
parties during the anti-dumping investigation the information on the injury factors
listed in article 3.4”.30
At its meeting of 10 December 2003 the DSB adopted the AB report (as well
as the Panel report as modified by the AB report) concerning the dispute United
States – Definitive Safeguards Measures on Imports of Certain Steel Products.31
The complainant WTO parties were the European Communities, Japan, Korea,
China, Switzerland, Norway, New Zealand and Brazil. This dispute regarded the
definitive safeguard measures imposed by the United States in the form of an in-
crease in duties on imports of several steel products (like, e.g., flat steel, hot rolled
bar, cold finished bar, rebar, stainless steel bar, stainless steel wire, etc.) and of a
tariff rate quota on imports of slabs effective as of 20 March 2002. The complain-
ants considered such measures to be inconsistent with a number of provisions of
the Agreement on Safeguards as well as GATT 1994 (Articles I:1, II, X:3, XIII and
malleable cast iron tube or pipe fittings originating in Brazil, the Czech Republic, Japan, the
People’s Republic of China, the Republic of Korea and Thailand, OJ EC No. L 208 of 18 August
2000, p. 8 ff.
27
See WTO Doc. WT/DS219/R of 7 March 2003, para. 8.1(i).
28
Id., para. 7.435 and para. 8.1(ii).
29
Id., para. 8.5.
30
See Doc. WT/DS219/AB/R, para. 196(e).
31
See WTO Doc. WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/
R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R of 10 November
2003.
XIX). The Panel report was circulated to WTO Members on 11 July 2003. All com-
plaints raised by the eight complainant parties were considered in a single panel
process, but the final decision of the Panel was issued in the form of “one document
constituting eight Panel Reports”.32 This choice was consequent to the request of
the United States that eight separate panel reports were issued, on account of the
fact that only in such case its WTO rights (including the right to settle the matter
with individual complainants) would be granted, and the concurrent strong opposi-
tion with regard to such a request by all the complainants, which considered it as
being just a means for delaying the Panel process. The Panel justified its decision
by stating that it was suitable to ensure, “as far as possible, a prompt and effective
resolution of the dispute, while respecting the rights of all parties”.33 As for the
object of the dispute, the Panel concluded that all the (ten) safeguard measures at
issue were inconsistent with Article XIX:1 of GATT 1994 as well as with some
provisions of the Agreement on Safeguards, on account of the fact that the United
States, for each of those measures, had failed to provide a reasoned and adequate
explanation regarding the following prerequisites for the imposition of a safeguard
measure that is consistent with the WTO legal regime: demonstration of the fact
“that ‘unforeseen developments’ had resulted in increased imports causing serious
injury to the relevant domestic producers”; explanation of “how the facts supported
its determination with respect to ‘increased imports’”; existence of a “causal link”
“between any increased imports and serious injury to the relevant domestic produc-
ers”; compliance “with the requirement of ‘parallelism’ between the products for
which the conditions for safeguard measures had been established, and the prod-
ucts which were subjected to the safeguard measure”.34 The AB, whose report was
circulated on 10 November 2003, although reversing the Panel’s findings that the
United States had failed to provide “a reasoned and adequate explanation of how
the facts supported its determination with respect to ‘increased imports’” and “of
how the facts supported its determination of a ‘causal link’ between any increased
imports and serious injury” for two of the ten safeguard measures at issue, upheld
the Panel’s ultimate conclusion that all of those measures (including the two with
regard to which the Panel’s finding were partially reversed) had violated Article
XIX:1 of GATT 1994 as well as the Agreement on Safeguards.35
On the same day, 10 December 2003, the DSB also adopted the AB report re-
garding Japan – Measures Affecting the Importation of Apples (hereinafter “Apples
case”);36 such dispute will be analysed in detail in the following section.
32
See WTO Doc. WT/DS248/R, WT/DS249/R, WT/DS251/R, WT/DS252/R, WT/DS253/
R, WT/DS254/R, WT/DS258/R, WT/DS259/R of 11 July 2003, para. 10.725.
33
Id., para. 10.729 (emphasis in the original).
34
Id., para. 11.2.
35
See WTO Doc. WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/
R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, para. 513.
36
See WTO Docs. WT/DS245/R of 15 July 2003 (Panel Report), WT/DS245/AB/R of 26
November 2003 (AB Report), adopted on 10 December 2003.
3. THE APPLES CASE
The Apples case brought by the United States against Japan, concerned a na-
tional measure adopted and maintained by Japan which restricted the import of US
apples into the Japanese territory in order to prevent the potential introduction in
Japan of disease-causing organisms, named “Erwinia amylovora”, or more com-
monly “fire blight”, which can be sometimes found in fruit apples.
The validity of the Japanese measure was challenged by the US authorities
under various provisions of the SPS Agreement (Agreement on the Application of
Sanitary and Phytosanitary Measures), and in particular Articles 2, 5 and 7 thereto.
The Panel, in its Report circulated to the WTO Members on 15 July 2003, held
that Japan’s measure could not be justified under the relevant provisions of the
SPS Agreement, for three main reasons. In fact, such a measure (i) was maintained
“without sufficient scientific evidence”, inconsistent with Japan’s obligation under
Article 2.2 of the SPS Agreement; (ii) could not qualify as a provisional measure
under Article 5.7 of the SPS Agreement, because it was not imposed in respect of
a situation “where relevant scientific evidence [was] insufficient”; and (iii) was not
based on a “risk assessment” within the meaning of Article 5.1 of the SPS Agree-
ment.37
In September 2003, Japan filed an appeal against the decision contained in the
Panel’s Report and the Appellate Body was then called to examine a set of issues,
which represent an interesting test for the interpretation and application of the SPS
Agreement.
Before analysing the most important legal issues concerning the application
of the SPS Agreement raised in the present case and addressed by the Appellate
Body in its Report, let us briefly explain the exact factual background of the present
dispute.
It is important first of all to discuss at some length the “disease” targeted by
Japan with its national phytosanitary measure, following the explanation of the
factual aspects of the case contained in the Panel Report and recalled in the AB Re-
port. Such a disease, whose scientific name is “Erwinia amylovora”, but which is
commonly referred to as “fire blight”, constitutes an infection which targets various
fruit plants and other garden plants, including apple fruit plants, and which is trans-
mitted primarily through wind and/or rain and by insects or birds to open flowers
on the same or new host plants. The “fire blight” disease is commonly held to have
never entered the territory of Japan, although it has been reported in various areas
of Europe, the United States and Australia.38
Besides focusing on the determination of the “disease” targeted by Japan, the
Panel and the AB in their analysis dealt in particular with two other preliminary fac-
37
See Panel Report, para. 9.1(a)-(c).
38
See AB Report, para. 8.
tual issues, namely the determination of the relevant product, which could be “any
apple” according to Japan and solely “mature symptomless apples” according to the
United States, and the issue of whether the Japanese measure, which consisted of
several requirements imposed on imported apples, could be considered as a “single
measure” for the purpose of the application of the SPS Agreement. With regard to the
first issue, the Panel held that the relevant product was “any apple”, whereas as for the
second issue, the Panel concluded that the Japanese measure must indeed be consid-
ered as a single measure for the purpose of the application of the SPS Agreement.39
Proceeding then to the analysis of the merits of the case, it must be recalled here
that Japan, in its appeal before the AB, raised four claims, three of which deserve
our particular attention insofar as they involve the issue of the correct interpretation
and application of the relevant provisions of the SPS Agreement.40
In the first place, the Appellant contested the Panel’s finding that the national
measure was “maintained without sufficient scientific evidence” and was therefore
inconsistent with Japan’s obligations under Article 2.2 of the SPS Agreement. The
AB therefore commenced its analysis with a detailed examination of the Panel’s
finding. To this effect, the AB noted that the analysis of the Panel was based on
a careful analysis of the scientific evidence available, which suggested the exist-
ence of a negligible risk of possible transmission of “fire blight” through apples
and therefore that the importation of US apples into Japan was not likely to serve
as a possible pathway for the entry, establishment or spread of “fire blight” within
Japanese territory. In fact, the conclusion that the measure at stake was maintained
“without sufficient scientific evidence” was reached by the Panel after having care-
fully assessed that there was no “rational or objective relationship” between the na-
tional measure and the relevant scientific evidence available, and therefore Japan’s
measure was considered to be “clearly disproportionate” to the actual risk posed by
the importation of apples from the United States.41
The AB then went on to recall that the expression “sufficient scientific evi-
dence” implies the existence of a “rational and objective relationship” between the
SPS measure taken by a State and the available scientific evidence, as previously
stated by the AB in the case Japan – Agricultural Products II,42 and emphasised
that concrete assessment depends on the “particular circumstances of the case” and
must be “determined on a case-by-case basis”. Therefore, as to the merits of the case
under scrutiny, the AB found that the Panel in its analysis had carefully examined
the available scientific evidence and fully considered the opinions of the experts and
had rightly given precedence to the views of the scientific experts over the evidence
submitted by Japan. Therefore, the AB finally upheld the Panel’s finding according
39
See AB Report, paras. 9-16.
40
41
See Panel Report, para. 8.171 and AB Report, paras. 143-146.
42
See Japan – Measures Affecting Agricultural Products, Doc. WT/DS76/AB/R of 22 Feb-
ruary 1999, adopted on 19 March 1999, para. 84.
to which Japan’s phytosanitary measure was maintained without “sufficient scien-

tific evidence” within the meaning of Article 2.2 of the SPS Agreement.43
In the second place, the Appellant contested the Panel’s finding that Japan’s na-
tional measure was not imposed in respect of a situation where “relevant scientific
evidence is insufficient”, within the meaning of Article 5.7 of the SPS Agreement.
Such a provision in fact stipulates that a Member shall not maintain a sanitary or
phytosanitary measure without sufficient scientific evidence, except as provided for
in Article 5.7. On this issue, the Panel in its Report had stated that Japan’s measure
was not justifiable under Article 5.7 of the SPS Agreement, insofar as it had not been
adopted in a situation where “relevant scientific evidence is insufficient”. The Panel
had reached such a conclusion, observing that a large quantity of high quality scientific
evidence existed on the issue at stake, which concluded that a negligible risk existed
of transmission of “fire blight” through apple fruit. Therefore, since Article 5.7 was
“designed to be invoked in situations where little or no scientific evidence was avail-
able on the subject matter at issue”, the Panel had concluded that Japan’s justification
of its measure under Article 5.7 of the SPS Agreement could not be sustained.44
For its part, the AB firstly recalled the four requirements that must be satis-
fied in order to lawfully adopt and maintain a provisional phytosanitary measure,
previously set out by the same AB in the case Japan – Agricultural Products II,45
and on the basis of such requirements held that the large quantity and high qual-
ity of scientific evidence available in the case at stake suggested that the risk of
transmission of fire blight through apple fruit was negligible and therefore in the
present circumstance it could not be argued that the “relevant scientific evidence”
was “insufficient” within the meaning of Article 5.7 of the SPS Agreement. The AB
also dismissed Japan’s claim according to which the Article 5.7 exception could
be triggered not only by the existence of “insufficiency of scientific evidence”, but
also by a mere “scientific uncertainty”.46
In the third place, the Appellant contested the Panel’s finding that Japan’s
measure was not based on a “risk assessment” as required by Article 5.1 of the SPS
Agreement. The AB began its analysis by recalling the relevant definition of “risk
assessment” contained Annex A to the SPS Agreement, according to which “risk
assessment” can be defined as “the evaluation of the likelihood of entry, establish-
ment or spread of a pest or a disease within the territory of an importing Member”
and recalled the AB findings in the case Australia – Salmon, according to which a
risk assessment conducted on the basis of Article 5.1 of the SPS Agreement must
satisfy three conditions. Firstly, it must “identify the diseases whose entry, estab-
lishment or spread a Member wants to prevent within its territory”. Secondly, it
43
44
See Panel Report, paras. 8.219-8.222 and AB Report, paras. 169-174.
45
See AB Report, para. 176 and Japan – Measures Affecting Agricultural Products, cit.
supra note 42, para. 89.
46
must “evaluate the likelihood of entry, establishment or spread of these diseases”.

Thirdly, it must “evaluate the likelihood of entry, establishment or spread of these
diseases according to the SPS measures which might be applied”.47
Since the US did not claim that Japan’s risk assessment did not satisfy the first
one of those conditions, the analysis of the Panel, and then of the AB, focused on
the other two conditions. In this sense, in particular, the AB stated that “under the
SPS Agreement, the obligation to conduct an assessment of ‘risk’ is not satisfied
merely by a general discussion of the disease sought to be avoided by the imposi-
tion of a phytosanitary measure”, but must be “sufficiently specific” to the concrete
risk at stake. On such a basis, the AB substantially upheld the finding of the Panel
according to which Japan’s risk evaluation in the case under scrutiny was not suffi-
ciently precise and specific to amount to a “risk assessment” within the meaning of
Article 5.7 of the SPS Agreement, because it had failed to evaluate the “likelihood
of entry, establishment or spread” of fire blight specifically through apple fruit.48
Moreover, the AB noted that Japan in the case under scrutiny had also failed
to satisfy the condition which requires a Member to conduct its “risk assessment”
not only with regard to the SPS measures which “are being applied”, but also to the
sanitary and phytosanitary measures “which might be applied”, where the refer-
ence to the term “might” ought to mean that the “risk assessment” analysis should
not be limited to an examination of the measures already in place or favoured by
the importing Member.49
Therefore, upholding the Panel’s findings, the AB finally concluded that Ja-
pan’s risk analysis did not satisfy the definition of risk assessment contained in An-
nex A to the SPS Agreement, as interpreted by the AB case-law, because it failed (i)
to “evaluate the likelihood of entry, establishment or spread of these diseases” and
(ii) to “evaluate the likelihood of entry, establishment or spread of these diseases
according to the SPS measures which might be applied”. As a consequence, Japan’s
measure could not be justified under Article 5.1 of the SPS Agreement, insofar as it
was not “based on a risk assessment” as required by that provision.50
4. PUBLIC HEALTH AND THE TRIPS AGREEMENT51
On 30 August 2003 the WTO General Council adopted a Decision on the im-
plementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and
47
See AB Report, para. 196 and Australia – Measures Affecting Importation of Salmon, Doc.
WT/DS18/AB/R of 20 October 1998, adopted on 6 November 1998, para. 121.
48
49
50
51
On this topic see LENZERINI and MONTINI, “The Activity of the World Trade Organization
(2001)”, IYIL, 2001, p. 191 ff., p. 205 ff.
public health.52 This paragraph recognized that “WTO members with insufficient
or no manufacturing capacities in the pharmaceutical sector could face difficulties
in making effective use of compulsory licensing under the TRIPS agreement”,
and entrusted the Council for TRIPS “to find an expeditious solution to this prob-
lem”.53
Although this provision recognized that the right of any person in need of med-
ical care to have effective access to medicines cannot be subordinated to a formal
and strict application of the rules relating to intellectual property rights, its actual
implementation was seriously affected by the opposition of some developed coun-
tries, acting under the pressure of Western pharmaceutical firms which maintain the
monopoly of the production of patented anti-pandemic medicines.
The Decision of the General Council corresponds to a waiver from the obliga-
tions set out in Article 31 paragraphs (f) and (h) of the TRIPS Agreement with re-
spect to pharmaceutical products, a waiver that may be justified under “exceptional
circumstances”, as pointed out by the last sentence of the Decision’s Preamble. The
above provisions place two conditions on the possible use, other than that allowed
under Article 30,54 of the subject matter of a patent without the authorization of the
right holder (so-called “other use”); in particular, paragraph (f) states that “any such
use shall be authorized predominantly for the supply of the domestic market of
the Member authorizing such use”, while paragraph (h) adds that “the right holder
shall be paid adequate remuneration in the circumstances of each case, taking into
account the economic value of the authorization”. The Decision allows derogations
of paragraph (f) with regard to the obligations of “an exporting Member […] with
respect to the grant by it of a compulsory licence to the extent necessary for the
52
See “Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement
and public health”, Decision of the General Council of 30 August 2003, WTO Doc. WT/L/540 of
1 September 2003. This Decision had been preceded by the “Extension of the Transition Period
under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain
Obligations with Respect to Pharmaceutical Products”, Decision of the Council for TRIPS of
27 June 2002, WTO Doc. IP/C/25 of 1 July 2002 (according to paragraph 1 of which “[l]east-
developed country Members will not be obliged, with respect to pharmaceutical products, to
implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights pro-
vided for under these sections until 1 January 2016), and the General Council Decision of 8 July
2002 on “Least-Developed Country Members – Obligations Under Article 70.9 of the TRIPS
Agreement with respect to Pharmaceutical Products”, WTO Doc. WT/L/478 of 12 July 2002
(paragraph 1 of which states that “[t]he obligations of least-developed country Members under
paragraph 9 of Article 70 of the TRIPS Agreement shall be waived with respect to pharmaceuti-
cal products until 1 January 2016”).
53
The text of the Declaration, adopted on 14 November 2001, is available at http://
www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.
54
Article 30 of the TRIPS Agreement states that “[m]embers may provide limited exceptions
to the exclusive right conferred by a patent, provided that such exceptions do not unreasonably
conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate
interests of the patent owner, taking into account of the legitimate interests of the third parties”.
purposes of production of a pharmaceutical product(s) and its export to an eligible

importing Member(s)”.55
In other words, any WTO Member may export pharmaceutical products made
under compulsory licences, derogating from the provision of paragraph (f) (ac-
cording to which such licences must be used “predominantly for the supply of
the domestic market”), for the benefit of developing countries upset by pandemic
diseases. In any event, the application of such provision is subject to a number of
conditions, which have the clear purpose of preventing Member States from abus-
ing of the waiver. First, the eligible importing Member(s) must make a notification
to the Council for TRIPS specifying “the names and expected quantities of the
product(s) needed”, confirming its eligibility to benefit from the waiver and stating
that, “where a pharmaceutical product is patented in its territory, it has granted or
intends to grant a compulsory licence in accordance with article 31 of the TRIPS
Agreement and […] this Decision”.56 As for the condition of eligibility of the im-
porting country, paragraph 1(b) states that it is met by “any least-developed country
Member, and any other Member that has made a notification to the Council for
TRIPS of its intention to use the system as an importer”. All non-least-developed
Member States may only use the system on the condition that they confirm their
“insufficient or no manufacturing capacities in the pharmaceutical sector for the
product(s) in question”, as explicitly stated by paragraph 2(a)(ii). Also, the com-
pulsory licence issued by the exporting Member57 must respect a number of strict
conditions; in particular, “only the amount necessary to meet the needs of the eligi-
ble importing Member(s) may be manufactured under the licence and the entirety
of this production shall be exported to the Member(s) which has notified its needs
to the Council for TRIPS”.58
In addition, under paragraph 2, the products produced under the licence must
be “clearly identified as being produced under the system set out in this Decision
through specific labelling or marking”.59
As for the terms and conditions according to which the Decision allows the
waiving of Article 31(h) of the TRIPS Agreement, according to paragraph 3 such
provision may be waived by an eligible importing Member granting a compulsory
licence for the same products which are the object of a compulsory licence granted
by an exporting Member pursuant to the Decision, only “in respect of those prod-
ucts for which remuneration […] is paid in the [said] exporting Member”. In this
respect, according to the first part of the said paragraph, “adequate remuneration
55
See paragraph 2.
56
See paragraph 2(a).
57
Paragraph 1(c) defines “exporting Member” as “a Member using the system set out in
this Decision to produce pharmaceutical products for, and export them to, an eligible importing
Member”.
58
See paragraph 2(b)(i).
59
See paragraph 2(b)(ii).
pursuant to Article 31(h) of the TRIPS Agreement shall be paid in [the exporting]
Member taking into account the economic value to the importing Member of the
use that has been authorized in the exporting Member”. Thus, the exporting coun-
try bears the responsibility of setting compensation, the amount of which should
be established on the basis of the economic value of the product in the importing
country. This rule is suitable to allow that the compensation is based upon a fair
and reasonable royalty, and it could be implemented by establishing standard crite-
ria that could compensate all of the various patent owners. The adoption of such a
system would also be suitable for favouring the rapid availability of generic drugs,
without wasting the time needed for establishing the remuneration to be paid in
each circumstance. States are already familiar with this course of action, as dem-
onstrated by most recent practice, which has been characterized by the adoption of
various forms of royalty guidelines for compulsory licences (established by, inter
alia, Canada, Germany, Japan and the Philippines). These guidelines are generally
based on medium rates of around 4 percent, increased up to 5 percent for innova-
tive products of particular therapeutic value and reduced as much as 2 percent for
products that do not represent a significant progress in therapeutic benefits.60
As pointed out by the General Council Chairperson Carlos Pérez de Castillo
in his statement held on the same day of the adoption of the Decision,61 the system
established by this latter “should be used in good faith to protect public health and
[…] not be an instrument to pursue industrial or commercial policy objectives”.
For this reason, paragraph 4 requires Member States to take reasonable measures,
“within their means”, to prevent re-exportation of the products imported into their
territories under the system established by the Decision. The same paragraph also
introduces a system based on the solidarity of the developed countries which
should provide in favour of those Members that experience “difficulty in imple-
menting this provision […] technical and financial cooperation in order to facilitate
its implementation”. In addition, Member States are requested by paragraph 5 to
ensure the availability of “effective legal means to prevent the importation into, and
sale in, their territories, of products […] diverted to their markets inconsistently
with [the Decision’s] provisions”. The relevance of this latter provision is empha-
sized in the Chairperson’s statement, which stresses the fact that, in the event that
products supplied under the Decision are diverted from the market for which they
are intended, the purpose of the Decision would be defeated.
The principle expressed by paragraph 4 is nevertheless subject to a deroga-
tion, provided for by paragraph 6. In this respect it is noteworthy that in the part
60
See, inter alia, LOVE, “Compulsory Licensing: Models for State Practice in Develop-
ing Countries, Access to Medicine and Compliance with the WTO TRIPS Accord”, paper
prepared for the United Nations Development Programme, 21 January 2001, available at http:
//www.cptech.org/ip/health/cl/recommendedstatepractice.html, para. 39 f.
61
The text of the statement is available at http://www.wto.org/english/news_e/news03_e/
trips_stat_28aug03_e.htm.
of the Chairperson’s statement cited just above, the sentence stating that the Deci-
sion may not be considered as “an instrument to pursue industrial or commercial
policy objectives” is preceded by the phrase “without prejudice to paragraph 6 of
the Decision”. According to such provision, where a least-developed country WTO
Member is a party to a regional trade agreement (“within the meaning of Article
XXIV of the GATT 1994 and the [Enabling Clause]”),62 at least half of the current
membership of which is made up of least-developed countries, Article 31(f) of the
TRIPS Agreement “shall be waived to the extent necessary to enable a pharmaceu-
tical product produced or imported under a compulsory licence in that Member to
be exported to the markets of those other developing or least developed country
parties to the regional trade agreement that share the health problem in question”.
In view of promoting the development of the above system of regional patents,
the duty of providing technical cooperation is undertaken by developed country
WTO Members,63 which should also promote “the transfer of technology and
capacity building in the pharmaceutical sector in order to overcome the problem
identified in paragraph 6 of the Declaration”.64
The Decision, which shall not expire until “the date on which an amendment
to the TRIPS Agreement replacing its provisions takes effect” for any concerned
State,65 applies to any pharmaceutical product, defined as “any patented product,
or product manufactured through a patented process, of the pharmaceutical sector
needed to address the public health problem as recognized in paragraph 1 of the
Declaration”,66 also including “active ingredients necessary for its manufacture and
diagnostic kits needed for its use”.67
In the context of the adoption of the Decision, twenty-three WTO Members
declared that they would not use the system set out therein as importing Members,68
and other countries have agreed that they would only use the system as importers “in
situations of national emergency or other circumstances of extreme urgency”.69 In
addition to Hong Kong China, Israel, Korea, Kuwait, Macao China, Mexico, Qatar,
62
See Differential and More Favourable Treatment, Reciprocity and Fuller Participation of
Developing Countries (“Enabling Clause”), decision of 28 November 1979, available at http:
//www.wto.org/english/tratop_e/region_e/gattwto31.doc.
63
See paragraph 6(ii).
64
See paragraph 7. As for the “the problem identified in paragraph 6 of the Declaration”, see
supra text corresponding to note 53.
65
See paragraph 11 (specifying that the waivers granted in the decision will maintain their
effect until it shall not be terminated).
66
See paragraph 1(a).
67
Id.
68
See note 3 to the Declarations; these members are Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Neth-
erlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom, United
States.
69
See General Council Chairperson’s Statement, cit. supra note 61.
Singapore, Chinese Taipei, Turkey and the United Arab Emirates, this commitment
had already been undertaken by the new 2004 Members States of the European Un-
ion (Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland,
Slovak Republic and Slovenia), which further agreed that “upon their accession to
the European Union, they will opt out of using the system as importers”.70 The WTO
has established a dedicated webpage to make publicly available the notifications of
importing Members to use the system established by the Decision, as well as those
of exporting Members regarding the grant of compulsory licences for export.71
In the immediate aftermath of the adoption of the Decision, the WTO Director
General Supachai Panitchpakdi stated that it represents “a historic agreement for
the WTO, [proving] once and for all that the organization can handle humanitarian
as well as trade concerns”.72 Although it seems to this writer that such proof has
been given once and not for all, as is demonstrated by the fact that the “lifelong”
problem of the inclusion of a social clause in the WTO system has not yet been
resolved, it is indisputable that the Decision is a welcome step towards the recog-
nition of the pre-eminence of human dignity over economic values, and it is par-
ticularly noteworthy that such pre-eminence has been recognized in the context of
WTO, that is the most important international forum where commercial State inter-
ests are developed. Certainly, this course of action is not immune from side effects:
in particular, pharmaceutical research is now mainly concentrating on treatments
for diseases which are common in developed countries, since they may generate
much more income for pharmaceutical firms than medicines suitable to be included
in the system established by the Decision on the implementation of paragraph 6 of
the Doha Declaration. In addition, although fully recognizing the positive efforts of
WTO Members underlying the Decision, it is important to keep in mind that in the
real world its effects may be a mere panacea for a problem that needs to be faced by
adopting a multifaceted strategy aimed at resolving, at the same time, all the inter-
related causes which give rise to it. As a matter of fact, waivers of intellectual prop-
erty rights and compulsory licences for medicines risk of being ineffective unless
practical problems arising from extreme poverty and deficiency of health care in
developing countries are not overcome, e.g. the lack of sterile needles for injecting
medications, the need to make medicines for the treatment of the adverse side-ef-
fects of anti-pandemic drugs available together with such drugs, not to mention the
social conditions hindering the adoption of safeguards against sexually transmitted
diseases.73 In addition, many developing countries suffer problems of poverty so
70
Id.
71
The address of such website is http://www.wto.org/english/tratop_e/trips_e/public_
health_e.htm.
72
See “Decision WTO removes final patent obstacle to cheap drug imports”, available at
http://www.cicd-volunteerinafrica.org/Article.asp?NewsID=57.
73
See OWEN, “WTO – Compulsory Licensing in the Developing World”, October 2003,
available at http://thomsonderwent.com/ipmatters/ipdc/8199223.
extreme that they cannot afford even the lowest priced generic medicines.74 It is
thus important to keep in mind the fact that the system established by the Decision
on the implementation of paragraph 6 of the Doha Declaration, although undeni-
ably welcome, represents only a step in a road that is long and difficult. Were it
to be considered the solution of all health problems of developing countries, the
international community would run the risk of undervaluing one of the most crucial
human emergencies of the contemporary world.
74
Id.; the author stresses the fact that “[o]nly approximately 3% of drugs on the essential
drug list from the WHO are protected by patent”.
REVIEW OF JUDGMENTS AND DECISIONS
DELIVERED IN 2003 BY THE EUROPEAN COURT OF HUMAN RIGHTS
ON SUBJECTS RELEVANT TO INTERNATIONAL LAW
SIMONA GRANATA*
Ever since it began to function, on 1 November 1998, the new European

Court of Human Rights has had to struggle in order to prove that the failure of
Protocol No. 11 to the European Convention on Human Rights – which had set up
this new, permanent Court with a view to ensuring a more efficient processing of
the ever-growing applications – was not due to the Court’s own inefficiency. Sta-
tistics are clear: the number of incoming applications is higher than the number
of processed ones, and this trend continues. In 2003, the number of applications
lodged with the Court was 38,628; those communicated for observation to the
respondent Government were 1720. 753 cases were declared admissible and
16,724 inadmissible.
So, every year the figures of the cases dealt with by the Court in the previous
year are accompanied by explanations and justifications. This year, the dramatic
drop in the number of judgments (703 against 844 in 2002 – a decrease of 20%) is
said to be due to the artificial inflation of the previous years’ statistics by significant
groups of cases concerning the length of court proceedings in Italy.1
Whatever the contingent reasons, the truth is that the Court is not able to in-
crease its case-processing capacity to the extent that would allow hope for the pos-
sibility of maintaining the right to individual application as it is.
*
Head of the Constitutional Co-operation Division at the Secretariat of the Council of
Europe’s European Commission for Democracy through Law (“the Venice Commission”). The
views expressed are solely those of the author.
1
Most of the Italian cases concerning length of judicial or administrative proceedings virtu-
ally disappeared from the Court’s docket after the Court decided in 2001 that the remedy intro-
duced by the “Pinto Law” (Law No. 89 of 24 March 2001) was an effective one for the purposes
of Article 35, para. 1, of the Convention. However, in the case of Scordino v. Italy (Decision of
27 March 2003), the Court found that the level of compensation awarded to the applicants was
too low for them to be deprived of their status as victims; it further found that the applicants were
exempted from the obligation under Article 35, para. 1, to appeal to the Court of Cassation in
order to challenge the amount of compensation. This decision alerted the Italian authorities. The
Plenary Session of the Court of Cassation, by Judgment No. 1339 of 26 January 2004, held that
the finding of a violation of the “reasonable length guarantee” in Article 6, para. 1, of the Conven-
tion normally gives rise to the entitlement for the victim to compensation for the moral damage
incurred, and the national judge has to determine the amount of such compensation by reference
to the pertinent case-law of the Strasbourg Court and may differ from the latter only insofar as is
“reasonable”. By a Decision of 13 November 2003 (Application No. 19537/02, Pelli v. Italy), the
European Court found that Article 6 of the Convention is applicable to a procedure for obtaining
compensation under the “Pinto Law”.
The Court therefore fights for its survival by attempting to argue for the right to
select the applications it will examine without having to provide reasons for not ex-
amining the others. Proposals in this sense have been made within the Committee
of Ministers’ Steering Committee for Human Rights. The reform of the Conven-
tion, however, seems to be in a deadlock.
But while the Court fights to get rid of most cases, it does not seem to be ready
to give up cases involving issues of EU law. And indeed, while the ECJ has increas-
ingly dealt with fundamental rights drawing inspiration from the ECHR and the
case-law of the Strasbourg Court, on account of the gaps in the EU human rights
protection mechanism, EU citizens have increasingly turned to the Strasbourg
Court, which has progressively expanded its scope of competence and has agreed
to review national acts of implementation of Community law. It could even be said
that a de facto accession of the European Communities is taking place.
Divergences in the case-law of the Strasbourg Court and the ECJ have oc-
curred.2 The EU has adopted a Charter of Fundamental Rights, which affords a
2
See, amongst others, ALKEMA, “The European Convention as a Constitution and its Court
as a Constitutional Court”, in MAHONEY, MATSCHER, PETZOLD and WILDHABER (eds.), Protect-
ing Human Rights: The European Perspective; Studies in Memory of Rolv Ryssdal, Köln-Berlin-
Bonn-München, 2000, pp. 41-63; LE BOT, “Charte de l’UE et la Convention de sauvegarde des
droits de l’homme: la coexistence de deux catalogues de droits fondamentaux”, RTDH, 2003, pp.
781-887; BULTRINI, “L’interaction entre le système de la CEDH et le système communautaire”,
Zeitschrift für Europarechtliche Studien, 1998, pp. 493-504; BURGORGUE-LARSEN, “Chronique
de jurisprudence européenne comparée”, Revue du droit public, 2003, pp. 961-1022; CHURCHILL
and FOSTER, “Double Standards in Human Rights? The Treatment of Spanish Fishermen by the
European Community”, EL Rev., 1978, pp. 430-443; COHEN-JONATHAN, “Respect for Private
and Family Life”, in MACDONALD, MATSCHER and PETZOLD (eds.), The European System for the
Protection of Human Rights, Dordrecht-Boston, 1993, pp. 405-444; JACQUÉ, “The Convention
and the European Communities”, ibid., pp. 889-907; JACOBS, “Human Rights in the European
Union: The Role of the Court of Justice”, EL Rev., 2001, pp. 331-341; KRÜGER and POLAKIE-
WICZ, “Proposals for a Coherent Human Rights Protection System in Europe; The European
Convention on Human Rights and the EU Charter of Fundamental Rights”, HRLJ, 2001, pp. 1-
13; LAWSON, “Confusion and Conflict? Diverging Interpretation of the European Convention on
Human Rights in Strasbourg and Luxembourg”, in LAWSON and DE BLOIS (eds.), The Dynamics
of the Protection of Human Rights in Europe. Essays in Honour of Henry Schermers, Vol. III,
Dordrecht, 1994, pp. 219-252; LECOURT, “Cour européenne des droits de l’homme et Cour de
justice des Communautés européennes’’, in MATSCHER and PETZOLD (eds.), Protecting Human
Rights: The European Dimension. Studies in honour of Gérard J. Wiarda, Köln et al., 1988, pp.
335-340; LENAERTS, “Fundamental Rights in the EU”, EL Rev., 2000, pp. 575-600; MALIN-
VERNI, “Le droit communautaire devant la Cour de Strasbourg”, in AUER, DELLEY, HOTTELIER
and MALINVERNI (eds.), Aux confins du droit. Essais en l’honneur du Professeur Charles-Albert
Morand, Basel, 2001, pp. 265-291; ROSSI, “‘Constitutionnalisation’ de l’Union européenne et
des droits fondamentaux”, Revue trimestrielle de droit européen, 2002, pp. 27-52; SIMON, “Des
influences spécifiques entre CJCE et CEDH: je t’aime moi non plus!”, Pouvoirs, 2001, p. 31 ff.;
SPIELMANN, “Human Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts,
Inconsistencies and Complementarities”, in ALSTON, BUSTELO and HEENAN (eds.), The EU and
Human Rights, Oxford, 1999, pp. 757-780; TULKENS, “Towards a Greater Normative Coherence
EUROPEAN COURT OF HUMAN RIGHTS (2003) 209
scope of protection of fundamental rights that is not entirely equal to the one af-
forded by the ECHR. When the Charter becomes legally binding, which is likely
to happen, there will be an overlapping of legal instruments (the Charter and the
ECHR) and of fora (the Strasbourg and the Luxembourg Courts).
Is this overlapping going to constitute a threat to legal certainty in Europe? As
unpopular as it may be, the reply to this question cannot be negative. Despite the
horizontal provisions in the Charter, different interpretations of the ECHR and the
Charter seem inevitable. What will the national authorities do when faced with the
choice of whose conflicting case-law to apply, that of Strasbourg or that of Luxem-
bourg? Will they risk sanctions in Luxembourg or in Strasbourg?
From the perspective of the Council of Europe, it should certainly not be pos-
sible for States which are party to the ECHR, such as all EU Member States, to
evade, by means of transfers of power to a supra-national or international organiza-
tion, such as the EU, external supervision by the Strasbourg Court. And indeed, in
the absence of such external control, there would be no remedy against a possibly
more restrictive interpretation of the Charter provisions by the Luxembourg Court
than the interpretation of the equivalent ECHR provisions by the Strasbourg Court:
should this happen, there would be a real risk of lowering the level of human rights
protection in respect of acts of the Community institutions.
For this reason, the European Communities should ratify the ECHR.3 This
accession would seem a logical consequence of the circumstance where the Com-
munity and the European Union evolve into structures which are increasingly com-
parable to those of a federal State. In that respect, the Charter would play the same
role as the catalogues of fundamental rights contained in the national constitutions
and the ECJ would play a similar role to that of the highest national courts. No
contradiction is seen, in Strasbourg, with the EC being a party to the ECHR and the
principle of autonomy of EC law or the substance of the monopoly of its interpreta-
tion by the ECJ.
The EU would benefit from such accession: first of all, it would be fully repre-
sented before the Strasbourg Court. Consequently, its specific experiences would
be taken into consideration more directly and easily by the latter. Furthermore,
accession would allow for the satisfactory handling of the issues arising out of the
in Europe/The Implications of the Draft Charter of Fundamental Rights of the European Union”,
HRLJ, 2000, pp. 329-332; TURNER, “Human Rights Protection in the EC: Resolving Conflict
and Overlap between the European Court of Justice and the European Court of Human Rights”,
European Public Law, 1999, pp. 454-470; VAN DIJK, Judicial Protection of Human Rights in
the European Union – Divergence, Coordination, Integration, Exeter, 1996; WEILER and LOCK-
HART, “‘Taking Rights Seriously’ Seriously; The European Court and Its Fundamental Rights
Jurisprudence”, CML Rev., 1995, pp. 579-627.
3
See the Venice Commission’s Opinion on Implications of a legally binding EU Charter
of fundamental rights on human rights protection in Europe, adopted on 12-13 December 2003
(CDL-AD(2003)22).
implementation of judgments in cases involving EC/EU issues. The credibility of

the EU’s policies in the field of human rights would also be enhanced.4
Ultimately, accession by the EC to the ECHR would maintain and even rein-
force the ECHR mechanism, and avoid the creation of new dividing lines within
Europe. This matter, therefore, affects the position of the Council of Europe, and the
Strasbourg Court, in the European architecture. It is no wonder that the latter Court
is not ready to give up these cases, notwithstanding its overburdened docket.
1. One of the most interesting judgments delivered by the Court in 2003 was
Öcalan v. Turkey (Application No. 46221/99, Section I, Judgment of 12 March
2003). It raised numerous issues relating to the applicant’s arrest, detention, con-
viction and sentence to the death penalty and conditions of detention.
The applicant is the former leader of the Turkish Workers’ Party of Kurdistan
(“the PKK”). After being expelled from Syria in 1998, he ended up at the residence
of the Greek Ambassador in Nairobi, Kenya. This Ambassador, following a meet-
ing with the Kenyan Minister of Foreign Affairs, informed the applicant that he
was free to leave to go to the Netherlands. On 15 February 1999, the applicant was
driven by a Kenyan official to an aircraft in the international transit area of Nairobi
Airport but was arrested by Turkish officials after boarding the aircraft, pursuant to
seven warrants for his arrest issued by the Turkish Courts. The applicant was flown
to Turkey and taken into custody in a prison on the island of ømralı on 16 February
1999 and subsequently interrogated by members of the security forces and, on 22
February 1999, by the Public Prosecutor at the Ankara State Security Court. On 23
February 1999 the applicant appeared before a judge of the State Security Court,
who ordered his detention pending trial. On 24 April 1999 the Public Prosecutor at
the Ankara State Security Court accused the applicant of carrying on activities with
a view to bringing about the secession of part of the national territory and of having
formed and led an armed organization for that purpose. He sought the death pen-
alty pursuant to Article 125 of the Criminal Code. During the course of the trial the
Constitution was amended so as to exclude military members from the composition
of the State security courts. A civilian judge was therefore appointed to replace the
military judge as a member of the State Security Court hearing the case. On 29 June
1999 the Ankara State Security Court found the applicant guilty of the offences as
charged and sentenced him to death, pursuant to Article 125 of the Criminal Code.
In a judgment delivered on 25 November 1999 the Court of Cassation upheld that
decision in its entirety.
On 13 November 1999 the European Court of Human Rights decided to apply
Rule 39 of the Rules of Court and requested the Turkish government to take all
necessary steps to ensure that the death penalty was not carried out, so as to enable
4
Today, ratification of the ECHR is a pre-condition for EU membership, but the EU is not
subject to the ECHR supervisory machinery.
the Court to proceed effectively with the examination of the admissibility of the
applicant’s application. In September 2001 delegates of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) visited the prison where the applicant was being held.
The death penalty was abolished in peacetime in Turkey by legislation intro-
duced in August 2002. Consequential amendments were made to the Criminal
Code. An action that had been brought in the Constitutional Court to challenge the
constitutionality of the legislation abolishing the death penalty was dismissed. In
a letter of 19 September 2002 to the Court, the Turkish Government declared that
the applicant’s sentence could no longer be executed. By a judgment of 3 October
2002 the Ankara State Security Court converted the applicant’s sentence to one of
life imprisonment. Appeals were lodged against that judgment by two trade unions
which had intervened in the criminal proceedings on behalf of their deceased mem-
bers. The appeals were still pending when the Court delivered its judgment.
As regards the applicant’s complaint under Article 5, para. 1 ECHR, the Court
considered that, after being handed over to Turkish officials at Nairobi airport, the
applicant had been under the “jurisdiction” of Turkey for the purposes of Article
1 ECHR even if the arrest had been carried out outside the Turkish territory. The
arrest and detention had been carried out in accordance with arrest warrants issued
by the Turkish criminal courts in accordance with Turkish law, even though these
warrants had not been shown to the applicant upon his arrest. It had not been estab-
lished beyond all reasonable doubt that the operation carried out partly by Turkish
officials and partly by Kenyan officials amounted to a violation by Turkey of Ken-
yan sovereignty (as claimed by the applicant) and, consequently, of international
law. Accordingly, there had been no breach of Article 5, para. 1(c) ECHR.
The Court found that there had been a violation of Article 5, para. 4, in that the
applicant had not disposed of any opportunity of taking proceedings by which the
lawfulness of his detention in police custody could be decided. The Court based
itself on its previous finding that there had been no example of any successful such
application and also on the particular circumstances of the applicant’s conditions of
detention (total isolation and the impossibility of his lawyers to contact him).
The Court also found a violation of Article 5, para. 3 ECHR in that the appli-
cant had been kept in police custody without judicial supervision for an excessively
long period of time, even for a case involving an investigation of terrorist offences
(a minimum of seven days), the alleged adverse weather conditions not having
been proved.
As regards the applicant’s complaint that the Ankara State Security Court was
not an independent and impartial tribunal, the Court considered that the last-minute
replacement of the military judge was not capable of curing the defect in the com-
position of the State security court that had led the Court to find a violation on that
point in its previous øncal and Çiraklar judgments, as most of the trial had already
taken place before the military judge ceased to be a member of the trial court. It
was the presence of the military judge for most of the trial that had given rise to
the problem and not the change in the court’s composition. A further factor was the
exceptional nature of the trial itself, which concerned a high-profile accused who
had been engaged in a lengthy armed conflict with the Turkish military authorities
and sentenced to death. The presence of the military judge could only have served
to raise doubts in the accused’s mind as to the independence and impartiality of the
trial court.
The Court further found that there had been a violation of Article 6(1) ECHR,
taken together with Article 6(3)(b) and (c) as the applicant had not had a fair trial
on account of the lack of legal assistance while he was in police custody and the
impossibility for him to consult his lawyers out of hearing of third parties, the re-
strictions on the number and length of the visits by the applicant’s lawyers and the
lack of or insufficient access by the latter to the case file and the court file.
The applicant had also alleged that the imposition and/or the execution of the
death penalty amounted to a breach of Article 2 and 3 ECHR, and would have been
discriminatory.
The Court found that, there being no substantial grounds for fearing the ex-
ecution of the death penalty, there was no violation of Article 2, Article 14 taken
together with Article 2, or Article 3 in this respect.
In relation to the imposition of the death penalty, the Court found that imposing
a death sentence on a person after an unfair trial was to subject that person wrong-
fully to the fear that he would be executed. The fear and uncertainty as to the future
generated by the death sentence, in circumstances where there existed a real pos-
sibility that the sentence would be enforced, had to give rise to a significant degree
of human anguish. Such anguish could not be dissociated from the unfairness of
the proceedings underlining the sentence which, given that human life was at stake,
became unlawful under the Convention.
The Court noted that forty-three of the forty-four Contracting States have
abolished the death penalty. Forty-one States have ratified Protocol No. 6. In these
circumstances, the Court considered that Contracting Parties had expressed their
agreement to abrogate, or at least to modify, the second sentence of Article 2, para.
1, ECHR. Accordingly, capital punishment in times of peace had become an unac-
ceptable, if not inhuman, form of punishment, prohibited under Article 2 ECHR.
The imposition of the death penalty on the applicant following an unfair trial,
when there was a real risk during three years that this sentence would be executed,
amounted to inhuman treatment. Accordingly, there had been a breach of Article 3
ECHR.
The Court instead found that the conditions of the applicant’s detention had
not been proved beyond all reasonable doubt to have exceeded the usual degree of
humiliation that was inherent in every arrest and detention or attained the minimum
level of severity required for Article 3 to apply.
This judgment is not final: the case is currently pending before the Grand
Chamber and it will of course be interesting to see whether any of these conclu-
sions are reversed. It is nonetheless important that the Court acknowledged the
existence of a European standard on the need to abolish the death penalty irrespec-
tive of the alleged crimes committed. It is essential, in particular in these difficult
times when the fight against terrorism risks opening the door to double standards
and derogations to non-derogable fundamental rights, to reiterate the position of
Europe on certain matters. But will all European States stick in all circumstances
to the European standards?
2. The question of the compatibility of parliamentary immunity with the right

of access to a court, guaranteed by Article 6 of the Convention, came before the
Court again in 2003. The question of the permissibility under the Convention of an
absolute privilege of an MP in respect of statements made in the course of parlia-
mentary debate had been examined in 2002 (A. v. the United Kingdom, Application
No. 35373/97, Second Section, Judgment of 17 December 2002, Final).
On 30 January 2003, the Court delivered its judgments in two Italian cases,
Cordova v. Italy No. 1 and Cordova v. Italy No. 2,5 concerning parliamentary im-
munity in respect of acts and statements made outside parliamentary debate.
In the first case, the applicant, then Procuratore della Repubblica, had carried
out certain investigations in respect of a person who had had some connections
with a former Italian President of the Republic, now a Senatore a vita. Having
received from the latter sarcastic letters and toys as presents, the applicant filed
a criminal complaint against the former President, claiming that he had offended
the applicant’s reputation and honour. The proceedings, in which the applicant had
lodged a civil party application, were however discontinued on account of the Sen-
ate’s finding that the former President enjoyed immunity under the Constitution.
The applicant requested the public prosecutor to appeal, but the latter refused to do
so, failing to consider that the Senate’s decision was arbitrary.
In the second case, the applicant, having been the object of offensive remarks
made by a member of Parliament in the course of an electoral meeting, filed a crimi-
nal complaint for aggravated slander against him. The court at first instance found
the MP guilty and sentenced him to a suspended term of imprisonment and required
him to pay the applicant compensation for moral damage. This court did not see it fit
to suspend the proceedings and seek the authorisation of the Chamber of Deputies,
given that the impugned expressions had been used outside parliamentary debate.
The MP’s appeal was unsuccessful, but in the course of his appeal on points of law,
the Court of Cassation requested the Chamber of Deputies to withdraw his immuni-
ty. Due to the Chamber of Deputies having found that the statements had been made
within the framework of parliamentary functions, the Court of Cassation annulled
5
Cordova v. Italy No. 1, Application No. 40877/98, and Cordova v. Italy No. 2, Applica-
tion No. 45649/99, Judgments of 30 January 2003. Cf. GRANATA, “Review of Judgments and
Decisions Delivered by the European Court of Human Rights in 2002 on Subjects Relevant to
International Law”, IYIL, 2002, p. 257 ff., p. 260.
the two previous judgments. The applicant’s request to raise a question of conflict
between State powers before the Constitutional Court was denied.
In both cases, the applicant alleged a violation of his right of access to a court,
recognised under Article 6 of the Convention, on account of his inability to obtain
compensation from the accused for the alleged injury to his reputation and honour.
The Court found that the applicant’s obstructed access to justice was due to the
pursuit of a twofold, legitimate aim: namely to protect free parliamentary debate
and to maintain the separation of the legislative and judiciary powers. The Court
recalled nevertheless that while parliamentary debates needed to be protected and
preserved, and that interference with freedom of expression within Parliament
should be permissible in only extreme circumstances, the same was not always true
in respect of acts committed by MPs that are unrelated to parliamentary debate.
In the first case, the Court found that the facts indicated that there had been
a personal dispute between the applicant and the former President. There was no
clear link between such dispute – though political in nature and linked with a politi-
cal activity – and the parliamentary functions of the former President. Accordingly,
and given that the bar from the court had been decided by a political organ, the
criterion of proportionality between the legitimate aim pursued and the means used
to achieve it had to be narrowly interpreted. The Court reached the conclusion that
preventing access to court, as in this case, on the sole ground that the impugned acts
had been committed by an MP, coupled with the impossibility for the applicant to
seek adequate redress through an alternative venue, amounted to a breach of Arti-
cle 6 of the Convention. The Court noted in addition that the Italian Constitutional
Court had taken the position that parliamentary immunity was not to cover state-
ments having no substantial connection with previous parliamentary activities.6
In the second case, the Court found that the public statements which had im-
pinged on the applicant’s honour had been made in the course of an electoral meet-
ing and thus outside of Parliament, hence unrelated to their author’s parliamentary
functions strictu sensu. For the same reasons as in the first case, the Court subse-
quently found that the applicant’s right of access to a court had been violated.
These cases put emphasis on an important principle. Free parliamentary debate
is essential to democracy.7 But democracy cannot be used as a pretext for allowing
the abusive exercise of prerogatives by certain individuals to the detriment of other
individuals. As evident as this may seem, it took many years and many unfortunate
examples before the question was addressed in Italy. The Italian Constitutional
Court has had to intervene to reiterate this principle, though it is doubtful that the
Italian political class has gotten the message.
6
Judgment No. 289 of 18 July 1998.
7
Reflection was initiated within the Council of Europe in 2003 on what is the future of
democracy. See, in this respect, the Parliamentary Assembly’s Recommendation 1629(2003) on
“Future of Democracy: Strengthening Democratic Institutions” and the Venice Commission’s
opinion on the possible follow-up thereto (CDL-AD(2004)15).
3. The case of Markoviü and Others v. Italy8 raised two interesting issues:
whether the NATO bombings in Kosovo, not authorised by the UN Security Coun-
cil, may be considered as lawful acts of war and whether individuals may sue for-
eign States on account of an allegedly illegal action before the courts of that State.
This case originated from the same facts as the famous case of Bankoviü,9 that
is to say the bombing by NATO air forces, on 23 April 1999, of the headquarters of
the Serbian Radio and TV Station (RTS) in Belgrade.
Five of the applicants’ relatives had died as a consequence of the bombing.
The applicants had thereafter sued before the Italian courts the Italian Council of
Ministers, the Italian Ministry of Defence, as well as the NATO Allied Forces of
Southern Europe, on the basis of Article 2043 of the Civil Code, which creates an
obligation on whoever causes unjust prejudice to provide redress for such preju-
dice. They had claimed that the allegedly prejudicial acts could be considered to
have been committed in Italy – which entailed the jurisdiction of the Italian courts
– to the extent that the military action had been organised and partly carried out on
the Italian territory. Italy had in fact participated in the military mission and had
permitted the use of its military bases, from which the planes which bombed Bel-
grade had taken off. The Italian Council of Ministers and Ministry of the Defence
had applied to the Court of Cassation seeking a preliminary ruling on a question of
jurisdiction (regolamento preventivo di giurisdizione). This Court, in Plenary Ses-
sion, had found that there was an absolute lack of jurisdiction on the part of the Ital-
ian courts.10 The act which had prejudiced the applicants was in fact an act of war
and, as such, an emanation of the power of the State and thus exempt from judicial
review. The Court had considered furthermore that the relevant international trea-
ties, such as the Additional Protocols to the Geneva Conventions and the European
Convention on Human Rights (Articles 2 and 15), did not provide for the possibil-
ity for individuals to seek redress for the damage incurred on account of a breach
of their provisions. They only regulated inter-state relations.
The applicants complained before the Strasbourg Court in the first place of the
death of their relatives, under several ECHR provisions including Article 2. They fur-
ther complained of their impossibility to seek reparation for the damage suffered and
hence alleged a breach of Article 6 in conjunction with Article 1 of Protocol No. 1.
The Strasbourg Court rejected the first complaint as being incompatible with
the Convention on the same grounds as the Bankoviü case.
The second complaint, instead, was communicated in respect of the right of
access to a court. In this respect, it is likely that the Court, when examining the
8
Dusan Markoviü and Others v. Italy, Application No. 1398/03, Decision of 12 June 2003
(partly inadmissible).
9
Bankovic and Others v. Belgium and 16 Other Contracting States, Application No. 52207/
99, Grand Chamber, Judgment of 12 December 2001.
10
Corte di Cassazione (Sezioni Unite), 5 June 2002, No. 8517, Presidenza del Consiglio dei
Ministri v. Markoviü and Others, cf. IYIL, 2002, Judicial Decisions XX, with a note by BRUNO.
admissibility of this complaint, will address the question of the (undoubtedly ir-
ritating, from the standpoint of the Court) position taken at times by the Italian
supreme jurisdictions as regards the direct applicability in the Italian legal order of
the provisions of the ECHR.11
4. Two judgments delivered in 2003 related to environmental questions.

The case of Kyrtatos v. Greece (Application No. 41666/98, Judgment of 22
May 2003, Final on 22 August 2003) raised the question of the extent to which en-
vironmental pollution may affect the well-being of persons and prevent them from
enjoying their homes in such a way as to adversely affect their private and family
life, though not endangering their health.
The applicants owned real property in the south-eastern part of the Greek is-
land of Tinos, in the Cyclades; the first applicant was the co-owner of a house and a
plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp
by the coast of Ayios Yiannis.
The Cyclades prefect issued two decisions which allowed the subsequent issu-
ing of building permits in respect of that area. The applicants sought judicial review
of those decisions with some success: the Supreme Administrative Court quashed
one of the decisions on the ground that it violated Article 24 of the Constitution,
which protects the environment by putting in jeopardy the swamp in Ayios Yiannis,
which is an important natural habitat for various protected species (such as birds,
fish and sea-turtles). This Court also annulled the building permits which had been
delivered.
The authorities however did not concur with this decision; accordingly, certain
buildings had been constructed in the area and a part of the swamp was used to
build a parking lot and a road.
The applicants contended inter alia under Article 8 ECHR that urban develop-
ment in the south-eastern part of Tinos had led to the destruction of their physical
environment and had affected their lives.
The Court considered that the applicants’ complaint could be regarded as
comprising two distinct limbs. First, they complained that urban development had
destroyed the swamp which was adjacent to their property and that the area where
their home was had lost all of its scenic beauty. Second, they complained about the
environmental pollution caused by the noises and night-lights emanating from the
activities of the firms operating in the area. This second aspect was rejected on ac-
count of its insufficient degree of seriousness.
11
See, amongst others, DE SALVIA, “L’acculturazione incompiuta al diritto europeo dei di-
ritti dell’uomo”, Documenti Giustizia, 2000, pp. 46-54; VALABREGA, “L’applicazione giurispru-
denziale della Convenzione europea dei diritti dell’uomo in Italia”, ibid., pp. 67-90; GRANATA,
Comment to Corte di Cassazione, 8 July 1998, No. 6672, Galeotti Ottieri della Ciaja v. Ministero
delle finanze, IYIL, 1999, Judicial Decisions XI, pp. 165-166.
In respect of the first issue, the Court explained that the crucial issue to be ex-
amined in this case was whether environmental pollution had had a directly harm-
ful effect on the applicants’ private or family life. The Court found that there had
been no breach of Article 8 ECHR in that it considered that the alleged damage to
the birds and other protected species living in the swamp had not been proved to
be of such a nature as to directly affect the applicants’ rights under Article 8, para.
1, of the Convention. Such damage would have been more evident, in the Court’s
opinion, “if the environmental deterioration complained of had consisted in the
destruction of a forest area in the vicinity of the applicants’ house”.
This judgment has raised some perplexities amongst the environmental ex-
perts,12 not so much in respect of the principle that general environmental deterio-
ration does not as such raise issues under Article 8 ECHR – the idea that neither
Article 8 nor any of the other articles of the Convention are specifically designed
to provide general protection for the environment as such was already expressed in
1994 in the case of Lopez Ostra (see Lopez Ostra v. Spain, Judgment of 9 Decem-
ber 1994, Series A No. 303-C, p. 54, para. 51).
The conclusion that damage to birds and other protected species might not
directly affect an individual’s rights under Article 8 ECHR is understandable. But
does the destruction of a swamp only amount to interference with the conditions
of animal life? What about the alteration of the ecosystem, could that not be suf-
ficiently serious as to affect an individual’s personal life as much as the destruction
of a forest, which the Court considers to be a more evident interference with the
rights under Article 8?13 This reductive idea of the value of a swamp is hardly rec-
oncilable with the Ramsar Convention on Wetlands of 2 February 1971.
In the case of Hatton and Others v. the United Kingdom (Application No. 36022/
97, Grand Chamber, Judgment of 8 July 2003) the question of the level of noise in
the vicinity of the Heathrow airport was raised in the context of Article 8 ECHR.
The applicants, who all lived nearby Heathrow airport, had experienced sleep
disturbance as the level of noise from aircraft taking off and landing from the airport
during the night had increased substantially since 1993. Indeed, following a 1992
study undertaken in the context of a government review of restrictions on night
flights which had revealed that very few people were at risk of substantial sleep dis-
turbance, the Government consulted airlines and trade associations with an interest
in air travel, which had all emphasised the economic importance of night flights. In
1993, a quota system had been introduced with the stated aim of reducing noise at
three London airports, including Heathrow. Under the scheme, each type of aircraft
had been assigned a “quota count” depending on its noise level. In addition, aircraft
12
See, for example, WINISDOERFFER, Note sous l’arrêt Kyrtatos c. Grèce, du 22 mai 2003,
n° 41666/98, CEDH 2003-VI, Revue juridique de l’environnement, 2004, pp. 176-179; ID., “La
jurisprudence de la Cour européenne des Droits de l’Homme et l’environnement”, Revue juridi-
que de l’environnement, 2003, pp. 213-228.
13
See Judge Zagrebelski’s Dissenting Opinion in respect of this case.
movements had had to be kept within the permitted maximum number of points,
the aim being to encourage the use of quieter aircraft. Additional restrictions had
applied during the “night quota period” between 11.30 p.m. and 6 a.m. In 1995, the
Government had admitted that the scheme had allowed more noise than had been
experienced in 1988, contrary to Government policy, but, after a further review of
reports on aircraft noise and sleep disturbance, had kept the scheme in force. In ju-
dicial review proceedings brought by several local authorities, the Court of Appeal
had considered that adequate reasons and sufficient justification had been given for
the conclusion that it was reasonable, on balance, to run the risk of diminishing to
some degree the ability of local people to sleep at night, because of the other coun-
tervailing considerations. The House of Lords had refused leave to appeal.
The Court considered that in addition to examining the merits of the contested
decisions (while leaving the State a wide margin of appreciation), it had to consider
whether, in the decision-making process, due weight had been accorded to the ap-
plicants’ interests.
The Court was convinced that the implementation of the 1993 scheme was
capable of adversely affecting the quality of the applicants’ private lives and the
scope of their enjoyment of their homes and thus their rights under Article 8 ECHR,
even if the applicants had not submitted any evidence in support of the degree of
discomfort suffered.
The disturbances had not been caused by State organs but had emanated from
the activities of private operators. It could therefore be argued either that there
had been a direct interference by the State or that the State responsibility in envi-
ronmental issues might also arise from a failure to regulate private industry in a
manner that secured proper respect for rights under Article 8. The Court did not
consider it necessary to rule on this point, given that broadly similar principles ap-
plied in any case.
Unlike in previous cases involving environmental issues which had been ex-
amined by the Court, the element of domestic irregularity was wholly absent: the
policy was not unlawful and the night flights had not breached the applicable regu-
lations. In order to justify this scheme, the Government had invoked not only the
economic interests of the operators of airlines and other enterprises as well as their
clients, but also, and above all, the economic interests of the country as a whole,
which was legitimate under paragraph 2 of Article 8.
As regards the fair balance to be struck between the competing interests of the
affected individuals and the economic well-being of the country, the Court was
faced with conflicting views as to the margin of appreciation to be applied: on
the one hand, the Government claimed a wide margin on the ground that the case
concerned matters of general policy, and, on the other hand, the applicants claimed
that where the ability to sleep is affected, the margin is narrow because of the “in-
timate” nature of the right protected. The Court emphasised that the 1993 scheme
was a general measure not specifically addressed to the applicants and while it had
obvious consequences for them it did not intrude into an aspect of private life in a
manner comparable to, for example, criminal measures relating to sexual conduct.
Accordingly, the Court’s supervisory function was limited to reviewing whether or
not a fair balance had been struck in the implementation of the scheme. The author-
ities were entitled to rely on the available statistical data for this purpose. The very
purpose of the scheme was to keep noise disturbance at an acceptable level and it
was also acknowledged that the measures had to be kept under constant review.
Moreover, it was reasonable to assume that night flights contributed, to a certain
extent, to the general economy. The scheme eventually put in place was stricter
than that envisaged in the Consultation Paper and the Government had not only
resisted calls for more liberal regulation but had introduced additional restrictions.
A further relevant factor was the availability of measures to mitigate the effects of
aircraft noise, a number of which had been taken. Moreover, it was also significant
that the individuals had the possibility of moving elsewhere without financial loss,
the applicants not having contested the Government’s assertion that house prices
had not been adversely affected by night noise.
As regards the procedural aspect of the case, the Court said that while a govern-
mental decision-making process concerning complex issues of environmental and
economic policy necessarily had to involve appropriate investigations and studies,
this did not mean that decisions could only be taken if comprehensive and measura-
ble data were available in relation to each and every aspect of the matter. The Govern-
ment had consistently monitored the situation and the 1993 scheme in particular had
been preceded by a series of investigations and studies. Moreover, the applicants had
access to the Consultation Paper and it was open to them to make representations.
Against this background, the Court, by a majority, found that there had been no
violation of Article 8.
It found however that the scope of judicial review had been insufficient to
comply with Article 13. Indeed, while judicial review proceedings had been capa-
ble of establishing that the 1993 Scheme was unlawful because the gap between
Government policy and practice was too wide, the scope of review by the domestic
courts was limited to the classic English public law concepts, such as irrational-
ity, unlawfulness and patent unreasonableness. At that time, that is, prior to the
entry into force of the Human Rights Act 1998, no consideration could be given to
whether the claimed increase in night flights under the 1993 Scheme represented
a justifiable limitation on the right to respect for the private and family lives or the
homes of those who live in the vicinity of Heathrow airport.
This judgment is considered by many to represent a step backwards in the trend
towards ensuring the right to a healthy environment under the European Conven-
tion on Human Rights. As is emphasised in the sound Dissenting Opinion by Judg-
es Costa, Ress, Türmen, Zupanþiþ and Steiner, accompanying the judgment,14 it is
14
This Dissenting Opinion contains an outline of the Court’s case-law on environmental
matters.
difficult to accept that health is not an intimate aspect of privacy deserving a special
degree of positive obligations on the part of States. Is night noise affecting sleep
not a threat to health? And would it be unreasonable to require a State to undertake
more stringent studies and analyses before deciding to sacrifice the quality of sleep
of some of its citizens in the name of the economic well-being of the country?
ITALIAN PRACTICE
RELATING TO INTERNATIONAL LAW
Classification scheme
I. INTERNATIONAL LAW IN GENERAL AND INTERNATIONAL CUS-

TOM
II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL
LAW
IV. DIPLOMATIC AND CONSULAR RELATIONS
V. TERRITORY
VI. LAW OF THE SEA
VII. ENVIRONMENT
VIII. CULTURAL HERITAGE
IX. AIR AND SPACE LAW
XI. HUMAN RIGHTS
XII. INTERNATIONAL CRIMINAL LAW
XIV. INTERNATIONAL DISPUTE SETTLEMENT

ECONOMIC MATTERS
XVI. INTERNATIONAL TRADE LAW
XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL

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

JUDICIAL DECISIONS
(edited by Giuseppe Cataldi and Massimo Iovane)

LAW
(Cf. infra III, Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516;
XI, Corte di Cassazione, (Sezioni Unite civili), 14 April 2003, No. 5902; Corte di
Cassazione (Sezioni Unite civili), 27 November 2003-26 January 2004, Nos. 1338-
1341; XIV, Corte di Cassazione (Sez. I penale), 14 January 2003, No. 1377; XV,
Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576, Corte di Cas-
sazione (Sez. I penale), 8 November 2002, No. 37774)
Immunity of foreign States from jurisdiction and prejudgement attachment

- The issuance of bonds by a State on the international market constitutes a com-
mercial activity not enjoying immunity from jurisdiction - Article 8 of the Bilateral
Treaty on the Protection of Investments between Argentina and Italy, signed in
Buenos Aires on 22 May 1990 - The request for a prejudgement attachment con-
sidered to be justified on the basis of Argentina’s economic crisis and debt default
- Assets belonging to a foreign State may be seized only if they are not destined for
the performance of that State’s public purposes
Tribunale di Roma, 22 July 2002 (order)

Mauri and Others v. the Republic of Argentina
Following media news about Argentina’s insolvency and possible bankruptcy,

irate bondholders all over the world have braced themselves for an uncertain wran-
gle trying to get their money back, at least in part. About 44% of Argentina’s pri-
vate debt is held by small investors. Among them, Italians are by far in the majority.
Their number is estimated to be over 450,000. Some groups of private creditors
have proposed a negotiated settlement to the Argentine Government, suggesting
that their bonds could be stretched out over a ten year period. Other creditors have
opted for a judicial solution.
This has happened following three basic methods. Actually, many foreign
bondholders decided to sell their bonds to speculative buyers who then seek to
recover sovereign distressed debt through the courts. A very important proceed-
ings instituted against Argentina by one of these creditor associations is currently
pending before the New York Court for the Southern District (Emerging Markets
226 ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW
Creditors Association v. The Republic of Argentina. Cf. also the US Court of Ap-
peals for the 2nd Circuit).
Secondly, many Italian bondholders have filed lawsuits against the banks,
claiming that they did not warn them of the risk the bonds posed.
As a last resort, other creditors have acted against Argentina before the courts
of different States directly, asking for freezing injunctions on its assets abroad that
may be seized as a way of paying for the debt and the damages.
The case under review may be placed in this latter category. In fact, several
Italian creditors have sought interim measures for the seizure of the assets belong-
ing to the Argentine Republic to be identified at a later stage. In Italian civil proce-
dural law, the precautionary seizure is a coercive measure authorised by the judge
in the course of the proceedings on the merits. It may be requested by the creditors
to prevent the defendant from getting rid of property that may be needed to pay a
judgment to the plaintiff. In other words, it is a means to secure these assets to the
satisfaction of the claim.
Before issuing the authorisation to attach Argentina’s assets, the Tribunal had
to decide whether it had jurisdiction in a proceedings instituted against a foreign
State:
“According to the universally recognised customary rule par in

parem non habet jurisdictionem, automatically incorporated into the
Italian legal system by virtue of Article 10 of the Constitution, foreign
States are immune from Italian jurisdiction for the activities carried
out with a view to achieving their public purposes. On the other hand,
a foreign State is not immune from suit in any case in which it en-
gages in private law activities”.
Although the terminology used is not wholly precise (there is, for example, a
simultaneous, but certainly unconscious, reference to the opposing criteria of the
“purpose” and of the “nature” of the act in order to determine if immunity should
be accorded or refused in a single case: see, on this point, the critical remarks by
DORIGO, “Il debito pubblico argentino dinanzi ai giudici italiani”, RDI, 2002, p.
961 ff.), the tribunal has clearly affirmed that questions of jurisdictional immunities
of foreign States should be decided according to the restricted theory of sovereign
immunity.
Concerning the specific activity which was the subject of the suit, the Tribu-
nal reached a conclusion consistent with previous judgments by foreign courts on
similar actions:
“The issuance of bonds by a foreign State is a private activity. It

creates a private law relationship and mutual obligations which are
governed by civil law. Consequently, the Italian judge has jurisdiction
in relation to interim proceedings instituted against a foreign State to
JUDICIAL DECISIONS 227
secure the payment of bonds issued by the latter. Moreover, as far as

Argentina is concerned, Italian jurisdiction can be asserted also on
the basis of Article 8, paragraph 2, of the Bilateral Investment Treaty
concluded in Buenos Aires on 22 May 1990. This Article states that
disputes arising out of an investment contract between one of the
Contracting Parties and a private investor, should be submitted to the
competent tribunal of the Contracting Party in whose territory the
investment was made. As the investment in question concerns mov-
able property, the place of the investment is where documents of the
bonds are kept”.
Having authorised the seizure of Argentine assets, the Tribunal specified that
“the attachment may be executed only on property not intended to be used for pub-
lic purposes”. Here again, one could notice a certain lack of precision as to what
assets belonging to a foreign State might be lawfully attached. New lawsuits are
to be expected on that matter. On the other hand, the task of the bondholders will
prove to be very difficult as Argentina’s government may have an insufficiently
small number of overseas assets which the claimants can attach. (The Italian text of
the order has been published in RDIPP, 2003, p.174 ff.).
Article 11 of the Lateran Treaty between Italy and the Holy See concluded in
Rome on 29 February 1929 stating that the central bodies of the Catholic Church
are exempted from any interference by the Italian State - Whether this Article
precludes the exercise of Italian criminal jurisdiction for offences having effects
on the Italian territory - Distinction between non interference and immunity from
jurisdiction - The Vatican Radio may not be considered as a central institution tak-
ing part in the government of the Catholic Church in the exercise of its universal
spiritual mission - Treaty provisions amounting to a limitation to State sovereignty
should be restrictively interpreted - Article 31 of the Vienna Convention on the Law
of Treaties
Corte di Cassazione (Sez. I penale), 21 May 2003, No. 22516

Re: Tucci, Borgomeo and Pacifici
On 23 July 1987 the Italian Corte di Cassazione passed a very controversial

judgment on the status of the organs of the Holy See before Italian courts. In that
judgment, the Court had granted immunity from criminal jurisdiction to three high
officials of the IOR (Institute for Religious Works), better known as the “Vatican
Bank”, accused of complicity in the fraudulent bankruptcy of the Banco Ambro-
siano. The decision met with widespread criticism among scholars and in the pub-
lic opinion. It was considered as a unilateral concession of privileges not strictly
required by international law. The view was also expressed by lower courts that the
immunity in question conflicted with some fundamental principles of the Italian
Constitution, such as the principle of equality before the law stated in Article 3,
the right of every person to institute judicial proceedings for the protection of his
or her rights granted by Article 24, and the principle of legality set forth by Article
25. Actually, the 1987 decision was based on an extensive interpretation of Article
11 of the Lateran Treaty which reads as follows: “All central bodies of the Catho-
lic Church shall be exempt from any interference on the part of the Italian State
(except as provided by Italian law in regard to the acquisition of property made by
recognized public bodies), and with regard to the conversion of real estate”. On that
occasion, the Court affirmed that the obligation of non-interference provided for by
Article 11 protected the activities of all those bodies which, being entrusted with
legal personality and financial autonomy, take part in the universal mission of the
Catholic Church. Moreover, according to the Court the said obligation implied that
Italy should not limit itself to exempting these entities from its public powers of an
administrative nature. It had also to recognise immunity from criminal jurisdiction
to the organs of those central bodies whenever acting in their official capacity, i.e.
not as private individuals but as representatives of the body in question.
This finding by the Italian Supreme Court was completely reversed by the
decision of 2003 under review (for a thorough commentary on the decision, see
SCISO, “La giurisdizione penale rispetto a fatti della Radio vaticana: non-ingerenza
o immunità?”, RDI, 2003, pp. 774-781). This decision is wholly consistent with
the attitude taken by Italian courts on questions of sovereign immunity in the last
decade. Actually, many recent judgments have shown a firm tendency towards re-
vitalising the doctrine of restricted immunity from jurisdiction which, during the
1980s and part of the 1990s, had been affirmed in principle but seldom applied
concretely. Furthermore, the Court seized the opportunity offered by this case to
set out some general principles limiting the recognition of jurisdictional immuni-
ties for the organs of the Catholic Church. Unfortunately, like most judgments by
the Cassazione dealing with international law arguments, the wording used by the
Court is often rhetoric and convoluted, and also several repetitions of identical
concepts run throughout the text.
Before examining the legal grounds for the Court’s decision, it is worth recall-
ing the facts which brought about the whole case. In 2002 private citizens and
environmental organisations instituted proceedings before the Tribunale di Roma
against three managers of the Vatican Radio. They sought redress for alleged dam-
age sustained as a consequence of electro-magnetic radiation emanating from the
plants situated in an area immediately outside Rome. The Tribunale declared the
lack of Italian jurisdiction on the basis of the 1987 interpretation of Article 11 of the
Lateran Treaty but its judgment was challenged before the Supreme Court.
As stated before, the plea for immunity was dismissed by the Corte di Cassa-
zione along the following arguments.
First of all, the Court specifies what is meant by “central bodies of the Catho-
lic Church” as provided for by the above mentioned Article 11. According to the
Court, this expression refers only to the entities constituting the Roman Curia,
namely to “those entities which take part in the supreme and universal government
of the Catholic Church carrying out its spiritual mission to the world”.
To possess separate legal personality and financial autonomy would not be suf-
ficient per se to be considered as a central body enjoying the protection afforded by
Article 11 of the Lateran Treaty. On the basis of this conclusion, the Court was able
to exclude the Vatican Radio from the category of the “central bodies”. The Radio
does not participate in the governmental organisation of the Holy See directly. In
fact, its main activity of propagating the evangelical message as expressed by the
Pope is only instrumental to the said universal mission of the Catholic Church.
Moreover, canon law itself expressly excludes the Vatican Radio from the central
bodies. Article 186 of the Apostolic Constitution considers the Radio as an institu-
tion which “is only connected” to the Holy See without being part of the Roman
Curia. The legal nature of the Vatican Radio is thus identical to that of other enti-
ties, such as the Vatican Television Centre, the different Pontifical Academies, the
Vatican Publishing House, and so on.
We think that another consequence may be drawn from this statement by the
Court. If the Vatican Radio is outside the governmental structure of the Holy See,
its activities could not be automatically considered as belonging to the institutional
and public functions of the Catholic Church. Apart from any question of interpreta-
tion of the above mentioned Article 11, this assumption means that the activities
of the Vatican Radio (and of other entities of the same kind) are not exempt from
Italian jurisdiction under the restricted immunity principle provided for by present
customary international law. This would mark a complete change from a 1982
judgement (Corte di Cassazione (Sezioni Unite), 5 July 1982, No. 4005, IYIL,
1985, p. 179 ff.), where the same Court held that the Vatican Radio enjoyed im-
munity from jurisdiction in relation to an employment dispute put forward by one
of the Radio’s speakers.
The second important conclusion reached by the Court concerns the exact con-
tent of the protection afforded to the Holy See activities by the Lateran Treaty. In
the Court’s opinion:
“The obligation not to interfere is not tantamount to a general waiver

by Italy to its sovereignty and, in particular, to the exercise of ju-
risdiction by its judges. It only aims at protecting the independent
performance of the activities connected with the Magisterium of the
Catholic Church”.
According to the Cassazione, this interpretation is confirmed by the whole

framework of international and constitutional rules governing the relationships
between Italy and the Holy See.
The history of Article 11 of the Lateran Treaty may be traced back to Article
8 of the 1871 Law on Papal Guarantees, already stating that “Papers, documents,
books, or registers of a purely spiritual character deposited in pontifical offices or
Congregations shall be free from the legal processes of visit, search, or seizure”.
This obligation was only meant to prohibit intrusions of a civil and administrative
nature on the part of Italian authorities, with a view to protecting the independence
and autonomy of the Church.
The 1929 Conciliation Treaty affirmed the principle of full ownership, exclu-
sive dominion, and sovereign authority and jurisdiction over the territories belong-
ing to the Vatican City. However, this principle “does not impose any burden on It-
aly regarding the exercise of its jurisdictional authority to punish criminal offences
having harmful consequences in the Italian territory, whenever these offences are
committed by individuals not enjoying any personal immunity”.
The Ministry of Justice of the time, also confirmed that the obligation of non-
interference exclusively concerned the administration of property belonging to the
Church. This was evidenced by the fact that Article 11 mentions the problem of the
conversion of real estate expressly.
This conclusion is fully consistent with Article 7 of the Italian Constitution ac-
cording to which the Italian Republic and the Holy See are, each in its own order,
independent and sovereign. To hold the contrary, “would amount to the recognition
of a widespread jurisdictional immunity to organs and officials of the central bodies
of the Catholic Church, which is in no way provided for either by Lateran Pacts or
customary international law”.
Actually, the relationship between jurisdictional immunity and non interfer-
ence is the specific subject of the third argument put forward by the judges. Ac-
cording to the Court, the obligation of non interference may not be considered in
any way as equivalent to immunity from jurisdiction. Whereas the latter requires
that the Italian State waive its jurisdictional authority, no such limitation is implied
when abiding by the obligation of non interference. In the Court’s reasoning this
difference is very important: “[T]he right to invoke immunity from jurisdiction
must be expressly stated and cannot be inferred from a provision dealing with non
interference only. In fact, as the privilege of immunity imposes heavy limitation to
State sovereignty, it must be provided for by special rules which do not permit an
extensive interpretation”.
That immunity from jurisdiction cannot be inferred from the different obliga-
tion of non interference, is ultimately confirmed by Article 31, paragraph 1, of the
Vienna Convention on the Law of Treaties, which considers the textual criterion to
be the general rule of interpretation of treaty provisions.
Particularly interesting is the final section of the decision. It has been shaped in
the form of a general principle governing the respective competences of Italy and
the Holy See in jurisdictional matters:
“By undertaking the conventional obligation not to interfere and by

recognising the absolute sovereignty and independence of the Catho-
lic Church as far as its spiritual ministry and mission of evangelisa-
tion are concerned, the Italian State has, at the same time, maintained
its own sovereignty in the temporal order. In the latter field, Italy
suffers no limits in the exercise of its competence to punish criminal
offences that, although committed in the territory of the Holy See,
have caused harmful effects into the national territory. The exercise
of Italian jurisdiction is subject to the sole condition of a causal link
between those harmful effects and the illicit act committed on the
territory of the Holy See. This conclusion also respects the right of
individuals, provided for both by statutory and constitutional rules, to
receive full judicial protection of their rights and interests in civil as
well as in criminal matters”.
(The Italian text of the decision has been published in RDI, 2003, p. 821 ff.).
MASSIMO IOVANE
XI. HUMAN RIGHTS
Article 14 (Personal Domicile) of the Italian Constitution - Right to respect for

private life - Article 8 of the European Convention on Human Rights and Fundamen-
tal Freedoms - Article 17 of the International Covenant on Civil and Political Rights
- Articles 7 and 52 of the Charter of Fundamental Rights of the European Union
Corte Costituzionale, 24 April 2002, No. 135
The Judge for preliminary investigation (Giudice per le indagini preliminari)

of the Tribunale of Alba, acting as judge a quo, challenged the compatibility with
the Italian Constitution of Article 189 of the Italian Code of Criminal Procedure
(hereinafter c.p.p.), concerning the means used to provide proof not foreseen in law,
and of Articles 266-271 c.p.p., all dealing with interceptions of conversations and
other forms of communication. In particular, the Corte Costituzionale was asked
to clarify whether the execution of tape and video recording in “private” locations,
during criminal investigations, might be in contrast with Articles 3 and 14 of the
Italian Constitution protecting, respectively, equality among citizens and personal
domicile. Article 14 also provides for inspections to be conducted “in cases and in
the manner laid down by law”.
The facts can be summarised as follows. During investigations aimed at as-
certaining whether criminal activities (aiding, abetting and exploitation of pros-
titution) were taking place in a night club, the Judge for preliminary examination
had authorised interceptions. In performing his/her duty, the Public Prosecutor
(pubblico ministero) gave instructions on the modalities for such interceptions, and
ordered for the instalment of video cameras.
The manager of the club had been under house arrest, thanks also to video
recording. The arrest, decided and confirmed by the Tribunale of Torino, had then
been quashed by the Corte di Cassazione. The Corte declared that video recordings
made in a place that could be considered a “private domicile” could not be used as
a means of proof, unless they were specifically authorised.
The proceedings against the manager were re-opened for the pre-trial examina-
tion before the Judge for preliminary investigations. The Public Prosecutor asked
for a committal for trial, availing himself of the video recordings as well as other
proofs. The defense counsel asked for the exclusion of the video recordings, en-
dorsing the judgment of the Corte di Cassazione.
The Judge of the Tribunale of Alba, at this stage of the proceedings, decided to
refer the case to the Constitutional Court for a preliminary ruling on the constitu-
tionality of the provisions of c.p.p. dealing with interceptions of conversations and
other forms of communication. In the opinion of the judge a quo, it was not entirely
clear which was the constitutional jurisprudence on the subject of video recordings
in “private sites”. He suggested three possible interpretations.
The first, with which he disagreed, excluded altogether this possibility; video
recordings had to be forbidden, in observance of the principle of inviolability of
private domicile provided for in Article 14 of the Constitution. The second hypoth-
esis, based on Article 266 paragraph 2 of the c.p.p., allowed for video recordings
in private sites; yet, these activities had to be explicitly authorised by the judiciary.
In the third hypothesis, any act of the judiciary – including practical instructions
issued to implement a general authorization on interceptions – could be considered
sufficient for admitting video recordings. This hypothesis, with which the judge a
quo agreed, was based on a literal interpretation of Article 14 of the Constitution,
which provides for a limitation of the principle of inviolability of domicile when
other constitutional values have to be preserved.
The State Attorneys (Avvocatura generale dello Stato), intervening on behalf
of the Prime Minister’s Office (Presidenza del Consiglio dei Ministri), asked the
Corte Costituzionale to declare the case ill-founded. The possible incompatibility
with the Constitution had to be excluded. They insisted on the constitutional limi-
tations to the “right to privacy”; investigations carried out in “private domicile”
could be authorized with the purpose of respecting the constitutional value of the
prevention and repression of crimes.
Before considering the merits of the claim, the Corte ascertained whether such
investigative activities were totally forbidden, in domestic and international law.
First of all, it considered whether the intrusive character of video recordings
ought to be viewed as a “significant improvement” compared to other means pro-
vided for in Article 14 – inspections, searches, seizures – and therefore any inclu-
sion within the above-mentioned measures would not be possible. In addition, it
examined whether such activities violated the Constitution, in so far as they were
covert activities, whereas inspections, searches and seizures were, by their nature,
undisguised forms of interference.
An absolute constitutional prohibition was then excluded. With reference to
Article 14, the list of possible interferences is not “closed”. The means indicated
were the only forms of limitations of domicile inviolability “historically based and
juridically typified when the Constitution was written”; the Constituent Assembly
did not make any distinction between the undisguised or covert character of pos-
sible activities.
Moreover, limitations are also established in other provisions of the Constitu-
tion enforcing other liberties and rights, such as personal liberty (Article 13) and
liberty of communication (Article 15). In one case (Article 13), the wording of
limitations is the same as Article 14, while Article 15 paragraph 2 refers to possible
limitations to communication, without any specific reference to the “means”.
With reference to international rules
“neither the European Convention on Human Rights and Fundamen-

tal Freedoms [hereinafter ECHR] (Article 8), nor the International
Covenant on Civil and Political Rights [hereinafter ICCPR] (Article
14) provide for a limitation of the typology of interferences carried
out by public authorities in private domiciles. Such a limitation is also
absent in the Charter of Fundamental Rights of the European Union
(Articles 7 and 52), adopted in Nice on December 2000. Reference
to the Charter is made in the full awareness that it does not have any
legal force and in recognition that it expresses common principles of
European legal orders”.
The Corte declared the case ill-founded, but it added some considerations to
the hypothesis of video recordings in private domiciles in a context that is different
from investigations, hypothesis upon which doubts are cast. It observed that:
“[A]lthough […] both liberty of domicile and liberty of communica-

tion can fall within a common and wider concept of protection of
‘private life’ – guaranteed as such by Article 8 ECHR, Article 17
ICCPR, and also by Article 7 of the Charter of Fundamental Rights
of the European Union – the content of these liberties is considerably
different.
Liberty of domicile has to be understood as a negative liberty, since it
is the right to preserve those places in which a person performs his/her
own intimate life from any external interference, private or public.
Liberty of communication, however, has a qualified positive mean-
ing, even if it has a negative profile to it – the exclusion from the
information of others than addressees. Such a liberty may be under-
stood as establishing contacts among people aimed at the transmis-
sion of qualified data”.
In conclusion, the Corte deems that the whole subject of video recordings in a
context that is different from investigations should be examined by the legislative
power, the only constitutional organ which could guarantee the respect of constitu-
tional values in the performance of such activities.
A few remarks on this judgment are appropriate. The Corte Costituzionale
refers to the European Convention on Human Rights and the International Cov-
enant on Civil and Political Rights for the purpose of reinforcing its argument on
the lawfulness of public interference in private domiciles. But it does not consider
at all the interpretation of the provisions given by the organs established by the
Conventions.
A circumstantial examinations of Article 8 paragraph 2 ECHR would have
given a more comprehensive picture of the topic of compatibility with fundamental
rights of video interceptions. The European Court of Human Rights has an exten-
sive jurisprudence on Article 8 paragraph 2, which provides for limitations “pre-
scribed by law” to the right to private life.
More specifically, in examining a case in which interceptions in criminal in-
vestigations were not formally provided for by domestic law, the European Court
declared that “[i]n relation to paragraph 2 of Article 8 of the Convention and other
similar cases, the Court has always understood the term ‘law’ in its ‘substantive’
sense, not its ‘formal’ one” (Kruslin v. France, Application No. 11801/85, Judg-
ment of 24 April 1990, para. 29; Huvig v. France, Application No. 11105/84, Judg-
ment of 24 April 1990, para. 28).
The use of discretionary power in the selection of means of investigations
has also been considered. The European Court has claimed that such power is
not unlimited. When the scope and manner of exercise of the relevant discretion
conferred on the public authorities is not indicated with “reasonable clarity”, “the
minimum degree of legal protection to which citizens are entitled under the rule of
law in a democratic society is lacking” (Malone v. the United Kingdom of Great
Britain and Northern Ireland, Application No. 8691/79, Judgment of 2 August
1984, para. 79).
A final remark concerns the Charter of Fundamental Rights of the European
Union. For the first time, the Corte Costituzionale refers to it as an expression of
“common principles of European legal orders”. At the same time, its non-manda-
tory character is emphasized.
We do not know yet what the function of the Charter will be in the “European
constitutional framework” since the “constitutional process” is still under way. The
position of the Corte Costituzionale is, however, in line with the general attitude of
other Italian courts, which often recall the European Charter in their judgments, as
a “catalogue” of fundamental rights (see, for example, Corte d’Appello of Roma
(Sez. lavoro), 11 April 2002 (Order), Favelli L. v. Condominio Via Brichetti, 23).
(The text of the judgment has been published in Giur. Cost., 2002, p. 1062 ff.).
Article 6 paragraph 2 of the Treaty on European Union - Preliminary ruling of

the Court of Justice of the European Communities - Article 1 paragraph 1 of the
Freedoms - Direct applicability - Compatibility of land planning with the right of

property
Corte di Cassazione (Sez. I civile), 19 July 2002, No. 10542

Muscas and Others v. Comune di Cagliari
The direct applicability of the European Convention on Human Rights (ECHR)

and the extent of the power of interpretation by the Court of Justice of the European
Communities over violations of fundamental rights are the core questions of this
judgment of the Corte di Cassazione.
The facts of the case were related to the ascertainment of the existence of
conditions for land occupation, in order to determine which legal regime had to
be applied, and consequently how much had to be awarded as compensation for
expropriation. The physical area under dispute had been included in the “landscape
planning” (piano territoriale paesistico) of the Regione Sardegna, which prescribed
the limitations on the suitability for building. The piano is a legal instrument of
land planning, specifically aimed at the protection of landscapes and environmental
goods adopted by the Regional Authorities and binding for private citizens.
The applicants in this case, owners of a plot of land, sued the Comune of
Cagliari for the occupation-expropriation (occupazione appropriativa) of the area.
The Tribunale of Cagliari condemned the Administration to award compensation
for damages.
The Corte d’Appello of Cagliari, with a provisional ruling, stated that the dam-
ages could not be awarded, because the expropriation had not yet begun. In actual
fact, an official declaration of public interest (dichiarazione di pubblica utilità) had
not been issued by the public authorities.
In the interpretation of the Corte d’Appello, the occupation had to be con-
sidered a “permanent illegal situation” (illecito permanente). Only when the Ad-
ministration had complied with all the requirements for the expropriation, could
compensation for damages be awarded.
Against this decision of the Corte d’Appello, the applicants lodged a complaint
with the Corte di Cassazione. They raised a claim before the Corte di Cassazione
for obtaining a ruling from the European Court of Justice on the interpretation of
Article 6 of the Treaty of the European Union and Article 1 of the First Protocol to
the ECHR.
In particular, the applicants asserted that the adoption of a piano territoriale
paesistico could lead to a violation of the right of property, as established in the
Convention. They asked whether the provisions on the limitations to suitability for
building could not be considered a “lawful measure” to control the use of property,
as provided for in Article 1 paragraph 2 of the First Protocol.
The Corte di Cassazione confirmed that the piano territoriale paesistico is
an instrument for the protection of the landscape, imposing limitations on its use,
including the suitability for building. Such limitations, on the other hand, cannot
be considered so absolute as suggested by the applicants; public authorities under

certain circumstances can derogate the piano.
The Corte excluded that the European Court of Justice could give a ruling on
the interpretation of an ECHR rule, because
“Article 6 (F) paragraph 2 of the Maastricht Treaty of 7 February

1992 provides for the respect by the EU of fundamental rights as
guaranteed by the ECHR. The said provision cannot be interpreted as
conferring on European Union law the power to control the respect
of the Convention signed in Rome on 4 November 1950. The opinion
that the interpretation of ECHR provisions can be requested from the
Luxembourg Court of Justice, which has jurisdiction over European
Union rules, cannot be shared.
Article 6 paragraph 2 simply provides for the respect of fundamental
rights, as recognized by the ECHR, by the EU institutions”.
In the jurisprudence of the European Court of Justice, the possibility of consid-

ering the Convention as part of the European law has been explicitly excluded. As
the Corte di Cassazione points out, the Luxembourg Court denied its jurisdiction
for preliminary ruling on interpretation when the provisions under examination
were outside the field of European Union law: “ECHR as such cannot be the object
of scrutiny before the European Union Courts, regardless of its contribution to the
establishment of general principles of community law”.
In the opinion of the Supreme Court, any domestic tribunal may directly apply
ECHR provisions to a concrete case, whenever it is deemed necessary: “A domes-
tic tribunal can provide for a direct application of Article 1 of the First Protocol
to ECHR (ratified by Italy with Law No. 848 of 4 August 1955). When the judge
notices a contrast with national law, he must give prevalence to a self-executing
treaty provision”.
But, as for the case under examination, the Corte dismissed the application
adding:
“The Corte is not of the opinion that the laws on planning and on the
protection of landscapes violate any property right as provided for in
Article 1 paragraph 1 of the First Protocol to the ECHR.
The Convention allows States to control the use of property for gener-
al interest, and also to expropriate goods in the public interest. When
the protection of the environment or of the landscape is concerned,
and when there is a general interest in providing guidelines for the
development of a region, the control over the ius edificandi cannot be
considered a violation of property right.
In the jurisprudence of the Strasbourg Court a principle of proportion-
ality between the public interest and private property is often recalled.
The application of restrictions to the property for the safeguarding of

the environment and/or landscapes is certainly not excluded”.
The position maintained by the Corte di Cassazione in the present judgment is

in line with the principles applied by the Luxembourg Court of Justice, when it has
examined cases of violation of fundamental rights.
First of all, the Supreme Court unequivocally states that the duties described in
Article 6 of the European Union Treaty have to be considered a benchmark only for
European institutions. Then, it is made clear that the Luxemburg Court has juris-
diction to rule over possible violation of fundamental rights only when a “general
principle of European Union law” is involved in the case before it.
The field of application of ECHR is different. Individuals can lodge a com-
plaint with a national judge, or with the Strasbourg Court, to obtain compensation
in the event of a violation of fundamental rights protected by ECHR.
As far as Article 1 paragraph 1 of the First Protocol to ECHR is concerned, it is
a self-executing provision, in the opinion of the Supreme Court. Any domestic tri-
bunal can apply the treaty rule directly and not enforce the national legal provisions
in contrast with the conventional rule. (The text of the judgment has been published
in Foro It., 2002, I, p. 2606 ff.).
GIOVANNI CARLO BRUNO
Article 2 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 - Right to life - Deprivation of life -
Lawfulness of the use of force and firearms by law enforcement officials - Absolute
necessity - Article 53 Italian Criminal Code
Corte di Cassazione (Sez. IV penale), 2 May 2003, No. 20031

Re: Fusi
The present case originated by a decision of the Rimini investigating judge

(Giudice delle indagini preliminari, Gip). The applicant, an official of Italian
army police (Arma dei Carabinieri), was charged with the crime of murder and
personal injuries of two persons who had committed a robbery in a bank. The
applicant was found guilty with a decision of 10 November 2000. According
to the investigating judge, in fact, he had exceeded the due diligence in the use
of force (eccesso colposo nell’uso legittimo putativo delle armi) having fired
several shots, while pursuing the car of the robbers, killing one of the criminals
and wounding the other one. The Gip sentenced the applicant to four months in
prison and condemned him to pay damages to the injured persons. Against the
decision of the Gip, the applicant appealed to the Corte d’Appello (Sez. II penale)
of Bologna which confirmed, substantially, the decision of the lower judge. The
appellate decision was challenged before the Corte di Cassazione on several
grounds.
In the first place, the applicant argued that the judgment passed by the Bologna
Court conflicted with Article 2, paragraph 2, of the European Convention on Hu-
man Rights, which states that “deprivation of life shall not be regarded as inflicted
in contravention of this article when it results from the use of force which is no
more than absolutely necessary”. Actually, the use of force by firearms was nec-
essary in order to stop the car of fugitives, to arrest them, and to prevent further
danger for public safety.
Secondly, the applicant alleged that the facts were a consequence of a fortui-
tous event as his aim was to shot to the tyres of the car, while the presence of road
bumpers for slowing down vehicles, caused an anomalous skip of the car so that the
trajectory of the bullets was deviated.
The Corte di Cassazione quashed the judgment of the Corte d’Appello di Bolo-
gna and ruled in favor of the applicant’s allegations. According to the Court: “[T]he
appeal judge affirmed that the use of force by law enforcement public officials, to-
wards criminals that are trying to escape the arrest, must rely on the prerequisite of
the absolute necessity, and that this condition lacked in the case under examination.
This statement does not hold true”.
And, furthermore:
“The principle enshrined in Article 2, paragraph 2, of the European

Convention on Human Rights and Fundamental Freedoms, involving
the lawfulness of the use of arms in the execution of an arrest, has to
be applied in the present case. In fact, fire shots were necessary to
prevent criminals from escaping, to bring them before justice and to
rescue the loot”.
The judgment by the Corte di Cassazione invites for some considerations. The
Corte di Cassazione held that the case fell just within the scope of Article 2 of
the Convention and, in particular, within its exceptions provided for by paragraph
2. As well known, the right to life is included in the catalogue of articles of the
Convention from which no derogation is permitted in any circumstances: so-called
“non-derogable rights” (Article 15 of the Convention). This means that no other
exception of this right is admitted unless those expressly provided for by the very
same text of the article (as to the extensive literature dealing with the margin of
appreciation doctrine, see CALLEWAERT, “Is There a Margin of Appreciation in the
Application of Articles 2, 3 and 4 of the Convention?”, HRLJ, Vol. 19, 1998, p. 6
ff.; and ARAI-TAKAHASHI, The Margin of Appreciation Doctrine and the Principle
of Proportionality in the Jurisprudence of the ECHR, Antwerp et al., 2002).
Unlike other judgments passed, in the same period, by the same Supreme Court
on the European Convention (see decisions on the application of Law No. 89 of
24 March 2001 – also known as “Legge Pinto” – in which the Corte di Cassazione
disputed that Strasbourg Court’s case-law may bind domestic judges and, further-
more, seemed to challenge the principle of the prevalence of the norms of the Eu-
ropean Convention over incompatible domestic legislation. For a survey of these

judgments see IYIL, 2002, p. 276 ff.), in the present case the Corte di Cassazione
affirmed the binding nature and the direct application of Article 2 of the Conven-
tion. It went even further, assuming a commonality between the norms of the Eu-
ropean Convention on Human Rights and EU regulations. Indeed, the Corte noted
that “European law norms, even in the absence of the enforcement by national
provisions within the domestic legal system of the Member States, bind domestic
judges and prevail over domestic incompatible norms […]”, and that “[a]s regards
this issue, the Italian Constitutional Court (Judgment No. 183/73) stated that the
rationale of the EU legal system requires that EU regulations, if complete in all
their elements, are source of rights and obligations for States and for their citizens
[…]”. It follows that:
“Similarly, it is undoubted that Article 2 paragraph 2 of the European

Convention on Human Rights, according to which the use of force by
firearms is lawful when necessary in order to effect a lawful arrest,
had to be applied to the present case; consequently the applicant was
authorized to use firearms, as it was necessary in order to stop the car
of fugitives, to arrest them, to prevent further danger for public safety,
and to rescue the loot”.
The decision of the Court confirms the lack of agreement among domestic
tribunals as to the exact position of the European Convention within the Italian
legal system. In the present judgment, the Court stated the direct applicability of
the Convention and recognised that it prevails over incompatible domestic law.
This prevalence has been based on well known arguments drawn from established
case-law on the priority of EU regulations, and more in general of EU law, over
incompatible domestic law (see, inter alia, Corte Costituzionale, 5 June 1984, No.
170). It seems, anyway, that the Corte di Cassazione furthered its reasoning to the
point of treating the European Convention on Human Rights as being part of EU
law. Such an approach is unusual and unsupported by the majority of the legal liter-
ature and of constitutional case-law (see, Corte Costituzionale, 16 December 1980,
No. 188). EU law and the European Convention on Human Rights, indeed, remain
two different legal regimes that maintain different spheres of application, and this
notwithstanding some steps undertaken toward their progressive integration. As to
the direct applicability of the Convention and its prevalence over incompatible do-
mestic law, it is worth noting that in the past the Corte Costituzionale and the Corte
di Cassazione granted these effects by assuming that the Convention is an atypical
source of law whose norms could not be abrogated, neither modified, by domestic
law (see Corte Costituzionale, 19 January 1993, No. 10 and Corte di Cassazione
(Sez. I penale), Medrano, 10 July 1993, No. 10). Nowadays, the Legge Costituzio-
nale (Constitutional Amendment) No. 3 of 18 October 2001, which modified Title
V of the Italian Constitution and rewrote Article 117, appears to have clarified the
ranking of the Convention within the domestic legal system. According to the first
paragraph of the new Article 117, “[i]n performing their legislative powers, the
State and the Regions shall respect the Constitution and obligations arising from
international law and European Community law”. This involves that the priority
of international agreements (including the European Convention) over incompat-
ible domestic law is assured at a constitutional level. In other words, under Article
117 of the Constitution, the norms of the European Convention on Human Rights
constitute a parameter to verify the constitutional legitimacy of national legislation.
It follows, that in case of conflict between norms of the Convention and domestic
legislation, the priority of the Convention should be assured by the means of the
interpretative activity of domestic judges; when this solution is not viable, and only
in this case, the prevalence of the international treaties over incompatible domestic
law should be assured, extrema ratio, by the Constitutional Court (on this topic,
see CONFORTI, “Reflections on the Recent Amendments to the Italian Constitution
Concerning Respect for International and European Community Law”, IYIL, 2001,
p. 3 ff.). From this point of view, the solution of the Corte di Cassazione in the
present case seems to be correct as to the result (the acknowledgment of the direct
applicability of the Convention within the domestic legal system). At the same
time, we cannot share the reasoning of the Supreme Court regarding the European
Convention being EU law.
Finally, as far as the issue of the “absolute necessity” is concerned, it is worth
reminding that Article 2 paragraph 2 of the Convention provides three cases, not
falling under the prohibition of the first paragraph, where deprivation of life results
from the use of force for a given purpose and only under the condition that the force
used “is no more than absolutely necessary”. Furthermore, the words “absolute ne-
cessity” has to be interpreted in such a way that there must also be proportionality
between the force used and the interest pursued. From this point of view, the text
of the Article 2 of European Convention, read as a whole, does not define situa-
tions where it is permitted intentionally to kill an individual, but situations where
the use of violence is permitted, which may then, as an unintentional consequence,
result in deprivation of life (as to the ECHR case-law on the topic see, inter alia,
McCann and Others v. the United Kingdom, Judgment of 27 September 1995,
Series A No. 324, paras. 148 ff., and Hugh Jordan v. the United Kingdom, Ap-
plication No. 24746/95, Judgment of 4 May 2001, ECHR, 2001, III, para. 104). In
this regard the European Court of Human Rights has pointed out the requirements
that have to be satisfied in order to assure this goal. As to the Court case-law, the
obligation to protect the right to life under Article 2 of the Convention has to be
read in conjunction with the State’s general duty under Article 1 of the Convention
to “secure to everyone within [its] jurisdiction the rights and freedoms defined in
[the] Convention” (see the McCann and Others decision, cit. supra). Accordingly,
it falls upon domestic authorities to comply with the procedural obligation in order
to fulfil the scope of Article 2 of the Convention. This means, by implication, that
there should be an effective official investigation when individuals have been killed
as a result of the use of force (see, mutatis mutandis, the Kaya v. Turkey, Judgment
of 19 February 1998, Reports of Judgments and Decisions, 1998-I, p. 324, para.
86). The essential purpose of such investigation is to secure the effective imple-
mentation of the domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for deaths occurring
under their responsibility. The assessment of requisites of “absolute necessity” and
proportionality implies an uncontroversial fact-finding. This kind of activity may
only be achieved by domestic authorities involved with the same case, and may be
subject of review, if necessary, by domestic courts in order to evaluate the fairness
of investigations and to judge carefully the respect of the absolute necessity and of
the proportionality principle.
As to the present case, we have to assume that the fact-finding investigations
of domestic tribunals have disclosed all the circumstances of the case as they really
happened. Notably, the escape of bank-robbers with a car, the high speed (60/70
Km.) they were running within a build up area (where the speed limits is fixed by
law in 30 Km.), the danger for people present in the street, the uselessness of the
other instruments available to police forces (as acoustic alarms, car’s horn, etc.)
which did not contribute to stop the criminals, might be consistent with an evalua-
tion of the “absolute necessity” of the use of the army force. The presence of road
bumpers not indicated to car-drivers by road signs, the irregular dimensions of
these last (they were much higher than standard dimensions) and the consequent
deviation of the trajectory of the bullets shot by the applicant, might be consistent
with the applicant allegations that the deprivation of life was an unintended out-
come deriving from a lawful use of the force. Anyway, perplexities may arise under
this last point of view. In fact, even if these circumstances would seem to support
an evaluation of the absolute necessity and of the proportionality of the deprivation
of life in the present case, it is worth noting that in its judgment the Corte di Cas-
sazione does not seem to assign them a decisive relevance for the final decision.
In the Court’s opinion, the issue of the direct applicability of Article 2 paragraph
2 of the European Convention absorbs all other grounds of the judgment, which,
according to the Court, have been used only “ad abundantiam”. (The Italian text of
the decision has been published in Foro It., 2003, II, p. 434 ff.).
MARCO FASCIGLIONE
Right of Property - “Occupation-expropriation” rule - Article 1 of the

Freedoms - Role of the case-law of the European Court of Human Rights
Corte di Cassazione (Sezioni Unite civili), 14 April 2003, No. 5902

Stea-Schiralli v. Comune di Modugno
Once again, the Corte di Cassazione has been asked again to clarify whether
the constructive expropriation (occupazione acquisitiva or accessione invertita)
rule may lead to a violation of Article 1 of the First Protocol to the European Con-
vention on Human Rights, concerning the protection of property.
Starting from the 1970s, a number of local authorities took possession of land
using the expedited procedure but failed subsequently to issue an expropriation
order. The Italian courts were confronted with cases in which the landowner had de
facto lost use of the land as it had been possessed and building works in the public
interest had been undertaken. The core question was whether the mere carrying out
of works had consequences on the landowner title of property.
In a judgment of 1983 (Sezioni Unite, No. 1464) the Corte di Cassazione es-
tablished the rule, under which the public authorities “acquire title to the land from
the outset before formal expropriation if, after taking possession of the land and
irrespective of whether such possession is lawful, the works in the public interest
are performed. If, initially, the land is possessed without authority, the transfer of
property takes place when the works in the public interest are completed. If the
taking of possession was authorised from the outset, property is transferred on the
expiry of the authorised period of possession” (European Court of Human Rights,
Carbonara and Ventura v. Italy, Application No. 24638/94, Judgment of 30 May
2000, paragraph 25). The owner was entitled to compensation, but he had to lodge
a claim for damages within a five-year limitation period from the date in which
the land was irreversibly altered. Other judgments of the Supreme Court clarified
some points of the issue (i.e. extension of the limitation period – Judgments No.
7952 of 1991, No. 10979 of 1992; cases excluding the application of the principle
of constructive expropriation – Judgments Nos. 1907 and 6515 of 1997); the Corte
Costituzionale (Judgment No. 188 of 1995) declared the compatibility with the
Constitution of the rule, since the public interest in the preservation of works for the
public good outweighed the individual’s interest in the right of property.
In the present case, the applicants – owners of a plot of land – sued the Comune
of Modugno because it took possession of the land belonging to them without a
formal expropriation order. They asked for compensation for the loss of the area,
on which council houses were built, and also for the damages caused by the illegal
occupation.
The Tribunale of Bari considered the category on constructive expropriation as
unlawful and granted to the applicants a compensation based on market value. The
Corte d’Appello of Bari, before which the Comune of Modugno had introduced an
appeal against the first judgment, awarded compensation for damages to the own-
ers of the plots of land but stated that the interference by public authorities could be
considered legal, having been started through a declaration of public utility and an
expedited procedure, as provided for in Italian law.
The Corte d’Appello recognised the validity of the constructive-expropriation
rule which nullified the right of property of the former owners once the public
works had been completed.
The applicants maintained that, in the case under exam, the Corte had to take into
consideration the judgment of the European Court of Human Rights of 30 May 2000
in the case of Belvedere Alberghiera v. Italy (Application No. 31524/96), in which the
jurisprudential inconstancies on constructive expropriation rule had been censored.
But the Corte d’Appello dismissed the argument declaring that the case before it was
completely different from the one examined before the Strasbourg Court.
The petition was then lodged with the Corte di Cassazione by the applicants on
four different grounds. First of all they maintained that the judgment of the Corte
d’Appello had violated and erroneously applied the legality principle, Italian law
and the ECHR. In their opinion, the Corte d’Appello should have also considered
in its analysis another judgment of the European Court of Human Rights delivered
on 30 May 2000, in the case of Carbonara and Ventura v. Italy.
The judgment criticized the constructive-expropriation rule as violating the le-
gality principle. As a consequence, the argument of the Corte d’Appello according
to which the conclusions reached by Italian Courts and the European Court were
similar had to be rejected.
The jurisprudence of the European Court should have prevailed because Mem-
ber States were bound to the judgments of the Court according to Article 46 of the
Convention; moreover, such jurisprudence formed a “common European law” on
the values protected by the Convention. As a consequence, application of the juris-
prudence was deemed necessary.
As for the second ground, in the plaintiffs’ opinion the judgment was contra-
dictory in its reasoning on a central issue. The Corte d’Appello considered equally
important constitutional and ECHR values, but in practice, they did not apply all
the rules concerning the protection of property. The third ground for appeal referred
to the notion of property and to the right to compensation in domestic law.
Finally, the applicant maintained that, even if the formal rank of the Conven-
tion and its Protocols as well as the jurisprudential principles thereof had been
respected, the Corte d’Appello would not have reached its conclusion accordingly.
Two of the principles established by ECHR (and the Constitution) for the expro-
priation, that is “conditions provided for by the law” and “the balancing between
the general interest and the sacrifice of individual right to property”, had not been
respected by the Comune of Modugno, which did not assess any compensation. The
Corte had not awarded any compensation either.
The Corte di Cassazione dismissed the plea, but corrected and integrated the
reasoning followed by the Corte d’Appello in reaching its conclusions.
Its analysis starts from the reconstruction of the occupation-expropriation rule,
bearing in mind the provisions in domestic law governing property – Article 42 of
the Constitution, Articles 832 and 834 of the Civil Code – together with Article 1
of the First Protocol to the ECHR.
Examination of the relevant judgments of the Supreme Court and of the Corte
Costituzionale allows the Corte di Cassazione to state that the occupation-ex-
propriation rule has now acquired stable characteristics, which can be evaluated
through the parameters established by the European Court in its Judgments of 30
May 2000. It is affirmed that:
“[A]lthough no international rule provides for the erga omnes com-

pulsory character of the European Court dictum before domestic
courts, these judgments have to be taken into account in order to en-
sure effective protection to the rights provided for in the Convention.
These decisions can be considered authoritative precedents and they
are relevant for the interpretation of domestic provisions”.
According to the Corte di Cassazione, the reference made to the Belvedere

Alberghiera case is not relevant. In that case the interference with the right to
property had to be seen as unlawful occupation, since any formal declaration of
public utility was absent; therefore the right to property maintained its integrity.
As provided for in the occupation-expropriation principle, when the occupation is
unlawful, the owner is entitled to claim restitutio in integrum or can bring an action
for damages.
The Carbonara and Ventura case dealt with occupation-expropriation, but,
according to the Supreme Court, the case had characteristics that are substantially
different from those examined by the Strasbourg Court.
The evaluation made in 2000 by the European Court on the violation of the
right of property and of the criteria for public interference in the possession and the
use of property has to be reconsidered because
“it has to be stressed that the occupation-expropriation rule (which

needs to be based on a valid declaration of public utility of a work,
executed by the public authorities in the general interest of the com-
munity, and leaving no room for the restitution of the private good
after its incorporation) can be regarded as ‘a complex of rules acces-
sible, precise and foreseeable’, compatible therefore with treaty rules,
in the interpretation given by the European Court. Jurisprudential
variations are nowadays absent and the context of the application of
the rule is clear”.
Moreover,
“it can be maintained that a balance has been reached between the
right to property, as provided for in domestic law and in ECHR (as
interpreted by the European Court) and the general interests of the
community. In fact, the need for a declaration of public utility has
been recognized; a reasonable compensation to the owner is provided
for; and an effective judicial protection is established”.
In 2001 the occupation-expropriation rule has been included in the consolidated

text (Testo Unico) of legislative and administrative measures on expropriation for
public utility (DPR No. 327 of 8 June 2001, modified by D.Lgs. No. 302 of 27 De-
cember 2002, and entered into force on 30 June 2003). Accordingly, any problem
concerning the test of creating a “set of rules accessible, precise and foreseeable”
should be finally overcome. However, the consolidated text does not apply, having
no retroactive effect, to the cases very recently admitted before the European Court
on a possible violation of Article 1 of the First Protocol for events occurred in the
1980s and 1990s and connected to the application of the said rule (see Pasculli v.
Italy, Application No. 36818/97, decision on admissibility of 6 April 2004).
Article 6 paragraph 1 of the European Convention on Human Rights and Fun-

damental Freedoms - Right to “reasonable time” in the length of proceedings - Just
satisfaction - Establishment of the alleged non-pecuniary damage - Interpretation
of the European Convention on Human Rights and Fundamental Freedoms - Ef-
fects of judgments of the European Court of Human Rights - Law No. 89 of 2001
(“Legge Pinto”)
Balsini v. Ministero della Giustizia
Lepore v. Ministero della Giustizia
Corbo v. Ministero della Giustizia
Lepore-Lepore v. Ministero della Giustizia
In the previous volume of this Yearbook (pp. 276-283) some notes were pub-
lished on the effects of the entry info force of Law No. 89/2001, known as Legge
Pinto, establishing a system for compensation for violation of the right to a reason-
able length of proceedings, a right which had first been provided for in the Euro-
pean Convention on Human Rights and Fundamental Freedoms (ECHR), and then
incorporated in its entirety in Article 111 of the Italian Constitution.
Those notes highlighted that the Corte di Cassazione, charged with the task of
verifying whether the Corti d’Appello were applying the Law correctly, had failed
to produce a consistent jurisprudence. In particular, the Corte di Cassazione had
seldom considered the jurisprudence of the European Court of Human Rights con-
cerning the “criteria” to be applied when determining both the existence of and the
compensation for damage, either pecuniary or non-pecuniary. The Corte stated that
such “criteria” could not be different from those applied in other cases of domestic
law.
The European Court, in a decision on admissibility (Scordino and Others v.
Italy, Application No. 368193/97, decision of 27 March 2003), cast some doubts
over this practice and, in general, it questioned the “effectiveness” of the remedy
established by Italian law. As a consequence, modifying its opinion on the Legge
Pinto (Brusco v. Italy, Application No. 68789/01, decision on admissibility of 6
September 2001; Di Cola v. Italy, Application No. 44897/97, decision on admis-
sibility of 11 October 2001), the Court admitted again a case on a possible violation
of excessive length of proceedings.
Facing this new situation, and in order to prevent the re-opening of all the
cases which had been dismissed by the European Court, the Corte di Cassazione
decided to clarify the role of the domestic appeal for just satisfaction, with refer-
ence to the excessive length of proceedings within the Italian legal system. It also
had to address the role of the European Court and, in particular, whether it may
be considered the most competent interpreter of the living law that stems from the
Convention.
Some of the cases on the Legge Pinto were then deferred to the Sezioni Unite of
the Corte di Cassazione which were asked to settle “a general and very important
issue”, as provided for in Art. 374 of the Italian Code of Civil Procedure. The Corte
di Cassazione accepted the petitions of the plaintiffs and, consequently, quashed
the judgments of the Corti d’Appello.
Although the claims had been introduced before the Corte di Cassazione by the
applicants against the decisions of the Corti d’Appello on various grounds for appeal,
the four Judgments of 27 November 2003-26 January 2004 are analysed together,
for they all deal with the question of compensation for non-pecuniary damage. The
present note will be based mainly on the first case (Balsini, No. 1338), and only few
references will be made to the peculiar questions examined in the other decisions.
In the Balsini case, the Corte d’Appello had recognized the violation of the
right to a reasonable length of proceedings, but had excluded compensation, ob-
serving that “the delay in the decision cannot determine damage ex se. Damage,
pecuniary or non-pecuniary, can be compensated only if its existence is proved”.
The central issue of the judgment of the Corte di Cassazione concerns non-
pecuniary damage.
“The question can be summarized as follows. On the one hand, ac-

cording to the Law No. 89/2001, non-pecuniary damage stemming
from unreasonable length of proceedings may be identified in the
violation itself of the right to a reasonable length of proceedings, and
therefore such damage is a direct and automatic consequence of the
ascertainment of such violation.
On the other hand, such damage may be qualified as a constitutive
element of the right to compensation, separate from the violation of
the right to reasonable length, which is not recognizable in itself, and
such damage necessary for the ascertainment of the violation. Non-
pecuniary damage should be proved by the applicant who, for its
identification, may also assert its existence during the proceedings”.
After re-examining its former jurisprudence on the subject, the Corte observes
that it had been constantly denied that non-pecuniary damage could automatically re-
sult from an excessive length of proceedings; on the contrary, the alleged victim had
to prove such damage even by the use of presumptions of law and notorious facts.
This reasoning relied, principally, on the alleged programmatic nature of Ar-
ticle 111 of the Italian Constitution, which includes the right to reasonable length
of proceedings among fundamental rights. As a consequence, no subjective right
could stem directly from the said Article.
Moreover, the previous position of the Court insisted on an interpretation of the
wording of Article 2 paragraph 1 of the Law No. 89/2001 under which it did not
provide for any direct connection to compensation as a result of the protraction in
the proceedings beyond any reasonable length.
The Corte di Cassazione, in the Balsini case, does not share this view and
states:
“Article 111 paragraph 2 of the Italian Constitution […] which states

that the ‘law provides for the reasonable length’ of any proceedings,
has to be integrated with Article 6 ECHR, which provides that ‘eve-
ryone is entitled to [a] hearing within a reasonable time’. The consti-
tutional provision, placed in the context of the rules on jurisdiction,
is directed to the legislative branch, imposing a duty to organize the
proceedings in accordance with the right to reasonable length. The
ECHR, which defines fundamental rights, confers rights upon a per-
son which can be raised against the State.
The protected value in the two provisions is always the same: the
reasonable length of proceedings. The perspective under which it is
taken into consideration is different: for the Constitution such rea-
sonable length is an objective guarantee, whereas it is a subjective
guarantee in the ECHR”.
It is then excluded that a non-self executing character of Article 111 may be

inferred from the fact that rights contained in it were not mentioned in the First Part
of the Constitution, defining the rights of citizens. In order to reinforce its argument,
the Corte di Cassazione quotes a judgment of the Corte Costituzionale (Judgment
No. 399 of 12 December 1998), which observed that “human rights, guaranteed
also by universal and regional agreements signed by Italy, are recognised and enjoy
a not less intense protection in the Constitution” (see also Corte Costituzionale,
Judgment of 22 October 1999, No. 388, IYIL, 2001, p. 289 ff., p. 291). An effec-
tive protection by Article 24 of the Constitution, which guarantees the fundamental
right of access to justice for the protection of legal rights and legitimate interests,
includes the guarantee for the reasonable length of proceedings. The judgment of
the Constitutional Court indirectly declared the self-executing character of the right
to reasonable length.
In the opinion of the Corte di Cassazione, an instrument for the effective pro-
tection of the right to “reasonable time” in the length of proceedings is the Legge
Pinto; as can be clearly drawn from its Article 2 paragraph 1, the event producing
the right to compensation is “the violation of Article 6 paragraph 1 ECHR”; “The
Convention provides for the establishment of a Tribunal (the European Court of
Human Rights, sitting in Strasbourg) to ensure the respect of its provisions (Article
19). Therefore the power of the Court to interpret ECHR provisions must be rec-
ognized”.
Accordingly,
“the task of the European Court is to identify all the elements com-
posing the legal fact; its jurisprudence is compulsory for Italian
judges, as far as the application of the Law is concerned.
It is not necessary to raise the general question of relationships be-
tween ECHR and the Italian legal order […] Any possible opinion on
this very complicated problem, or on the formal rank of the European
Convention on Human Rights within the hierarchy of sources in do-
mestic law, does not modify the argument that the direct application
of an ECHR provision, that is Article 6 paragraph 1 in the part of
‘reasonable time’, provided for in Law No. 89/2001, cannot diverge
from the interpretation given by the European Court”.
Any other solution
“aiming to allow a substantial difference in the way in which the Leg-

ge Pinto is applied in the domestic legal order, and the interpretation
given to the right to a reasonable length of proceedings by the Stras-
bourg Court, would nullify the Law, thereby involving a violation by
Italy of Article 1 ECHR, according to which the Parties ‘shall secure
to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Convention’ – including Article 6”.
To reinforce its argument, the Corte analyses the reasons which led the Italian
Parliament to adopt the Law No. 89/2001, with special reference to the principle
that the machinery of protection established by the Convention is subsidiary to the
national systems safeguarding human rights; the above principle is expressed in
Article 35 ECHR, under which “[t]he Court may only deal with the matter after all
domestic remedies have been exhausted”. A duty for States to guarantee effectively
the protection of fundamental rights within their domestic legal order is a direct
corollary of this principle. The Legge Pinto serves this purpose and, as such, had
been positively welcomed even by the Strasbourg Court.
“The mechanism aimed at applying the Convention and respecting

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

be drawn that non-pecuniary damages deriving from non reasonable
length of proceedings, once the violation of Article 6 is proved, are

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

of proceedings is ascertained and determined, according to Law No.
89/2001, the judge must compensate non-pecuniary damage with the
exception that, in the case under examination, peculiar circumstances
do not prevent such compensation for the individual”.
A consideration can be drawn from the conclusion reached by the Corte di Cas-
sazione in this case, and confirmed also in the other judgments. It can be affirmed
that, for the violation of the right to reasonable length of proceedings, the general
principles of the Italian Civil Code, which state that the onus lies with the applicant
to prove that he has suffered damage, pecuniary or non-pecuniary, from a wrong-
ful act, are replaced by the principles settled in the jurisprudence of the Strasbourg
Court, under which non-pecuniary damage is a consequence that automatically
stems from the anxiety and prejudice suffered by the victim.
As corollaries of the principle stated on the existence of an obligation to com-
pensate non-pecuniary damage for “unreasonable” length of proceedings, two
more questions are tackled by the Sezioni Unite in the other cases under exam.
Non-pecuniary damage, ascertained by the Strasbourg organs, cannot be ex-
cluded when the same case is dealt with by the national judge. This question is dis-
cussed in depth in the second (Lepore, No. 1339) and in the fourth (Lepore-Lepore,
No. 1341) judgment, both concerning cases in which the European Commission of
Human Rights had found a violation of Article 6 paragraph 1 and the Committee
of Ministers had granted a compensation for the delay. The Corte di Cassazione
imposes to take into consideration the amount for compensation awarded by the
European Court, though a reasonable margin of appreciation can be conferred upon
the national judge.
Anyway, such a “margin of appreciation” cannot lead to compensation which
“does not bear a reasonable relationship to the amounts awarded by the Court in
[…] similar cases”. National courts, however, have to bear in mind that they “must
also comply with the Court’s case-law by awarding corresponding amounts” (see
Scordino and Others v. Italy, decision of 27 March 2003).
Recalling the Legge Pinto, the Corte di Cassazione – in the third judgment
(Corbo, No. 1340) – states that, as for non-pecuniary damage, it is mandatory for
the national judge to respect the criteria established in similar cases by the Stras-
bourg Court. A further indication concerns the way in which the determination of
damages can be achieved:
“The search of similar cases and of just satisfaction of non-pecuniary

damage granted by the European Court can be done by the judge. He
can carry out this specific task even in cooperation with the parties
concerned and, in particular, with the assistance of the plaintiff, who
has a specific interest in giving any useful elements for the determina-
tion of the amount of compensation”.
In the same judgment, the Corte di Cassazione maintains that only recent
decisions should be considered the benchmark for reference to the issues of com-
pensation, to minimise the discrepancy between the amount awarded by the Corte
d’Appello and alleged “precedents” within the case-law of the European Court.
In general, it seems to us that the judgments here analysed realign both Euro-
pean and Italian perspectives on the right to just satisfaction for the violation of the
right to reasonable time in obtaining a decision before a tribunal. The recognized
important role of European jurisprudence in the definition of criteria for compen-

sation of damage, where the rights conferred by Article 6 paragraph 1 ECHR are
violated is a significant advance in the Italian application of the Convention.
Although the formal application of stare decisis cannot be declared in the Italian
legal system, it is correct to attach adequate importance to the interpretation given
by the Sezioni Unite of the Corte di Cassazione, which is particularly relevant as
living law for the lower courts (see CAVINO, “Il precedente tra certezza del diritto e
libertà del giudice: la sintesi nel diritto vivente”, Diritto e società, 2001, p. 95 ff.).
In conclusion, what remains unfortunately still unclear, and widely debated in
legal doctrine, is the question of how long the existence of a provisional remedy
established to compensate “systemic” violation of fundamental rights will be con-
sidered a condition sufficient to comply with the obligations provided for in ECHR.
(The text of the Judgments No. 1338 and No. 1340 has been published in Foro It.,
2004, I, respectively p. 699 ff. and p. 693 ff.; Judgments No. 1339 and No. 1341
have not yet been published).
GIOVANNI CARLO BRUNO
(Cf. infra XIV, Corte di Cassazione (Sez. I penale), 14 January 2003, No.
1377)
(Cf. supra XI, Corte di Cassazione (Sezioni Unite civili), 27 November 2003-
26 January 2004, Nos. 1338-1341)

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

Re: Jelisic
On 1 July 1999 the Agreement between Italy and the United Nations on the
enforcement of judgments of the International Criminal Tribunal for the Former
Yugoslavia (hereinafter ICTY), adopted in The Hague on 6 February 1997 (here-
inafter “the Agreement”), entered into force. Italy had already declared its willing-
ness to execute the ICTY’s sentences. To this end, it had enacted DL No. 544 of 28
December 1993 (converted with minor changes into Law No. 120 of 14 February
1994, hereinafter “the Decree”), immediately after the establishment of the Tribu-
nal by the Security Council. Subsequent Law No. 207 of 7 June 1999, by which the
Agreement was ratified and implemented in the Italian legal order, has not officially
abrogated the Decree. On the contrary, some articles of the Agreement expressly
refer to specific provisions of the Decree.
The two texts contain overlapping regimes with regard to quite a number of
aspects relating to the execution of the ICTY judgments. Thus, problems of inter-
pretation are very likely to arise before Italian tribunals trying to co-operate with
the judicial activity of the UN Tribunal.
The judgment of the Corte di Cassazione here under review addresses one of
these problems.
The provisions of the two acts which appeared to be conflicting are, on the
one hand, Article 7, paragraph 4, of the Decree and, on the other hand, Article 3,
paragraph 1, of the Agreement. The first one states that the Court of Appeal, by rec-
ognising a judgment of the Tribunal “shall determine the sentence to be enforced
in the State. For this purpose, the Court shall convert the term of imprisonment
imposed by the International Tribunal into a term of reclusione. The duration of
the sentence (penalty) shall in no case exceed a term of reclusione of thirty years”
(the word reclusione means imprisonment in Italian). The Cassazione had to decide
whether Article 7, paragraph 4, of the Decree, had been implicitly abrogated by
Article 3, paragraph 1, of the Agreement which reads: “In enforcing the sentence
pronounced by the International Tribunal, the competent national authorities of the
requested State shall be bound by the duration of the sentence”.
This case originated in 2001, when the Registrar of the ICTY addressed a
request to the Government of the Italian Republic to enforce a forty-year prison
sentence imposed to Goran Jelisic, who was found guilty of acts of genocide. Ac-
cording to Article 2, paragraph 3, of the Agreement and Article 7, paragraph 1, of
the Decree, the Minister of Justice has to submit the request to the Attorney General
(Procuratore Generale) attached to the Court of Appeal of Rome. On 31 January
2002, the Court of Appeal of Rome recognized the judgment of the International
Tribunal and sentenced Jelisic to forty years of imprisonment. In other words, it
applied the regime provided for by the Agreement. “When two national provisions
of equal rank appear to be conflicting”, so runs the Court’s argument, “the contrast
should be solved by recourse to the chronological criterion affirming that lex pos-
terior derogat priori”. The Court argued that Article 3, paragraph 1, of the Agree-
ment had abrogated Article 7, paragraph 4, of the Decree. Therefore, the competent
Italian authorities were under an obligation to respect the duration of the penalty
imposed by the International Tribunal (this conclusion had already been reached in
Italian legal literature by LATTANZI, “Rapporti fra giurisdizioni penali internazio-
nali e giurisdizioni penali interne”, in LAMBERTI ZANARDI and VENTURINI (eds.),
Crimini di guerra e competenza delle giurisdizioni nazionali, Milano, 1998, p. 47
ff.).
The appellate decision was reversed by the Corte di Cassazione. Basically, the
Supreme Court affirmed that the two provisions in question should not be consid-
ered as conflicting one with another, because they concern different issues. In fact,
whereas Article 7 of the Decree addresses the question of the recognition of the
judgment passed by the International Tribunal, Article 3 of the Agreement deals
with the phase which follows the recognition of the judgment by the competent
Italian authorities, i.e. the enforcement of the sentence.
The Court goes on by clarifying that Article 7 of the Decree governs such ques-
tions as the appointment of competent national authorities, the procedure to be fol-
lowed and the conditions under which the recognition of the judgment is possible.
In particular, paragraph 4 of Article 7 specifies one of these conditions, namely that
the sentence pronounced by the ICTY must not exceed thirty years’ imprisonment.
On the other hand, Article 3 of the Agreement regulates the proceedings relating to
the execution of the sentence, which may begin only when the judgment has been
duly recognised by the Italian judicial authorities in a previous phase.
In conclusion, the Cassazione ruled that Article 3, paragraph 1, has not abro-
gated Article 7, paragraph 4, of the Decree. As a consequence, nothing prevents
national authorities from reducing an imprisonment sentence pronounced by the
ICTY.
As for the legal grounds of its finding, the Court affirmed that its interpretation
of Article 3, paragraph 1, could be unequivocally drawn by the ordinary meaning
to be given to the terms of this provision. Actually, the Italian text of Article 3
reads as follows: “[T]he competent national authorities of the requested State shall
promptly decide upon the request of the Registrar, in accordance with national law,
and more specifically, with Article 7(2)(3)(4) of DL No. 544” (emphasis added).
According to the Court, support to its decision came also from a comparative
analysis of Article 3 and Article 2 of the same Agreement. Indeed, Article 2 is
entitled “Procedure” and expressly relates, in its paragraph (4), to “the decision of
the competent national authorities on the request of the Registrar”, while Article 3
is entitled “Enforcement” and expressly refers to “the execution of the sentence”.
In the Court’s view, this language would clearly demonstrate that Article 3 does
not include the preliminary phase concerning the recognition of the international
judgment.
Furthermore, in the Cassazione’s opinion, an indirect confirmation of the cor-
rectness of this interpretation can be found in Law No. 181 of 2002 on co-operation
with the International Criminal Tribunal for Rwanda. Article 7 of this Law is iden-
tical to Article 7 of the Decree, in that it grants the competent national authorities
the power to convert the international sentence into a national sentence of a lesser
length. An interpretation of the Agreement preventing the Italian judges from reduc-
ing the sentence imposed by the ICTY would amount to a violation of the principle
of equality before the law enshrined in Article 3 of the Italian Constitution.
Finally, the Court found its interpretation consistent with Article 27 of the Stat-
ute of the ICTY, which establishes that imprisonment “shall be imposed in accord-
ance with the applicable law of the State concerned”.
In our opinion, the Cassazione appears to have completely disregarded interna-
tional rules of treaty interpretation. In fact, the Agreement has been considered as a
purely national set of rules throughout all its reasoning.
In the first place, no application has been made of the rule codified in Article
33, paragraph 1, of the Vienna Conventions on the Law of Treaties, stating that:
“When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that,
in case of divergence, a particular text shall prevail”. Indeed, the Court ignored
the English text of the Agreement, and referred only to the Italian one, whereas
according to the Agreement, it is the English text which had to be considered as au-
thoritative. Now, it is worth noting that Article 2, paragraph 4, of the Agreement, in
the English version, simply stipulates that “the competent national authorities [...]
shall promptly decide [...] in accordance with national law”. No mention is made of
reducing the sentence imposed by the Hague Tribunal.
A purely nationalistic approach is shown by the Court when it affirmed to be
interpreting Article 2, paragraph 4, of the Agreement in accordance with Article 7
of Law No. 181 of 2002 on the execution of the ICTR’s sentences. However, it is a
very well established principle of treaty interpretation, reflected in Article 31, para-
graph 3, of the Vienna Conventions, that for the purpose of the interpretation of a
treaty the “context” comprises all other international instruments in force between
the Contracting Parties. National legislation is not included in this concept.
Apart from any question concerning the criteria provided for by international
law for the interpretation of treaties, other critical remarks may be addressed to the
Court.
Firstly, a cross examination of both the Agreement and the Decree leads to an
interesting result which completely undermines the Court’s reasoning. In effects,
many provisions of the Agreement expressly refer to rules of the Decree. Among
these rules, no reference has been made to Article 7 on the power to reduce the
terms of imprisonment. This could be considered as an intentional choice by the
Parties to the Agreement who wanted to retain some principles contained in previ-
ous Italian legislation and to rule out others.
Secondly, the Court’s reading of Article 27 of the Statute of the Tribunal should
be also criticised. The Court recalled only that part of Article 27 which affirms
that imprisonment shall be imposed according to the “applicable law of the State
concerned”. Once again, the Court stuck to a one-sided interpretation of an interna-

tional rule which instead considered important “the supervision of the International
Tribunal” also. In our opinion, Article 27 of the Statute does not leave the judgment
of the ICTY in the hands of the State of execution exclusively. Rather, it provides
a balance of competences and responsibilities between this State and the ICTY.
Even if the Statute does not explain what the concept of “supervision” means, there
is general agreement among legal scholars that the power to “supervise” include
ensuring that the State of execution does not “alter the nature of the penalty to af-
fect its truly international character”, as affirmed by the Trial Chamber in the first
sentencing judgment in the Erdemovic case (Prosecutor v. Erdemovic, Sentencing
Judgement No. IT-96-22, 29 November 1996, paragraph 71. See on this point TOL-
BERT, “The International Tribunal for the Former Yugoslavia and the Enforcement
of Sentences”, Leiden JIL, 1998, p. 655 ff.; KRESS and SLUITER, “Imprisonment”,
in CASSESE, GAETA AND JONES (eds.), The Rome Statute of the International Crim-
inal Court: A Commentary, Oxford, 2002, Vol. II, p. 1757 ff., p. 1774). If these con-
siderations are correct, the Court’s interpretation of Article 2, paragraph 4, of the
Agreement allows an inadmissible “intrusion” of Italian authorities into the ICTY’s
prerogatives. Moreover, this intrusion seems unreasonable, given that in Italy the
highest maximum sentence for the most serious crimes is life imprisonment.
I would like to add just one final remark. According to a decision of the President
of the ICTY, issued on 29 May 2003, Goran Jelisic was transferred to Italy to serve
his sentence (see ICTY, Registry, press release of 29 May 2003, JL/P.I.S./758-e).
It seems difficult to see in this decision the will of the ICTY to acknowledge (or to
acquiesce to) the principle affirmed by the Cassazione. Rather, it reflects the difficult
task which the ICTY is facing now, with a number of sentencing judgments already
issued and others expected in cases pending before it, on the one hand, and with few
States having accepted to assist it with enforcement of sentences, on the other hand.
(The Italian text of the judgment has been published in RDIPP, 2003, p. 830 ff.).
MASSIMO STARITA
Execution of letters rogatory - Whether copies require official authentication

for their admissibility as evidence - 1959 European Convention on Mutual As-
sistance in Criminal Matters - Relationship between treaty law and domestic law
- Treaty between Italy and Switzerland concluded in Rome on 10 September 1998
which supplements the European Convention on Mutual Assistance in Criminal
Matters and facilitates the application of the principles contained therein - Letters
rogatory are governed by the law of the requested State according to a universal
principle of international law - Interpretation of a treaty in the light of any subse-
quent practice in its application - Article 31, paragraph 3(b) of the Vienna Conven-
tion on the Law of Treaties - Schengen Agreements
Corte di Cassazione (Sez. I penale), 15 October 2002, No. 34576

Re: Monnier
Corte di Cassazione (Sez. I penale), 8 November 2002, No. 37774

Re: Strangio and Others
In the last two volumes of this Yearbook, we described the intricate judicial
saga concerning the interpretation of international conventions on the execution of
letters rogatory. This interpretation became even more complicated after the entry
into force of Law No. 367/2001, which modified some important provisions of the
Italian Criminal Code and the Code of Criminal Procedure relating to international
rogatory letters. Essentially, defendants in some criminal proceedings had chal-
lenged the validity of the documentary evidence transmitted from abroad. They
argued that the documents lacked proper certification as to their conformity to the
original text, and this was said to conflict with Article 3, paragraph 3, of the Euro-
pean Convention on Mutual Assistance in Criminal Matters. They also denounced
the violation of Article 15, paragraphs 1 and 2, of the latter Convention. In fact, the
documents had been handed over directly to the judicial authority, whereas Article
15 prescribes that rogatory letters should be addressed by the Ministry of Justice of
the requesting Party to the Ministry of Justice of the requested Party.
The Milan Tribunal rejected these allegations. Among the different argu-
ments used by the Tribunal to confirm the validity of the documents handed over
by Switzerland, there was one based on international law on treaty interpretation.
Concerning Article 3 of the European Convention, the judges affirmed that States
have so far constantly followed the practice of transmitting uncertified copies of
the requested documents. Also with regard to the formalities of the transmission,
the direct transmission has superseded the original wording of Article 15. Neither
of these practices have ever been objected to by the interested States. They could
be thus considered as a means of interpreting the treaty’s provisions in conformity
with Article 31, paragraph 3(b) of the Vienna Convention on the Law of Treaties.
In our opinion, this argument was backed also by the Constitutional Court in the
more recent order of 4 July 2002, No. 315 (IYIL, 2002, p. 291).
In the two decisions under review here, the Corte di Cassazione has now con-
firmed the correctness of this reasoning once and for all.
In the Monnier decision, the Court dealt with the problem of direct transmis-
sion of letters rogatory, which the accused persons deemed to be in contrast with
Article 15 of the European Convention on Mutual Assistance in Criminal Matters.
It ruled as follows:
“[T]he direct transmission of letters rogatory between the jurisdic-

tional authorities of the requesting and the requested State is not ille-
gitimate. It is in conformity with the international conventions which
are mentioned in Article 696, paragraph 1, of the Code of Criminal
Procedure, and with the practice that the contracting parties have
been developing with regard to their concrete application. On this
point, Law No. 367/2001 which amended Article 696 added nothing
new. In fact, this provision reaffirms the basic concept that interna-
tional law, both customary and conventional, prevails over domestic
law concerning letters rogatory. This is true even with regard to those
international law principles, such as that provided for by Article 31
of the Vienna Convention on the Law of Treaties, recognising that
subsequent practice has a decisive role in the application and inter-
pretation of the said conventions. The practice consisting in the direct
transmission of letters rogatory between jurisdictional authorities of
the contracting parties has been expressly recognised also by Arti-
cle XVII of the Bilateral Agreement between Italy and Switzerland
concluded in Rome, on 10 September 1998. This tendency aims at
facilitating co-operation among States and rendering the procedures
in the field of mutual judicial assistance simpler and more effective.
It is exactly the same goal which inspires Article 53, paragraph 1 of
the Convention Implementing the Schengen Agreement, stating that
requests for assistance may be made directly between legal authori-
ties and returned through the same channels”.
The Strangio and Others decision deals with the problem of copies of documents
transmitted from abroad. On this problem, the accused persons recalled Article 3,
paragraph 3, of the European Convention on Mutual Assistance in Criminal Matters,
which prescribes that “only certified copies or certified photostat copies of records
or documents” may be transmitted by the requested Party. Therefore, documentary
evidence lacking proper certification as to their conformity to the general text should
be considered invalid and may not be used as evidence by the Italian judges.
According to the Court, Article 3 does not impose any peremptory obligation
to the requested State to hand over only formally certified copies or photostat cop-
ies. On the contrary, the whole text of the Convention appears to be inspired by the
need to simplify judicial co-operation among the contracting parties. This assump-
tion is clearly confirmed by Article 17 of the Convention, expressly ruling that
“evidence or documents transmitted pursuant to this Convention shall not require
any form of authentication”.
After this general statement, the Court moved to give its interpretation of Arti-
cle 3, paragraph 3, which is substantially similar to the one given on Article 15 of
the European Convention in the Monnier decision:
“According to Article 696 of the Code of Criminal Proceedings, as

amended by Law No. 367/2001, domestic rules concerning interna-
tional judicial assistance apply only insofar as international rules,
both conventional and customary, do not exist or do not provide
otherwise.
The 1959 European Convention on Mutual Assistance in Criminal
Matters is expressly mentioned in Article 696. Therefore, it takes
priority over domestic rules and must be interpreted according to the

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

LAW
Regional competence to undertake international agreements - “Letter of in-

tent” between the Veneto Region and Argentina of 31 March 1999 - Principle of
“loyal cooperation” between State and Regions
Corte Costituzionale, 30 January 2003, No. 13

Presidente del Consiglio dei Ministri v. Regione Veneto
The above decision deals with the issue of regional competence to undertake
international obligations. It falls under the constitutional system in force prior to
the reform of Title V, Part II of the Italian Constitution, a reform implemented by
constitutional amendment No. 3 dated 18 October 2001 (see IYIL, 2001, p. 416 f.,
and CONFORTI, “Reflections on the Recent Amendments to the Italian Constitution
Concerning Respect for International and European Community Law”, ibidem, p. 3
ff.). The decision, however, was handed down when the reform, especially the new
text of Article 177 of the Constitution, was already in force.
The subject of the decision is the clash of attributions (conflitto di attribuzioni)
between the central government (Presidency of the Council of Ministers) and the
Veneto Region, an issue that arose as a result of a “letter of intent” signed on 31
March 1999 by the President of the Veneto Region and the Minister of Foreign Af-
fairs of Argentina.
In this letter of intent both parties pledged “[i]n accordance with their respec-
tive legal systems, to promote the adoption of measures necessary to develop
institutional, economic and cultural cooperation between the Veneto Region and
the Republic of Argentina, for the purpose of encouraging cultural, economic and
social exchanges”. The intent therefore was to encourage various initiatives of col-
laboration and cooperation.
According to the Presidency of the Council of Ministers, the agreement was preju-
dicial to the competence of the State and violated the constitutional principle of “loyal
cooperation” between State and Regions for three reasons. First, the government was
not notified in advance of the initiative undertaken; second, because the Protocol was
entered into by “non homologous bodies”; finally, because the issues subject of the
“letter of intent” allegedly come under State and not regional jurisdiction.
In its defense the Veneto Region maintained that the undertaking initiated
jointly with the Republic of Argentina was to be considered as “an activity of
mere international significance” through which the Region simply established the
premises for future initiatives, without committing itself to carrying out any spe-
cific acts. Furthermore, the sectors affected by the “letter of intent” were, according
to the Region, of “definite regional pertinence”.
The Constitutional Court sustained the appeal and annulled the “letter of in-
tent”, stating that “[e]ntering into agreements with foreign bodies or institutions,
without the Region having previously informed the Government, thus without the
required agreement or assent, is in itself prejudicial to State competence”. Accord-
ing to the Court, therefore, the Government should have been placed in a position
to verify in advance “the consistency of such activities with foreign policy, some-
thing that comes under the competence of the State”. This would be applicable
whatever the subject matter, even if the agreement concerned issues that came
under regional jurisdiction.
This decision confirms the conclusions reached by the court in previous deci-
sions on the same topic (see No. 179/1987 and No. 472/1992, IYIL, 1988-1992,
p. 12 ff., with note DE SENA; No. 428/1997 and No. 332/1998, IYIL, 1999, p. 147
ff., with note ANDREONE). Thus the entry into force of the reform of Title V of the
Constitution does not appear to have produced any relevance in this particular case.
We must also add that the Court had issued an order during the trial requesting both
parties to submit new briefs in order to make them taking into account the Consti-
tutional reform. In the briefs filed, both parties concluded for the need to apply the
previous regime. In my opinion, it would have been plausible to expect the Region
to attempt to have the new formulation of Article 117 of the Constitution, grant-
ing the Regions greater power than in the past in respect of international relations,
taken into consideration even if to a limited extent.
In fact, one wonders what the decision of the Court would have been if the
constitutional text currently in force were to have been applied, and, consequently,
if an agreement such as the one objected to by the Court in its ruling would have
been admissible in light of the new constitutional reform. To this end I believe it
would be useful to rapidly review the various phases of the evolution of regional
competence regarding international relations.
Presidential Decree 31 March 1994 provided guidelines by sustaining and in-
corporating the conclusions of constitutional decisions, specifically the principle
according to which the regions could accomplish activities “of mere international
significance”, enter into “understandings” of international significance and, upon
receiving Government consent, enter into actual international agreements such that
would involve the responsibility of the State. Naturally, in the latter case, the is-
sues would have to be of a regional competence and not among those in respect of
which Article 80 of the Constitution requires Parliament to issue a law authorizing
ratification by the Head of State.
The Reform of Title V of the Italian Constitution expands the external powers
of the Regions. While maintaining, in the revised formulation of Article 117, the
exclusive competence of the State in matters of external politics and international
relations, Regions acquire a concurrent legislative power for the conduct of their
own international relations and can sign international agreements with foreign
States and understandings with foreign bodies. According to Article 117, paragraph
9, “in matters that come under their competence, Regions may undertake agree-
ments with States and understandings with territorial bodies of other States, in
cases governed by and in accordance with the laws of the State”.
Of course, apart from a formulation that is surely ambiguous in its brevity,
this provision does not grant any international personality to Regions (although
several scholars of constitutional law seem to state the opposite: see for example
CARAVITA, La Costituzione dopo la riforma del Titolo V, Torino, 2002, p. 119).
An international agreement negotiated by a Region with a subject of international
law cannot but be considered as an international agreement of the Italian State in
which the Region acts on behalf of the State, perhaps even as a body of the State
(as stated by CONFORTI, cit. supra, p. 8). We may thus interpret this provision as
bringing about a decentralization of the State’s foreign competences. This is true in
the case of international agreements that, as such, commit the State in its entirety.
As for “understandings with national or foreign territorial bodies”, we must ask
ourselves if, at this point, the need for prior governmental consent is still necessary.
The issue is not of great relevance for scholars of international law because these
understandings cannot be placed under the rules of international law and are more
of a political rather than a legal value. However, I believe that until such time as the
laws referred to by Article 117, paragraph 9 are issued, the preexisting laws remain
valid and thus prior governmental consent is still a requirement.
The interpretative doubts that had led to the formulation of paragraph 9, Article
117 seem to have been dispelled by the recent Law No. 131 of 5 June 2003, con-
taining “Provisions for conforming the Republic’s legal system to Constitutional
Law No. 3 of 18 October 2001”. With respect to international agreements, Article
6 of this law requires that for issues that come under their legislative competence,
Regions are directly responsible for the implementation and enforcement of rati-
fied international agreements, providing prior notification to the central bodies of
the State, and that the Regions may autonomously conclude implementation and
enforcement agreements of international covenants already in force, or technical-
administrative or program agreements, if they have the consent of the State. The
nature of a State body within Regions, in these cases, derives from the necessity, as
per the last part of Article 6, for the Minister of Foreign Affairs to confer “full sig-
natory power as required by general international law and by the Vienna Conven-
tion on the Law of Treaties”. Concerning “understandings”, the law substantially
confirms the contents of Article 117 of the Constitution, contemplating the possibil-
ity of entering into “agreements” with national territorial bodies of foreign States
“aimed at promoting economic, social and cultural development and carrying out
activities of mere international significance”.
At this point we can effect a comparison between the obligations issuing from
the “letter of intent” concluded between the Veneto Region and Argentina and the
new provisions on the issue that have been introduced into our legal system. The
result of this assessment is that any relation of an international nature, thus any
commitment assumed with foreign States (not just with national territorial bodies
of the latter) must of necessity be approved by the Minister of Foreign Affairs.
Agreements concluded by Regions without the conferral of full powers by the
government are expressly regarded as void (see Article 6, Law No. 131/2003).
Therefore, the decision of the Constitutional Court in this case would not have been
different if the new rules on the treaty-making power of Regions introduced into
the Italian legal system were to have been applied, since, as is clear in this case,
there was no governmental consent.
However, government objections regarding subject matter of the “letter of
intent” would have been invalidated as the 2003 Law specifically contemplates
the possibility for Regions, once they have received treaty-making power from
the State, to conclude agreements with other States “of a programmatic nature to
encourage their economic, social and cultural development”.
Finally, it should be pointed out that several appeals are currently pending be-
fore the Constitutional Court against Law No. 131/2003. These appeals have been
submitted by the Regions and are based on the alleged limitation of regional compe-
tence in the sphere of international relations imposed by this law as compared to the
constitutional dictate – a dictate that can undoubtedly be subjected to an even more
extensive interpretation of this competence than the one chosen by Law No. 131/
2003. (The Italian text of the decision has been published in RDI, 2003, p. 563 ff.).
GIUSEPPE CATALDI
DIPLOMATIC AND PARLIAMENTARY PRACTICE
(edited by Lara Appicciafuoco, Pietro Gargiulo, Giuseppe Nesi,

Marco Pertile and Valeria Santori)

LAW
1. RESERVATIONS TO TREATIES
(Cf. supra IOVANE, “The Activity of the International Law Commission during
Its 55th Session”, section V)
On 31 October 2003, during the debate in the Sixth Committee of the UN Gen-
eral Assembly (LVIII Session) on the Report of the International Law Commission
on the Work of its Fifty-fifth Session (UN Doc. A/58/10), the Italian delegate, Mr.
Braguglia, intervened on the topic of reservation to treaties. Mr. Braguglia said the
following:
“The definition of objections to reservations – if ever such a defini-

tion were to be needed – should include the whole range of adverse
reactions that a State could have with regard to reservations, both if
the objection addresses the reservations’ content and if it addresses
the reservations’ timeliness. This should be done without modifying
the effect of objections, which should remain the same as defined in
the Vienna Convention on the Law of Treaties. Even if this is one of
the parts of the Convention that are less satisfactory, the Commission
should conform itself to its mandate not to change anything in the
treaty regime.
Asserting the need that objections be motivated responds to a clear
interest, in that this would allow the reserving State better to appreci-
ate what the intent of the objection’s author is. However, only rarely
does this kind of rules involve relevant practical consequences”.
He further noted that:
“With regard to the draft guideline concerning the enlargement of

the scope of a reservation, it seems to stem from the project that
the Commission has just adopted that, in conformity with certain
depositories’ practice, it would be admissible for a State to express
a late reservation so long as no other contracting State objects as to
the reservation’s late character. It would seem logical that a similar
rule be set out also with regard to amendment to reservations aimed

at enlarging their scope”.
1. SOVEREIGNTY OVER US AND NATO MILITARY BASES
On 23 January 2003, at the Camera dei Deputati (Chamber of Deputies) (252nd

Meeting, XIV Legislature), the Sottosegretario di Stato per la difesa (Under-Secre-
tary of State for Defence), Mr. Francesco Bosi, answered a parliamentary question
regarding the transport of weapons outside the US Military Base of Camp Darby,
in the neighbourhood of Pisa, which was carried out because the underground am-
munition depot was beginning to collapse. The Sottosegretario affirmed that the
operation was done in full safety and in close contact with the Italian Commander
of the Base. Moreover, with regard to the legal justification of NATO and US bases
in Italy, he stated:
“First of all, in general terms, as concerns international agreements,

one should highlight that the presence of NATO and US forces in Ita-
ly is based on the framework of the North Atlantic Treaty of 1949.
With regard to the use of the bases, there is no extra-territoriality
status and the Italian State fully exercises its sovereignty. As specifi-
cally concerns Camp Darby, the Commander of the Base is an Ital-
ian Officer. The bases, as a portion of territory devoted to logistic
and operational support and endowed with personnel and means, do
not belong to NATO nor to the United States: they are only used by
NATO or US military forces with no limitation or infringement of our
national sovereignty”.
1. DIPLOMATIC PROTECTION
Its 55th Session”, section II)
On 29 October 2003, speaking before the Sixth Committee of the General

Assembly (LVIII Session) on the Report of the International Law Commission
(Fifty-fifth Session, UN Doc. A/58/10), the Italian delegate, Mr. Braguglia, com-
menting on Chapter V of the Report, “Diplomatic Protection”, made the following
statement:
DIPLOMATIC AND PARLIAMENTARY PRACTICE 267
“[…] [A]lthough the draft articles concerning the exhaustion of local

remedies rule appear to be satisfactory, it might have been preferable
to consider the principle according to which remedies available at do-
mestic level should be adequate as an integral part of the rule, rather
than as an exception to it. Indeed, it seems difficult to understand why
the principle should be accepted that private persons would first have to
exhaust domestic procedures that would not guarantee a real remedy.
A certain concern arises out of the reading of the Commission Report’s
paragraphs 102 to 104. The majority of the Commission’s members
would seem to be favorable to draft Article 18(b). This text aims to
render it possible for every State of which a corporation’s shareholders
are nationals to exercise diplomatic protection when the corporation
that has suffered an injury has the nationality of the host-country. This
opens a broad exception to the rule contained in Art. 17, according to
which only the company’s national State can enjoy protection. Such
rule reflects the solution that the International Court of Justice adopted
in the Barcelona Traction case and on which the majority of delega-
tions expressed consent during the Sixth Committee last year. In any
case, the exception would raise considerable practical problems in
view of the difficulty of identifying a given company’s shareholders”.
He also added:
“My delegation favorably considers the Special Rapporteur’s inten-

tion to engage, during next year’s session, in examining the diplo-
matic protection of members of a ship’s crew and of the personnel
of an intergovernmental organization. With regard to the diplomatic
protection of members of a ship’s crew, the elaboration of draft arti-
cles would give some guidance on an issue that, notwithstanding its
practical relevance, is not regulated – at least not explicitly – in the
United Nations Convention on the Law of the Sea.
With regard to issues raised in paragraph 29 of the Report, dealing
with other questions that the Commission wishes to address, it would
be useful to enquire further to what extent the draft articles that the
Commission has already prepared on diplomatic protection would be
applicable with regard to human rights violations related to the treat-
ment of foreigners […]”.
2. RIGHT OF ASYLUM
On 3 April 2003, the Sottosegretario di Stato per la difesa (Under-Secretary of

State for Defence), Mr. Alfredo Mantovano, intervened at the Camera dei Deputati
(Chamber of Deputies) (292nd Meeting – XIV Legislature) expressing the opinion

of the Government on a motion concerning the flow of refugees coming from Iraq
in consequence of the beginning of the military operations and of the very serious
humanitarian crisis in that country. In that context, the Sottosegretario, dwelling on
the essential features of the Italian law of asylum, declared:
“I do not think it is necessary to recall that our law, which complies

with international law and EC law, distinguishes amongst those
people who enter Italy irregularly: irregular entrance by itself is
a condition of clandestineness, which implies expulsion. On the
contrary, any submission of a request for asylum leads to the ap-
plication of the discipline provided for by the Geneva Convention
of 1951, which was ratified by Italy and followed by domestic nor-
mative acts, including the acceleration of the procedures provided
for by Law No. 189/2001. The above mentioned act provided for
the establishment of territorial commissions (assisted by humanitar-
ian organizations) substituting the Central commission. Moreover,
a review of an asylum seeker’s application is provided for without
expulsion in case of rejection. Our legal system does not admit the
submission of asylum applications to the Italian Diplomatic Rep-
resentations and Embassies, contrary to what the motion of Mrs.
Maura Cossutta and other motions suggested. For a basic necessity
of uniformity, an autonomous introduction of that option is totally
inappropriate as long as it will not be examined and possibly ap-
proved by the European Union. With regard to this, I recall that the
adoption of a resolution concerning asylum has been on the agenda
of the EU Council of Ministers of Internal Affairs for a long time.
The Greek Presidency, now in office, is strongly promoting its
adoption before the first semester of 2003.
The case of significant humanitarian needs in the context of conflicts
is regulated by Art. 20 of the Consolidated Act (Testo Unico) on im-
migration, which provides for the adoption of a specific Decree of the
Presidente del Consiglio (President of the Council of Ministers) in
order to define temporary protection measures. After the declaration
of the state of emergency (on 20 March 2002, subsequently extended
until 31 December 2003 by the Decree of the Presidente del Con-
siglio of 11 December 2002), owing to the continuous and regular
flow of refugees towards our territory, the adoption of extraordinary
measures concerning the reception of foreigners – and thus also refu-
gees coming from conflict areas – is already possible.
Moreover, Art. 19 of the Consolidated Act (Testo Unico) on immigra-
tion forbids expulsion of non-EU citizens to countries in which they
might be persecuted”.
On 23 October 2003, at the Senato della Repubblica (Senate) (477th Meeting,

XIV Legislature), the Sottosegretario di Stato alla Presidenza del Consiglio dei
Ministri (Under-Secretary of State for the Presidency of the Council of Minis-
ters), Mr. Cosimo Ventucci, dwelt again on the Italian domestic legislation con-
cerning asylum in answering a question concerning the case of a Syrian citizen,
Muhammad Sa’id al-Sakhri. Mr. al-Sakhri, after having been repatriated from
Italy to Syria, together with his wife and their four children – as they had no
passports and, nevertheless, they did not seek asylum in any way –, was arrested
in his country of origin. This situation – which finally had a positive conclusion
with the release of Mr. al-Sakhri – raised deep concerns about the effectiveness
of respect for human rights.1 The Sottosegretario, focussing on the Italian asylum
legislation, produced the following short list of the most important normative
acts:
“Article 10 of the Constitution, which expressly recognizes the right

to asylum; Article 1 of the Law No. 39 of 1990 (the so-called Martelli
Law) and the implementing regulation (Decree of the President of the
Republic No. 136 of 1990), which contains rules on the procedure of
appraisal of requests, on the treatment of applicants pending the deci-
sion and establishes the National Commission for the recognition of
the refugee status; the Geneva Convention of 1951 (an integral part
of our domestic law), which defines the rights of the refugee; Arti-
cle 19 of the Legislative Decree No. 286 of 1998, which envisages
the prohibition of expulsion and repatriation in accordance with the
principle of non-refoulement; the Council Regulation 343/2003 of 1
February 2003 (replacing the European Dublin Convention of 1990),
which determines the Member State responsible for the appraisal of
the asylum application; the Council Directive 2003/9/CE of 27 Janu-
ary 2003, laying down minimum standards concerning the reception
of the asylum seekers in Member States; Articles 31 and 32 of the
Law No. 189 of 2002 (whose implementing regulation was approved
by the Consiglio dei Ministri on last 27 June), which modified the
procedures of appraising requests for the recognition of refugee sta-
tus, attributing the relative decision-making competencies to newly
established territorial organs, i.e. the territorial commissions”.
1
See also Camera dei Deputati (Chamber of Deputies), XIV Legislature, 340th Meeting,
15 July 2003: the Sottosegretario di Stato per l’interno (Under-Secretary of State for Domestic
Affairs), Mr. Alfredo Mantovano, and the Sottosegretario di Stato per gli affari esteri (Under-
Secretary of State for Foreign Affairs), Mr. Alfredo Luigi Mantica, intervened during an urgent
presentation of information by the Government on the case of the Syrian citizen Muhammad
Sa’id al-Sakhri, expelled by Italy and arrested in Syria.
XI. HUMAN RIGHTS
1. TORTURE AND OTHER CRUEL, INHUMAN AND/OR DEGRADING TREATMENT
On 28 July 2003, at the Camera dei Deputati (Chamber of Deputies) (347th

Meeting, XIV Legislature), the Sottosegretario di Stato per gli affari esteri (Under-
Secretary of State for Foreign Affairs), Mrs. Margherita Boniver, intervened in the
debate regarding two motions concerning the case of a Nigerian woman, Amina
Lawal, sentenced to death by stoning for having a child out of wedlock (see also
infra XVII.2.A). The Sottosegretario referred to various initiatives, in which Italy
is engaged together with other European Union partners, aimed at promoting the
abolition of the death penalty and endorsing feasible measures limiting the appli-
cation of capital punishment where it is still in force. The Sottosegretario, while
focussing on the draft resolution submitted by the European Union to the United
Nations Commission on Human Rights, at its 59th Session (Geneva, 17 March-24
April 2003), declared:
“In particular, on the basis of an Italian proposal, an explicit request

to avoid capital sentences based on discriminatory elements against
women has been introduced to States which continue to keep the
death penalty in force. In short, such States have been requested
to exclude the death penalty for all those crimes discriminating
against women as such and for which the equivalent application
of the same punishment to men is not provided for. Clearly, this
request stemmed also from the apprehension and pain caused by
cases such as those of the two Nigerian women now under discus-
sion”.
1. INTERNATIONAL LIABILITY
Its 55th Session”, section III)
On 20 October 2003, speaking before the Sixth Committee of the General As-
sembly (LVIII Session) on the Report of the International Law Commission on
the Work of its Fifty-fifth Session (UN Doc. A/58/10), the Italian delegate, Mr.
Braguglia, commenting on Chapter VI of the Report, devoted to the issue of inter-
national liability for injurious consequences arising out of acts not prohibited by
international law (international liability in case of loss from transboundary harm
arising out of hazardous activities), stated that:
“[I]t would be useful if the Commission could make a decision on the

issue of whether the final aim of its work on the topic will be to for-
mulate a number of recommendations to States or, rather, to engage
in the drafting of a model treaty of a general character that would ap-
ply only in the absence of specific treaty regimes. If the Commission
were to choose this second option, it might have to confine itself to
drafting a mere preliminary text that would serve as a basis for further
negotiations among States’ representatives. In fact, interests at stake
are diverse and possible financial implications of any finding of in-
ternational liability for injurious consequences arising out of acts not
prohibited under international law substantial. In particular, an effec-
tive system of insurance presumes a broad participation of potentially
interested States”.
2. RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS
Its 55th Session”, section I)
On 27 October 2003, during the debate in the Sixth Committee of the UN

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

“With regard to the future work, the Commission, in conformity

with the Draft Articles on State’ Responsibility, ought to elaborate
a principle of attribution that is parallel to that Draft’s Art. 4. Such
a rule should mention who has to be considered as an organ of the
organization. This is, of course, with a view to the attribution of an
internationally wrongful act, and not in order to define an ‘organ’ in
light of the organization’s internal law. The Commission could make
reference to both the organization’s rules and its established prac-
tice. The Commission could therefore reproduce, with the necessary
changes, the definition contained in Art. 2 of the Vienna Convention
on the Law of Treaties between States and international organizations
or between international organizations. It would be preferable that
the Commission clarify to what extent the organization’s established
practice is relevant in case such practice diverges from the organiza-
tion’s founding treaty”.
With regard to the specific issue of peace-keeping forces, Mr. Braguglia further
commented that:
“[…] [T]he responsibility for acts [committed by such forces] should

in principle fall on the United Nations, except for matters for which
contingents remain under the contributing State’s control. It may well
be that, in specific cases, a certain conduct will have to be attributed at
the same time to both the United Nations and the contributing State.
Once the issue of the attribution is resolved, however, it remains to
be established whether a joint or concurrent responsibility of the
United Nations for acts attributed to the contributing State can be
envisaged”.
Intervening on the same topic on behalf of the European Union, the Italian
representative, Mr. Nesi, stated that:
“Given its role as an actor and participant in the international system,

the European Community (EC) naturally takes a great interest in the
topic of the responsibility of international organizations and recog-
nises that it may have particular relevance to its own activities.
The EC is often described as differing from the ‘classical’ model of an
international organization in a number of ways. Firstly, the EC is not
only a forum for its Member States to settle or organize their mutual
relations, but it is also an actor in its own right on the international
scene. The EC is a party to many international agreements with third
parties within its areas of competence. Quite often the EC concludes
such agreements together with its Member States, each in accordance
with its own competencies. In that case the specificity of the EC lies
in the fact that the EC and the Member States each assume interna-
tional responsibility with respect to their own competencies. The EC
is also involved in international litigation, in particular in the context
of the WTO.
Secondly, the EC is regulated by a legal order of its own, establish-
ing a common market and organizing the legal relations between
its members, their enterprises and individuals. Legislation enacted
under the EC Treaty forms part of the national law of the Member
States and thus is implemented by Member States’ authorities and
Courts. In that sense, the EC goes well beyond the normal param-
eters of classical international organizations as we know them. It is
important that the ILC draft articles fully reflect the institutional and
legal diversity of structures that the community of States has already
established.
In that respect we submit that established notions such as ‘regional
economic integration organization’, reflected in modern treaty prac-
tice, may require special consideration when dealing with substantive
questions in the subsequent ILC draft articles”.
He further recalled that:
“While the EC is in many ways sui generis, it is clear that all interna-
tional actors, be they States or organizations, need to recognize their
international responsibility in the event of any wrongful acts. This
does not exclude the possibility of taking differences into account in
the course of the future work of the ILC concerning the responsibility
of international organizations. Above all common-sense practical so-
lutions are needed in order to cover a wide variety of situations and to
cover the activities of organizational structures in a range of fields”.

ECONOMIC MATTERS
1. SECURITY CO-OPERATION
A. The “Total Information Awareness” Project and the Right to Privacy
On 17 June 2003, at the Camera dei Deputati (Chamber of Deputies) (324th

Meeting – XIV Legislature), the Sottosegretario di Stato per la difesa (Under-
Secretary of State for Defence), Mr. Filippo Berselli, answered a parliamentary
question on the establishment by the United States Government of a global data
bank concerning every kind of personal record and every data bank in the world.
According to the questioner, that information system could constitute a serious risk
for the Italian Defence System and for the privacy of the citizens. With regard to
the first point, the Sottosegretario recalled that the security of the defence system is
regulated by a number of acts, legislative measures and directives of the Presidente
del Consiglio dei Ministri (President of the Council of the Ministers) and that there
seems not to be the conditions for a violation of the security systems. As concerns
the protection of privacy from external interference, he recalled the essential fea-
tures of domestic and EC law and, in particular, he dwelled on the content of the
EC Directive No. 2002/58:
“Finally, one should highlight that the EC Directive 2002/58 of 12

July 2002, concerning the processing of personal data and the pro-
tection of privacy in the electronic communication sector, starting
from the assumption that the development of the information society
is marked by the introduction of new technologies for electronic
communications services, which give rise to specific requirements
concerning the protection of personal data and privacy of the user,
binds Member States to adopt, in the public communications sector,
specific legal, regulatory and technical provisions in order to protect
fundamental rights and freedoms of natural persons and legitimate
interests of legal persons without affecting the possibility of Member
States to carry out lawful interception of electronic communications
or to take other measures necessary for the protection of public secu-
rity, defence and State security”.
B. Fight against Terrorism and Right to Privacy
On 5 November 2003, at the Camera dei Deputati (Chamber of Deputies) (384th

Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minis-
ter for the Relationships with the Parliament), Mr. Carlo Giovanardi, answered a
question regarding the agreement, concluded on 15 October 2003, between the
Italian airline company, Alitalia, the ENAC (Ente Nazionale per l’Aviazione Civile
– National Authority for the Civil Aviation) and the United States Embassy in Italy.
In accordance with this agreement, the United States authorities, and in particular
the Custom Board Security, will have access to the Alitalia database. The Ministro,
specifying that the agreement at issue represented a temporary solution, waiting for
a definition of the matter by the European Community, declared:
“The collection and treatment of these data by the American author-

ity is clearly aimed at a more effective struggle against terrorism and
other crimes linked to it. Those aims have always been shared by the
European Union and the Italian Government. The aim of a more ef-
fective struggle against terrorism should obviously be balanced with
the effective protection of the privacy of the data. The search of this
delicate balance is currently negotiated by the European Commis-
sion and the United States. The Italian Presidency [of the European
Union] is actively encouraging those negotiations to reach a solution
before the end of the year, also because it has been recognized at the
European level that the United States domestic legislation requires
the disclosure of the data in order to enter the country”.
2. DEVELOPMENT CO-OPERATION
A. Human Rights Violations and Aid Suspension: The Cases of Cuba and
Vietnam
On 3 July 2003, at the Permanent Committee III (Foreign and European Com-
munity Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Legis-
lature), the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State
for Foreign Affairs), Mrs. Margherita Boniver, answered a question concerning
the detention of the Cuban economist Martha Beatriz Roche. The situation of Mrs.
Roche – that raised deep concerns on the respect of human rights and fundamental
freedoms in Cuba, with particular reference to the detention conditions and the
possibility of application of inhuman and degrading treatment – pertained to a
wider situation concerning the events that occurred on April 2003, when several
Cuban political dissidents were arrested, convicted for crimes of opinion, and three
of them sentenced to death and executed. The Sottosegretario dwelt on the Italian
reaction to these grave facts, declaring:2
“As a consequence of the wave of arrests and sentences involving

78 Cuban dissidents, Italy considered it imperative to let the Cuban
counterpart know, in the clearest way, its firm complaint against the
very heavy repressive measures carried out by Castro’s regime. In
2
On 3 July 2003, the difficult situation of human rights and fundamental freedoms in Cuba
was also the subject matter of two questions submitted to the Senato della Repubblica (Senate)
(431st Meeting, XIV Legislature). The Sottosegretario di Stato alla Presidenza del Consiglio dei
Ministri (Under-Secretary of State for the Presidency of the Council of Ministers), Mr. Cosimo
Ventucci, in answering such questions – after pointing out that human rights promotion is a mat-
ter of priority and a landmark in Italian foreign policy – focussed, in particular, on the measures
decided by the Italian Government in reaction to the serious events that occurred in Cuba in
April 2003 and referred, in the same terms, to the suspension of all cooperation programmes for
development with Cuba.
order to give a clear and unequivocal signal of our total opposition to

these measures to the Cuban counterpart, we also decided to suspend
all of the cooperation programmes for development with Cuba, both
on the bilateral and multilateral levels, with the exception of the hu-
manitarian emergency interventions”.
The opportunity of reacting, mainly at a bilateral level, to grave violations

of human rights through instruments of economic pressure, consisting of reduc-
tion or suspension of economic and financial cooperation programmes, was again
discussed in Parliament with reference to the situation in Vietnam. The issue of
respect for human rights in such country – which affected, in particular, the rights
of ethnic minorities, freedom of religion, freedom of expression and other civil
and political rights – was also discussed by Permanent Committee III (Foreign and
European Community Affairs) of the Camera dei Deputati.3 In particular, on 17
December 2003 (XIV Legislature), Permanent Committee III approved two similar
resolutions4 on the violation of political freedoms, freedom of religion and freedom
of opinion in Vietnam. Both these two resolutions bind the Italian Government,
among other things:
“[T]o evaluate the advisability, in case of persistence of imprison-

ments, acts of violence and disregard of civil and political rights
against Vietnamese citizens, and in particular against the Montag-
nard, to reconsider the initiatives of bilateral cooperation with the
Government of Vietnam”.
3. IMMIGRATION
On 22 October 2003, at the Camera dei Deputati (Chamber of Deputies) (377th

Meeting, XIV Legislature), the Ministro dell’interno (Minister for Domestic Af-
fairs), Mr. Beppe Pisanu, introduced to the Parliament an urgent piece of infor-
mation by the Government concerning the recent shipwreck of boat-people, that
occurred off the coast of Lampedusa island. The accident was closely related to
the serious issue of the continuous landings of illegal immigrants on Italian shores.
Such phenomenon, because of its gravity and remarkable dimensions, required – as
the Ministro pointed out – the adoption of effective policies not only at the national
3
See also Camera dei Deputati (Chamber of Deputies), Assembly, XIV Legislature, 360th
Meeting, 23 September 2003: the Sottosegretario di Stato per gli affari esteri (Under-Secretary
of State for Foreign Affairs), Mrs. Margherita Boniver, answered a question on the respect for
human rights in Vietnam.
4
Resolution Cima No. 7-00350 (final version, No. 8-00067) and Resolution Malgieri No.
7-00351 (final version, No. 8-00068): Violation of the political freedom, freedom of religion and
freedom of opinion in Vietnam.
level, but above all at the European and global level. In particular, the Ministro
dwelt on the proposals regarding a European policy for immigration, included in
the program of the Italian Presidency of the European Union. He stated:
“I have established the program of the Italian Presidency along three

main lines of action, strictly connected to one another.
The first line regards aid for development in favour of third world
countries from which the most significant migrant flows stem. As to
this, I only remind us that, at present, the remittances from migrants
toward the countries of origin definitely exceed the total amount of
financial aid coming from the first world, so that we can say that the
most solid contribution in favour of underdeveloped countries comes
from the poorest of the richest countries: the migrants.
The second line of action is the regulation of migrant flows, through
bilateral and multilateral agreements between countries of origin and
transit, from one side, and countries of destination, from the other
side.
The third line of action is the integrated management of the European
external borders, which is essential both to regulate the legal flows,
and to perform with the greatest possible effectiveness the war against
criminal organisations which exploit illegal immigration”.
In addition, the Ministro emphasised that:
“[T]he key element of a European policy for immigration is the adop-

tion of a system of entry quotas in the EU countries. The quota should
be autonomously established by each country and agreed upon by the
migrants’ countries of origin, in exchange for their co-operation in
the regulation of illegal flows, prevention of illegal immigration and
re-acceptance of expelled illegal migrants”.
Among the various instruments, adopted at the European level in the frame-
work of a strategy aimed at involving the migrants’ countries of origin and transit
in the fight against illegal immigration, the Ministro focussed on bilateral co-op-
eration and, in particular, on the so-called re-admission agreements. In the written
text of his intervention, containing supplementary considerations, the Ministro
specified:
“Italy has, until now, signed twenty-eight agreements, twenty-four of

these with non-EU countries. I must recall that fifteen of these agree-
ments were signed in order to comply with the obligations connected
to the entry into force of the Schengen system. From 1999 until the
first semester of 2001, we signed only two agreements (with Algeria
and Nigeria). From the second semester of 2001 to date we resumed

intensive negotiations, and we concluded five agreements with Sri
Lanka, Malta, Cyprus, Moldavia and Serbia-Montenegro. Although
without formal agreements, a good cooperation for the repatriation of
illegal migrants also exists with countries such as Pakistan, Bangla-
desh, Ghana”.
Moreover, the Ministro added:
“We are now negotiating with fourteen other countries. Negotia-

tions with five other countries (China, Pakistan, Russia, Turkey and
Ukraine) have been suspended because a mandate for negotiation was
appositely conferred to the European Union.
Regarding this point, I believe it could be useful to emphasize that the
European Commission received a mandate for negotiations with elev-
en countries (besides the five mentioned above, Morocco, Sri Lanka,
Hong Kong, Macao, Algeria and Albania). Only an agreement with
Hong Kong was signed, while with Macao and Sri Lanka negotia-
tions have been concluded and we are just waiting for signature. The
other negotiations are proceeding somewhat slowly and the Italian
Presidency is trying to solicit them, in accordance with the European
Commission.
During an informal meeting with France, Germany, United Kingdom
and Spain, held last Sunday and Monday in La Baule, we agreed to
consider joint initiatives regarding the re-admission of migrants with
countries of common interest that have not yet signed agreements at
the European Community level”.
1. UNITED NATIONS
A. Justice and the Rule of Law: The Role of the United Nations
In a Statement pronounced on 30 September 2003 on behalf of the European

Union before the Security Council on the topic “Justice and the Rule of Law: The
United Nations Role”, the Permanent Representative of Italy to the United Nations,
Ambassador Marcello Spatafora, said that:
“The European Union, which is a community built upon mutually-

agreed principles of law, remains convinced that an essential element
to sustained stability in a post-conflict environment is the strength-
ening and consolidation of a local rule-of-law capacity. During the

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

eral of its Member States at the meeting of the Security Council at
the ministerial level on 24 September. It considers that rule-of-law

elements should be included, as appropriate, in mission mandates.
[…] Furthermore, the EU supports the formation of legal assess-
ment teams comprised of civilian police and other rule-of-law ele-
ments, as appropriate, in the planning process for new missions.
These teams should participate in reconnaissance missions to the
field in order to evaluate the needs of the host country and create
an environment in which the application of and adherence to the
rule of law can be achieved. Specific attention should be devoted,
inter alia, to promoting the setting up of legislative transparency,
reliable civilian police structures, independent judiciary, the right
to a fair trial and penitentiary systems. In order to promote further
consideration of these matters, we welcome the offer by the Secre-
tary-General to provide a report and look forward to assisting him
in this endeavour”.
He also emphasised that:
“Accepting and promoting this new approach entails the assump-

tion of new responsibilities on the part of the United Nations. The
EU believes that in accomplishing these tasks the UN should con-
tinue exploring all possible forms of cooperation with international
organizations and institutions that can provide experience and ex-
pertise. In this regard the EU seizes this opportunity to reaffirm its
readiness to actively contribute to restoring the rule of law at the lo-
cal level in situations in which the Security Council might consider
that the support by international organizations to such processes is
needed”.
He concluded by asserting that:
“The European Union remains convinced that the success of a rule of

law mission lies to a large extent in the capacity and readiness of lo-
cal actors to be fully involved from the beginning in the achievement
of the objectives. As a principle, local law should be applied to the
largest extent possible. Rapid build up of capacities and subsequent
hand-over to local ownership is essential.
The EU therefore fully subscribes to what was stated by the UN
Secretary-General last week before the Security Council: ‘Local
actors must be involved from the start. We should, wherever pos-
sible, guide rather than direct, and reinforce rather than replace.
The aim must be to leave behind strong local institutions when we
depart’”.
B. Annual Report of the Security Council to the General Assembly
In a Statement pronounced on 13 October 2003 on behalf of the European

Union before the General Assembly (LVIII Session) on the Report of the Security
Council, the Permanent Representative of Italy to the United Nations, Ambassador
Marcello Spatafora, said:
“The report highlights the broadening scope of responsibilities that

the Security Council assumed on various fronts simultaneously, from
regional crises to counter-terrorism, from proliferation of small arms
to peaceful settlement of disputes, to other thematic issues. […] Fur-
ther progress could be made in this direction. Indeed, transparency
continues to be an important means by which non-Council members
cannot only be informed about the state of deliberations inside the
Security Council, but also channel their views and positions on spe-
cific issues. Another area where continued progress should be made
is in the interaction between SC members and non-members whose
interests are especially affected, as purveyed by Article 31 of the
Charter”.
He continued by observing that:
“Greater participation of non-members on issues like conflict preven-

tion, peace-keeping and transition to post-conflict peace building
could bring substantial value to Security Council decision-making
and help mobilize the active support of the international community.
An enhanced dialogue with non-members could contribute to the
forging of more effective and coherent global policies to address
many pressing crises that confront us today. Promotion of the rule-of-
law, protection of civilians in armed conflicts and gender mainstream-
ing in peace operations are further areas where interaction with the
broader membership could be useful to the definition of SC lines of
action. A framework for cooperation with troop-contributing coun-
tries has been established. There is still unexploited potential. Similar
flexible mechanisms, based on transparency and dialogue, could be
developed with regard to other components of Security Council activ-
ity, for example the management of special political missions.
The Security Council could further develop its relations and con-
sultations with regional organizations, particularly those that have
developed crisis-management capacities to such a level that they can
effectively contribute to the collective action of the international com-
munity. The Council could therefore avail itself more frequently of the
views of these regional organizations, since they are often equipped
with significant political and financial resources, and better able to

mobilize the will of the main regional actors. The same applies to the
implementation of sanctions, where close cooperation between re-
gional organizations and Sanctions Committees or Monitoring Groups
can give satisfactory results. Italy supports the continuing efforts by
Sanctions Committees to improve their working methods, thus in-
creasing transparency and effective fulfillment of their mandates”.
He also added that:
“This rare opportunity for dialogue and interaction between two main
organs of the United Nations, pursuant to Article 15 of the Charter,
should not be merely ritualistic. It is our hope that it will induce spe-
cific, constructive proposals to improve the capacity of the Security
Council to effectively and collectively face new global challenges and
emerging threats to international peace and security. In the context of
UN reform, it is important to forge stronger interactive links between
the Security Council, the General Assembly and the ECOSOC,
so that their partnerships become more operational and effective,
strengthening the coherence of the UN system. Furthermore, a better-
structured dialogue with UN Agencies, Funds and Programmes could
help in defining more credible mandates during crisis management,
exit strategies and transition to peace-building. We should seize this
moment to reform the practices of the Security Council and move this
dialogue forward”.
C. Security Council Reform
On 14 October 2003, during the LVIII UN General Assembly, the Permanent

Representative of Italy, Ambassador Marcello Spatafora, intervened during the
open debate on “Report of the Security Council and the Question of Equitable Rep-
resentation and on Increase in the Membership of the Security Council and related
matters”. On that occasion, he stated that:
“Italy’s position on the issue of Security Council composition is well

known. We strongly believe that the current reform process should
aim at enhancing the Council’s effectiveness and representative char-
acter, together with its legitimacy and credibility. Our conviction has
been reinforced by the Secretary-General’s report on the follow-up to
the Millennium Declaration.
Like many other UN members, we believe that the creation of new
permanent seats would not be coherent with these objectives. As it has
been said last week, it would create new ‘centers of privilege’. It would
therefore go against the tide in History, where priority is given, and has
to be given, to an ongoing process of democratization in the handling
and management of international relations, through multilateral institu-
tions. So that every Member State, every member of this Assembly,
will feel comfortable, and will feel that he will be more adequately
represented and taken on board. Would this happen with the establish-
ment of new permanent members, which would not be accountable to
the electoral scrutiny of the membership? Certainly not. And it would
neither enhance the Council’s legitimacy and representative character,
nor the effectiveness of its actions. Indeed, new permanent members
endowed with veto power would undoubtedly make it more difficult
for the Council to swiftly define and implement collective actions, im-
pairing the effectiveness of the Council’s decision making process and
increasing the risk of inaction. A comprehensive reform of the Security
Council should therefore also address the power and exercise of veto.
On the other hand, also the proposal, aired by some, to add new per-
manent members without veto, entails serious drawbacks and would
not help the cohesion of the UN membership. It would create further
divisions in the Council membership and establish a new layer of
hierarchy that would be detrimental to the United Nations. Do we
really want to have a first-class membership, a second-class member-
ship and a third-class membership? Mr. President, the United Nations
is not a corporate concern, a Company or Fund listed on the Stock
Exchange, with Class A shares, Class B shares and Class C shares.
Moreover, let us have clear in mind that the enlargement of the Secu-
rity Council, in whatever shape it will take place, will be limited in
number. The figure generally mentioned is between 20 and 25 mem-
bers. With a higher number of members the Security Council would
not be effective and efficient. Well, if it is so, it is clear – it has to be
clear to all Member States – that we will have a ‘zero sum game’: if
we will increase the number of permanent members, there will be less
room for the rest of the membership who concur to the non-perma-
nent seats. We will ‘give’, let’s suppose, to five Member States (who
would become permanent members) and what we will give to them
we will take away from what other 181 Member States have the right
to expect, regarding the possibility for them to offer a direct contribu-
tion to shape the Security Council’s actions and policies [...]”.
He continued arguing that:
“The UN membership might decide that, after ten years of debate,

it is now time to reach an agreement on a formula that could build
on common ground and therefore could be capable of gathering the

largest support within the General Assembly. If so, the only realistic
formula would be a limited increase in the number of non-permanent
members for the time being. Such an enlargement of the Council
would increase its representative character and, indeed, the legiti-
macy of its actions in the eyes of the international community. An
increase of elective seats would facilitate Council access and partici-
pation for all UN Member States. Furthermore, greater legitimacy in
Council decisions would make their implementation more prompt,
thus enhancing the overall effectiveness of the Council”.
He also recalled that:
“[…] [B]ack in 1993 Italy tabled a specific proposal according to

which countries that shoulder the greatest responsibilities in the
maintenance of peace and security, as well as for other purposes of
our Organization, could participate more frequently in the Council.
This proposal remains on the table. One could also contemplate a
review of the current ban against immediate re-election of non-per-
manent members. In light of the strong appeal launched by the Secre-
tary-General on the need to reform the Security Council to enable it to
face the new global challenges to peace and security, Italy of course is
also open to working with other countries on possible innovative for-
mulas, provided that they are balanced and reflect the basic principles
that inspire our approach”.
He then added a few comments on the EU profile in the Security Council:
“The more the European Union becomes a strong and cohesive

international subject, the more it will be able to provide valuable
inputs to the UN in general and to shaping Security Council delib-
erations.
The recently signed Joint Declaration on EU-UN cooperation in crisis
management is an example of the European Union determination to
enhance its role in peace and security-related issues at the United Na-
tions and to help the Organization to achieve its goals.
We are working to fully implement EU-coordinated actions in inter-
national organizations, pursuant to the relevant EU Treaty provisions.
Realism should not stop us from looking forward. This process must
be approached gradually, incrementally and consensually. It is our
hope that the European Union will progressively enhance its capac-
ity to contribute to an effective multilateralism centred on the United
Nations”.
D. International Court of Justice Advisory Opinion on Israel’s “Separation Wall”
On 10 December 2003 (XIV Legislature), the Sottosegretario di Stato per gli

affari esteri (Under-Secretary of State for Foreign Affairs), Mr. Mario Baccini,
intervened in the discussion regarding a resolution of the Permanent Committee III
(Foreign and European Community Affairs) of the Camera dei Deputati (Chamber
of Deputies) on the construction by Israel of the so-called “separation wall” in the
Occupied Palestinian Territories. The Sottosegretario, after having recalled that the
Italian Government has constantly adopted, in accordance with the European Com-
munity partners, an adverse position to the construction of such a wall, focussed on
the request that the United Nations General Assembly submitted to the International
Court of Justice in order to receive an advisory opinion on the legal consequences
arising from the construction of the wall. The Sottosegretario, recalled that:5
“[A] vote has already been expressed in the United Nations Organisa-
tion, with the approval, on this 8 December – even with a majority
of 90 votes in favour, 8 against and 74 abstentions – of the General
Assembly resolution6 with which the matter has been referred to the
International Court of Justice.
While recalling that the Italian Government abstained together with
all the 25 countries7 on the vote of the resolution, [the Sottosegre-
tario] deems however – in accordance with the European partners
and other States – that in this difficult moment, in which one moves
with difficulty toward resuming direct negotiations between the two
parts, the involvement of the International Court of Justice could lead
to the stiffening of both parts in their own positions and could divert
the dialogue from the mediation process to the unfruitful juxtaposi-
tion of legal arguments. After specifying that a General Assembly
resolution8 declaring the illegality of the construction of the wall in
the Occupied Palestinian Territories already exists, [the Sottosegre-
tario] concludes by pointing out that one should not take for granted
a pronunciation of the International Court of Justice proclaiming the
lack of competence of the Arab group in raising a question on a terri-
tory on which it does not exercise its sovereignty”.
5
The quotation is an excerpt from the summary report of the Meeting of 10 December 2003
of the Permanent Committee III (Foreign and European Community Affairs) of the Camera dei
Deputati (Chamber of Deputies), as it was not available in the verbatim report.
6
UN Doc. A/RES/ES-10/14 (8 December 2003), “Illegal Israeli Actions in Occupied East
Jerusalem and the rest of Occupied Palestinian Territory” (translator’s note).
7
The Sottosegretario referred to the 25 EU countries (both members and candidates) (trans-
lator’s note).
8
UN Doc. A/RES/ES-10/13 (21 October 2003), “Illegal Israeli Actions in Occupied East
Jerusalem and the rest of Occupied Palestinian Territory” (translator’s note).
2. EUROPEAN UNION
A. Human Rights Protection
On 28 July 2003, at the Camera dei Deputati (Chamber of Deputies) (347th

Meeting, XIV Legislature), the Sottosegretario di Stato per gli affari esteri (Under-
Secretary of State for Foreign Affairs), Mrs. Margherita Boniver, in her intervention
during the debate regarding two motions concerning the case of Amina Lawal, the
Nigerian woman sentenced to death by stoning (see also supra XI.1), focussed on
the instruments of pressure that the European Community could adopt. She stated:
“Finally, as concerns the field of protection of human rights, funda-

mental freedoms and democracy, we fully adhere, in the European
Community framework, to what has been sanctioned by the Cotonou
Agreements, which include, for the first time, the so-called ‘condi-
tionalities’ on human rights, whose disregard by a State party may
lead to the suspension of the agreements themselves”.
Besides, with regard to measures, both at the European level and at the national
level, aimed at the revocation of death sentences and the suspension, or possible
commutation, of punishment, the Sottosegretario specified:
“As far as this is concerned, the European Union has been endowed
with guidelines against the death penalty which allow the Union itself
to intervene to face third States authorities with the utmost rapidity
and effectiveness. However, it must be recalled that the European Un-
ion usually avoids intervention when sentences are not yet final, in or-
der to avoid being charged with interference in the domestic affairs of
a State and illegal pressure on the judiciary of the country at issue.
Actions at the national and the European level, aimed at supporting
the granting of pardon to Amina Lawal will eventually be carried out
only when all domestic remedies have been exhausted, because par-
don may be granted only in cases where the sentence is final”.
B. International Monitoring of Elections: The Case of Venezuela
On 4 December 2003, at the Permanent Committee III (Foreign and European

Community Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Leg-
islature), the Sottosegretario di Stato per gli affari esteri (Under-Secretary of State
for Foreign Affairs), Mrs. Margherita Boniver, answered a question concerning the
sending of electoral observers to Venezuela in order to monitor the referendum on
the revocation of Hugo Chavez’s Presidential mandate. Emphasising the necessity
of the consent of the territorial sovereign to exercise such kind of activities, the
Sottosegretario declared:
“The Italian Presidency pointed out to the European Union partners

the opportunity to contribute to the observation of the collection of
signatures. Nevertheless, lacking an invitation from the Venezuelan
authorities, the European Union had not been able to establish an of-
ficial mission. However, the European Union is ready to guarantee,
should it receive a request in these terms, the monitoring of the refer-
endum or elections which could be held in Venezuela”.
1. THE IRAQI CRISIS
A. Use of Italian Infrastructures
On 26 February 2003, at the Camera dei Deputati (Chamber of Deputies) (272nd

Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minister
for the Relationships with the Parliament), Mr. Carlo Giovanardi, answered a ques-
tion concerning the concession to the United States of the support of the bases on
the Italian territory, and of the use of the infrastructures, of the transport system and
of the national airspace in order to carry out the intervention in Iraq. He recalled
that those decisions were based both on a series of agreements concluded by Italy
in the framework of the North Atlantic Alliance (e.g. the Agreement of 20 Octo-
ber 1954 and the Memorandum of Understanding between the Italian Ministry of
Defence and the United States Department of Defence) and on a decision of the
North Atlantic Council of 4 October 2002. With the latter, the Member States of the
Alliance authorized the United States forces to fly over the territories and to access
ports and airports on their national territories. He further declared:
“Therefore, in the situation at issue, we did not have to take a decision

regarding the authorization to use the infrastructures and the transport
system, but we simply had to acknowledge that our Ally exercised the
authorization already received because of decisions taken, reasserted
in time and agreed upon by an overwhelming majority in the Parlia-
ment. A different view of the matter would certainly involve the ques-
tioning of our international commitments and the Government cannot
find any legal justification, nor any procedural, technical, military or
political one for such conduct”.
Moreover, the Ministro stated:

“As a matter of fact, avoiding the refusal of the transit on the national
territory, we contributed to the exercise of credible pressure on the
Iraqi regime in order to make it co-operate actively in the full imple-
mentation of UN Resolution 1441 and we supported the will of the
United Nations for a pacific settlement of the crisis within its field of
action.
In case of war, the Government, as we repeatedly stated, would resub-
mit its opinions and decisions to the Parliament”.
B. Legal Justification of the Use of Force
On 19 March 2003, the Presidente del Consiglio dei Ministri (President of

the Council of the Ministers), Mr. Silvio Berlusconi, intervened at the Camera dei
Deputati (Chamber of Deputies) (283rd Meeting, XIV Legislature) on the develop-
ments of the Iraqi crisis. With regard to the legal basis of the decision to use force,
Mr. Berlusconi recalled that the resolutions of the Security Council concerning
Iraq and adopted between 1991 and 2002 were still valid and authorized coercive
disarmament. In this context, he further declared:
“Amongst these resolutions for disarmament, the last one, Resolu-

tion No. 1441, was unanimously approved by the Security Council
last November. The text was unequivocal: the United Nations called
for total, immediate and unconditional disarmament and otherwise
entailed serious consequences. In the previous resolutions, which
defined the acts of the Iraqi regime as a blatant violation of United
Nations’ orders, the will to use force in case of breach of the demands
of the Security Council was explicit”.
C. The Multinational Intervention in Iraq
On 26 March 2003, at the Camera dei Deputati (Chamber of Deputies) (287th

Meeting, XIV Legislature), the Ministro per i rapporti con il Parlamento (Minis-
ter for the Relationships with the Parliament), Mr. Carlo Giovanardi, answering
a parliamentary question, recalled the position of the Italian Government on the
armed intervention in Iraq. With regard to the nature of the Italian contribution to
the multinational force, he declared:
“We believe that the United States, the United Kingdom, the Neth-
erlands, Denmark, quoting only some States which are members of
NATO, are not operating outside international law, although I remind
us that Italy, contrary to the past, does not participate with its own
troops and means in military actions. Italy is not a co-belligerent

country because, contrary to the past, we are not at war.
Exactly like all the other European countries, including France and
Germany – I think the only exception is Haider’s Austria – and in ac-
cordance with our foreign policy’s guidelines for conduct in the last
fifty years, Italy guarantees logistic support and the right to overfly”.
As concerns the political advisability of the Italian position, the Ministro con-
cluded his speech declaring:
“In conclusion, as the Presidente del Consiglio dei Ministri (Presi-

dent of the Council of the Ministers) already said in his communica-
tions, I would like to point out that the Italian position on the Iraqi
crisis has always been defined by the Government in accordance with
international treaties and confirming – I must state this – a relation-
ship of political friendship with the United States, the United King-
dom, Denmark, the Netherlands, Spain, Poland, Bulgaria, Australia,
New Zealand; to sum up, our friends and allies. We acted, exactly like
France and Germany, which conceded the use of the bases and the
right to overfly – France not having any base only gave the right to
overfly – within the unity of the European views, which must be re-
established in the future. In fact, we work for the reconciliation of the
differences within Europe and aim at reaching a more positive role of
our continent after the war”.
D. The Italian Participation in the Multinational Force
On 8 May 2003, at the Camera dei Deputati (Chamber of Deputies) (XIV

Legislature – 306th Meeting), the Sottosegretario di Stato per la difesa (Under-Sec-
retary of State for Defence), Mr. Filippo Berselli, answered a question concerning
alleged violations of humanitarian law by the American forces and the nature of
the Italian participation in the military operations. With regard to the latter issue,
he declared:
“In particular, the Mission at issue will involve several administra-

tions in a context of integrated and co-ordinated mutual support, both
to assure to the Iraqi people the provision of the necessary humani-
tarian aid and to urgently and immediately restore the functioning of
the infrastructures and services, which are useful to guarantee to the
Iraqis the best possible living conditions.
In the Italian intervention as a whole, the military part will have to
guarantee, as far as possible in the most unified and integrated way,
the security framework without which every intervention might prove

unrealistic or even impracticable. Therefore, it is and it will be a mis-
sion aimed at facilitating the operations of humanitarian assistance
and rebuilding the country, while favouring the timely establishment
of a provisional Iraqi Government. It is not aimed, as the questioner
affirmed, at military control of the territory”.
On 12 November 2003, at the Camera dei Deputati (Chamber of Deputies)

(388th Meeting, XIV Legislature), the Ministro della difesa (Minister for the De-
fence), Mr. Antonio Martino – intervening during an urgent presentation of infor-
mation by the Government on the attack against the Italian military contingent in
Nassiriya, Iraq – dwelt again, in particular, on the role of the Italian contingent in
Iraq and on the legal basis of the Italian participation to the mission conducted by
the multinational force. He declared:9
“I recall again that the Italian action in Iraq is multidimensional in

character and covers various sectors of the administration, in an in-
tegrated and coordinated context of mutual support, both to ensure
that the population of that area will receive the necessary aid, and
to restore the infrastructures, which are urgently needed, and those
services useful to guarantee better living conditions to Iraqis, as long
as it is possible.
Today our participation to the mission takes shape in accordance with
United Nations Resolution No. 1511, adopted last 16 October, which,
considering that the process of reconstitution of Iraq is conditioned
by the security and stability conditions, authorized a multinational
force under unified command to take all necessary measures to con-
tribute to the maintenance of security and stability.
The Resolution has shown a clear political route which aims at the
restitution, as soon as possible, of the full sovereignty and responsi-
bility of powers to the Iraqi people. The unanimous vote in the Secu-
rity Council, which led to the approval of the Resolution shows that,
by now, the entire international community endorses that route”.
9
On 12 November 2003, the Ministro della difesa (Minister for the Defence), Mr. Antonio
Martino – in his intervention at the Senato della Repubblica (Senate) (490th Meeting, XIV Leg-
islature), during the communications of the Government on the attack against the Italian military
contingent in Iraq – expressed in the same terms the Italian Government position on the multina-
tional force operating in Iraq. On 3 December 2003, at the Permanent Committee IV (Defence)
of the Camera dei Deputati (Chamber of Deputies), the Ministro della difesa (Minister for the
Defence), Mr. Antonio Martino, during a public hearing on the updating of international mis-
sions, dwelt again on the role of the multinational force, especially referring to United Nations
Security Council Resolution No. 1511 (16 October 2003).
E. Multilateral Participation in the Management of the Iraqi Crisis
On 26 November 2003, at Permanent Committee III (Foreign and European

Community Affairs) of the Camera dei Deputati (Chamber of Deputies) (XIV Leg-
islature), the Ministro degli affari esteri (Minister for Foreign Affairs), Mr. Franco
Frattini, intervened during a public hearing on the implementation of Security
Council Resolution No. 1511 concerning the situation in Iraq and unanimously ap-
proved on 16 October 2003. The Ministro referred to a perspective of multilateral
participation in the future management of the Iraqi crisis: such perspective was
anticipated, from one side, by Resolution No. 1511 itself, and from the other by
the results of the International Donors Conference, held in Madrid. The Ministro
affirmed:
“The main elements and innovative points of that Resolution, in ad-

dition to the political fact of the unanimous solution, are represented,
in particular, by the affirmation of the will to transfer, as quickly as
possible, the political authority to organs representative of the Iraqi
reality, and by the indication of a principle of management of the
political transition to be realized through the participation of three
subjects contributing to this transition by acting together.
The first is the United Nations’ authority, through the Special Repre-
sentative of the Secretary-General. As you may probably know, we
have exhorted, directly and indirectly, the appointment of the Special
Representative who will substitute Mr. Vieira de Mello, and the Sec-
retary-General, Mr. Kofi Annan, assured that in short time – so he
replied – he will provide for the appointment.
The second subject contributing, in accordance with the mentioned
Resolution, to the process of political transition is the Coalition Pro-
visional Authority.
The third subject is the Iraqi Governing Council, that is, the temporary
organ which is trying to organize, in some way through a Government
that it has recently appointed, the resumption of the functioning of the
Iraqi State administrations.
In accordance with the Resolution, these subjects together shall
conduct the transitional phase. Therefore, the United Nations’ role
will have the same qualification and level as the other two subjects’
role. Moreover, the same Resolution authorizes a multinational force
under unified command. The US unified command shall refer periodi-
cally to the Security Council on the developments and activities of the
military multinational force.
This is the first element. The second one is the International Donors
Conference, held in Madrid at the end of October. In my opinion, the
Conference was successful and Italy, which holds at present the Presi-
dency of the European Union, contributed actively to this success

together with the UN and other main actors. The purpose, which has
been declared, and to a certain extent attained by the Conference, was
to involve as many States as possible, not only European States but in
particular those States that have not intervened, in any way through
financial aid, in the reconstruction process of Iraq”.
The Ministro, besides, dwelt on the agreement between the Iraqi Governing
Council and the Coalition Provisional Authority, reached on 15 November and
aimed at a quick transfer of the political power, in accordance with Security Coun-
cil Resolution No. 1511. After having recalled the main stages of the process that
should lead to the completion of the political transition in Iraq (in particular, the
drafting of a fundamental law, the establishment of a transitional national assembly,
the election of a constituent assembly and the holding of free political elections),
the Ministro referred to the possibility of a new UN Security Council resolution
endorsing the agreement of 15 November:
“The purpose of the intermediate stages was to speed up, as required

by the entire international community, the transition and to establish
by June 2004 a provisional executive power capable of assuming
real responsibility of Government. These decisions have been as-
sessed by Europe in the first meeting of the Council of Ministers for
Foreign Affairs, held two days after the agreement was reached. The
Italian Presidency proposed the adoption of a document expressing
the approval of the 15 November plan, from one side by encouraging
the UN to appoint the Mr. Vieira de Mello’s successor, and from the
other side by inciting the Iraqi Governing Council to act immediately
in order to ensure that the program planned for the period February-
June 2004 will be respected. The document, which was approved and
shared by the 25 Ministers for Foreign Affairs of the European Un-
ion, is exactly aimed at this. Therefore today there is a clear change
of strategy, which rises from Resolution No. 1511 and finds its first
actual realization in the agreement of 15 November.
What is left to do? I believe that a step – and in my opinion a study
on this could be possible and also useful – is the strengthening and
the sanctioning of the agreement of 15 November in another Security
Council resolution. The UN did not deem it necessary to enact a new
resolution, realistically noting that the agreement exists and will be
respected also by the UN Secretary-General. Therefore the approval
through another resolution of the content of that agreement will not
have brought, as I think, an institutional innovation. Nevertheless,
Italy – we will discuss this in Europe – favourably considers the as-
sessment of this possibility. Although not entailing a significant insti-
tutional change, because the agreement should be implemented, the

resolution could perhaps give a symbolic value of further legitimisa-
tion to an agreement concerning three subjects until now: the United
Nations, the Coalition Provisional Authority and the Iraqi Governing
Council. The ‘umbrella’ of a Security Council resolution would prob-
ably be another step forward from the point of view of the symbolic
profile of legitimisation, but, I repeat, the UN Secretary-General does
not deem it necessary or indispensable. From a political point of view,
we may notice the acceptance of the entire international community
and a shared consent by Europe and the United States on these prin-
ciples”.
On 3 December 2003, at the Permanent Committee IV (Defence) of the Came-

ra dei Deputati (Chamber of Deputies) (XIV Legislature), the Ministro della difesa
(Minister for the Defence), Mr. Antonio Martino, during a public hearing on the
updating of international missions, dwelt in particular on the situation in Iraq and
– underlining the necessity of a more multilateral participation in the management
of the crisis and in the institutional and material reconstruction of Iraq – referred,
among other things, to the possible role of NATO in accordance with the new con-
figuration assumed by such organization. He declared:
“In this context, one of the most pressing problems is the role of inter-
national institutions: we have always firmly asserted that the United
Nations, the major organ responsible for peace and international se-
curity and guarantor of respect for human rights, should assume, also
in Iraq, wider responsibilities. It is in the framework of the United
Nations, as has already occurred in other cases and in other parts
of the world, that international intervention can find a high-profile
answer.
On the other hand, the resolution10 does not provide for direct engage-
ment of the United Nations. For this reason, Italy, in the exercise of
the Semester Presidency of the European Union as well as in every
other summit, keeps on striving in order for a univocal and strong
position of the United Nations to be assumed in support of the insti-
tutional and material reconstruction of Iraq and for an increasingly
multilateral involvement in the management of the crisis.
In this context, the hypothesis of a NATO lead for the international
forces, on the model of what is happening in Afghanistan, is possible
in the future, if and when required by a representative Iraqi Govern-
10
The Ministro referred to the United Nations Security Council Resolution No. 1511 (16
October 2003) (translator’s note).
ment, since NATO, from a defensive coalition at the times of the cold
war, has become a security organization. It must not be excluded that
involvement of the European Union itself is also evaluated, to the
extent that it will be able to lead military operations autonomously”.
AGREEMENTS TO WHICH ITALY IS A PARTY
(edited by Federico Casolari, Marcello Di Filippo,

Marco Gestri and Marina Mancini)
This section is divided into two parts. Part A) contains a list of agreements
signed by Italy and published in the Gazzetta Ufficiale in 2003. Part B) contains a
list of agreements signed by Italy and published before 2003, but whose entry into
force was announced in the Gazzetta Ufficiale in 2003.
These agreements are listed by subject in both parts, and within the same 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.
In the first part, a comment is annexed to the list of agreements regarding a
particular area. The comment relates to the most significant agreements of that list
and the laws authorising ratification, wherever such laws have been enacted and
present interesting features.
In both parts, if an agreement has entered into force, the date of entry into
force is indicated. For those agreements requiring a law authorising ratification, the
date of entry into force has been deduced, as a rule, from the schedules published
periodically by the Ministero degli affari esteri (Ministry of Foreign Affairs) in the
Supplemento Ordinario (Suppl.) of the Gazzetta Ufficiale (GU).
A)
AGREEMENTS SIGNED BY ITALY,

PUBLISHED IN THE GAZZETTA UFFICIALE IN 2003
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).
VI. LAW OF THE SEA
Agreement between Italy and the Federal Republic of Yugoslavia for the Es-
tablishment of a Common Vessel Traffic Service in the Adriatic Sea, done at Rome
on 11 December 2000, entered into force on 20 April 2003 (GU Suppl. to No. 240
of 15 October 2003);
Framework Agreement between Italy and Malta for the Aero-Maritime Sur-
veillance in the Mediterranean Sea for the Fight against Illegal Trafficking at Sea,
with Particular Reference to the Activities that Directly Cause Harm to Customs
and Revenue, done at Rome on 20 December 2002, entered into force on 31 July
2003 (GU Suppl. to No. 240 of 15 December 2003).
Comment
The Framework Agreement between Italy and Malta was concluded during the
meeting of Italian Foreign Minister Franco Frattini and Maltese Foreign Minister
Joe Borg, held in Rome on 20 December 2002 to facilitate Malta’s rapid accession
to the European Union. During the meeting, Italy and Malta also signed the Fifth
Protocol relating to Economic, Technical and Financial Assistance, covering the
period from 2003 to 2005, an Investment Guarantee Agreement providing legal
protection with respect to movable and immovable property, ownerships rights,
capital gains and other activities connected with investment and the renewal of the
Memorandum of Understanding for Co-operation between the Office of the Minis-
ter for European Community Policies of Italy and the Ministry of Foreign Affairs
of Malta. In this perspective, one has to note that Malta signed the EU Accession
Treaty in Athens on 16 April 2003 and, consequently, according to Article 2, para.
2 of this treaty, became a member of the European Union on 1 May 2004 (the text
of the Accession Treaty is published in OJ EU No. L 236 of 23 September 2003, p.
17 ff.). In order to facilitate respect and implementation of the EU acquis, a wider
network of bilateral relations between the two States has been established in the
last decade, particularly in the field of financial and economic co-operation (since
1990, three Protocols concerning financial and economic assistance have been es-
tablished between the two countries).
In this light, the Framework Agreement listed above represents a further ex-
ample of co-operation concluded particularly with the aim of enforcing the Area of
freedom, security and justice established by the Amsterdam Treaty. In particular, its
provisions must be considered in conjunction with a group of three treaties signed
in this field, i.e. the Co-operation Agreement in the fight against illicit trafficking
of drugs and psychotropic substances and organized crime (28 February 1991,
AGREEMENTS TO WHICH ITALY IS A PARTY 297
amended on 3 September 1996), the Co-operation Agreement in the field of mutual

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

the Agreement provides for the setting up of a Joint Working Group (Gruppo di lavoro
congiunto) tasked with discussing technical aspects involved in achieving the objec-
tives set out in the text, resolving any problems that may arise from time to time, and
identifying ways to improve co-operation between the two countries in this field. The
understandings established between the members of the Joint Working Group shall be
implemented by agreements or memoranda of understanding. (Federico Casolari)
VII. ENVIRONMENT
Bilateral Agreement
Agreement between Italy and the World Conservation Union, done at Geneva
on 16 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15
February 2003).
1. IMMIGRATION AND EMIGRATION
Agreement between Italy and Malta on the Re-admission of Persons not Con-
forming to the Norms Regulating the Entry and Stay in the Respective Territories,
done at La Valletta on 8 December 2001, entered into force on 29 November 2002
(GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and the Republic of Cyprus on the Re-admission of

Persons Illegally Entering and or Staying in the Territory of the Two Countries,
done at Nicosia on 28 June 2002, entered into force on 22 May 2003 (GU Suppl. to
No. 240 of 15 October 2003).
XI. HUMAN RIGHTS
Multilateral Agreements
European Convention on the Exercise of Children’s Rights, done at Strasbourg

on 25 January 1996, implemented by Law No. 77 of 20 March 2003 (GU Suppl. to
No. 91 of 18 April 2003), entered into force on 4 July 2003 (GU Suppl. to No. 240
of 15 October 2003).

ECONOMIC MATTERS
1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION
Memorandum of Understanding between Italy and Latvia on Cooperation for

Small and Medium-Sized Enterprises, signed in Riga on 12 November 2002, en-
tered into force on 30 April 2003 (GU Suppl. to No. 240 of 15 October 2003);
Fifth Protocol between Italy and Malta on the Economic, Technical and Finan-
cial Assistance, done at Rome on 20 December 2002, implemented by Law No. 359
of 11 December 2003 (GU No. 302 of 31 December 2003);
Agreement between Italy and Slovenia on the Stockage in Italy of Slovenian

Minimal Stocks of Crude Oil, Intermediate Oil Products and Oil Derivatives, done
at Ljubljana on 17 June 2002, entered into force on 14 November 2002 (GU Suppl.
to No. 111 of 15 May 2003).
2. TAXATION
Convention between Italy and Ethiopia on the Prevention of Double Taxation,

with regard to Income Taxes, and of Fiscal Avoidance, with an Addition Protocol,
done at Rome on 8 April 1997, and Subsequent Corrective Exchange of Letters,
done in Rome on 26 October and 11 November 1999, implemented by Law No.
242 of 19 August 2003 (GU No. 202 of 1 September 2003);
Convention between Italy and Georgia on the Prevention of Double Taxation,

with regard to Income Taxes and Capital Levies, and of Fiscal Avoidance, with an
Addition Protocol, done at Rome on 31 October 2000, implemented by Law No.
205 of 11 July 2003 (GU Suppl. to No. 181 of 6 August 2003).
3. INVESTMENTS
Agreement between Italy and Cameroon on the Reciprocal Promotion and

Protection of Investments, with a Protocol, done at Yaoundè on 29 June 1999, im-
plemented by Law No. 20 of 15 January 2003 (GU No. 35 of 12 February 2003);
Agreement Protocol between Italy and Congo (Brazzaville) on the Promotion

and Protection of Investments, done at Brazzaville on 17 March 1994, entered into
force on 10 January 2003 (GU Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Eritrea on the Reciprocal Promotion and Protec-
tion of Investments, done at Rome on 6 February 1996, and Subsequent Exchange
of Letters done at Asmara on 20 and 26 April 1999, entered into force on 14 July
2003 (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and Libya on the Promotion and Protection of Invest-
ments, done at Rome on 13 December 2000, implemented by Law No. 318 of 3
November 2003 (GU No. 270 of 20 November 2003);
Agreement between Italy and Mozambique on the Reciprocal Promotion and

Protection of Investments, with a Protocol, done at Maputo on 14 December 1998,
implemented by Law No. 154 of 3 June 2003 (GU No. 150 of 27 1 July 2003);
Agreement between Italy and Paraguay on the Promotion and Protection of

Investments, with a Protocol, done at Rome on 15 July 1999, implemented by Law
No. 150 of 3 June 2003 (GU No. 148 of 28 June 2003);
Agreement between Italy and Qatar on the Reciprocal Promotion and Protection
of Investments, with a Protocol, done at Rome on 22 March 2000, implemented by
Law No. 331 of 3 November 2003 (GU Suppl. to No. 276 of 27 November 2003);
Agreement between Italy and Slovenia on the Promotion and Protection of In-
vestments, with a Protocol, done at Rome on 8 March 2000, implemented by Law
No. 37 of 14 February 2003 (GU Suppl. to No. 60 of 13 March 2003);
Agreement between Italy and Syria on the Promotion and Protection of Invest-
ments, with a Protocol, done at Rome on 20 February 2002, implemented by Law
No. 258 of 19 August 2003 (GU No. 214 of 15 September 2003);
Agreement between Italy and Tanzania on the Promotion and the Protection of
Investments, done at Dar-Es-Salaam on 21 August 2001, implemented by Law No.
21 of 15 January 2003 (GU No. 36 of 13 February 2003), entered into force on 25
April 2003 (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and Turkey on the Reciprocal Promotion and Protec-
tion of Investments, done at Ankara on 22 March 1995, implemented by Law No.
294 of 27 October 2003 (GU No. 256 of 4 November 2003);
Agreement between Italy and Venezuela on the Promotion and Protection of

Investments, with an Additional Protocol, done at Rome on 14 January 2001, imple-
mented by Law No. 329 of 3 November 2003 (GU No. 275 of 26 November 2003).
4. ECONOMIC DEVELOPMENT AND DEVELOPMENT CO-OPERATION
Memorandum of Understanding between Italy, the Inter-American Develop-

ment Bank and the International Fund for Agricultural Development, done at Milan
on 21 March 2003, entered into force on the same day (GU Suppl. to No. 240 of
15 October 2003).
Agreement between Italy and Cape Verde on the Implementation of the Initia-
tive “Creation of a Permanent System of Agricultural Statistics”, done at Praia on
30 April 2003, entered into force on the same day (GU Suppl. to No. 240 of 15
October 2003);
Agreement between Italy and China on the Implementation of the Vocational

Training Programme to Improve Employability in the Provinces of Shaanxi and Si-
chuan (Soft Loan Component), with Three Annexes and a Manual of Instructions,
done at Rome on 11 October 2001, entered into force on 5 June 2002 (GU Suppl.
to No. 111 of 15 May 2003);
Agreement Protocol between Italy and Cuba on the Concession of an Aid

Credit Line for the Development Programme “Support for Food Security to Ben-
efit the Cuban Population through the Rehabilitation of Irrigation Systems in the
Havana and Grama Provinces”, done at Rome on 6 May 2002, entered into force on
26 September 2002 (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Ethiopia on the Financing of the Project “Italian
Contribution to the Health Sector Development Programme (HSDP)”, done at Ad-
dis Ababa on 20 September 2002, entered into force on the same day (GU Suppl.
to No. 111 of 15 May 2003);
Agreement between Italy and the Inter-American Development Bank Concern-

ing the Establishment of the Italian Trust Fund for Information and Communication
Technology for Development, done at Rome on 21 March 2003, entered into force
on the same day (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and Mozambique on the Implementation of the “Ad-

ditional Project of Agricultural Development – PISA”, done at Maputo on 11 July
2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February
2003);
Agreement between Italy and Mozambique on the Implementation of the “Na-

tional Programme of Agricultural Development – PROAGRI”, done at Maputo on
11 July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 Febru-
ary 2003);
Agreement between Italy and Mozambique on the Implementation of the “De-

velopment Programme of the National Statistical System”, with a Technical Annex,
done at Maputo on 17 October 2002, entered into force on the same day (GU Suppl.
to No. 111 of 15 May 2003);
Protocol of Agreement between Italy and Senegal on the Training Project for
the Management of Natural Resources and Food Security, done at Dakar on 17
July 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February
2003);
Agreement between Italy and South Africa Concerning the National Students
Financial Aid Scheme, done at Pretoria on 4 June 2001, entered into force on 5
February 2003 (GU Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Tunisia Concerning Assistance for Tunisia’s Bal-
ance of Payments, with an Annex, done at Rome 14 November 2002, entered into
force on 10 February 2003 (GU Suppl. to No. 111 of 15 May 2003).
5. DEBT CONSOLIDATION AND CANCELLATION TREATIES
Agreement between Italy and Algeria on the Implementation of the Debt Con-
version into Development Projects, with Two Annexes, done at Algiers on 3 June
2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February
2003);
Agreement between Italy and Burkina Faso on the Cancellation of the Debt
(Paris Club, 24 October 2000), with an Annex SACE, done at Rome on 12 Novem-
ber 2002, entered into force on the same day (GU Suppl. to No. 38 of 15 February
2003);
Agreement between Italy and Ecuador on the Consolidation of the Debt (Paris
Club, 15 September 2000), done at Rome on 24 May 2002, entered into force on
the same day (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Ecuador on the Conversion of the Debt, with An-
nexed SACE Lists, done at Milan on 22 March 2003, entered into force on 24 July
Agreement between Italy and Ethiopia on the Consolidation of the Debt (Paris
Club, 5 April 2001), done at Addis Ababa on 5 June 2002, entered into force on the
same day (GU Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Guinea on the Consolidation of the Debt (Paris
Club, 25 January 1995), done at Conakry on 13 May 1997, entered into force on 3
April 2002 (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and Guinea on the Consolidation of the Debt (Paris
Club, 26 February 1997), with an Annex SACE, done at Rome on 30 June 1998,
entered into force on 3 April 2002 (GU Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Guinea on the Conversion of the Debt, done at
Conakry on 10 April 2003, entered into force on the same day (GU Suppl. to No.
240 of 15 October 2003);
Agreement between Italy and Guinea-Bissau on the Consolidation of the Debt

(Paris Club, 23 February 1995), with Two Annexes, done at Bissau on 8 November
1996, entered into force on 20 August 2002 (GU Suppl. to No. 38 of 15 February
2003);
Exchange of Letters between Italy and Guinea-Bissau on the Extension of the

Consolidation Period (Paris Club, 11 February 1998) of the Third Agreement on
the Consolidation of the Debt (Paris Club, 23 February 1995) of 8 November 1996,
done at Dakar and Bissau on 5 May 1998 and 11 April 2001, entered into force on
11 April 2001 (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Indonesia on the Consolidation of the Debt (Paris
Club, 23 September 1998), done at Jakarta on 11 February 2000, entered into force
on 3 June 2003 (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and Ivory Coast on the Consolidation of the Debt
(Paris Club, 24 April 1998), done at Rome on 11 September 1998, entered into
force on 17 September 2003 (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Malawi (Paris Club, 25 January 2001), with An-
nex, done at Lilongwe on 17 June 2002, entered into force on the same day (GU
Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Mauritania on the Cancellation of the Debt

(Paris Club, 16 March 2000), done at Dakar on 24 October 2002, entered into force
on the same day (GU Suppl. to No. 111 of 15 May 2003);
Exchange of Notes between Italy and Pakistan Amending the Bilateral Agree-
ment signed on 18 February 2000 for Rescheduling of Loans, done at Islamabad on
15 August 2001 and 19 September 2001, entered into force on 19 September 2001
(GU Suppl. to No. 111 of 15 May 2003);
Memorandum of Understanding between Italy and the Russian Federation on

a Program for the Conversion of Soviet-era Sovereign Debts, Previously Resched-
uled at the Paris Club, into Investments in the Russian Economy, done at Rome on
17 December 2002, entered into force on the same day (GU Suppl. to No. 111 of
15 May 2003);
Agreement between Italy and Tanzania on the Cancellation of the Debt (Paris
Club, 14 April 2000), done at Rome on 10 January 2002, entered into force on the
same day (GU Suppl. to No. 38 of 15 February 2003).
6. TRANSPORT, TRAFFIC, COMMUNICATION
Agreement between Italy and Albania establishing Common Rules on the

International Road Transport of Passengers and Goods, done at Tirana on 5 April
1993, implemented by Law No. 292 of 6 October 2003 (GU No. 254 of 31 October
2003);
Agreement between Italy and Algeria Concerning the International Road Car-
riage of Passengers and Goods in Transit, done at Algiers on 24 October 2000,
implemented by Law No. 330 of 3 November 2003 (GU Suppl. to No. 276 of 27
November 2003);
Agreement between Italy and Armenia on the International Road Transport of

Passengers and Goods, done at Erevan on 7 August 1999, implemented by Law No.
16 of 15 January 2003 (GU No. 33 of 10 February 2003);
Agreement between Italy and the Former Yugoslav Republic of Macedonia

Concerning the International Road Carriage of Passengers and Goods in Transit,
done at Rome on 21 May 1999, implemented by Law No. 248 of 19 August 2003
(GU No. 207 of 6 September 2003);
Agreement between Italy and Uzbekistan establishing Common Rules on the

International Road Transport of Passengers and Goods, done at Rome on 21 No-
vember 2000, implemented by Law No. 325 of 3 November 2003 (GU No. 273 of
24 November 2003).
7. SOCIAL AND HEALTH MATTERS
Memorandum of Understanding between Italy and Algeria on Co-operation in

the Field of Health, done at Algiers on 8 March 1999, entered into force on 7 April
Agreement between Italy and Bolivia on International Adoptions, done at

Rome on 15 February 2002, entered into force on 18 November 2002 (GU Suppl.
to No. 38 of 15 February 2003);
Memorandum of Understanding between Italy and Bulgaria in the Field of

Health and Medical Sciences, done at Rome on 17 October 2000, entered into force
on 18 July 2002 (GU Suppl. to No. 240 of 15 October 2003);
Convention between Italy and the Holy See on Social Security, done at Vatican
City on 16 June 2000, implemented by Law No. 244 of 19 August 2003 (GU No.
203 of 2 September 2003), entered into force on 1 January 2004 (GU No. 256 of 4
November 2003);
Cooperation Agreement between Italy and Israel in the Field of Health and
Medical Sciences, done at Rome on 8 October 2002, entered into force on 6 August
Agreement between Italy and the Sovereign Military Order of Malta Concern-
ing Relations in the Field of Health, done at Rome on 21 December 2000, imple-
mented by Law No. 157 of 9 June 2003 (GU No. 153 of 4 July 2002), entered into
force on 1 August 2003 (GU No. 207 of 6 September 2003).
8. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION
Agreement between Italy and Albania on Mutual Administrative Assistance

for the Prevention, Investigation and Repression of Customs Offences, with One
Annex, done at Tirana on 12 March 1998, implemented by Law No. 160 of 18 June
2003 (GU No. 155 of 7 July 2003);
Agreement between Italy and Albania for the Co-production of Cinemato-

graphic Works, with One Annex, done at Tirana on 10 May 2002, implemented by
Law No. 338 of 6 November 2003 (GU No. 302 of 31 December 2003);
Exchange of Notes between Italy and Austria on Mutual Recognition of Uni-

versity Qualifications, with Three Annexes, which completes the Annex to the
Exchange of Notes between Italy and Austria of 28 January 1999, done at Rome
on 26 and 27 February 2003, entered into force on 1 April 2003 (GU Suppl. to No.
240 of 15 October 2003);
Agreement between Italy and Belgian French Community on Cinematographic

Co-production, with Three Annexes, done at Venice on 31 August 2000, imple-
mented by Law No. 202 of 11 July 2003 (GU No. 180 of 5 August 2003);
Agreement between Italy and Croatia on Scientific and Technological Co-op-

eration, with One Annex, done at Rome on 29 October 1999, implemented by Law
No. 149 of 3 June 2003 (GU No. 147 of 27 June 2003);
Memorandum of Understanding between Italy and Egypt Concerning the Es-

tablishment of an Italian-Egyptian Centre for Professional Training in the Field of
Restoration and Archaeology, done at Cairo on 25 November 2002, entered into
force on 25 November 2002 (GU Suppl. to No. 240 of 15 October 2003);
Cinematographic Agreement between Italy and France, with Three Annexes

(not published), done at Paris on 6 November 2000, implemented by Law No. 19
of 15 January 2003 (GU No. 34 of 11 February 2003), entered into force on 1 June
2003 (GU No. 142 of 21 June 2003);
Memorandum of Understanding between Italy and Hong Kong Special Admin-

istrative Region of the People’s Republic of China on Cultural Co-operation, done
at Rome on 23 May 2002, entered into force on 25 September 2002 (GU Suppl. to
No. 38 of 15 February 2003);
Memorandum of Understanding between Italy and Hong Kong Special Admin-

istrative Region of the People’s Republic of China in the Field of Telecommunica-

tions and Information Technologies, done at Rome on 23 May 2002, entered into
force on 20 September 2002 (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Iceland on Cultural, Scientific and Technological

Co-operation, done at Rome on 14 January 1999, implemented by Law No. 9 of 15
January 2003 (GU No. 26 of 1 February 2003), entered into force on 20 December
2003 (GU No. 270 of 20 November 2003);
Agreement between Italy and Israel on Mutual Administrative Assistance for

the Prevention, Investigation and Repression of Customs Offences, with One An-
nex, done at Rome on 27 April 1999, implemented by Law No. 74 of 20 March
2003 (GU Suppl. to No. 91 of 18 April 2003), entered into force on 1 July 2003
(GU No. 220 of 22 September 2003);
Agreement between Italy and Israel on Industrial, Scientific and Technological

Research and Development Co-operation, done at Bologna on 13 June 2000, im-
plemented by Law No. 154 of 11 July 2002 (GU No. 175 of 27 July 2002), entered
into force on 1 October 2002 (GU Suppl. to No. 38 of 15 February 2003);
Agreement between Italy and Morocco on Cultural, Scientific and Technologi-

cal Co-operation, done at Rabat on 28 July 1998, implemented by Law No. 79 of
24 March 2003 (GU Suppl. to No. 91 of 18 April 2003);
Interim Agreement between Italy and Palestine Liberation Organization

(PLO) for the Benefit of the Palestine National Authority on Cultural, Scientific
and Technological Co-operation, with One Explicative Note, done at Rome on 7
June 2000, implemented by Law No. 169 of 18 June 2003 (GU No. 160 of 12 July
2003);
Memorandum of Understanding between Italy and the Russian Federation on

Technical Bilateral Co-operation 2002-2004, done at Moscow on 3 April 2002,
entered into force on 5 March 2003 (GU Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and San Marino on Cultural and Scientific Co-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);
Agreement between Italy and Slovakia on Mutual Administrative Assistance

for the Prevention, Investigation and Repression of Customs Offences, done at
Bratislava on 25 October 2000, implemented by Law No. 246 of 19 August 2003
(GU No. 205 of 4 September 2003), entered into force on 1 January 2004 (GU No.
295 of 20 December 2003);
Agreement between Italy and South Africa Concerning Co-operation in the

Field of Arts, Culture, Education and Sport, done at Cape Town on 13 March 2002,
implemented by Law No. 312 of 24 October 2003 (GU No. 268 of 18 November
2003);
Agreement between Italy and Syria on Scientific and Technological Co-opera-

tion, with One Annex, done at Damascus on 23 April 1998, implemented by Law
No. 165 of 26 May 2000 (GU No. 143 of 21 June 2000), entered into force on 7
February 2002 (GU Suppl. to No. 111 of 15 May 2003);
Agreement between Italy and Turkey on Mutual Administrative Assistance

Annex, done at Rome on 10 September 2001, implemented by Law No. 250 of 19
August 2003 (GU No. 208 of 8 September 2003);
Agreement between Italy and Uzbekistan on Mutual Administrative Assist-

ance in Customs Matters, with One Annex, done at Rome on 21 November 2000,
implemented by Law No. 247 of 19 August 2003 (GU No. 206 of 5 September
2003);
Agreement between Italy and Yemen on Co-operation in the Fields of Culture,

Education, Science and Technology, done at Sana’a on 3 March 1998, implemented
by Law No. 94 of 23 April 2003 (GU No. 100 of 2 May 2003).
9. LEGAL AND JUDICIAL CO-OPERATION
Additional Agreement between Italy and Albania to the Convention on the

Transfer of Convicts of 21 March 1983, done at Rome on 24 April 2002, im-
plemented by Law No. 204 of 11 July 2003 (GU Suppl. to No. 181 of 6 August
2003);
Co-operation Agreement between Italy and Libya in the Fight against Terror-
ism, Organized Crime, Illicit Trafficking of Drugs and Psychotropic Substances
and Illegal Immigration, done at Rome on 13 December 2000, entered into force
on 22 December 2002 (GU Suppl. to No. 111 of 15 May 2003);
Co-operation Agreement between Italy and Malta on Mutual Assistance in the

Fight against Money Laundering and the Use of Money, Property and Other Effects
of Illegal Origin, done at La Valletta on 8 December 2001, entered into force on 8
October 2002 (GU Suppl. to No. 111 of 15 May 2003);
Co-operation Agreement between Italy and Mexico in the Fight against Organ-
ized Crime, done at Mexico City on 19 November 2001, entered into force on 10
July 2002 (GU Suppl. to No. 111 of 15 May 2003);
Co-operation Agreement between Italy and Panama in the Fight against Or-
ganized Crime, done at Rome on 12 September 2000, entered into force on 5 Feb-
ruary 2003 (GU Suppl. to No. 111 of 15 May 2003);
Co-operation Agreement between the Ministry of Justice of Italy and the Min-
istry of Justice of the Russian Federation, done at Moscow on 18 September 2000,
entered into force on the same day (GU Suppl. to No. 38 of 15 February 2003);
Co-operation Agreement between Italy and Slovakia in the Fight against Ter-
rorism, Organized Crime, Illicit Trafficking of Drugs and Psychotropic Substances,
done at Bratislava on 19 April 2002, entered into force on 6 November 2002 (GU
Suppl. to No. 111 of 15 May 2003).
10. CO-OPERATION AGAINST TERRORISM
International Convention for the Suppression of Terrorist Bombings, adopted

by the General Assembly of the United Nations at New York on 15 December
1997, implemented by Law No. 34 of 14 February 2003 (GU Suppl. to No. 58 of
11 March 2003);
International Convention for the Suppression of the Financing of Terrorism,

adopted by the General Assembly of the United Nations at New York on 9 Decem-
ber 1999, implemented by Law No. 7 of 14 January 2003 (GU No. 21 of 27 January
2003).
11. MILITARY AND SECURITY MATTERS
Framework Agreement between France, Germany, Italy, Spain, Sweden and

the United Kingdom Concerning Measures to Facilitate the Restructuring and
Operation of the European Defense Industry, with Annex, done at Farnborough on
27 July 2000, implemented by Law No. 148 of 17 June 2003 (GU No. 146 of 26
June 2003), entered into force on 20 September 2003 (GU Suppl. to No. 240 of 15
October 2004);
Agreement between Italy, France, Portugal and Spain Containing the Statute
of EUROFOR, done at Rome on 5 July 2000, implemented by Law No. 251 of 19
August 2003 (GU No. 209 of 9 September 2003).
Bilateral Co-operation Agreement between the Ministry of Defense of Italy and

the Ministry of Defense of Bulgaria, done at Rome on 11 July 1995, implemented
by Law No. 78 of 20 March 2003 (GU No. 91 of 18 April 2003);
Agreement between Italy and Croatia on Defense Co-operation, done at An-

cona on 19 May 2000, implemented by Law No. 75 of 20 March 2003 (GU No. 91
of 18 April 2003);
Agreement between Italy and Djibouti on Defense Co-operation, done at Dji-

bouti on 30 April 2002, implemented by Law No. 327 of 31 October 2003 (GU No.
274 of 25 November 2003);
Memorandum of Understanding between the Ministry of Defense of Italy and

the Ministry of Defense of Egypt, with Annex, done at Rome on 23 March 1998,
implemented by Law No. 76 of 20 March 2003 (GU No. 91 of 18 April 2003);
Memorandum of Understanding between the Ministry of Defense of Italy

and the Ministry of Defense of Finland on Co-operation in the Field of Defense
Materials, done at Helsinki on 24 April 1998, implemented by Law No. 334 of 3
November 2003 (GU No. 277 of 28 November 2003);
Agreement between Italy and Latvia on the Development of Relations in the

Field of Military Co-operation, done at Riga on 20 February 1998, implemented by
Law 11 of 15 January 2003 (GU No. 28 of 4 February 2003);
Agreement between Italy and the Russian Federation on the Installation of a

Protected Telephone Line between Palazzo Chigi in Rome and the Kremlin in Mos-
cow, done at Moscow on 7 October 2002, entered into force on 3 February 2003
(GU Suppl. to No. 240 of 15 October 2003);
Agreement between the Ministry of Defense of Italy and the Ministry of Na-
tional Defense of Romania, done at Rome on 26 February 1997, implemented by
Law No. 8 of 14 January 2003 (GU No. 23 of 29 January 2003);
Agreement between Italy and Sweden on Co-operation in the Field of Defense

Materials, done at Stockholm on 18 April 1997, implemented by Law No. 245 of
19 August 2003 (GU No. 204 of 3 September 2003);
Agreement between Italy and Uzbekistan on Defense Co-operation, done at

Tashkent on 26 November 1999, implemented by Law No. 324 of 24 October 2003
(GU No. 272 of 22 November 2003).
Comment
The Framework Agreement Concerning Measures to Facilitate the Restructur-

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

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

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

Republic of Korea for the Establishment of a Co-operation Office in Pyongyang,
done at Rome on 28 September 2000, entered into force on 16 June 2003 (GU
Suppl. to No. 240 of 15 October 2003);
Agreement between Italy and the Russian Federation on Co-operation in the

Youth Activities, done at Rome on 15 January 2001, implemented by Law No. 153
of 3 June 2003 (GU No. 150 of 1 July 2003).
13. DIPLOMATIC CONFERENCES AND INTERNATIONAL MEETINGS
Agreement between Italy and the United Nations Educational, Scientific and
Cultural Organization (UNESCO) concerning the International Congress of Ex-
perts Celebrating the 30th Anniversary of the Convention concerning the Protection
of the World Cultural and Natural Heritage (World Heritage Convention) held in
Venice from 14 to 16 November 2002, done at Paris on 18 October 2002, entered
into force on the same day (GU Suppl. to No. 111 of 15 May 2003).
14. NEIGHBOURLY RELATIONS
Agreement between Italy and Slovenia on Mutual Administrative Assistance

Annex (not published), done at Rome on 14 November 2001, implemented by Law
No. 303 of 24 October 2003 (GU No. 263 of 12 November 2003);
Exchange of Notes Establishing an Agreement between Italy and Slovenia for

the Reciprocal Recognition of Driving Licenses, done at Ljubljana on 18 Novem-
ber 2002 and 15 January 2003, entered into force on 6 July 2003 (GU Suppl. to No.
240 of 15 October 2003);
Exchange of Letters between Italy and Switzerland on the Extension of the

Free License Concerning the Installations at the Brogeda Pass according to Article
3 of the Exchange of Letters dated 13 October 1997, done at Rome on 25 June 2002
and 25 March 2003, entered into force on 1 January 2002 (GU Suppl. to No. 240
of 15 October 2003).
1. HEADQUARTERS AGREEMENTS AND LEGAL STATUS
Memorandum of Agreement between Italy and the World Health Organization

Regional Office for Europe Concerning the Establishment of the WHO European
Office for Investment for Health and Development, done at Rome on 11 January
2001, implemented by Law No. 12 of 15 January 2003 (GU No. 29 of 5 February
2003), entered into force on 1 June 2003 (GU Suppl. to No. 240 of 15 October
2004);
Agreement between Italy and the World Health Organization Regional Office
for Europe, done at Rome on 3 May 2002, implemented by Law No. 295 of 23
October 2003 (GU No. 257 of 5 November 2003).
2. EUROPEAN UNION
Stabilization and Association Agreement between the European Communi-

ties and its Member States, of the one part, and the Former Yugoslav Republic of
Macedonia, of the other part, done at Luxembourg on 9 April 2001, with Annexes,
Protocols and Declarations, implemented by Law No. 260 of 19 August 2003 (GU
Suppl. to No. 215 of 16 September 2003);
Agreement on Trade, Development and Cooperation between the European

Community and its Member States, of the one part, and South Africa, of the other
part, with Protocols, Final Act, Annexes and Declarations, done at Pretoria on 11
October 1999, implemented by Law No. 320 of 24 October 2003 (GU Suppl. to No.
271 of 21 November 2003);
Partnership and Co-operation Agreement establishing a Partnership between

the European Communities and its Member States, of the one part, and Turkmeni-
stan, of the other part, with Annexes, Protocol and Final Act, done at Brussels on
25 May 1998, implemented by Law No. 323 of 24 October 2003 (GU Suppl. to No.
272 of 22 November 2003).
3. NATO
Agreement between Austria, France, Italy and Switzerland on Exercise AMA-

DEUS 2002, done at Vienna on 29 April 2002, entered into force on the same day
(GU Suppl. to No. 38 of 15 February 2003);
Protocol to the North Atlantic Treaty on the Accession of Bulgaria, Protocol to

the North Atlantic Treaty on the Accession of Estonia, Protocol to the North Atlan-
tic Treaty on the Accession of Latvia, Protocol to the North Atlantic Treaty on the
Accession of Lithuania, Protocol to the North Atlantic Treaty on the Accession of
Romania, Protocol to the North Atlantic Treaty on the Accession of Slovakia, Pro-
tocol to the North Atlantic Treaty on the Accession of Slovenia, done at Brussels
on 26 March 2003, implemented by Law No. 255 of 19 August 2003 (GU Suppl. to
No. 212 of 12 September 2003).
Memorandum of Understanding between the Ministry of Defense of Italy and

the Supreme Command of the Allied Forces in the Atlantic Concerning the Flag of
the NATO Coastal Research Units, with Annex, done at Rome on 15 May 2001 and
at Norfolk on 20 June 2001, implemented by Law No. 321 of 24 October 2003 (GU
No. 271 of 21 November 2003).
4. OTHER INTERNATIONAL AGENCIES
Agreement Establishing the International Organization of Vine and Wine, with

Annexes and Final Act, done at Paris on 3 April 2001, implemented by Law No. 26
of 15 January 2003 (GU No. 43 of 21 February 2003);
Protocol Amending the Convention on International Civil Aviation, done at

Montreal on 1 October 1998, implemented by Law No. 10 of 15 January 2003 (GU
No. 27 of 3 February 2003).
Exchange of Notes between Italy and the Multinational Force and Observ-
ers Concerning the Italian Participation in the Multinational Force and Observers,
done at Rome on 6 and 25 March 2002, implemented by Law No. 249 of 19 August
2003 (GU No. 208 of 8 September 2003).
Comment
The exchange of notes between Italy and the Multinational Force and Observ-
ers (MFO) deserves some comment. It took place between the Italian Prime Min-
ister and Minister of Foreign Affairs, Berlusconi, and the MFO Director General,
Hughes; and constituted an agreement extending the Italian participation in the
MFO for a further period of five years from 25 March 2002.
The MFO is a peace-keeping force, created by the Protocol between Egypt and
Israel of 3 August 1981. It was set up as an alternative to the UN Forces and Ob-
servers, provided for by the Egyptian-Israeli Peace Treaty of 26 March 1979. The
MFO was indeed vested with the functions assigned by the peace treaty to the UN
Forces and Observers. The mission of the UN force was to supervise the mainte-
nance of peace, once Israel had withdrawn from the Sinai and returned it to Egypt.
The Protocol Concerning Israeli Withdrawal and Security Arrangements, annexed
to the peace treaty, established four security zones, three in Egypt and one in Israel,
where military personnel and equipment were severely limited. The UN force was
to observe and verify compliance with those limitations and report its findings to
both Egypt and Israel. In addition, it was to ensure freedom of navigation through
the Strait of Tiran. Its establishment actually proved impossible because of the lack
of agreement within the Security Council. Consequently, thanks to the mediation
efforts of the United States, the MFO was created as a peace-keeping force outside
the United Nations (see a detailed analysis of the differences between the MFO
and the UN peace-keeping forces in SIEKMANN, “The Multinational Peace-keep-
ing Force in the Sinai in the Light of United Nations Practice on Peace-keeping
Forces”, Indian Journal of International Law, 1984, pp. 504-524).
The Egyptian-Israeli Protocol of 3 August 1981, which the United States also
signed as a witness, established the MFO as an international organization independ-
ent of both Egypt and Israel. Both countries decided not to contribute troops and
observers. Therefore, the MFO Director General, responsible for direction of the
force in fulfillment of its functions, concluded separate agreements with third coun-
tries contributing troops and observers. In this context, an agreement between the
Italian Government and the MFO Director General was concluded by an exchange
of letters on 16 and 25 March 1982. In this agreement, Italy committed itself to
providing the MFO with a naval contingent consisting of three minesweepers, a

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

Finland, Germany, Greece, Ireland, Italy, Luxemburg, Netherlands, Portugal,
Spain, Sweden, the European Atomic Energy Community (EURATOM) and the
International Atomic Energy Agency (IAEA) in Execution of Article III, paras. 1
and 4 of the Treaty on the Non-Proliferation of Nuclear Weapons, with Annexes,
done at Vienna on 22 September 1998, implemented by Law No. 332 of 31 October
2003 (GU No. 276 of 27 November 2003).
B)
AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2003,

THE ENTRY INTO FORCE OF WHICH WAS ANNOUNCED
IN THE GAZZETTA UFFICIALE IN 2003

ECONOMIC MATTERS
1. GENERAL ECONOMIC AND FINANCIAL CO-OPERATION
Agreement between Italy and Mongolia on Economic and Technical Coopera-

tion, done at Rome on 20 November 1996, implemented by Law No. 384 of 14
October 1999, entered into force on 23 October 2000 (GU No. 290 of 13 December
2002).
2. TRANSPORT, TRAFFIC, COMMUNICATION
Amendments to Annex I, Appendix I, paras. 2 and 4 of the Agreement on the

International Carriage of Perishable Foodstuffs and on the Special Equipment to be
used for Such Carriage (ATP), done at Geneva on 1 September 1970, implemented
by Law No. 264 of 2 May 1977 (GU Suppl. to No. 152 of 6 June 1977), entered into
force on 7 February 2003 (GU No. 73 of 28 March 2003);
Amendments to Article 3 and to Annexes 2, 3, 5, 6 and 7 of the Customs Con-

vention on the International Transport of Goods under Cover of TIR Carnets, done
at Geneva on 14 November 1975, implemented by Law No. 706 of 12 August 1982

(GU Suppl. to No. 277 of 7 October 1982). The Amendments to Article 3 entered
into force on 12 May 2002 (GU No. 147 of 27 June 2003); the Amendments to An-
nexes 2 and 7 entered into force on 12 June 2001 (GU No. 147 of 27 June 2003);
and the Amendments to Annexes 3, 5 and 6 entered into force on 12 May 2002 (GU
No. 222 of 24 September 2003).
3. SOCIAL AND HEALTH MATTERS
Agreement between Italy and Croatia on Social Security, done at Rome on

27 June 1997, implemented by Law No. 167 of 27 May 1999 (GU Suppl. to No.
138 of 15 June 1999), entered into force on 1 November 2003 (GU No. 225 of 27
September 2003).
4. CULTURAL, EDUCATIONAL, SCIENTIFIC AND TECHNICAL CO-OPERATION
Convention Defining the Statute of European Schools, done at Luxembourg on

21 June 1994, implemented by Law No. 151 of 6 March 1996 (GU No. 70 of 23
March 1996), entered into force on 1 October 2002 (GU Suppl. to No. 111 of 15
May 2003).
Agreement between Italy and Germany on Cinematographic Co-production,

with One Annex, done at Rome on 23 September 1999, implemented by Law No.
151 of 11 July 2002 (GU No. 174 of 26 July 2002), entered into force on 5 Novem-
ber 2002 (GU No. 44 of 22 February 2003);
Agreement between Italy and the Russian Federation on Co-operation and

Mutual Administrative Assistance in Customs Matters, done at Rome on 10 Feb-
ruary 1998, implemented by Law No. 71 of 2 April 2002 (GU No. 95 of 23 April
2002), entered into force on 1 November 2002 (GU No. 132 of 10 June 2002).
5. LEGAL AND JUDICIAL CO-OPERATION
Agreement between Italy and the Russian Federation on Co-operation and

Mutual Assistance in the Field of Exchange Control of Import and Export Opera-
tions and in the Fight against Money Laundering, done at Rome on 29 July 1996,
implemented by Law No. 77 of 23 March 1998 (GU No. 82 of 8 April 1998), en-
tered into force on 3 June 1998 (GU No. 111 of 15 May 2003).
6. CO-OPERATION AGAINST TERRORISM
Convention on the Marking of Plastic Explosives for the Purpose of Detection,

with Annex, done at Montreal on 1 March 1991, implemented by Law No. 420 of
20 December 2000, (GU No. 15 of 19 January 2001), entered into force on 25 No-
vember 2002 (GU Suppl. to No. 38 of 15 February 2003).
7. NEIGHBOURLY RELATIONS
Agreement between Italy and France on the Establishment of a New Railway

Line between Turin and Lion, done at Turin on 29 January 2001, implemented by
Law No. 228 of 27 September 2002 (GU No. 248 of 22 October 2002), entered into
force on 1 May 2003 (GU No. 93 of 22 April 2003).
1. EUROPEAN UNION
Treaty of Nice Amending the European Union Treaty, the Treaties Establishing
the European Communities and Certain Related Acts, with Final Act, Protocols and
Declarations, done at Nice on 26 February 2001, implemented by Law No. 102 of
11 May 2002 (GU No. 126 of 31 May 2002), entered into force on 1 February 2003
(GU Suppl. to No. 111 of 15 May 2003).
Agreement between Croatia, Germany and Italy on the Regional Arms Con-
trol Verification and Implementation Assistance Center (RACVIAC), Established
within the Framework of the Stability Pact for South Eastern Europe, done at Za-
greb on 8 March 2001, entered into force on 20 September 2002 (GU Suppl. to No.
240 of 15 October 2003).
LEGISLATION
(edited by Pia Acconci, with the exception of legislation on Diplomatic

and Consular Relations, Air and Space Law, and Nationality edited by
Chiara Battistini, legislation on Environment edited by Massimiliano
Montini, legislation on Immigration and Emigration, Use of Force Short
of War and Peace-Keeping, and War, Neutrality, and Disarmament
edited by Gianluca Rubagotti)
Law No. 109 of 23 April 2003 (GU Suppl. to No. 116 of 21 May 2003)
Amendments and integrations to DPR No. 18 of 5 January 1967 concerning the
regulation of the Ministry of Foreign Affairs.
Law No. 109/2003 chiefly reforms the organisation of the Ministry of Foreign
Affairs. Its administration is now composed of central offices of the Ministry of For-
eign Affairs, diplomatic missions, consular offices and the Italian cultural institutes.
The Italian cultural institutes are the government agencies of the Italian Minis-
try of Foreign Affairs that represent Italy abroad and promote Italian culture in their
assigned consular areas. These institutes organise and provide cultural events, such
as poetry readings, conferences, book presentations, round table discussions, art
exhibitions, concerts, in-house movie screenings and other such events/activities.
According to Art. 8 of Law No. 109/2003, the consular offices have to guaran-
tee the exercise of the right to vote for the Italian citizens residing abroad.
If necessary, diplomatic missions, consular offices and the Italian cultural insti-
tutes can employ additional personnel (not more than 2,277) for a stipulated period
of time, with the authorisation of Central Administration.
From an international point of view, the most important amendment made by
Law No. 109/2003 to the pre-existing legislation is the insertion, by Art. 6 of Law
No. 109/2003, of new Art 30-bis in DPR No. 18 of 5 January 1967. This provides for
the establishment of separated branches for diplomatic missions, by Decree from the
Ministry of Foreign Affairs, jointly with the Ministry of Economy and Finance.
A separated branch can be located in a State other than that of the seat of the
diplomatic mission, within the same territorial competence. The Ministry of For-
eign Affairs can also substitute the seat of a diplomatic mission with a branch or,
alternatively, suppress a separated branch.
According to international law, the chief of a diplomatic mission also maintains
his/her powers in the State in which a separated branch is located.
As for the implementation of Law No. 109/2003, an amount of EURO
2,091,124 was provided by the “Special Fund” of the Ministry of Economy and
Finance for 2003.
(Cf. infra X.1, DPR No. 104 of 2 April 2003 concerning the exercise of the right
to vote by Italian citizens residing abroad).
VII. ENVIRONMENT
DM 31 March 2003 (GU No. 204 of 3 September 2003)

Enlargement of the Carabinieri “Corps for the Protection of the Environment”.
Decree 31 March 2003 of the Ministry of Defence enlarges the number of

operative units of the Carabinieri “Corps for the Protection of the Environment”
throughout Italy. This should further reinforce the important role already played by
the Carabinieri for effective monitoring and enforcement of the legislation for the
protection of the environment and the management of the territory.
DM No. 203 of 8 May 2003 (GU No. 180 of 5 August 2003)

Provisions on “green” public procurement.
Decree No. 203/2003 of the Ministry of the Environment and for the Protec-
tion of the Territory imposes an obligation upon public authorities and companies
with a prominent public ownership to cover at least 30% of their annual needs
with the purchase of goods and products made from recycled materials, in order to
promote recycling rather than the disposal of waste. The definition of the concrete
procedures for the accomplishment of such a general obligation for ‘green’ public
procurement is delegated by the Ministry to the Regions.
DPR 23 May 2003 (GU Suppl. to No. 139 of 18 June 2003)

Approval of the “National Health Plan” 2003-2005.
The Decree contains the approval of the Italian “National Health Plan” for the
years 2003-2005. The Plan is of particular relevance in the present context, since
it largely explores the interactions between environmental risks and the protection
of public health.
Law No. 131 of 5 June 2003 (GU No. 132 of 10 June 2003)
Provisions for the implementation of Constitutional Law No. 3/2001.
Law No. 131/2003 contains provisions for the effective implementation of

the constitutional amendment contained in Law No. 3/2001, which modified Title
V of the Italian Constitution. By means of such a constitutional amendment, the
respective legislative competencies of the State and the Regions were completely
redefined. In particular, as far as the competencies in the sphere of environmental
law and policy are concerned, Article 117 of the Italian Constitution, as amended,
LEGISLATION 325
establishes that the State enjoys an exclusive legislative competence in the fields of
the protection of the environment, the ecosystem and cultural heritage. Conversely,
in various other fields, such as those related to the protection of safety in the work-
place, protection of public health, management of production, transmission and
distribution of energy and land management, the legislative competence is “con-
current” between the State and the Regions.
DPR No. 261 of 17 June 2003 (GU No. 215 of 16 September 2003)
Redefinition of the internal organisation of the Ministry of the Environment.
The Decree contains provisions for a further restructure of the administra-

tive organization of the Ministry of the Environment and for the Protection of
the Territory, following the amendments already introduced by D.Lgs. No. 287/
2002. The Ministry now consists of 6 General Directorates, namely: a) Directo-
rate for the protection of nature; b) Directorate for quality of life; c) Directorate
for environmental research and development; d) Directorate for environmental
safeguarding; e) Directorate for soil protection; and f) Directorate for internal
services.
DPCMs 8 July 2003 (GU No. 199 of 28 August 2003 and No. 200 of 29 August
2003)
Implementation of the framework law on pollution prevention from electro-
magnetic fields.
By means of two Decrees of the President of the Council of Ministers (DPCMs)

the three different sets of values and criteria prescribed by Law 36/2001 for the
protection of public health, that is the framework law on pollution prevention from
electromagnetic fields, were finally set. Such values are: the exposure limit values,
the warning values and the quality objectives. In particular, according to the provi-
sions of Law No. 36/2001, the exposure limit values are those determined for the
protection of public health from acute effects and must not be exceeded at any time
or in any situation. The warning values are those set for the protection of public
health from long-term effects and must not be exceeded in homes, schools or in
any place intended for a prolonged presence of human beings. The quality objec-
tives represent the criteria for the localisation of the electric grids, the town and
land planning prescriptions, the prescription and incentives for the use of the best
available technologies and the exposure limit values to be progressively reached
which may be determined in order to achieve a gradual improvement of the overall
exposure of the population to electromagnetic fields. The two Decrees determine
the said three sets of values respectively for electromagnetic fields generated by
frequencies below 50 Hz, mainly by electromagnetic grids and networks, and for
those generated by frequencies ranging from 100 khz to 300 Ghz by any other plant
or equipment.
D.Lgs. No. 259 of 1 August 2003 (GU Suppl. to No. 214 of 15 September
2003)
Code for electronic communications.
The so-called “Code for electronic communications”, adopted by means of

Legislative Decree No. 259/2003, aims at regulating the whole matter regarding the
management of electronic communications. In such a context, of special interest are
the provisions which dictate rules on the requirements and procedures to be followed
in order to obtain the administrative authorisation to install communication networks
and plants within the Italian territory, contained in Article 86 ff. of the Code.
DL No. 269 of 30 September 2003 (GU No. 229 of 2 October 2003) converted into
Law No. 326 of 24 November 2003 (GU Suppl. to No. 274 of 25 November 2003)
Urgent measures for the correction of the public budget.
Decree-Law No. 269/2003, converted into Law No. 326/2003, contains urgent
measures for the correction of the Italian public budget. Among various provisions,
it introduces the so-called “condono edilizio”, according to which it is possible to
obtain in certain cases an ex-post authorisation for those buildings and other works
built outside the scope of the applicable legislation on land and town planning,
landscape or environmental protection. The ex-post authorisation may be issued by
the competent Regions, upon payment of a certain sum determined by the Law.
DL No. 354 of 24 December 2003 (GU No. 300 of 29 December 2003) con-
verted into Law No. 45 of 26 February 2004 (GU No. 48 of 27 February 2004)
Urgent measures for the re-organisation of the Special Public Water Courts.
Decree-Law No. 354/2003, converted into Law No. 45/2004, contains urgent
measures for the re-organisation and the functioning of the Special Public Water
Courts, established at regional level and originally governed by Decree No. 1775/
1933. The new regulation provides that the functions of the Special Public Water
Courts, established at regional level, from now on will be exercised by a specific
section of the competent Court of Appeal, usually established at regional or sub-
regional level.
D.Lgs. No. 128 of 4 June 2003 (GU No. 129 of 6 June 2003)
Reorganisation of the Italian Space Agency.
D.Lgs. No 128/2003 substitutes D.Lgs. No. 27 of 30 January 1999 (cf. IYIL,

1999, pp. 313-314). D.Lgs. No. 128/2003 reorganises the Italian Space Agency
LEGISLATION 327
(hereinafter ASI), by redefining its purposes, activities, bodies, principles, tasks

and organisation, in order to improve its functioning.
With regard to the aims of the ASI, Art. 2(1) gives the Agency financial au-
tonomy from the Ministry for University and Research and provides it with the
authority to manage its cash-based accounting.
Among other activities the ASI, in coordination with the Ministry of Foreign
Affairs, participates in the work of the European Spatial Agency Council (herein-
after ESA), promotes and coordinates the Italian contribution to the projects ap-
proved by the ESA and drafts bilateral and multilateral agreements with foreign
organisations and agencies, in conformity with the relevant rules of the European
Union law.
As to the Agency’s organisation, according to Art. 4, ASI bodies are composed
of: a President; a Board of Directors; Auditors and the new Technical-scientific
Board.
Arts. 6, 7 and 9 specify the composition, as well as the general tasks, of the
President, the Board of Directors and the Auditors. These Articles therefore amend
D.Lgs. No. 27/1999.
D.Lgs. No. 128/2003 assigns advisory tasks concerning technical-scientific
aspects of ASI activity to the Technical-scientific Board. Art. 8(2) specifies that the
Technical-scientific Board is nominated by the Board of Directors and is composed
of the ASI President jointly with eleven scientists, whether or not of Italian descent,
of international reputation.
According to the former legislation, internal regulations ruled ASI bodies,
whereas now they are ruled by the same D.Lgs. No. 128/2003 (Arts. 6 to 11).
Furthermore, D.Lgs. No. 128/2003 put in order the sector of technical activity
(Art. 12) and the Activity Plans (Art. 14), which are based on a three-year program.
Tasks, research programs, and the attended economic results are defined in accord-
ance with the National Research Plan.
According to Art. 16 of D.Lgs. No. 128/2003, in order to carry out its activi-
ties, the ASI can negotiate international agreements, create or join foundations and
societies, promote the establishment of companies, create and participate in inter-
national research centres as well as organise external research activities, in associa-
tion with scientific institutions in different countries.
1. NATIONALITY
Law No. 122 of 30 May 2003 (GU No. 125 of 31 May 2003)
Enactment as a law, with amendments, of Decree-Law No. 52 of 31 March
2003 concerning the extension of the deadlines for the election of new members of
the Committees of Italian citizens residing abroad;
Law No. 286 of 23 October 2003 (GU No. 250 of 27 October 2003)
Provisions concerning the regulation of the Committees of Italian citizens re-
siding abroad;
Law No. 336 of 24 November 2003 (GU No. 277 of 28 November 2003)
Enactment as a law, with amendments, of Decree-Law No. 272 of 2 October
2003 concerning the extension of the deadlines for the election of new members of
the Committees of Italian citizens residing abroad.
Law No. 122/2003 enacts as a law, with amendments, the Decree-Law No.
52/2003 that extended the deadlines for the election of new members of the Com-
mittees of Italian citizens residing abroad, hereinafter Committees, to 31 December
2003.
Law No. 336/2003 enacts as a Law, with amendments, the Decree-Law No.
272/2003 that extended again the deadlines in question, in order to carry out the
elections after the approval and the enforcement of Law No. 286/2003 concerning
the reform of the Committees here-considered.
Law No. 336/2003 establishes that the elections should take place not later than
31 March 2004.
Law No. 286/2003 substitutes both Law No. 205 of 8 May 1985 (GU No. 119
of 22 May 1985) as subsequently amended and Law No. 172 of 5 July 1990 (GU
No. 157 of 7 July 1990) which regulated the Committees. Law No. 286/2003 reiter-
ates the general structure and the text of many articles of the former, but introduces
the innovations listed below.
First, Art. 1 establishes one Committee of Italian citizens residing abroad for
each consular district in which at least 3,000 Italian citizens registered in the elec-
toral lists of the foreign electoral ward reside (see Art. 5(1) of Law No. 459 of 27
December 2001, cf. IYIL, 2001, pp. 394-396).
In particular cases of need, as to the dimension of the consular district or due to
the presence of a significant group of Italian citizens, more than one committee in
a single consular district may be established by Decree of the Minister of Foreign
Affairs, jointly with the Minister of Economy and Finance and the Minister for
Italians in the World.
Each Committee shall adopt its own internal regulation concerning its organi-
sational structure and function.
Each Italian diplomatic mission must inform its respective local government
of the establishment of the committee and of its activities. Together with the diplo-
matic mission, the committee can act for the Italians residing in that district before
the local government, except in regard to issues concerning relationships between
States.
Art. 2 provides new definitions and specifications of the Committees’ tasks and
functions. Each Committee, through studies, research or other methods, helps to
identify the requirements for social, cultural and civil development in its respec-
LEGISLATION 329
tive community and provides contributions to the diplomatic or consular offices in

order to develop the operation programs in the different States.
To this aim, each Committee promotes initiatives for cultural and social life,
together with the diplomatic mission, the regions and local government, as well as
private bodies, associations and other committees.
In conformity with domestic, international and European law, each Committee
can cooperate with its corresponding diplomatic mission to promote the full inte-
gration of Italian citizens in the local society, while also maintaining all ties with
their country. Among other duties, each Committee has to guarantee the observance
of citizens’ rights and interests, with particular consideration for labor rights, civil
rights and possible violations of domestic, international and European law.
An important innovation concerns finance. According to Art. 3, the budget of
each Committee is composed of financial revenues, annual contributions by the Min-
istry of Foreign Affairs, possible contributions by other Italian administrative struc-
tures, any possible public or private contributions whether by the countries in which
a Committee is settled or by their citizens, and returns on Committee activities.
Every year, on or before 31 October, each Committee submits to the Ministry
of Foreign Affairs the estimated costs budget for the following year, together with
the amount of finance requested, which may be granted by Decree of the Ministry
of Foreign Affairs.
The monetary distribution is more specific and efficient (Art. 3, para. 6). The
funds are distributed holding in due consideration the number of a Committee’s
members and of Italian citizens, the dimension of the territorial jurisdiction as well
as the social and economic context. Law No. 286/2003 authorises the payment of
EURO 2,274,995 each year for implementing its Art. 3 (the Committees budget).
Furthermore, Law No. 286/2003 introduces a budget constraint on the recruit-
ment of external employment (Art. 4).
Art. 27 (concerning financial support) fixes maximal amounts for public fi-
nancing, with the possibility of amendments by Decree of the Ministry for Econo-
my and Finance.
Other important amendments include the introduction of rules to ensure equal
opportunities for men and women in the procedure for electing Committee mem-
bers (Art. 5) and the establishment of a Board of Presidents in every State in which
more than one Committee is established (Art. 6).
DPR No. 104 of 2 April 2003 (GU No. 109 of 13 May 2003)
Implementing regulation of Law No. 459 of 27 December 2003 concerning the
exercise of the right to vote by Italian citizens residing abroad.
This regulation aims at defining the rules for exercising the right to vote by
Italian citizens residing abroad.
As to Art. 2, the Italian consular offices send to all Italian citizens residing
abroad, who are at least 18 years old to participate in the elections of the Camera
dei deputati and 25 years old to participate in Senate elections, who are registered
on the electoral lists in conformity with Art. 5(1) of Law No. 459/2001 (cf. IYIL,
2001, p. 394 ff.), a package containing a special personal data form to update the
electoral lists. Voters are required to return the form in an enclosed pre-stamped en-
velope to the notifying Consular Office within 30 days of receipt of the package.
In the personal data form, voters must write their updated personal data and any
relevant information concerning their residence abroad. In conformity with Art. 5,
information is used to update the register of voters.
Law No. 459/2001 specifies that voters abroad shall vote by post or opt ex-
pressly to exercise his/her right to vote in Italy, returning to Italy and voting for the
candidates who are on the ballots in the constituency corresponding to the national
electoral division in which they are registered. This option shall be exercised sepa-
rately for each poll and shall be valid only for the electoral poll in question.
Voters who intend to return to Italy to vote must give notice in writing to their
consular office by 31 December of the year prior to the ordinary close of the legis-
lature or – If an election takes place earlier – within 10 days from the beginning of
the election in question. The option is valid for only one election or referendum.
To this aim, together with information on how to vote, the personal data form
and the pre-stamped envelope, the package includes an option form to be used by
the Italian citizen abroad to notify the Italian Consular Office of their intention to
vote in Italy. This option form is valid only for an upcoming election and includes
the closing date by which it must arrive at the Consular Office.
According to Art. 3 of DPR 104/2003, the Italian Consular Offices are required
to send the package to each registered Italian citizen abroad at least every two
years.
Arts. 4 and 5 specify the information requested by the option form and the
personal data form. In particular, according to Art. 4, the option to return to Italy to
vote can be written on ordinary paper.
The Ministry of Home Affairs and the Ministry of Foreign Affairs together
have jurisdiction over producing and updating the electoral registers. In order to
co-ordinate the activities of these Ministries, Art. 6 provides for the establishment
of a permanent Committee to assist in reviewing and updating the electoral lists.
This Committee shall be composed of 13 members, all of whom must be persons
skilled in registry activities nominated by Decree by the Ministry for Italians in the
World, Ministry of Foreign Affairs, Ministry of Home Affairs, or Ministry for In-
novations and Technologies.
Finally, DPR No. 104/2003 includes detailed provisions concerning the carry-
ing out of election campaigns, as well as the requisites for eligibility.
(Cf. infra XI, Law No. 92 of 24 April 2003 concerning financial support for
victims of political and racial persecutions and of their surviving relatives and Law
No. 107 of 15 May 2003 concerning the establishment of a parliamentary enquiry
commission on the disappearance of dossiers concerning Nazi crimes)
LEGISLATION 331
DPCM of 6 June 2003 (GU No. 143 of 23 June 2003)

Temporary planning of the quota of non-European Union workers who can
enter the territory of Italy during 2003.
This Decree was adopted in conformity with the recent Italian law on immigra-
tion (cf. Law No. 189/2002, IYIL, 2002, pp. 346-348), according to which, in the
absence of the decree for determining the annual global maximum quota of non-EU
workers who can enter the Italian territory, the Prime Minister can determine the
quota by decree, as an interim measure, within the limits established for the previ-
ous year.
For the year 2002, the Decree of temporary planning for the entry of non-EU
workers (cf. DPCM of 15 October 2002, IYIL, 2002, pp. 349-350), together with
the Decrees of the Ministry of Welfare (Decrees of 4 February 2002, of 12 March
2002, of 22 May 2002 and of 16 July 2002) authorised, as a whole, 79,500 en-
tries.
Furthermore, the Decree of temporary planning for the year 2003 (cf. DPCM
of 20 December 2002, IYIL, 2002, p. 350) authorised 60,000 entries for seasonal
jobs.
In 2003, local authorities emphasised a need for a greater non-EU workforce,
especially in sectors of national economy such as tourism and agriculture and
services, requiring both foreign workers for seasonal labour, as well as persons for
highly qualified positions. Taking this need into account, Art. 1 of the Decree of
6 June 2003 establishes an increased maximum quota of 19,500 non-EU citizens,
residing abroad, who are allowed to enter the territory of Italy for both self-employ-
ment and other employment.
Art. 2 provides that, within the quota of 19,500, no more than 8,500 non-EU
citizens are allowed to enter Italy for seasonal employment, according to the alloca-
tion, made by the Ministry of Welfare, to the Regions and Autonomous Provinces.
This quota applies to non-EU seasonal employed workers coming from coun-
tries that signed the Treaty of accession to the EU (i.e. Slovenia, Poland, Estonia,
Latvia, Lithuania, the Czech Republic and Slovakia), from Serbia, Croatia, Mon-
tenegro, Bulgaria and Romania as well as from countries that signed co-operation
agreements with Italy concerning migration (i.e. Tunisia, Albania, Morocco, Niger-
ia, Moldova, Sri Lanka and Egypt) and finally to non-EU citizens with a residence
permit for a seasonal job in the years 2001 and 2002.
Art. 3 allows the entry of 800 non-EU citizens, residing abroad, within the
maximum quota of 19,500, for self-employed jobs as included in the listed sec-
tors (i.e. researchers, entrepreneurs whose activities are of interest for the national
economy, professionals and internationally-known artists employed by public or
private organisations), allowing, for such cases, the conversion of resident permits
for study or professional training into resident permits for self-employment.
In conformity with Art. 17(1)(b) of Law No. 189/2002, Art. 4 takes into account
the particular political and economic situation of Argentina, which has resulted in
difficult conditions for many workers of Italian origin living there, and therefore
establishes that no more than 200 entries, within the maximum quota of 19,500,
will be reserved for workers of Italian origin residing in Argentina. For such work-
ers Italian diplomatic or consular authorities in Argentina have prepared an ad hoc
list including the names and professional qualifications.
Finally Art. 5 establishes that a maximum of 10,000 non-EU citizens, residing
abroad, may be allowed to enter Italy for a non-seasonal employment.
Of this quota (which is within the maximum quota of 19,500 pursuant to Art.
1) 500 entries are for executives or highly qualified personnel, and 3,600 are for
citizens coming from countries that signed specific co-operation agreements with
Italy as far as migration is concerned, according to this list:
1,000 citizens from Albania;
600 citizens from Tunisia;
500 citizens from Morocco;
300 citizens from Egypt;
200 citizens from Nigeria;
200 citizens from Moldova;
500 citizens from Sri Lanka;
300 citizens from Bangladesh.
DPCM of 19 December 2003 (GU No. 18 of 23 January 2004)

Temporary planning of the quota of non-European Union seasonal workers
who can enter the territory of Italy during 2004;
DPCM of 19 December 2003 (GU No. 18 of 23 January 2004)

Temporary planning of the quota of non-European Union non-seasonal work-
ers who can enter the territory of Italy during 2004.
These two Decrees establish, for 2004, the maximum quota of non-EU work-
ers, both seasonal and non-seasonal, who can enter the territory of Italy.
The sum of these two quotas (50,000 for seasonal and 29,500 for non-sea-
sonal workers) derives from the number of authorisations established for the year
2003 by the Decrees of 20 December 2002 and of 6 June 2003 (see above), that is
79,500.
The Decree of 19 December 2003 therefore establishes that, for 2004, a maxi-
mum quota of 50,000 non-EU citizens residing abroad are allowed to enter the
territory of Italy for seasonal employment, in anticipation of meeting the maximum
quotas of entries of non-EU workers for 2004.
This quota, to be allocated among the Regions and Autonomous Provinces, ap-
plies to seasonally employed non-EU workers coming from countries whose acces-
sion to the EU has been accepted (i.e. Slovenia, Poland, Estonia, Latvia, Lithuania,
LEGISLATION 333
Czech Republic and Slovakia), from Serbia-Montenegro, Croatia, Bulgaria and

Romania as well as from those countries which already have or are to sign co-oper-
ation agreements with Italy concerning migration (i.e. Tunisia, Albania, Morocco,
Moldova and Egypt) and finally to those non-EU citizens with a residence permit
for seasonal employment in 2002 and 2003.
This Decree states that, after 30 June 2004, the need for a decree aimed at satis-
fying a further demand of seasonal workers will be taken into consideration.
The second Decree establishes for 2004 a maximum quota of 29,500 non-EU
citizens residing abroad to be allowed to enter the territory of Italy for self-employ-
ment and non-seasonal employment, in anticipation of the maximum quotas of
entries of non-EU workers for 2004.
This quota, to be allocated among the Regions and Autonomous Provinces,
takes into account the need for highly qualified and self-employed workers in par-
ticular economic sectors. Provision is made in Art. 17(1)(b) of Law No. 189/2002
(cf. IYIL, 2002, pp. 346-348), that a quota must be reserved to workers of Italian
origins, as included in an ad hoc list prepared by Italian diplomatic or consular
authorities.
The Decree provides that within this maximum quota of 29,500, 6,100 entries
are to be granted to non-EU non-seasonally employed workers, while 2,500 entries
are to be granted to self-employed workers as included in the listed sectors (i.e.
researchers, entrepreneurs whose activities are of interest for the national economy,
professionals, and internationally-known artists employed by public or private
organisations), allowing, for such cases and up to the maximum quota of 1,250,
the conversion of resident permits for study or professional training into resident
permits for self-employment.
The remaining part of the maximum quota of 29,500 is reserved for workers
of Italian origin residing in Argentina, Uruguay and Venezuela (400 workers), for
both non-seasonal employment and self-employment, and for non-seasonal em-
ployed workers coming from countries which already have or are to sign specific
co-operation agreements on migration (20,500 citizens, of which 500 executives or
highly qualified workers).
This quota is allocated according to this list:
3,000 citizens from Albania;
3,000 citizens from Tunisia;
2,500 citizens from Morocco;
2,000 citizens from Nigeria;
1,500 citizens from Egypt;
1,500 citizens from Moldova;
1,500 citizens from Sri Lanka;
1,500 citizens from Bangladesh;
1,000 citizens from Pakistan;
2,500 citizens from other non-EU countries which have signed agreements
aimed at the control and regulation of migration and readmission procedures.
DM of 14 July 2003 (GU No. 220 of 22 September 2003)

Provisions relating to the fight against illegal immigration.
This Decree is intended to set the guidelines for actions taken in order to pre-
vent and combat illegal immigration by sea.
Art. 1 establishes that, pursuant to the consolidated text concerning immigra-
tion and the legal status of aliens (cf. D.Lgs. No. 286/1998, IYIL, 1999, p. 320 ff.),
the actions of supervision and prevention of, and fight against, the illegal immigra-
tion by sea are to be carried out by aircrafts and ships of the Navy, Police forces and
port authorities (Capitanerie di porto).
All information collection and action co-ordination responsibilities are per-
formed by the so-called Central Office of Immigration and Border-patrol Police
(Direzione centrale dell’immigrazione e della Polizia delle frontiere), which was
established by Art. 35 of Law No. 189/2002, and to which local authorities must
promptly communicate all known information and data concerning ships that might
reasonably be suspected of being involved in the traffic or transport of migrants.
Art. 2 of the Decree describes the possible actions that Italian authorities may
carry out to prevent and combat the traffic of migrants by sea, in terms of monitor-
ing, aid or police intervention:
1) in the country of origin, a mainly diplomatic action aims at preventing the
phenomenon at source;
2) in international waters, the action has the different purposes of monitoring,
supervising, spotting and checking ships;
3) in territorial waters, the intervention of the competent authorities aims at dis-
covering the interconnections with transnational organisations dealing with illicit
traffics in order to sequester their property of illegal origin, as well as at repressing
offences.
Art. 3 defines the role of the naval units engaged in the monitoring activities,
both in the territorial and international waters, while Art. 4 is dedicated to the activ-
ity of surveillance.
The subsequent two articles are centred upon the types of activities in the vari-
ous zones of the sea: Art. 5 aims at preventing and fighting the illicit traffic of mi-
grants, in international waters, through the spotting and identification of suspected
ships, and at making the intervention of police forces in the territorial waters more
effective; Art. 6 establishes that the Finance Police (Guardia di Finanza) should
co-ordinate all the actions up to the limit of the contiguous zone.
Art. 7 reiterates the general principle that every action must aim to safeguard
human life and respect the dignity of the person.
Therefore a framework of security must be granted before any right of visit on
board a vessel is exercised (if the ship is in international waters the Ministry of Home
Affairs will have obtained prior authorisation from the flag country), and whenever
the use of force is required, the intensity and duration of the response must be propor-
tionate to the intensity of the offence, as well as to the effectiveness of the threat.
LEGISLATION 335
The last articles of this Decree concern the need to obtain the best possible in-
tegration and dissemination of information (Art. 8), to provide for advanced quali-
fication courses, both in Italy and abroad (Art. 9), and finally to identify the organs
responsible for the implementation of all the provisions.
(Cf. IYIL, 1999, pp. 315-335; and IYIL, 2002, pp. 346-350)
XI. HUMAN RIGHTS
Law No. 91 of 17 April 2003 (GU No. 96 of 26 April 2003)

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

Amendments to Art. 4 of Law No. 96 of 10 March 1955 concerning financial
contributions on behalf of victims of political and racial persecutions and of their
surviving relatives;
Law No. 107 of 15 May 2003 (GU No. 113 of 17 May 2003)
Establishment of a parliamentary enquiry commission on the reasons of the
disappearance of dossiers concerning Nazi crimes.
Law No. 107/2003 establishes a parliamentary enquiry commission to inves-

tigate why 695 dossiers concerning Nazi crimes committed against about 15,000
people during the Second World War had been “temporarily” pigeonholed and had
disappeared. In 1994 these dossiers were found at the general military prosecu-
tor’s office, at Cesi Palace in Rome. These dossiers should have been kept in the
archives of the abolished war tribunals and of the special Tribunal for the defence
of the State.
The parliamentary enquiry commission must perform its task within a year
from its establishment. At the end of its task the commission must submit a report
on the results achieved to the Parliament.
Legge costituzionale (constitutional amendment) adopted by Law No. 1 of 30

May 2003 (GU No. 134 of 12 June 2003)
Amendments to Art. 51(1) of the Italian Constitution concerning the equal
treatment between women and men.
Law No. 1/2003 provides for the equal treatment between women and men
with respect to access to public administrative and elective offices. Specifically, the
new text of Art. 51(1) of the Italian Constitution reads as follows: “To this end the
Republic promotes the equal treatment between women and men through special
acts”.
Law No. 174 of 8 July 2003 (GU No. 162 of 15 July 2003)
Enactment as a law of Decree-Law No. 111 of 21 May 2003 concerning the
extension of the provisions ensuring temporary hospitality and protection to some
Palestinians.
Art. 1 of Law No. 174/2003 extends until 31 December 2003 the deadline pro-
vided by Law No. 141/2002 for the temporary hospitality and protection in Italy of
three Palestinians on humanitarian grounds.
According to Art. 2 of Law No. 174/2003, these hospitality and protection
measures require the payment of EURO 400,000 for 2003. To this end, liquid as-
sets of the Ministry of Economy and Finance are to be partly employed.
(Cf. IYIL, 2002, p. 351)
Law No. 228 of 11 August 2003 (GU No. 195 of 23 August 2003)
Provisions against trafficking in persons.
Law No. 228/2003 modifies some articles of the Italian criminal procedure
code and of the Italian criminal code, in particular its Arts. 600, 601 and 602. These
Articles concern three different crimes, respectively the imposition and mainte-
nance of slavery (new Art. 600 of the Italian criminal code), the trafficking in per-
LEGISLATION 337
sons (new Art. 601), and the purchase and sale of slaves (new Art. 602). Law No.
228/2003 provides that whoever commits any of these crimes can be imprisoned
for a period of eight to twenty years. Law No. 228/2003 also provides that this
punishment is increased by one third or a half of the designated period if one of the
crimes in question is committed against minors or is directed at exploiting them for
prostitution or for removing a human organ.
Law No. 228/2003 clarifies the kind of conduct that would be classed as one of
the three crimes. This is an important novelty. The imposition and maintenance of
slavery is the basic crime, which is defined as the exercise on a person of “powers
corresponding to those of the property right” or as the maintenance of “a person
under continuous subjection, by forcing him or her to beg or imposing on him or
her forced labour or sexual or other forms of exploitation ”.
Organised crime directed to committing the crimes stated in Arts. 600, 601
and 602 is punishable by greater penalties than mafia organisation: promoters
belonging to a gang can be imprisoned from five to fifteen years (whereas pro-
moters belonging to a mafia organisation can be imprisoned from four to nine
years) and mere members of a gang can be imprisoned from four to nine years
(whereas mere members of a mafia organisation can be imprisoned from three to
six years).
According to Arts. 9 and 10 of Law No. 228/2003, the public prosecutor and
judicial police have extensive powers with respect to interceptions, secret activities
and protection measures in order to make the fight against trafficking in persons
more efficient.
Art. 12 of Law No. 228/2003 establishes a Fund against trafficking in persons,
to be administered by the Presidency of the Council of Ministers. This Fund is to
be employed to provide financial assistance and/or social integration programmes
to victims or social protection programmes (see, in this regard, Art. 18 of D.lgs.
No. 286/1998). This Fund includes money coming from the confiscation of goods
of crime organisations involved in trafficking in persons.
Art. 13 of Law No. 228/2003 establishes a programme for assisting victims of
crimes regulated by new Arts. 600 and 601 of the Italian criminal code.
(Cf. IYIL, 1999, pp. 337-343)

ECONOMIC MATTERS
1. FOREIGN TRADE
Deliberation of CIPE (Interministerial Committee for Economic Planning) No.

20 of 9 May 2003 (GU No. 187 of 13 August 2003)
According to Law No. 49 of 26 February 1987, the Interministerial Committee

for Economic Planning (hereinafter CIPE) must determine general trends concern-
ing co-operation for development, the corresponding program and co-ordination
functions. Furthermore, Art. 3 of Law No. 49/1987 specifies that CIPE has to
approve the annual report concerning policies related to co-operation for develop-
ment submitted by the Ministry of Foreign Affairs to the Parliament.
Deliberation No. 20 of 9 May 2003 approves the 2001 annual report concern-
ing the carrying out of policies related to co-operation for development.
Enactment as a law, with amendments, of Decree-Law No. 159 of 3 July 2003
concerning the prohibition of trade and ownership of arachnids that are highly
dangerous for human beings, i.e. all living arachnids that are wild or come from
captivity.
2. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES CONCERNING

POLITICAL AND MILITARY CO-OPERATION
Italian financial contribution to the Palestinian general delegation in Italy for
the functioning costs of its seat.
Art. 1 of Law No. 145/2003 authorises the payment of EURO 309,875 for each
year from 2002 to 2004 inclusive to the Palestinian general delegation in Italy for
the functioning costs of its seat in Italy. This financial contribution is of an ad hoc
nature.
Specifically, Art. 2 of Law No. 145/2003 authorises the payment of EURO
619,750 for 2003 and of EURO 309,875 for 2004. To this end, liquid assets of the
Ministry of Foreign Affairs are to be partly employed.
3. FINANCING OF INTERNATIONAL BODIES AND INITIATIVES CONCERNING

ECONOMIC AND FINANCIAL CO-OPERATION FOR DEVELOPMENT
Increase in the annual Italian financial contribution to the Executive Secretariat
of the Centre of information and documentation of the Central European Initiative
(CEI).
The Central European Initiative (CEI) is a sub-regional co-operation initiative

established by Austria, Italy, Hungary and Yugoslavia in 1989, as “Quadrilateral”
co-operation. Its membership increased to 10 by 1994, to 16 by 1996 and to 17
in 2000 with the accession of the Federal Republic of Yugoslavia. CEI works as
an inter-governmental forum for co-operation, in order to promote cohesion and
LEGISLATION 339
solidarity in Europe. Specifically, CEI is an integrated framework of dialogue,

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

4. FINANCING OF INTERNATIONAL AND DOMESTIC BODIES ESTABLISHED FOR THE

PURPOSES OF CULTURAL CO-OPERATION
Law No. 61 of 20 March 2003 (GU No. 83 of 9 April 2003)

Italian financial contribution to the performance of cultural joint events with
the Russian Federation and the Arab Republic of Egypt.
Art. 1(1) of Law No. 61/2003 provides that, in accordance with the arrange-
ments agreed to between Italy and the Russian Federation, during 2003, 2004 and
2005 the Ministry of Foreign Affairs and the Ministry of Cultural Heritage, with
the collaboration of the Russian authorities, shall organise exhibitions in Rome and
Moscow concerning the relationship between Italy and Russia over the course of
centuries.
To this end Art. 2(1) of Law No. 61/2003 authorises the payment of EURO
3,800,000 to be allocated in the following way: EURO 1,100,000 for 2003, EURO
1,900,000 for 2004 and EURO 800,000 for 2005. To satisfy this amount liquid as-
sets of the Ministry of Foreign Affairs are to be partly employed.
Art. 1(2) of Law No. 61/2003 provides that, in accordance with the arrange-
ments agreed to between Italy and the Arab Republic of Egypt, during 2003 and
2004 the Ministry of Foreign Affairs and the Ministry of Cultural Heritage, with
the collaboration of the Egyptian authorities, shall organise cultural events both in
Italy and Egypt in order to show their own cultures as well as their scientific and
cultural relationships.
To this end Art. 2(2) of Law No. 61/2003 authorises the payment of EURO
2,200,000 to be allocated in the following way: EURO 1,100,000 for 2003 and
EURO 1,100,000 for 2004. To satisfy this amount liquid assets of the Ministry of
Foreign Affairs are to be partly employed.
1. WORLD HEALTH ORGANIZATION
Enactment as a law, with amendments, of Decree-Law No. 103 of 9 May 2003
concerning urgent provisions concerning the Severe Acute Respiratory Syndrome
(SARS).
Art. 1(1) of Law No. 166/2003 provides that, during the emergency due to
SARS outbreak, passengers and staff of flights coming from the affected areas, as
determined by the World Health Organization, and staff of national airports and
ports that are assigned to dealing with the SARS emergency, must submit them-
selves to health control that, in doctors’ opinions, can include the taking of their
LEGISLATION 341
temperature and any other assessment or request for health and administrative
information.
If someone has suspected symptoms of SARS, as defined by the World Health
Organization, the procedures laid down by the international health regulation
adopted in Boston on 25 July 1969, as amended by the additional international
health regulation adopted in Geneva on 23 May 1973 (cf. Law No. 106 of 9 Febru-
ary 1982), apply.
According to Art. 2(1) of Law No 166/2003 the Italian Institute of Health
(Istituto superiore di sanità) is competent to approve diagnostic tests for SARS,
without any burden on the budget of the State.
2. INTERNATIONAL MONETARY FUND
(Cf. supra XV.3, Law No. 146 of 18 June 2003 as regards the provision of loans
on behalf of the “Poverty Reduction and Growth Facility” (PRGF))
Law No. 42 of 18 March 2003 (GU No. 66 of 20 March 2003)

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

Force, Enduring Freedom, the related Active Endeavour mission in Afghanistan
and the EU monitoring mission in the territories of the Former Yugoslavia.
The same extensions are granted to the personnel of the State Police involved
in the United Nations Mission in Kosovo and in the EU Police Mission in Bosnia-
Herzegovina, as well as to the programme of co-operation of Italian police forces
in Albania and in the Balkan Countries.
These two Laws provide for Italian participation in the peace conference on
Somalia and the peace negotiations on Sudan (Law No. 42/2003 authorises the
payment of EURO 141,319 and Law No. 231/2003 of EURO 229,251), and Art. 4
of Law 231/2003 further establishes that the Ministry of Foreign Affairs can carry
out international peace initiatives for the benefit of sub-Saharan Africa, up to a
maximum expense of EURO 5,200,000.
Art. 6 of Law No. 42/2003 authorises, until 31 December 2003, expenses up to
a maximum of EURO 5,165,000 to continue the activities of assistance to the Al-
banian armed forces, while the Italian military contingent in Kosovo is authorised
to continue, until the same date, the logistical support and training to a Romanian
infantry troop (Law No. 42/2003 provides for the payment of EURO 685,664, and
Law No. 231/2003 of EURO 697,029), pursuant to Law No. 15 of 27 February
2002 (cf. IYIL, 2002, pp. 361-362).
According to Security Council Resolution No. 1378 of 14 November 2001,
the Ministry of Defence is authorised to supply the Afghan Armed Forces with
materials, equipment and vehicles, excluding armaments which are no longer used
by Italy.
Art. 12 of Law No. 231/2003 establishes that the military personnel deployed
in the international operations Enduring Freedom and International Security As-
sistance Force be subject to the wartime military criminal code, as amended by
Law No. 6 of 31 January 2002 (cf. IYIL, 2002, p. 361), while the provisions of the
peacetime military criminal code apply to the military staff involved in the other
international operations referred to in this law.
The offences committed by a foreigner, in the Afghan territory, against the
Italian State or Italian citizens taking part in the international operations Enduring
Freedom and International Security Assistance Force will be prosecuted before the
Rome Tribunal, upon request of the Ministry of Justice, and after consulting the
Ministry of Defence in cases of crimes against personnel of the armed forces.
According to Art. 14 of Law No. 231/2003, the Ministers of Foreign Affairs
and of Defence are to inform the Parliament every six months on the international
operations, in terms of the objectives, results and effectiveness of the actions car-
ried out.
Finally, both Laws authorise the use of the reserve fund for unexpected ex-
penses to cover the costs resulting from the implementation of their provisions
(including the mission allowances accorded by Royal Decree No. 941 of 3 June
1926, as subsequently amended).
LEGISLATION 343
Enactment as a law, with amendments, of Decree-Law No. 165 of 10 July 2003
concerning urgent action on behalf of the Iraqi people, and extension of the Italian
participation in international military operations.
Art. 1 of Law No. 219/2003 provides for the establishment of a mission of hu-
manitarian aid and reconstruction in Iraq, aiming at ensuring the improvement of
the living conditions of the Iraqi population.
The areas particularly involved are:
a) the health sector, with the purpose of organising and enhancing the public
health system, with specific attention to activities preventing transmissible diseases;
b) the infrastructure sector, especially for water and energy supplies, as well as
streets, ports and airports;
c) the education sector, with the aim of providing the population with suitable
educational structures; and
d) the cultural sector, with emphasis on the conservation of the heritage of hu-
mankind, as well as the restoration of what has been damaged.
Law No. 219/2003 authorises the Ministry of Foreign Affairs to involve per-
sonnel in these activities that are not part of the public administration but have
specific, professional qualities, for instance experience in humanitarian non-gov-
ernmental organisations. Art. 3(6) grants volunteers deployed by the Italian Red
Cross in Iraq the right of protection against dismissal in Italy while involved in the
mission of humanitarian aid, for a maximum period of 90 days a year, as well as a
daily allowance of EURO 103,29.
For all these activities a sum of EURO 21,554,000 is provided.
Art. 6 authorises an amount of EURO 232,452,241, to be covered by the re-
serve fund for unexpected expenses, to send a military contingent to Iraq, with the
aim of granting the necessary security conditions for the humanitarian interven-
tions as well as contributing to the stabilisation of the Country.
Art. 6-bis requires the Ministers of Foreign Affairs and of Defence to inform
the Parliament, by 31 December 2003, regarding the results which have been ob-
tained as well as the effectiveness of the various activities carried out.
The military personnel involved in this operation are granted the mission
allowances accorded by Royal Decree No. 941 of 3 June 1926, as subsequently
amended, and are subject to the provisions of the wartime military criminal code
(cf. Laws No. 42/2003 and No. 231/2003 above, also regarding the prosecution of
crimes committed by foreigners, in the territory of Iraq, against the Italian State or
citizens involved in the international operations here-described).
Law No. 369 of 24 December 2003 (GU No. 8 of 12 January 2004)

Enactment as a law, with amendments, of Decree-Law No. 337 of 28 Novem-
ber 2003 concerning urgent measures for the benefit of military and civil victims of
terrorist attacks abroad.
Law No. 369/2003 has the purpose of providing financial aid to the families
of the victims of two terrorist attacks which took place in Nassirya, on 12 Novem-
ber 2003, and Istanbul, on 15 November 2003, as well as for the Italian civilians,
whose injuries have resulted in a permanent inability to work.
Law No. 369/2003 also increases the financial resources to assist the victims of
terrorism and criminal organisations and their relatives.
The relatives of the victims have to apply to the administrative chief of the
State Police (Prefetto) of the province where they reside, or to the relevant diplo-
matic or consular authority, upon which their application will be sent to the Minis-
try of Home Affairs.
Any compensation payable will not be subject to the taxation of a natural per-
sons’ income (IRPEF).
The budget for these measures is established at EURO 3,970,588 for the year
2003 and EURO 2,855,000 for the year 2004 and will be covered by a special
fund.
Amendments and integrations to Law No. 484 of 15 December 1998 concern-
ing the Treaty on the total ban of nuclear experiments.
Art. 1 of Law No. 197/2003 reiterates Art. 3 of Law No. 484 of 15 December
1998 (by which Italy ratified the Treaty on the total ban of nuclear experiments),
establishing the Ministry of Foreign Affairs as the National Authority, with the
support of the Ministry of Home Affairs, the Ministry of Defence, the Ministry of
Education, University and Scientific Research and the Ministry of Environment
and Territory, as well as of the agencies and departments with a particular compe-
tence in the technical surveillance of the national territory.
The amount authorised to finance activities to ban nuclear experiments is a
maximum of up to EURO 855,750 for the year 2003 and EURO 718,888 for the
year 2004.
This Law sets a framework to facilitate the inspections carried out by the
Organisation for the total ban of nuclear experiments and the National Authority,
establishing a duty of co-operation for the natural and legal persons involved.
In case of non co-operation, Art. 5 provides for forced implementation, to be
authorised by the competent tribunal, as well as for such consequences as incar-
ceration (two to five years) and a fine (EURO 25,000 to EURO 130,000).
Art. 6 finally provided a further sum of EURO 9,718,797 for the year 2002 and
provides EURO 5,886,226 from the year 2003, for the Organisation provided for
by Art. II of the Treaty on the total ban of nuclear experiments.
BIBLIOGRAPHIES
ITALIAN BIBLIOGRAPHICAL INDEX OF
INTERNATIONAL LAW 2003
(edited by Giulio Bartolini, Federico Lenzerini

and Massimiliano Montini)
This bibliography includes books and articles published during the year 2003,
with some exceptions going back to 2002.
Items are listed only once, under their most appropriate heading. Headings
correspond to the Classification Scheme adopted for the Italian practice relating to
international law.
Unless otherwise specified, texts are in the same language as corresponding
entries in the bibliography.
When available, translations of titles have been usually reproduced from the
original source.
The bibliography includes only works on public international law. Works 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.
TEXTBOOKS AND GENERAL SURVEYS
CARBONE S., LUZZATTO R. and SANTA MARIA A. (eds.), Istituzioni di diritto inter-
nazionale (Principles of International Law), 2nd ed., Torino, 2003, pp. 494.
CASSESE A. (GAETA P. ed.), Diritto internazionale (International Law), Bologna,
2003, pp. 370.
CONFORTI B., Scritti di diritto internazionale (Collection of Essays in International
Law), Napoli, 2003, 2 vols., pp. 720.
LUZZATTO R. and POCAR F., Codice di diritto internazionale pubblico (Code of
Public International Law), 3rd ed., Torino, 2003, pp. 586.
TANZI A., Introduzione al diritto internazionale contemporaneo (Introduction to
Contemporary International Law), Padova, 2003, pp. 534.
I. INTERNATIONAL LAW IN GENERAL AND INTERNATIONAL

CUSTOM
BARGIACCHI P., Contributo allo studio dei fattori giuridici e politici dell’ordine
internazionale (Contribution to the Study of the Legal and Politic Factors of
the International Order), Milano, 2003, pp. 254.
348 BIBLIOGRAPHIES
BARIATTI S., CURCIO M., LEANZA U., MACHETTA M. and RAIMONDI G., “The
Development of Public International Law Within Other International Organisa-
tions”, The Global Community – Yearbook of International Law & Jurispru-
dence, 2002, p. 1459 ff.
BARILLARO L., BOSCO G. and LEANZA U., “National Practice Related to Interna-
tional and European Community Courts”, The Global Community – Yearbook
of International Law & Jurisprudence, 2002, p. 1505 ff.
GRADONI L., “L’exploitation des principes généraux de droit dans la jurisprudence
des Tribunaux pénaux internationaux” (The Use of General Principles of Law
in the Case-Law of International Criminal Tribunals), in FRONZA E. and MA-
NACORDA S. (eds.), La justice pénale internationale dans les décisions des
tribunaux ad hoc (International Criminal Justice in the Context of the Case-
Law of Ad Hoc Courts), Milano, 2003, p. 10 ff.
IOVANE M., “The Activity of the International Law Commission During Its 54th
Session”, IYIL, 2002, p. 219 ff.
LEANZA U., “Un governo per la comunità statale in funzione della tutela degli in-
teressi individuali nella Società internazionale contemporanea” (Governing the
National Community in View of Protecting Individual Interests in Contempo-
rary International Society), in LABRIOLA S. (ed.), Ripensare lo Stato (Rethink-
ing the State), Milano, 2003, p. 435 ff.
MARCHESI A., Obblighi di condotta e obblighi di risultato. Contributo allo studio
degli obblighi internazionali (Obligations of Conduct and Obligations of Result.
Contribution to the Study of International Obligations), Milano, 2003, pp. 174.
MONTELEONE C., Le relazioni transatlantiche e la sicurezza internazionale (Trans-
atlantic Relations and International Security), Milano, 2003, pp. 211.
ODDENINO A., Pacta Sunt Servanda e buona fede nell’applicazione dei trattati in-
ternazionali. Spunti ricostruttivi (Pacta Sunt Servanda and Good Faith in the
Application of International Treaties. Some Remarks), Torino, 2003, pp. 180.
RONZITTI N., “Il potere estero tra indipendenza e libertà” (Foreign Power between
Independence and Liberty), in LABRIOLA S. (ed.), Ripensare lo Stato, Milano,
2003, p. 233 ff.
II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW
1. GENERAL
BELLELLI G.R., CHIAVARELLI E., CICIRIELLO M.C. and CURCIO M., “Multilateral
Treaties: Their Negotiation and Conclusion”, The Global Community – Year-
book of International Law & Jurisprudence, 2002, p. 1447 ff.
BELLELLI G.R. and LEANZA U., “The Progressive Development and Codification
of Public International Law within the United Nations”, The Global Commu-
nity – Yearbook of International Law & Jurisprudence, 2002, p. 1449 ff.
ITALIAN BIBLIOGRAPHICAL INDEX 2003 349
CHICCO FERRARO R.M. and LEANZA U., “Bilateral Treaties: Their Negotiation
and Conclusion”, The Global Community – Yearbook of International Law &
Jurisprudence, 2002, p. 1498 ff.
EBOLI V., “Il valore giuridico delle risoluzioni del Consiglio Atlantico alla luce
dell’art. 9 del Trattato NATO e il valore giuridico delle risoluzioni ed intese non
vincolanti (soft law)” (The Legal Significance of the Atlantic Council Resolu-
tions in the Light of Article 9 of the NATO Treaty and the Legal Significance of
Non-binding Resolutions and Understandings (Soft Law)), in RONZITTI N. (ed.),
Il diritto dei trattati nelle attività d’interesse delle Forze Armate (Law of Treaties
in the Activities of Interest to the Armed Forces), Latina, 2003, p. 199 ff.
EBOLI V., “La stipulazione di accordi relativi alle PSO e ai SOFA” (Stipulation of
Agreements relating to PSO and SOFA), in RONZITTI N. (ed.), Il diritto dei
trattati nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 217 ff.
GATTINI A., “Questioni di metodo nella revisione dei trattati” (Methodologies in
the Revision of Treaties), in Verso la Costituzione europea. Atti dell’incontro di
Studio. Urbino, 17 giugno 2002 (Towards the European Constitution. Proceed-
ings of the Urbino Meeting of 17 June 2002), Milano, 2003, p. 89 ff.
MANCINI M., “L’applicazione provvisoria degli accordi in materia di difesa”
(Provisional Application of Agreements on Defence), in RONZITTI N. (ed.), Il
diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003,
p. 97 ff.
MANCINI M., “L’attuazione degli accordi in materia di difesa” (Implementation of
Agreements on Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle at-
tività d’interesse delle Forze Armate, Latina, 2003, p. 119 ff.
MANCINI M., “La violazione delle norme interne sulla competenza a stipulare come
causa di invalidità degli accordi in materia di difesa” (Violation of Provisions
of Internal Law regarding Competence to Conclude Treaties as a Cause of In-
validity of Agreements on Defence), in RONZITTI N. (ed.), Il diritto dei trattati
nelle attività d’interesse delle Forze Armate, Latina, 2003, p. 133 ff.
PALAZZOLO E., Ordinamento costituzionale e formazione dei trattati internazio-
nali (Constitutional Order and Formation of International Treaties), Milano,
2003, pp. 430.
RONZITTI N. (ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate
(Law of Treaties in the Activities of Interest to the Armed Forces), Latina,
2003, pp. 264.
RONZITTI N., “Considerazioni introduttive” (Preliminary Remarks), in ID. (ed.), Il
diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina, 2003,
p. 17 ff.
VIRZO R., “Note sui procedimenti di formazione dei trattati in materia di interesse
militare nell’ordinamento italiano” (Remarks on the Procedures for the Forma-
tion of Treaties on Military Matters in the Italian Legal Order), in RONZITTI N.
(ed.), Il diritto dei trattati nelle attività d’interesse delle Forze Armate, Latina,
2003, p. 67 ff.
350 BIBLIOGRAPHIES
ZICCARDI CAPALDO G., “Treaty Law and National Law in a Globalizing System”,
The Global Community – Yearbook of International Law & Jurisprudence,
2002, p. 139 ff.
2. RESERVATIONS TO TREATIES
GAJA G., “Le riserve tardive ai trattati: un fenomeno a molti inviso (ma non sempre
visto bene)” (Late Treaty Reservations: A Phenomenon Widely Criticized but
not Always Correctly Appraised), RDI, 2003, p. 463 ff.
BIANCHI A., “Serious Violations of Human Rights and Foreign States’ Account-
ability Before Municipal Courts”, in VOHRAH L.C., POCAR F., FEATHERSTONE
Y., FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhu-
manity to Man. Essays on International Law in Honour of Antonio Cassese,
The Hague/Boston/London, 2003, p. 149 ff.
CANNIZZARO E., “La sovranità mista: l’UE e i suoi Stati membri come sog-
getti dell’ordinamento internazionale” (Mixed Sovereignty: The EU and
its Member States as Subjects of the International Legal Order), in SIDI,
L’internazionalizzazione dei mezzi di comunicazione e la sovranità statale (In-
ternationalisation of Media and State Sovereignty), Napoli, 2003, p. 13 ff.
CANNIZZARO E., “Le relazioni esterne delle Regioni nella legge di attuazione del nuovo
titolo V della Costituzione” (The Regions’ External Relations under the Law Im-
plementing the New Title V of the Italian Constitution), RDI, 2003, p. 759 ff.
CONDORELLI L., “La protection diplomatique et l’evolution de son domaine
d’application actuelle” (Diplomatic Protection and its Current Scope of Ap-
plication), RDI, 2003, p. 5 ff.
LEANZA U., “Le regioni nei rapporti internazionali e con l’Unione Europea a segui-
to della riforma del titolo V della Costituzione” (The Regions in International
Relations and and the Relations with the European Union after the Reform of
Title V of the Italian Constitution), CI, 2003, p. 211 ff.
NATALI A., “Considerazioni per una nozione unitaria di ‘Governo di fatto’ nel
diritto internazionale” (Remarks for an Unitarian Notion of ‘De Facto Govern-
ment’ in International Law), CI, 2003, p. 301 ff.
PILLITU P.A., “European ‘Sanctions’ against Zimbabwe’s Head of State and For-
eign Minister: A Blow to Personal Immunities of Senior State Officials?”, JICJ,
2003, p. 453 ff.
SCISO E., “La giurisdizione penale rispetto a fatti della Radio vaticana: non-inge-
renza o immunità?” (Criminal Jurisdiction over the Activities of the Vatican
Radio: Non-interference or Immunity?), RDI, 2003, p. 774 ff.
MEDICI L., “La diplomazia multilaterale italiana nel secondo dopoguerra: il caso
dell’ammissione dell’Italia all’UNESCO” (Multilateral Italian Diplomacy af-
ter World War II: the Case of the Admission of Italy to UNESCO), CI, 2003,
p. 69 ff.
V. TERRITORY
GIOIA A., “Recent Decisions by the International Court of Justice Relating to Ter-
ritorial and Boundary Disputes (1999-2002)”, IYIL, 2002, p. 149 ff.
PAPANICOLOPULU I., “In merito alla decisione della Corte Internazionale di Giustizia
nel caso relativo alla delimitazione marittima e alle questioni territoriali tra Qatar
e Bahrein” (On the ICJ Decision on the Case concerning Maritime Delimitation
and Territorial Questions between Qatar and Bahrein), DM, 2003, p. 76 ff.
VI. LAW OF THE SEA
BERLINGIERI F., “Sulla applicabilità della Convenzione del 1989 al ‘salvataggio’ di

tronchi di legno in un fiume” (On the Applicability of the 1989 Convention to
the Salvage of Logs in a River), DM, 2003, p. 274 ff.
BERLINGIERI F., “Sull’interpretazione delle parole ‘such damage’ dell’articolo 4
della Convenzione LLMC” (On the Interpretation of the Words ‘Such Damage’
in Article 4 of the LLMMC Convention), DM, 2003, p. 619 ff.
FRESE A., “Gli incidenti della navigazione: misure di tutela e prevenzione”
(The Accidents durig Navigation: Measures of Protection and Preven-
tion), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo
dall’inquinamento. Problemi vecchi e nuovi (The Protection of the Mediter-
ranean Sea from Pollution: Old and New Problems), Napoli, 2003, p. 123 ff.
PAPANICOLOPULU I., “The 2001 Decision of the International Court of Justice in
the Qatar v. Bahrain Case (Merits) and its Bearing upon the 1982 UN Conven-
tion on the Law of the Sea”, Revue hellénique de droit international, 2002, p.
385 ff.
SCHIANO DI PEPE L., “Diritto internazionale e traffico di migranti per mare: alcune
brevi note” (International Law and Trafficking of Migrants at Sea: Some Brief
Remarks), DM, 2003, p. 907 ff.
SCOVAZZI T., “La prevenzione degli incidenti di navigazione nell’attuale sistema di
diritto internazionale del mare” (The Prevention of Accidents during Naviga-
tion in the Present System of the International Law of the Sea), in CICIRIELLO
M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento. Problemi
vecchi e nuovi, Napoli, 2003, p. 93 ff.
352 BIBLIOGRAPHIES
TERRILE P., “La decisione del Tribunale del Mare nel caso ‘Grand Prince’” (The
Decision of the Tribunal for the Law of the Sea in the ‘Grand Prince’ case),
DM, 2003, p. 1232 ff.
TERRILE P., “La decisione del Tribunale del Mare nel caso ‘Mox Plant’” (The Deci-
sion of the Tribunal for the Law of the Sea in the ‘Mox Plant’ case), DM, 2003,
p. 1243 ff.
TREVES T., “The Exclusive Economic Zone and the Settlement of Disputes”, in
FRANCKX E. and GAUTIER P. (eds.), The Exclusive Economic Zone and the
United Nations Convention on the Law of the Sea, 1982-2000: a Preliminary
Assessment of State Practice, Bruxelles, 2003, p. 79 ff.
TREVES T., “The International Tribunal for the Law of the Sea (2002)”, IYIL, 2002,
p. 207 ff.
VII. ENVIRONMENT
BOSCO G., “The Optional Rules for Conciliation of Disputes relating to Natural
Resources and/or the Environment”, RCGI, 13/2003, p. 106 ff.
BURCHI S., “International Rivers and Lakes/Groundwater”, YIEL, 2002, p. 271 ff.
BUZZETTI M. G., “Il ruolo della Comunità europea nell’attuazione della Conven-
zione della flora e della fauna marina dell’Antartide (CCAMLR)” (The Role
of the European Community in the Implementation of the CCAMLR Conven-
tion), RGA, 2003, p. 621 ff.
CAMARDA G., “Misure preventive e di soccorso in tema d’inquinamento del mare
e sicurezza della navigazione” (Prevention and Intervention Measures with re-
gard to Sea Pollution and Safety of Navigation), RGA, 2003, p. 1087 ff.
CARBONE S.M., “La prevenzione dell’inquinamento marino tra regole di diritto
internazionale e diritto comunitario” (Prevention of Marine Pollution between
International Law and EC law), in CICIRIELLO M.C. (ed.), La protezione del
mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003,
p. 71 ff.
CATALDI G., “Brevi osservazioni su alcuni aspetti problematici della protezione
del Mar Mediterraneo dall’inquinamento” (Brief Remarks on Some Prob-
lematic Aspects Relating to the Protection of Mediterranean Sea from Pol-
llution), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo
dall’inquinamento. Problemi vecchi e nuovi, Napoli, 2003, p. 111 ff.
CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo dall’inquinamento.
Problemi vecchi e nuovi (The Protection of the Mediterranean Sea from Pollu-
tion: Old and New Problems), Napoli, 2003, pp. 316.
CICIRIELLO M.C., “L’applicazione del principio di sviluppo sostenibile al Mar Me-
diterraneo” (The Application of the Principle of Sustainable Development to the
Mediterranean Sea), in CICIRIELLO M.C. (ed.), La protezione del mare Mediter-
raneo dall’inquinamento. Problemi vecchi e nuovi, Napoli 2003, p. 115 ff.
FERRAJOLO O., “Les réunions des Etats Parties aux traités relatifs à la protection
de l’environment” (The Meetings of State Parties to Environmental Treaties),
RGDIP, 2003, p. 73 ff.
FODELLA A., “Il vertice di Johannesburg sullo sviluppo sostenibile” (The Johan-
nesburg Summit on Sustainable Development), RGA, 2003, p. 385 ff.
FRANCIONI F., “Dispute Avoidance in International Environmental Law”, in KISS A.
SHELTON D. and ISHIBASHI K. (eds.), Economic Globalization and Compliance
with International Environmental Agreements, The Hague, 2003, p. 229 ff.
FRANCIONI F. and MONTINI M., “Integrating Scientific Evidence into Environmen-
tal Law: The International Dimension”, in BIONDI A. et al. (eds.), Scientific Ev-
idence in European Environmental Rule Making, The Hague, 2003, p. 17 ff.
GARABELLO R., “Italy”, YIEL, 2002, p. 546 ff.
JACOMETTI V., “Rivalutazione degli strumenti proprietari a tutela dell’ambiente:
Tradable Pollution Rights and Emissions Trading” (Revaluation of Proprietary
Instruments for Environmental Protection: Pollution Rights and Emissions
Trading), RGA, 2003, p. 275 ff.
LEANZA U., “Il quadro giuridico di riferimento per la protezione del Mare Medi-
terraneo dall’inquinamento” (The Legal Context for the Protection of the
Mediterranean Sea from Pollution), in CICIRIELLO M.C. (ed.), La protezione
del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi, Napoli,
2003, p. 15 ff.
MIGIARRA M., “Note a margine del terzo Forum mondiale per l’acqua” (Some Re-
marks on the Third World Water Forum), RGA, 2003, p. 645 ff.
MONTINI M., “The Interplay Between the Right to Development and the Protection
of the Environment: Patterns and Instruments to Achieve Sustainable Develop-
ment in Practice”, African Yearbook of International Law, 2002, p. 181 ff.
MONTINI M., “Improving Compliance with Multilateral Environmental Agree-
ments through Positive Measures: The Case of the Kyoto Protocol on Climate
Change”, in KISS A. SHELTON D. and ISHIBASHI K. (eds.), Economic Globali-
zation and Compliance with International Environmental Agreements, The
Hague, 2003, p.157 ff.
MUCCI F., “L’approccio precauzionale a tutela dell’ambiente marino nel diritto in-
ternazionale e comunitario: tra disciplina sostanziale e soluzioni procedurali”
(The Precautionary Approach for the Protection of the Marine Environment
in International Law and EC Law: between Substantive Rules and Procedural
Solutions), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo
NENNA M., “Lo sviluppo sostenibile: da Rio a Johannesburg” (Sustainable Develop-
ment: from Rio to Johannesburg), Quaderni di studi europei, 2/2003, p. 65 ff.
NIOLA M., “Ambiente e sviluppo sostenibile nel Mediterraneo tra diritto inter-
nazionale e normativa italiana” (Environment and Sustainable Development
in the Mediterranean Sea between International Law and the Italian Legal
Order), in CICIRIELLO M.C. (ed.), La protezione del mare Mediterraneo
354 BIBLIOGRAPHIES

PALOMBINO F.M., “Il significato del principio ‘chi inquina paga’ nel diritto inter-
nazionale” (The Meaning of the Polluter Pays Principle in International Law),
RGA, 2003, p. 871 ff.
PAVONI R., “Accesso alle risorse fitogenetiche e diritti di proprietà intellettuale
dopo il Trattato della FAO del 2001” (Access to Plant Genetic Resources and
Intellectual Property Rights after the 2001 FAO Treaty), CI, 2003, p. 369 ff.
SCOVAZZI T., “Deep Seabed and Ocean Floor”, YIEL, 2002, p. 334 ff.
SICO L., “Profili di responsabilità da inquinamento nel Mar Mediterraneo” (Li-
ability for Pollution of the Mediterranean Sea), in CICIRIELLO M.C. (ed.), La
protezione del mare Mediterraneo dall’inquinamento. Problemi vecchi e nuovi,
Napoli, 2003, p. 83 ff.
SPATAFORA E., “La normativa internazionale sulla tutela dell’ambiente e la qualità
delle norme alla luce del d.d.l. n. 1798 del 19 ottobre 2000” (International En-
vironmental Law and the Quality of Legislation in the Light of Bill No. 1798
of 19 October 2000), RCGI, 13/2003, p. 53 ff.
VIGNI P., “The Antarctic Treaty System and Its Environmental Aspects”, Ceske
Pravo Zivotniho Prostredi, 2003, p. 68 ff.
VIII. CULTURAL HERITAGE
FRANCIONI F., “Thirty Years On: Is the World Heritage Convention Ready for the
21st Century?”, IYIL, 2002, p. 13 ff.
FRANCIONI F., “Guerra e patrimonio culturale” (War and Cultural Heritage), Il
giornale dell’arte, June 2003, p. 1.
FRANCIONI F. and LENZERINI F., “The Destruction of the Buddhas of Bamiyan and
International Law”, EJIL, 2003, p. 619 ff.
MUCCI F., “The Legal Protection of Cultural Heritage: A Comparative Analysis of
Some Mediterranean National Legislations in the Light of the Relevant Inter-
national Conventions”, CI, 2003, p. 287 ff.
SCOVAZZI T., “La Convention sur la protection du patrimoine culturel sub-aquati-
que” (The Convention on the Protection of the Underwater Cultural Heritage),
AFDI, 2002, p. 579 ff.
CIAMPI A., “Questioni concernenti l’applicabilità della Convenzione di Montreal

nel caso Lockerbie” (Questions Concerning the Applicability of the Montreal
Convention in the Lockerbie Case), RDI, 2003, p. 1043 ff.
DINUZZI R., “Il trattato sui cieli aperti” (The Treaty on Open Skies), CI, 2003, p.
97 ff.
BARATTA R., “La Convenzione delle Nazioni Unite sulla protezione dei lavoratori
migranti: quali ostacoli all’adesione dei Paesi di ricezione dei flussi migrato-
ri?” (The United Nations Convention on the Protection of the Rights of Mi-
grant Workers: What Obstacles to the Accession of States Receiving Flows of
Immigrants?), RDI, 2003, p. 764 ff.
SCOVAZZI T., “La lotta all’immigrazione clandestina alla luce del diritto interna-
zionale del mare” (The Fight against Illegal Immigration in the Light of the
International Law of the Sea), Diritto, immigrazione e cittadinanza, 4/2003, p.
48 ff.
ZANGHÌ C. (ed.), Immigrati e rifugiati nel Mediterraneo. La situazione in Sicilia
(Immigrants and Refugees in the Mediterranean Area. The Situation in Sicily),
Torino, 2003, pp. 280.
2. REFUGEES AND RIGHT TO ASYLUM
LENZERINI F., “Witch Hunting: The Influence of the Fear of Terrorism in the Imple-
mentation of Asylum Law”, IYIL, 2002, p. 95 ff.
XI. HUMAN RIGHTS
1. GENERAL
ANGIOI S., “Le dinamiche universalismo-regionalismo nei diritti umani e i loro

riflessi sulle relazioni euromediterranee: quali prospettive per un dialogo tra
Europa e mondo arabo?” (The Dynamics between Universalism and Regional-
ism in the Context of Human Rights and its Effects of the Euro-Mediterranean
Relations: Which Perspectives for a Dialogue between Europe and the Arab
World?), RIDU, 2003, p. 44 ff.
BLENGINO C., Il lavoro infantile e la disciplina del commercio internazionale
(Child Labour and International Trade Law), Milano, 2003, pp. 270.
BORRELLI S., “Terrorism and Human Rights: Treatment of Terrorist Suspects and
Limits on International Co-operation”, Leiden JIL, 2003, p. 803 ff.
CARLACCINI E., “Giustizia, verità, riconciliazione: le commissioni per la verità nel
mondo” (Justice, Truth, Reconciliation: The Truth Commissions in the World),
CI, 2003, p. 405 ff.
CASSESE A., I diritti umani nel mondo contemporaneo (Human Rights in the Con-
temporary World), 8th ed., Roma-Bari, 2003, pp. 172.
356 BIBLIOGRAPHIES
CRETA A., “Hostages in Their Own Land: Which Protection for Afghan IDPs in
the Operation Enduring Freedom?”, in DE GUTTRY A. (ed.), Oltre la reazione.
Complessità e limiti al terrorismo internazionale dopo l’11 settembre (Beyond
Reaction: Complexity and Limits to International Terrorism after September
11), Pisa, 2003, p. 293 ff.
GAJA G., “Rapporti tra trattati di estradizione e norme internazionali sui diritti
umani” (The Relationship between Extradition Treaties and Human Rights
Norms), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione:
atti del Convegno di studio organizzato dall’Università di Ferrara per salutare
Giovanni Battaglini (Human Rights, Extradition and Expulsion: Proceedings
of the Ferrara Meeting in Honour of Giovanni Battaglini), Padova, 2003, p.
125 ff.
LENZERINI F., “The Interplay between Environmental Protection and Human and
Peoples’ Rights in International Law”, African Yearbook of International Law,
2002, p. 63 ff.
NASCIMBENE B., “Le garanzie nel procedimento di espulsione dello straniero”
(Guarantees in the Expulsion Procedure of the Alien), in SALERNO F. (ed.),
Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio or-
ganizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova,
2003, p. 183 ff.
NIFOSI I., “Do the Conditions of Detention at Guantanamo Bay Amount to Torture
or Other Inhuman and degrading Treatment?”, in DE GUTTRY A. (ed.), Oltre la
reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settem-
bre, Pisa, 2003, p. 365 ff.
PECORARO M.L., La protezione internazionale delle minoranze (International Pro-
tection of Minorities), Napoli, 2003, pp. 268.
PICOTTI L., “I diritti fondamentali come oggetto e limite del diritto internazionale”
(Fundamental Rights as an Object and a Limit of International Law), Indice
penale, 2003, p. 259 ff.
PILLITU P.A., La tutela dei diritti dell’uomo e dei principi democratici nelle
relazioni della Comunità e dell’Unione europea con gli Stati ACP (Protection
of Human Rights and Democratic Principles in the Relations of the European
Community and the European Union with the ACP States), Torino, 2003, pp.
307.
POCAR F., “Patto internazionale sui diritti civili e politici ed estradizione” (Interna-
tional Covenant on Civil and Political Rigths and Extradition), in SALERNO F.
(ed.), Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio
organizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Pa-
dova, 2003, p. 79 ff.
POCAR F., “Human Rights under the International Covenant on Civil and Political
Rights and Armed Conflict”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y.
FORUMY O., GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhuman-
ity to Man. Essays on International Law in Honour of Antonio Cassese, The
Hague/Boston/London, 2003, p. 729 ff.

SIMONE P., La tutela internazionale delle minoranze nella sua evoluzione storica
(The Evolution of the International Protection of Minorities), Napoli, 2003,
pp. 206.
SPATAFORA E., CADIN R. and CARLETTI C., Sviluppo e diritti umani nella coopera-
zione internazionale. Lezioni sulla cooperazione internazionale per lo sviluppo
umano (Development and Human Rights in the Context of International Co-
operation. Lessons on International Co-operation for Human Development),
Torino, 2003, pp. 280.
STROZZI G., “Libertà di informazione e società dell’informazione” (Freedom of In-
formation and the Information Society), in SIDI, L’internazionalizzazione dei
mezzi di comunicazione e la sovranità statale (Internationalisation of Media
and State Sovereignty), Napoli, 2003, p. 49 ff.
ZAPPALÀ S., Human Rights in International Criminal Proceedings, Oxford, 2003,
pp. 280.
2. EUROPEAN SYSTEMS
La Corte europea dei diritti umani e l’esecuzione delle sue sentenze (The European
Court of Human Rights and the Implementation of Its Judgements), Napoli,
2003, pp. 192.
ALBEGGIANI F., “Convenzione europea dei diritti dell’uomo ed uso legittimo delle
armi” (The European Convention on Human Rights and the Legitimate Use of
Weapons), Foro It., 2003, p. 435 ff.
BERGAMINI E., “L’intervento amicus curiae: recenti evoluzioni di uno strumento
di common law fra Unione europea e Corte europea dei diritti dell’uomo” (The
Amicus Curiae Intervention: Recent Evolution of a Common Law Instrument
between the European Union and the European Court of Human Rights),
DCSI, 2003, p. 181 ff.
BONETALLI P., “I diritti umani dopo l’11 settembre 2001: il caso del Regno Unito”
(Human Rights after September 11: The Case of the United Kingdom), CI,
2003, p. 481 ff.
CALIFANO L., “La Costituzione europea e la Carta dei diritti fondamentali” (The
European Constitution and the Charter of Fundamental Rights), in Verso la
Costituzione europea. Atti dell’incontro di Studio. Urbino, 17 giugno 2002 (To-
wards the European Constitution: Proceedings of the Urbino Meeting of June
17, 2002), Milano, 2003, p. 17 ff.
CONFORTI B., “I limiti dell’immunità parlamentare secondo la Corte di Strasburgo”
(The Limits of Parlamentary Immunity according to the Strasbourg Court),
Giur. It., 2003, p. 1993 ff.
CONFORTI B., “Community Law and European Convention on Human Rights:
A Quest for Coordination”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y.
358 BIBLIOGRAPHIES
COSI A.R., “The Protection of Fundamental Rights in the European Multilevel Le-
gal Context”, CI, 2003, p. 109 ff.
DI STEFANO A., “Public Authority Liability in Negligence e diritto ad un ricorso
effettivo nell’ordinamento britannico. Nota alla sentenza della Corte europea
dei diritti dell’uomo nel caso Z. e altri contro Regno Unito” (Public Authority
Liability in Negligence and Right to an Effective Remedy in the British Legal
Order. Note on the ECHR Case Z. et al. v. the United Kingdom), RIDU, 2003,
p. 97 ff.
DORIGO S., “Equa riparazione ed eccessiva durata dei giudizi tributari” (Just Satis-
faction for the Violation of the Right to Trial within a Reasonable Time in Tax
Proceedings), RDI, 2003, p. 178 ff.
EBOLI V., “Gli effetti extraterritoriali della Convenzione europea dei diritti
dell’uomo” (The Extraterritorial Effects of the European Convention on Hu-
man Rights), Giur. It., 2003, p. 2427 ff.
ESPOSITO V., “La liberté des Etats dans le choix des moyens de mise en oeuvre
des arrêts de la Cour européenne des droits de l’homme” (State Fredoom in
the Choice of the Means of Implementation of the ECHR Decisions), RTDH,
2003, p. 823 ff.
GRANATA S., “Review of Judgments and Decisions Delivered by the European
Court of Human Rights in 2002 on Subjects Relevant to International Law”,
IYIL, 2002, p. 257 ff.
GRIGOLO M., “Sexualities and the ECHR: Introducing the Universal Legal Sub-
ject”, EJIL, 2003, p. 1023 ff.
LIGUORI A., “Garanzie procedurali e rispetto della vita familiare in un’importante
sentenza della Corte di Strasburgo” (Procedural Guarantees and Respect of
Family Life in an Important Judgment of the Strasboug Court), Giur. It., 2003,
p. 2009 ff.
MALINVERNI G., “I limiti all’espulsione secondo la Convenzione europea dei diritti
dell’uomo” (Limits to Expulsion according to the European Convention on
Human Rights), in SALERNO F., Diritti dell’uomo, estradizione ed espulsione:
Giovanni Battaglini, Padova, 2003, p. 165 ff.
MANACORDA S., “Restraints on Death Penalty in Europe: A Circular Process”,
JICJ, 2003, p. 263 ff.
PADELLETTI M.L., La tutela della proprietà nella Convenzione europea dei diritti
dell’uomo (The Protection of Private Property in the European Convention on
Human Rights), Milano, 2003, pp. 286.
PADELLETTI M.L., “Espropriazione e indennizzo nella Convenzione europea dei
diritti dell’uomo e nella Carta dei diritti fondamentali dell’Unione europea”
(Expropriation and Indemnity in the European Convention on Human Rights
and in the Charter of Fundamental Rights of the European Union), Studi senesi,
2003, p. 278 ff.
PADELLETTI M.L., “Ancora sulla legge Pinto: equa riparazione o indennizzo iniquo
per la durata irragionevole del processo?” (A Rejoinder on the Pinto Law: “Just
Satisfaction” or Inequitable Compensation for Unreasonable Length of Trial?),
RDI, 2003, p. 771 ff.
PADELLETTI M.L., “L’occupazione acquisitiva in relazione al principio di legalità
stabilito nella Convenzione europea dei diritti dell’uomo” (The Acquisitive
Occupation with regard to the Principle of Legality written in the European
Convention on Human Rights), Giur. It., 2003, p. 2244 ff.
SEATZU F., “Le modalità d’esame dei ricorsi dei privati in materia civile da parte
della Corte di Cassazione e l’art. 6, par. 1 (equo processo) della Convenzione
europea dei diritti dell’uomo: alcune osservazioni sulle sentenze della nuova
Corte europea nei casi Dulaurans e Annoni di Gussola e altri c. Francia”
(The Examination of Applications of Individuals in Civil Matters by the Ital-
ian Court of Cassation and Article 6(1) (fair process) of the European Con-
vention on Human Rights: Some Remarks on the Judgments of the ECHR in
the cases Dulaurans and Annoni di Gussola et al. v. France), RIDU, 2003,
p. 128 ff.
SEATZU F. and SCOTTO C., “La libertà di espressione, la Convenzione europea dei
diritti dell’uomo e il difensore” (Freedom of Expression, the European Con-
vention on Human Right and the Legal Counsel), CI, 2003, p. 561 ff.
STARACE V., “Convenzione europea dei diritti dell’uomo ed estradizione” (Extradi-
tion and the European Convention on Human Rights), in SALERNO F. (eds.),
Diritti dell’uomo, estradizione ed espulsione: atti del Convegno di studio or-
ganizzato dall’Università di Ferrara per salutare Giovanni Battaglini, Padova,
2003, p. 97 ff.
ZANGHÌ C., “Premières observations sur la Charte des droits fondamentaux de
l’Union européenne” (Preliminary Remarks on the Charter of Fundamental
Rights of the European Union), in Avancées et confins actuels des droits de
l’homme aux niveau international, européen et national: mélanges offerts à
Silvio Marcus Helmons (Developments and Present boundaries of Human
Rights Protection at International, European and National Level: Essays in
Honour of Silvio Marcus Helmos), Bruxelles, 2003, p. 377 ff.
3. BIOETHICS
CAMPIGLIO C., Procreazione assistita e famiglia nel diritto internazionale (As-

sisted Reproduction and Family in International Law), Padova, 2003, pp. 347.
PALAZZANI L., “I diritti ‘sessuali’ e ‘riproduttivi’: recenti istanze del femminismo
giuridico” (Sexual and Reproductive Rights: Recent Issues of Legal Femi-
nism)”, RIDU, 2003, p. 86 ff.
360 BIBLIOGRAPHIES
ALLEGREZZA S., “Les règles d’exclusion de la preuve testimoniale devant la

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

des tribunaux ad hoc, Milano, 2003, p. 146 ff.
CASSESE A., “International Criminal Law”, in EVANS M. (ed.), International Law,
Oxford, 2003, p. 721 ff.
CASSESE A., International Criminal Law, Oxford, 2003, pp. 472.
CASSESE A., “Quelques réflexions sur la justice pénale internationale” (Some
Remarks on International Criminal Justice), in FRONZA E. and MANACORDA
S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad
hoc, Milano, 2003, p. 283 ff.
CASSESE A., “The Belgian Court of Cassation v. the International Court of Justice:
The Sharon and others Case”, JICJ, 2003, p. 437 ff.
CASSESE A., “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of
Universal Jurisdiction”, JICJ, 2003, p. 589 ff.
CATENNACCI M., “Legalità” e “Tipicità del reato” nello Statuto della Corte Pe-
nale Internazionale” (Legality and Typicality of Crime in the Statute of the
International Criminal Court), Milano, 2003, pp. 228.
CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir (Inter-
national Criminal Justice between Past and Future), Milano, 2003, pp. 400.
CHIAVARIO M., “Droit de l’accusé… et autres dans la perspective de la justice
pénale internationale” (Right of the Accused… and Others in the Perspective
of International Criminal Justice), in CHIAVARIO M. (ed.), La justice pénale
internationale entre passé et avenir, Milano, 2003, p. 329 ff.
CONDORELLI L., “Responsabilité étatique et responsabilité individuelle pour
violations graves du droit international humanitarie” (State Responsibility and
Individual Responsibility for Gross Violations of International Humanitarian
Law), in VOHRAH L.C., POCAR F., FEATHERSTONE Y., FORUMY O., GRAHAM
C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Essays on
International Law in Honour of Antonio Cassese, The Hague/Boston/London,
2003, p. 211 ff.
CONDORELLI L., “L’obbligo generale degli Stati di cooperare al rispetto del dirit-
to internazionale umanitario e la Corte penale internazionale” (The General
Obligation of States to Co-operate for the Respect of International Humani-
tarian Law and the International Criminal Court), in SALERNO F., Diritti
dell’uomo, estradizione ed espulsione: atti del Convegno di studio organizzato
dall’Università di Ferrara per salutare Giovanni Battaglini, Padova, 2003, p.
13 ff.
CONVERTI A., “La responsabilità dei subordinati per i crimini commessi in esecu-
zione di ordini superiori” (The Responsibility of the Subordinates for Crimes
Committed in the Execution of Superior Orders), in CARLIZZI G., DELLA
CONVERTI A., “La cooperazione internazionale e l’assistenza giudiziaria nello Sta-
tuto della Corte penale internazionale” (International Co-operation and Judicial
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DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La Corte penale
internazionale. Problemi e prospettive (The International Criminal Court:
Problems and Perspectives), Napoli, 2003, p. 325 ff.
DE VITTOR F., “L’apport des Tribunaux penaux internationaux à la définition du
crime de torture” (The Contribution of International Criminal Tribunals to the
Definition of the Crime of Torture) in FRONZA E. and MANACORDA S. (eds.),
La justice pénale internationale dans les décisions des tribunaux ad hoc, Mi-
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DEAN F., Diritto penale internazionale (International Criminal Law), 3rd ed., Pe-
rugia, 2003, pp. 560.
DELLA MORTE G., “La potestà giurisdizionale della Corte penale internazionale:
complementarità, condizioni di procedibilità, soggetti legittimati a richiedere
l’esercizio dell’azione penale e ne bis in idem” (The Jurisdictional Competence
of the International Criminal Court: Complementarity, Conditions of Prosecut-
ability, Subjects Entititled to Request the Exercise of Criminal Jurisdiction
and ne bis in idem), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and
MARCHESI A. (eds.), La Corte penale internazionale. Problemi e prospettive,
Napoli, 2003, p. 1 ff.
DELLA MORTE G., “Le champ des conflits: réflexions autour de la compétence
ratione loci des Tribunaux pénaux internationaux” (The Field of Conflicts: Re-
marks on the Competence ratione loci of International Criminal Tribunals), in
FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans
les décisions des tribunaux ad hoc, Milano, 2003, p. 213 ff.
DONAT CATTIN D., “The Rights of Victims and International Criminal Justice”,
in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A. (eds.), La
Corte penale internazionale. Problemi e prospettive, Napoli, 2003, p. 347
ff.
FORNARI M., “Corte penale internazionale, Stati Uniti e Impunity Agreements”
(International Criminal Court, United States and Impunity Agreements), CI,
2003, p. 241 ff.
FRONZA E., “Il crimine di genocidio” (The Crime of Genocide), in CARLIZZI G.,
internazionale. Problemi e prospettive, Napoli, 2003, p. 61 ff.
FRONZA E. and GUILLOU N., “Les dynamiques d’élaboration des normes pénales
internationales: une analyse à partir de la jurisprudence sur le viol et la par-
ticipation criminelle” (The Dynamics of Elaboration of International Criminal
Norms: An Analysis of the Case-Law on Rape and Criminal Participation), in
CHIAVARIO M. (ed.), La justice pénale internationale entre passé et avenir,
Milano, 2003, p. 27 ff.
FRONZA E. and MANACORDA S. (eds.), La justice pénale internationale dans les
décisions des tribunaux ad hoc (International Criminal Justice in the Decisions
of the Ad Hoc Tribunals), Milano, 2003, pp. 360.
FRONZA E. and TRICOT J., “Fonction symbolique et droit pénal international: une
analyse du discours des Tribunaux pénaux internationaux” (Symbolic Function
and International Criminal Law: An Analysis of the Practice of the International
Criminal Tribunals), in FRONZA E. and MANACORDA S. (eds.), La justice pénale
internationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 292
ff.
GAETA P., “Ratione Materiae Immunities of Former Heads of State and Interna-
tional Crimes: The Hissène Habré Case”, JICJ, 2003, p. 186 ff.
GREPPI E., “La Cour pénale internationale et le droit international” (The Interna-
tional Criminal Court and International Law), in CHIAVARIO M. (ed.), La jus-
tice pénale internationale entre passé et avenir, Milano, 2003, p. 81 ff.
LANCIOTTI A., “Le pene comminabili dalla Corte penale internazionale” (The Pen-
alties Imposed by the International Criminal Court), in CARLIZZI G., DELLA
LAURENTI S., “Il principio di irretroattività e la giurisdizione della Corte penale
internazionale sui crimini a carattere permanente” (The Principle of Non-retro-
activity and the Jurisdiction of the International Criminal Court on Permanent
Crimes), in CARLIZZI G., DELLA MORTE G., LAURENTI S. and MARCHESI A.
(eds.), La Corte penale internazionale. Problemi e prospettive, Napoli, 2003,
p. 193 ff.
LEONETTI C., “La contribution des organisations non gouvernementales dans la
création du Statut de Rome” (The Contribution of Non-Governmental Or-
ganizations in the Drafting of the Rome Statute of the International Criminal
Court), in CHIAVARIO M. (ed.), La justice pénale internationale entre passé et
avenir, Milano, 2003, p. 141 ff.
LOLLINI A., “Les processus de judiciarisation de la résolution des conflits: les
alternatives” (The Process of Jurisditionalisation of Dispute Settlement: The
Alternatives), in FRONZA E. and MANACORDA S. (eds.), La justice pénale in-
ternationale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 312 ff.
MANACORDA S., “Les peines dans la pratique du Tribunal pénal international pour
l’ex-Yougoslavie: l’affaiblissement des principes et la quête de contrepoids”
(The Penalties in the Practice of the International Criminal Tribunal for the
Former Yugoslavia: The Weakening of Principles and the Absence of Counter-
balances), in FRONZA E. and MANACORDA S. (eds.), La justice pénale interna-
tionale dans les décisions des tribunaux ad hoc, Milano, 2003, p. 169 ff.
MANTOVANI F., “The General Principles of International Criminal Law: The View-
point of a National Criminal Lawyer”, JICJ, 2003, p. 26 ff.
MARINI G., “La responsabilité pénale individuelle devant les juridictions pénales
internationales: aspects introductifs” (Individual Criminal Responsibility be-
fore International Criminal Tribunals: Introductory Remarks), in FRONZA E.
and MANACORDA S. (eds.), La justice pénale internationale dans les décisions
des tribunaux ad hoc, Milano, 2003, p. 142 ff.
364 BIBLIOGRAPHIES
MASSIDDA P., “Appello e revisione” (Appeal and Revision), in CARLIZZI G.,

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

S. (eds.), La justice pénale internationale dans les décisions des tribunaux ad
hoc, Milano, 2003, p. 342 ff.
RIVELLO E., “Les principes généraux de droit et le droit international pénal” (The
General Principles of Law and International Criminal Law), in CHIAVARIO
M. (ed.), La justice pénale internationale entre passé et avenir (International
Criminal Justice between Past and Future), Milano, 2003, p. 89 ff.
RIVELLO P.P., “Le ‘risposte’ nazionali ai crimini di guerra: analisi di una serie di
incertezze e lacune” (National Responses to War Crimes: Remarks on Some
Uncertainties and Lacks), CI, 2003, p. 47 ff.
ROMANO C.P.R. and BOUTRUCHE T., “Tribunaux pénaux internationalisés: état des
lieux d’une justice ‘hybride’” (Internationalised Criminal Tribunals: The State
of an “Hybrid” Justice), RGDIP, 2003, p. 109 ff.
ROMANO C.P.R., “Mixed Jurisdictions for East Timor, Kosovo, Sierra Leone and
Cambodia: The Coming of Age of Internazionalized Criminal Bodies?”, The
Global Community – Yearbook of International Law & Jurisprudence, 2002,
p. 97 ff.
RONZITTI N., “L’estradizione nelle convenzioni sulla repressione dei crimini inter-
nazionali” (Extradition in the Conventions on the Repression of International
Crimes), in SALERNO F. (ed.), Diritti dell’uomo, estradizione ed espulsione:
Giovanni Battaglini, Padova, 2003, p. 37 ff.
SCALIOTTI M., “Mens Rea” (Mens Rea), in CARLIZZI G., DELLA MORTE G.,
LAURENTI S. and MARCHESI A. (eds.), La Corte penale internazionale. Proble-
mi e prospettive, Napoli, 2003, p. 305 ff.
SCOMPARIN L., “La victime du crime et la juridiction pénale internationale” (Vic-
tims of Crimes and International Criminal Jurisdiction), in CHIAVARIO M.
(ed.), La justice pénale internationale entre passé et avenir, Milano, 2003, p.
335 ff.
SICURELLA R., “Le principe nulla poena sine culpa dans le Statut de la Cour pénale
internationale” (The Principle nulla poena sine culpa in the Statute of the In-
ternational Criminal Court), in CHIAVARIO M. (ed.), La justice pénale interna-
tionale entre passé et avenir, Milano, 2003, p. 259 ff.
STARITA M., Processi di riconciliazione nazionale e diritto internazionale (Proc-
esses of National Reconciliation and International Law), Napoli, 2003, pp.
333.
ZAPPALÀ S., “The Reactions of the US to the Entry into Force of the ICC Statute:
Comments on UN SC Resolution 1422(2002) and Article 98 Agreements”,
JICJ, 2003, p. 114 ff.
ZAPPALÀ S., “Are Some Peacekeepers Better Than Others? UN Security Council
Resolution 1497(2003) and the ICC”, JICJ, 2003, p. 671 ff.
ZAPPALÀ S., “Le droit international humanitaire devant les tribunaux internatio-
naux des Nations Unies pour l’ex-Yougoslavie et le Rwanda” (International
366 BIBLIOGRAPHIES
Humanitarian Law before the International Criminal Tribunals for the Former
Yugoslavia and for Rwanda), in FLAUSS J. (ed.), Les nouvelles frontières du
droit international humanitaire (The New Frontiers of International Humani-
tarian Law), Bruxelles, 2003, p. 89 ff.
DORIGO S., “Quale responsabilità della Libia per il caso Lockerbie?” (What Title
for Libya’s Responsibility in the Lockerbie Case?), RDI, 2003, p. 1102 ff.
GAJA G., “Is a State Specially Affected when its National’s Human Rights are
Infringed?”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y., FORUMY O.,
GRAHAM C., HOCKING J. and ROBSON N. (eds.), Man’s Inhumanity to Man. Es-
says on International Law in Honour of Antonio Cassese, The Hague/Boston/
London, 2003, p. 373 ff.
XIV. INTERNATIONAL DISPUTE SETTLEMENT
DEL VECCHIO A., Giurisdizione internazionale e globalizzazione. I tribunali inter-

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

ment of Disputes which Involve States and Enterprises in the Global Economy:
Interstate Procedures and Arbitral Awards), in SIDI, L’internazionalizzazione
dei mezzi di comunicazione e la sovranità statale (Internationalisation of Me-
dia and State Sovereignty), Napoli, 2003, p. 97 ff.
SCAPARRO F., “Mediazione e soggetti mediatori nel diritto internazionale” (Media-
tion and Mediators in International Law), RCGI, 15/2003, p. 85 ff.
XV. COOPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

ECONOMIC MATTERS
1. JUDICIAL AND LEGAL CO-OPERATION
BARBERINI R. and BELLELLI G. R., Codice delle convenzioni internazionali e della

legislazione italiana sul terrorismo ed altri strumenti collegati (Code of Inter-
national Conventions and Italian Legislation on Terrorism and Other Related
Instruments), Napoli, 2003, pp. 1186.
CATALDI G., “Il caso Baraldini tra diritto interno e diritto internazionale” (The
Baraldini Case between Domestic and International Law), Rassegna di diritto
pubblico europeo, 2003, p. 219 ff.
CIAMPI A., L’assunzione di prove all’estero in materia penale (The Collection of
Evidence Abroad in Criminal Matters), Padova, 2003, pp. 669.
FRIGO M. and FUMAGALLI L., L’assistenza giudiziaria internazionale in materia ci-
vile (International Judicial Assistance in Civil Matters), Padova, 2003, pp. 389.
2. MILITARY AND SECURITY MATTERS
BARBERINI R., “Terrorismo e movimenti di liberazione nazionale: la Convenzione

globale contro il terrorismo” (Terrorism and National Liberation Movements:
The Global Convention against Terrorism), in DE GUTTRY A. (ed.), Oltre la
reazione. Complessità e limiti al terrorismo internazionale dopo l’11 settem-
bre, Pisa, 2003, p. 97 ff.
BARBERINI R., “La Convenzione delle Nazioni Unite contro il crimine organizzato
transnazionale” (The United Nations Convention Against Transnational Or-
ganized Crime), CI, 2003, p. 395 ff.
BARGIACCHI P., “Some Reflections about the Annan Plan for Cyprus”, RCGI, 15/
2003, p. 36 ff.
DE ROSE M.G., “La missione degli Alpini in Afghanistan” (The Mission of the
Alpini in Afghanistan), Studi senesi, 2003, p. 500 ff.
FULCINITI A., “The Rambouillet Conference between Negotiation and Imposition”,
RCGI, 13/2003, p. 118 ff.
368 BIBLIOGRAPHIES
PINESCHI L., “Esportazione, importazione e transito di materiale di armamento:

un’ambigua liberalizzazione del mercato delle armi nei rapporti tra l’Italia e gli
Stati membri dell’Unione Europea e della NATO” (Export, Import and Transit
of Weapons: An Ambigous Liberalization of the Market of Weapons Among
Italy and the Member States of the European Union and of the NATO), CI,
2003, p. 601 ff.
XVI. INTERNATIONAL TRADE LAW
ACCONCI P., “La Corporate Social Responsibility quale strumento di contrasto

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

Agriculture and the Cancun Conference), CI, 2003, p. 431 ff.
LENZERINI F. and MONTINI M., “The Activity of the World Trade Organization
(2002)”, IYIL, 2002, p. 243 ff.
MALAGUTI M.C., Crisi dei mercati finanziari e diritto internazionale (The Crisis of
Financial Markets and International Law), Milano, 2003, pp. 378.
MAURO M.R., Gli accordi bilaterali sulla promozione e la protezione degli investi-
menti (Bilateral Agreements on the Promotion and Protection of Investments),
Torino, 2003, pp. 418.
SACERDOTI G. (ed.), Responsabilità d’impresa e strumenti internazionali anticor-
ruzione (Corporate Responsibility and International Instruments Against Cor-
ruption), Milano, 2003, pp. 357.
VENTURINI G., “Le prospettive di elaborazione di un quadro giuridico multilaterale
in materia di concorrenza” (The Perspectives for the Elaboration of a Multilat-
eral Framework on Competition), in SIDI, L’internazionalizzazione dei mezzi
di comunicazione e la sovranità statale, Napoli, 2003, p. 145 ff.
1. GENERAL
BONVICINI G. and TOSATO G.L. (eds.), Le relazioni internazionali dell’Unione eu-

ropea dopo i Trattati di Amsterdam e Nizza (The External Relations of the Euro-
pean Union after the Treaties of Amsterdam and Nice), Torino, 2003, pp. 266.
PENNETTA P., Il regionalismo multipolare asiatico. Contributo al diritto della co-
operazione istituzionalizzata fra Stati (Asian Multipolar Regionalism. Contri-
bution to Institutionalized Cooperation Among States), Torino, 2003, pp. 487.
SAULLE M.R., Lezioni di organizzazione internazionale (Lectures on International
Organization Law), 2nd ed., Napoli, 2003, pp. 422.
SPATAFORA E., “Il ruolo delle organizzazioni regionali nel processo di globalizza-
zione” (The Role of Regional Organizations in the Globalization Process), in
ROMAGNOLI G.C. (ed.), Sovranità nazionale e regionalizzazione: saggi in me-
moria di Massimo Finoia (National Sovereignty and Regionalization: Essays
in Memory of Massimo Finoia), Milano, 2003, p. 170 ff.
SPATAFORA E. and CADIN R., Il codice delle organizzazioni internazionali a carat-
tere universale (Code of International Organizations of Universal Character),
Piacenza, 2003, pp. 610.
2. UNITED NATIONS
ARANGIO-RUIZ G., “The ICJ Statute, the Charter and Forms of Legality Review of
Security Council Decisions”, in VOHRAH L.C., POCAR F., FEATHERSTONE Y.,
370 BIBLIOGRAPHIES
DE GUTTRY A., “Il ruolo delle Nazioni Unite in Afghanistan dal ritiro sovietico
alla pax Americana” (The Role of the United Nations in Afghanistan from the
Soviet Union Withdrawal to the American pax), in DE GUTTRY A. (ed.), Oltre
la reazione. Complessità e limiti al terrorismo internazionale dopo l’11 set-
tembre, Pisa, 2003, p. 139 ff.
INGRAVALLO I., “L’ammissione della Svizzera all’ONU e la questione della neutra-
lità permanente” (The Admission of Switzerland to the United Nations and the
Problem of Permanent Neutrality), CI, 2003, p. 265 ff.
MILANO E., “Security Council Action in the Balkans: Reviewing the Legality of
Kosovo’s Territorial Status”, EJIL, 2003, p. 999 ff.
3. NATO
BARATTA R., “La protezione della Turchia in base all’art. 4 del Trattato NATO”
(The Protection of Turkey under Article 4 of the NATO Treaty), RDI, 2003, p.
174 ff.
GAZZINI T., “NATO’s Role in the Collective Security System”, Journal of Conflict
& Security Law, 2003, p. 231 ff.
4. OTHER INTERNATIONAL AGENCIES
CONFORTI B., DOMINICÉ C. and RESS G., “Les obligations des Etats membres
d’une organisation internationale à l’égard du système de pensions du person-
nel notamment en cas de dissolution de l’organisation ou de retrait d’un Etat
membre – le cas du CERN” (The Obligations of the Member States of an Inter-
national Organization with regard to the Retirement System for the Personnel
Especially in the Event of Extinction of the Organization or the Withdrawal of
a Member State: The Case of CERN), RGDIP, 2003, p. 801 ff.
PANELLA L., La privatizzazione delle organizzazioni internazionali di telecomuni-
cazioni via satellite (The Privatization of International Organizations for Satel-
lite Telecommunication), Milano, 2003, pp. 259.

LAW
ARANGIO-RUIZ G., “Dualism Revisited. International Law and Interindividual

Law”, RDI, 2003, p. 909 ff.
MAZZIOTTI DI CELSO M., “Sulla compatibilità dello Statuto della Corte penale inter-
nazionale con la Costituzione italiana” (On the Compatibility of the Statute of the
International Criminal Court with the Italian Constitution), CI, 2003, p. 3 ff.
SICO L., “L’esecuzione degli atti comunitari ed internazionali da parte dello Stato
e delle regioni” (The Implementation of European Community and Interna-
tional Legal Acts by the State and the Regions”, in GAMBINO S. (ed.), Il nuovo
ordinamento regionale: competenze e diritti (The New Regional Legal Order:
Competences and Rights), Milano, 2003, p. 137 ff.
Diplomazia preventiva e uso della forza nel nuovo scenario della sicurezza inter-
nazionale (Preventive Diplomacy and Use of Force in the New Scenario of
International Security), Napoli, 2003, pp. 140.
BERNARDINI A., “Iraq: illecita occupazione, resistenza popolare, autodeterminazio-
ne irakena” (Iraq: Illegal Occupation, Popular Resistence, Iraqi Self-determi-
nation), RCGI, 14/2003, p. 29 ff.
BRECCIA A. and MANFREDI M., “La partecipazione italiana alla missione ISAF: ini-
zia una nuova era nella gestione delle operazioni militari all’estero?” (The Italian
Participation to the ISAF Mission: A New Era in the Management of Military
Operations Abroad?), in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e
limiti al terrorismo internazionale dopo l’11 settembre, Pisa, 2003, p. 245 ff.
FOCARELLI C., “Integrazione europea e difesa comune” (European Integration and
Common Defence), in RONZITTI N. (ed.), Il diritto dei trattati nelle attività
d’interesse delle Forze Armate, Latina, 2003, p. 159 ff.
MAROTTA G., “La missione Nibbio in Afghanistan” (The Italian Mission “Nibbio”
in Afghanistan), RDI, 2003, p. 449 ff.
SCORDINO G., “The European Contribution to ISAF: Why Did the EU Miss Its
First Peacekeeping Operation?”, in DE GUTTRY A. (ed.), Oltre la reazione.
Complessità e limiti al terrorismo internazionale dopo l’11 settembre, Pisa,
2003, p. 201 ff.
VILLANI U., “The Security Council’s Authorization of Enforcement Action by Re-
gional Organizations”, Max Planck UNYB, 2002, p. 535 ff.
XX.WAR, NEUTRALITY, AND DISARMAMENT
1. GENERAL
ANNIBALE S., “La seconda Guerra, questa volta di aggressione, nei confronti
dell’Iraq” (The Second War, a War of Aggression, against Iraq), RCGI, 14/
2003, p. 67 ff.
372 BIBLIOGRAPHIES
CALORE A. (ed.), “Guerra ingiusta”? Le metamorfosi di un concetto antico (“Un-

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

ni di conflittualità e terrorismo” (Protection of the Human Being in Situations
of Conflicts and Terrorism), RIDU, 2003, p. 22 ff.

FRULLI M., “When Are States Liable Towards Individuals for Serious Violations of
Humanitarian Law? The Markovic Case”, JICJ, 2003, p. 406 ff.
GATTINI A., Le riparazioni di guerra nel diritto internazionale (The Reparations of
War in International Law), Padova, 2003, pp. 722.
GATTINI A., “To What Extent Are State Immunity and Non-Justiciability Major
Hurdles to Individual’s Claims for War Damage?”, JICJ, 2003, p. 348 ff.
GREPPI E. and VENTURINI G., Codice di diritto internazionale umanitario (Code of
International Humanitarian Law), Padova, 2003, pp. 424.
PISILLO MAZZESCHI R., “Reparations Claims by Individuals for State Breaches of
Humanitarian Law and Human Rights: An Overview”, JICJ, 2003, p. 339 ff.
RONZITTI N., “Compensation for Violations of the Law of War and Individual
Claims”, IYIL, 2002, p. 39 ff.
ROSCINI M., Le zone denuclearizzate (Nuclear-free Zones), Torino, 2003, pp. 448.
SALBERINI G., DELLA FINA V., FERRARO N., RASPADORI F. and DINUZZI R., “Cor-
respondent’s Reports – Italy”, YIHL, 2001, p. 557 ff.
SARTINI S., “Emergenza umanitaria in Africa: la crisi dei Grandi Laghi” (Humani-
tarian Emergency in Africa: The Great Lakes Crisis), CI, 2003, p. 317 ff.
SCISO E., “La condizione dei detenuti di Guantanamo fra diritto umanitario e ga-
ranzie dei diritti umani fondamentali” (The Status of Detainees in Guantanamo
Between International Humanitarian Law and International Guarantees for the
Protection of Fundamental Human Rights), RDI, 2003, p. 111 ff.
SOMMARIO E., “Legal Status and Treatment under International Humanitarian Law
of Individuals Apprehended in the Course of Operation Enduring Freedom”,
in DE GUTTRY A. (ed.), Oltre la reazione. Complessità e limiti al terrorismo
internazionale dopo l’11 settembre, Pisa, 2003, p. 323 ff.
VIERUCCI L., “Prisoners of War or Protected Persons qua Unlawful Combatants?
The Judicial Safeguards to Which Guantanamo Bay Detainees Are Entitled”,
JICJ, 2003, p. 284 ff.
3. DISARMAMENT
Il disarmo dell’Iraq tra guerra e diritto (The Disarmament of Iraq between War
and Law), Bari, 2003, pp. 88.
REVIEW OF BOOKS
MANUEL DÍEZ DE VELASCO, Instituciones de derecho internacional público

(Principles of Public International Law), 14th ed., Madrid, Editorial Tecnos S.A.,
2003, pp. 1024; JULIO D. GONZÁLEZ CAMPOS, LUIS I. SÁNCHEZ RODRÍGUEZ and
PAZ ANDRÉS SÁENZ DE SANTA MARÍA, Curso de derecho internacional público
(Course of Public International Law), 3rd ed., Madrid, Civitas Ediciones S.L.,
2003, pp. 1035.
These are two classic textbooks on international law. They are classic, not only
because they have become well established over time (especially the work by Pro-
fessor Díez de Velasco is at its fourteenth edition), but also because – notwithstand-
ing full updating and revision – they retain a classic structure and style. Particularly
worth of note is the thorough knowledge by the authors of the relevant literature in
all main scientific languages, which is a rare quality nowadays, especially among
Anglo-American writers, who often discover thesis already illustrated and dis-
cussed to a large extent by European continental scholars. The methodology used
by the authors is similar to that prevailing in Italy, namely a careful consideration
of practice, whose developments are however used also with a view to theoretical
argumentation.
The structure of the two works is rather similar (with some exceptions) and,
as said, follows a classic scheme in the presentation of the subject. Following an
introductory analysis of the salient features of the international community and of
the foundations of the binding character of international law, the sources of the law
are widely discussed: custom, treaties, acts of international organizations, and uni-
lateral acts. In this respect, a systematic difference in these textbooks relates to gen-
eral principles of law, the analysis of which is included by Díez de Velasco within
the sources (quite rightly, in my opinion), while González Campos et al. prefer to
examine them as a general character of the international legal order. Similarly, uni-
lateral acts are widely treated within the sources of law in both works, but, while in
González Campos et al. they are the subject of a specific chapter, in Díez de Velasco
they are questionably included within the chapter dealing with custom.
The remaining parts of the volumes are devoted to the topics of: the imple-
mentation (“reception” for Díez de Velasco, “integration” for González Campos et
al.) of international law within the domestic legal order, both in its general aspects
and in Spanish law; the subjects of international law, which treatment in González
Campos et al. is preceded by the theory of responsibility for wrongful acts, while
the latter is more appropriately illustrated by Díez de Velasco after the analysis of
substantive international law; the State organs competent for international rela-
tions; substantive international law (territory, law of the sea, treatment of aliens,
etc.), a subject analysed according to the theory of competence (the history of this
376 BIBLIOGRAPHIES
theory is accounted for in a magisterial way by Díez de Velasco, starting from the
celebrated 1905 article by Radnitzky); international co-operation and the protec-
tion of the environment; and international justice.
Since these works are of a general character, it is not necessary to go into detail,
nor to examine the solutions retained with respect to each specific sector. Suffice
it to say that these solutions always appear duly documented, well-argued and bal-
anced. Whoever undertakes research in international law will greatly benefit from
reading both books.
BENEDETTO CONFORTI*
MARIA ROSARIA MAURO, Gli accordi bilaterali sulla promozione e la prote-

zione degli investimenti (Bilateral Agreements on the Promotion and Protection of
Investments), Torino, Giappichelli, 2003, pp. 416.
This book, which expands considerably on the author’s PhD thesis undertaken
at the University of Rome “La Sapienza” under the guidance of Prof. Andrea Gia-
rdina, fills a vacuum in Italian legal literature. Although Italy is among the most ac-
tive industrialized countries among BIT (Bilateral Investment Treaties) signatories,
and several ICSID cases have involved Italian investors, there has so far been a lack
of up-to-date literature either covering the subject matter in general, or focusing
on the Italian treaty practice in particular. The book covers all the various aspects
of BITs systematically, putting them in an evolving perspective – from custom-
ary protection of foreign property to the failed attempts to establish a multilateral
regime. The six central chapters deal accordingly with BIT scope of application,
admission, treatment, transfer of capital and revenues, protection against non-com-
mercial risks (i.e. basically against expropriation), and dispute settlement.
Although BITs tend to be drafted in a repetitive structure, their provisions are
not identical, which poses problems when trying to derive from them common
principles in certain matters, or when considering their provisions as an example
of broadly recognized principles. The number of awards based on BITs and ap-
plying their various provisions adds to these difficulties. On the other hand, Dr.
Mauro does not shy away from this challenge. She considers that BITs are relevant
practice in order to ascertain customary law, although this does not mean that they
are per se evidence of opinio juris. They contribute undoubtedly to its progressive
development and may facilitate the inclusion of accepted rules in future multi-
lateral conventions (p. 29). A typical hurdle when approaching the matter of BIT
disciplines in comparative systematic terms, is the need to consider also sectoral
or regional multilateral agreements. The author appears to fully master this chal-
lenge. Thus, when dealing with admission, she accurately takes into account the
*
Of the Board of Editors.
REVIEW OF BOOKS 377
various domestic legislative approaches (promotion, control, screening, restric-

tions, performance requirements), regional liberalisation, encouragement (World
Bank Guidelines). She then goes on to compare the traditional BIT approach of
safeguarding the competence of the host State with the “liberal” approach of the
US treaties that includes an element of liberalization of market access for Foreign
Direct Investment (FDI). The conclusion is that BITs do not attribute to foreign
investors a right to invest; they restrict only marginally the freedom that host States
enjoy traditionally in this respect. In Dr. Mauro’s opinion, national treatment and
international protection of competition freedom would be more effective in the
perspective of equalizing conditions of operation for companies irrespective of
national origin (p. 142).
In this review, we would like to focus on issues where BITs rely heavily on
customary concepts, putting arbitration tribunals before difficult choices when ap-
plying them to specific cases. We refer foremost to the issue of “fair and equitable”
treatment, to which the author devotes several pages (pp. 181-193). In Mauro’s
view this standard is not a restatement of a pre-existing international standard but
requires from the host State a higher and more objective level of protection. The
basic question is then to determine a BIT’s content, the obligations that are thereby
undertaken by the host State. Such just and equitable treatment cannot be deter-
mined in the abstract. It must be determined on a case-by-case basis, taking into
account the kind of treatment extended de facto by the host country to nationals
and to foreigners. In view of the purpose and object of BITs, such treatment must
not hinder the promotion and protection of foreign investment; they are independ-
ent from other contingent standards but may in a given case coincide with some of
them. BITs thus have an absolute and a relative dimension. Finally the fair and eq-
uitable standard, being independent from other specific treaty regulations, informs
all the standards, thus becoming the minimum standard that BIT signatories must
afford to the foreign investor in all respects.
The present reviewer is not convinced that “fair and equitable” is not derived
from general international law, as a specification of the type of treatment currently
expected in favour of foreign investors generally. This standard may be of special
relevance to test the legality of discretionary measures of public authorities af-
fecting foreign investment, that do not breach other general standards or specific
obligations. The idea however that the object and purpose of BITs increase the ex-
pectations under the standard seems appropriate; the same for the indirect implica-
tion that this relative standard has in part to be tested against the national regulatory
framework so that it may impose different obligations upon different countries in
different contexts.
Similar difficult questions have been raised as to indirect expropriation and
the borderline between taking and regulation as to the obligation to indemnify the
affected foreign investor. Dr. Mauro refers to the criteria of effect and of purpose,
noting that the type of effect (the level of impact on the right of property) on for-
eign investment seems to be relied upon in arbitral case-law. In general she is of
378 BIBLIOGRAPHIES
the opinion that the standard of protection against indirect expropriation mandated
by BITs is indeed high, irrespective of the type of public purpose that motivates the
host State’s initiative.
Also worth noting is the accurate treatment of the different methods of evalua-
tion of expropriated property, an item that international lawyers prefer generally to
leave to other specialists (market value, discounted cash flow, replacement value,
book value, liquidation value). These technical standards are tested in the light of
various wordings used in BITs and of the indications derived from other instru-
ments. According to Dr. Mauro, except for definite treaty language, more than one
method may be admissible in a given case to ensure an indemnification correspond-
ing to a genuine, fair, market value of the assets taken.
This book not only provides precious up-to-date information on the “state of
the art” in the area covered; it also excels in forming balanced, well-grounded con-
clusions as to issues hotly debated at present in ICSID, NAFTA and other fora, as
well as in the current debate on the function and content of BITs.
GIORGIO SACERDOTI*
PIA ACCONCI, Il collegamento tra Stato e società in materia di investimenti

stranieri (The Link between the State and Companies regarding Foreign Invest-
ments), Padova, Cedam, 2002, pp. 391.
The author, an associate professor of international and European law at the

University of Teramo, addresses in this book one of the major issues concerning
diplomatic protection of companies and the regulation of foreign investment gen-
erally. Notwithstanding an impressive number of scholarly contributions, and an
extensive account of judicial, treaty and other practice since the Barcelona Traction
case, increased regulation of foreign investment in light of the changing political
and economic environment has not reduced conflicting views and solutions, so that
the issue remains of critical interest.
Prof. Acconci reviews developments in this field by commencing the intro-
ductory chapter with an analysis of the 1970 International Court of Justice (ICJ)
judgement based on customary international law. She shares the dominant view
that the Court upheld a genuine nationality-link test for companies, referring to do-
mestic law as the source of relevant criteria, thereby connecting a corporate entity,
as a rule, to the State that has endowed it with distinct legal personality (in casu
incorporation in Canada). The author considers however that the dominance of
multinational enterprises, especially as a vehicle for foreign investment in the form
of closely connected groups of companies incorporated in different jurisdictions,
*
REVIEW OF BOOKS 379
renders the formalistic criterion of the ICJ unsatisfactory and ineffective. Her anal-
ysis in the first chapter focuses on the domestic regulation of groups of companies
in selected jurisdictions which has developed and evolved substantially in the last
forty years. The conclusion is that, while the group is generally not recognized as
such, the fact that a company belongs to a group as a result of the control exercised
by another operative or holding company, is relevant for the purpose of attributing
rights and duties to the controlling parent in several key areas. Unitary management
or dominant influence appear to be the relevant criterion: they indicate the exist-
ence of a “single economic entity”, a concept which is pivotal in the regulation of
corporate activities by the European Community. In essence this means the parent
cannot escape responsibility for activities decided by it even if such actions may
be carried out by subsidiaries. On the other hand the separate legal existence of the
individual company is not discarded altogether.
Chapters II to IV go on to analyse the coverage of the issue of the relevant link
between a company operating and investing abroad and a given “national” State
in subsequent international regulation and judicial practice. Treaty developments
include the International Centre for the Settlement of Investment Disputes (ICSID)
and Multilateral Investment Guarantee Agency (MIGA) conventions, General
Agreement on Trade in Services (GATS) and the European Energy Charter, as
well as free trade agreements, such as the North American Free Trade Agreement
(NAFTA) and the Common Market of the South (Mercosur), and, finally, Bilateral
Investment Treaties (BITs). The study highlights different regulations depending
also on the scope of the various instruments. A common feature is however that the
link with the country of incorporation or establishment is supplemented by making
the “real” or controlling investor relevant. The corporate veil is thereby pierced,
by relying instead on a genuine economic link between such investor and a given
foreign State as a condition for granting the agreed rights and for legitimizing dip-
lomatic protection, or conversely for denying them where such a genuine economic
connection between the investor and the State of incorporation is lacking. The anal-
ysis of a number of non-binding instruments such as the OECD Guidelines for Mul-
tinational Enterprises of 1976 shows the relevance attributed to the international
grouping of companies subject to the “significant influence” of a parent company
for the purpose of the regulation of foreign controlled companies (Ch. III).
The practice of ICSID Tribunals and ad hoc Committees as well the Iran-US
Claims Tribunal as to the nationality of aggrieved investors is covered in detail in
Chapter IV. Art. 25(2)(b) of the ICSID Convention recognises control where com-
panies or nationals of other Contracting States have made an investment through
a locally incorporated entity and the foreign nature of the investment has been
recognized by the parties. This provision has by no means resolved the issue, as
evidenced by the many decisions concerning the nationality of the investor as a
prerequisite to determining jurisdiction. A common denominator, notwithstanding
the variety of situations discussed in the case law, is ownership of the majority of
the company’s capital. However tribunals have for some time investigated the deci-
380 BIBLIOGRAPHIES
sion-making structure to ascertain whether the claimant was indeed controlled by

an investor of a member State, in addition to majority ownership (Cable Television)
or notwithstanding minority ownership (Vivendi). As to the practice of the US-Iran
Tribunal (which the author examines in parallel with the UN Compensation Com-
mission), the US-Iran Declaration gives relevance both to incorporation in either
country and to majority ownership by nationals of that country. As to “indirect
claims” by US controlling parents of Iranian expropriated companies, the author
carefully reviews the equivocal case law on “actual control”.
It is a challenging task for a scholar to draw conclusions as to the state of in-
ternational law in a given area, when, as here, the evolution of treaty making and
practice has been massive but not fully coherent. This is natural in the decentral-
ized community of States, especially where divergent interests and approaches
have prevented the making of multilateral instruments of general application.
Still, we would share the author’s conclusions based on her detailed, impressive
(and highly useful) review of all available sources including, in the Italian tradi-
tion, accurate consideration of doctrinal contributions (p. 357 ff.); namely, that
practice tends to rely on substance rather than just formal incorporation in order to
link a corporate investor to the State to which it “belongs”, both for jurisdictional
purposes and in order to claim an agreed treatment. “Effective control” replaces in
Pia Acconci’s view the “close and permanent connection” based on incorporation
relied upon by the ICJ in the Barcelona Traction decision. “Effective control” can
be viewed as having a double function: first in order to pierce the corporate veil of
the direct local investor in order to consider as effective foreign investor the parent
company that exercises control thanks to majority shareholding but also through
management direction. The second question concerns the link between the real,
ultimate corporate investor and its own State. In this respect too the connection
must be both juridical (incorporation) and genuine in an economic sense; the lat-
ter predominantly as a minimum requirement, a kind of safeguard clause, possibly
in order to disregard any “incorporation of convenience”. Applying these tests to
the recent ICSID case Tokios Tokelés v. Ukraine of 2004, the dissenting opinion
of the Chairman of the Tribunal Prof. Prosper Weil, denying jurisdiction in a dis-
pute brought against Ukraine by a Lithuanian company fully owned by Ukrainian
investors, should probably be preferred to the contrary holding of the majority of
the arbitrators. Pia Acconci does not satisfy herself with only a technical analy-
sis: she relates this approach to the needs of the globalized economy, where host
countries have actively sought private foreign investment and have ceased raising
objections in principle. On the other hand, as she highlights in her recent paper
in English on the same subject (“Determining the Internationally Relevant Link
between a State and a Corporate Investor – Recent Trends concerning the Applica-
tion of the ‘Genuine Link’ Test”, Journal of World Investment & Trade, 2004, p.
139 ff.), the ongoing process of global deregulation and integration makes it dif-
ficult to always identify such a genuine economic link between a corporate group
and a given national economy. The legal dimension of such a link, extended to the
REVIEW OF BOOKS 381
group of companies when a multinational entity is involved, therefore retains its

value in our view.
This book is to be praised first of all for the accurate research and the system-
atic approach to covering the subject matter in its multifaceted aspects. Most of all
it presents convincing conclusions as to the function of the various criteria which
treaty drafters select and the practice has resorted to, highlighting the variable mix
that leads to optimum pursuance of objectives and to balancing conflicting interests
in case of disputes.
GIORGIO SACERDOTI*
*
BOOKS RECEIVED
CHIARA BLENGINO, Il lavoro infantile e la disciplina del commercio internaziona-

le, Milano, Giuffrè, 2003, pp. 270.
CRISTINA CAMPIGLIO, Procreazione assistita e famiglia nel diritto internazionale,

Padova, Cedam, 2003, pp. 347.
MASSIMO CONDINANZI, ALESSANDRA LANG and BRUNO NASCIMBENE, Cittadi-

nanza dell’Unione e libera circolazione delle persone, Milano, Giuffrè, 2003,
pp. 287.
NICOLAS DE SADELEER and CHARLES-HUBERT BORN, Droit international et com-

munautaire de la biodiversité, Paris, Dalloz, 2004, pp. 780.
PIERRE-MARIE DUPUY, L’unité de l’ordre juridique international, Cours général de

droit international public, Leiden, Martinus Nijhoff, 2003, pp. 496 (Recueil des
cours de l’Académie de droit international de La Haye, Vol. 297).
ALESSANDRO FODELLA, Il movimento transfrontaliero di rifiuti pericolosi nel dirit-

to internazionale, Torino, Giappichelli, 2004, pp. 427.
ROBERTA GARABELLO, La Convenzione UNESCO sulla protezione del patrimonio

culturale subacqueo, Milano, Giuffrè, 2004, pp. 484.
ALESSANDRA GIANELLI, Unione Europea e diritto internazionale consuetudinario,

Torino, Giappichelli, 2004, pp. 295.
MARIA LUISA PADELLETTI, La tutela della proprietà nella Convenzione europea

dei diritti dell’uomo, Milano, Giuffrè, 2003, pp. 286.
RICCARDO PAVONI, Biodiversità e biotecnologie nel diritto internazionale e comu-

nitario, Milano, Giuffrè, 2004, pp. 526.
PIERO PENNETTA, Il regionalismo multipolare asiatico. Contributo al diritto della

cooperazione istituzionalizzata fra Stati, Torino, Giappichelli, 2003, pp. 487.
PAOLA ANNA PILLITU, La tutela dei diritti dell’uomo e dei principi democratici
nelle relazioni della Comunità e dell’Unione europea con gli Stati ACP, Tori-
no, Giappichelli, 2003, pp. 307.
384 BIBLIOGRAPHIES
RICCARDO PISILLO MAZZESCHI, Esaurimento dei ricorsi interni e diritti umani,

Torino, Giappichelli, 2004, pp. 295.
MASSIMO STARITA, Processi di riconciliazione nazionale e diritto internazionale,

Napoli, Editoriale Scientifica, 2003, pp. 333.
NEIL WALKER (ed.), Sovereignty in Transition, Oxford/Portland, Hart Publishing,

2003, pp. 556.
INDEX*
African Union (AU)/Organization of Charter of the United Nations, 12, 99,

African Unity (OAU), 17, 18, 21, 281, 282 see also Self-defence
23, 24, 26, 28, 29, 30, 33
admission to the UN, 28
Charter of the AU, 25 Article 103, 188
Chapter VII, 26, 28, 33, 62, 63,
Aliens, treatment of, 44 see also Italy
72, 80, 82
illegal immigration, 276-278 fundamental principles, 29
threat to the peace under Article
Antarctic Treaty System 39, 63, 72
Madrid Protocol on Environmen-
tal Protection, 147, 154 Common heritage of humankind, 132-
133, 187
Secretariat, establishment of, 147
ff.
Convention on Climate Change, 154
Arab League, 21
Convention on Wetlands of Interna-
Asylum and refugees see also Italy tional Importance, 217
Geneva Convention on the Status

of Refugees, 268, 269 Council of Europe, 100, 209, 210
non refoulement, 269 Declaration on Cultural Diversity,
97, 113
Central European Initiative (CEI), Steering Committee for Human
338-339 Rights, 208
*
This Index has been compiled by Riccardo Pavoni. The most significant judicial cases and
legal instruments cited throughout the volume have also been included.
386 INDEX
Crimes against humanity/war crimes, Customary/general international law,

23, 31, 77, 78, 89 82, 83-85, 88, 90, 91, 92, 93, 144,
145, 159, 173, 174, 175, 187, 188,
special nature, 85 262, 377
universal jurisdiction, 142
cooperation in the protection of
the marine environment, 163-
Cultural property, international protec-
165
tion see also European Parliament;
European Union (EU)/European intentional destruction of cultural
Community (EC); United Nations heritage, prohibition of, 132-
Educational, Scientific and Cultural 140
Organization (UNESCO) jurisdictional immunity of foreign
States, 229, 230
Agreement on the Importation of
Educational, Scientific and North Sea Continental Shelf
Cultural Materials (Florence Cases, 134
Agreement), 102, 103 par in parem non habet jurisdic-
cultural diversity, 97 ff., 142, 144 tionem, 226
cultural industries, concept, 111-
112, 120-121 Dayton Peace Agreement, 83
Hague Convention for the Protec-
tion of Cultural Property in Diplomatic protection, 39 see also In-
the Event of Armed Conflict, ternational Law Commission
133, 136
Barcelona Traction case, 173,
individual criminal responsibility, 174, 267, 378-379, 380
142
exhaustion of local remedies, 175-
intentional destruction, 131 ff. 177, 267
Roerich Pact, 132 legal persons, 173-177
Second Protocol to the Hague nationality, 173-175, 267
Convention for the Protection
ships crew, 267
of Cultural Property in the
Event of Armed Conflict, 138
Dispute settlement, 187 see also Unit-
State responsibility, 142 ed Nations Convention on the Law
Underwater Cultural Heritage of the Sea (UNCLOS)
Convention, 133
competing jurisdictions, 167-168,
World Cultural and Natural Herit- 208-210
age Convention, 133, 134
Domestic jurisdiction, 144
INDEX 387
East Timor Panels, 88 right to individual application,

207-208
Environment, international protection right to liberty and security, 211
of, 44, 162-163 see also European right to life, 3-5, 215, 238-241
Court of Human Rights; Internation-
right to property, 235-237, 241-
al Law Commission; Precautionary
245
principle; Sustainable development
right to respect for private and
family life, 3, 5, 6, 216-219,
European Commission of Human 233-234
Rights, 4, 83, 251
European Convention on Mutual As-
European Committee for the Preven- sistance in Criminal Matters, 257-
tion of Torture and Inhuman or De- 258
grading Treatment or Punishment,
211
European Court of Human Rights, 87
European Convention on Human A. v. UK case, 5, 213

Rights see also European Union Bankoviü case, 215
(EU)/European Community (EC); Cordova v. Italy No. 1 and No. 2
Municipal law, relation to interna- cases, 213-214
tional law
effects of judgments in domestic
death penalty, 212-213 legal systems, 244, 245-246,
exhaustion of domestic remedies, 248-252
248 environmental cases, 216-220
inhuman and degrading treatment, Hatton case, 217-220
prohibition, 3, 5, 6, 212 Kiliç v. Turkey case, 5, 6
jurisdictional scope, 211 Kyrtatos case, 216-217
just satisfaction, non-pecuniary L.C.B. v. UK case, 6
damages, 250-251
Lopez Ostra case, 217
length of legal proceedings, Italy,
207, 245-252 margin of appreciation, 218, 238,
251
Protocol No. 6, 212
Markoviü case, 215-216
Protocol No. 11, 207
Mastromatteo case, 7
right of access to a court, 213-214,
215 Öcalan case, 210-213
right to a fair trial, 212 positive obligations, 3 ff., 220
right to an effective remedy, 219
388 INDEX
European Court of Human Rights communication on cultural diver-

(cont.) sity, 97 ff.
proportionality, 214, 236, 240, Cotonou Agreement with African,
241 Caribbean and Pacific (ACP)
States, 100-101, 286
Senator Lines case, 55
countermeasures, 53-54
Stocke case, 83
Culture 2000 Programme, 100
Tugar v. Italy case, 7
death penalty, 270, 286
X and Y v. The Netherlands case, 5
defence industry, 311-313
European Court of Justice, 109, 166, Draft Treaty Establishing a Con-
167, 169, 208, 209, 235, 236, 237 stitution for Europe, 99, 103,
115, 116, 129
European Energy Charter, 379 embargoes, 312
Estai case, 46
European Parliament, 122 European Convention on Human
Rights, relation to, 55, 208-
Resolution on Cultural Diversity, 210, 236-237, 239-240
121-122
immigration, 277-278
Resolution on Cultural Industries,
Joint Declaration on EU-UN
119-121
cooperation in crisis manage-
Resolution on the Television ment, 284
without Frontiers Directive,
law of the sea competences, 48,
117-118
166 ff.
European Union (EU)/European Com- legal nature, 40-43
munity (EC), 59, 128, 268, 294, 313, Malta’s accession, 296-298
379 see also International organiza- MEDIA PLUS Programme, 100
tions
mixed agreements, 49, 51-52
Area of freedom, security and privacy and security, 274-275
justice, 296
reaction to the US Helms-Burton
Charter of Fundamental Rights, Act, 44
99, 208-209, 233, 234
reservations to treaties, 50-52
Common Commercial Policy
(CCP), 103 Schengen Agreements, 258, 259,
277, 297
Common Foreign and Security
Policy (CFSP), 312 sharing of competences with
Member States, 43 ff., 166 ff.
INDEX 389
Treaty Establishing the European Humanitarian law, 23, 279, 289

Coal and Steel Community,
98, 116, 129 Protocols to the Geneva Conven-
tions, 136, 215
treaty-making power, 54, 272-273
serious violations, 77
White Paper on Governance, 106,
115
Human rights, 23, 77, 78, 80, 82, 90,
175, 267, 269, 279 see also Euro-
General Assembly of the United Na- pean Convention on Human Rights;
tions, 157, 172, 284 Italy
representation of States, 24, 25 conditionalities, 275-276, 286
request of an ICJ advisory opinion egregious/gross violations, 81, 87-
on the legal consequences of 88, 91, 92, 276
the construction of a wall in
the Occupied Palestinian Ter- equal treatment between women
ritory, 285 and men, 336
resolution on aggression, 68-69 freedom of expression, 276
freedom of religion, 276
General principles of law, 259 inhuman and degrading treatment,
275
acta sunt servanda, 180
minorities, 276
estoppel, 180
non-derogability, 213, 238
ex iniuria ius non oritur, 77
privacy, 231-234, 273-275
expressio unius est exclusio alte-
rius, 110, 115
Immunity, jurisdictional immunity
pacta sunt servanda, 180 of foreign States, 225-231 see also
Customary/general international
Genocide, 77, 89 law
Group of Eight Major Industrialised Institute of International Law

Countries (G8), 97, 108
Resolution on the extinction of
States, 19, 20
Hague Convention IV on land warfare,
135
Intergovernmental Authority for De-
velopment (IGAD), 25, 27, 33
Hague Convention IX on naval bom-
bardment, 135
International Council of Monuments
and Sites (ICOMOS), 135
390 INDEX
International Court of Justice, 67, 68, duty to cooperate, 82, 86

69, 86, 168 see also Customary/ enforcement of judgments, 253-
general international law; Diplo- 256
matic protection; General Assembly
of the United Nations; International Jokiü case (Dubrovnik), 137
organizations; Responsibility jurisdiction over illegally seized
accused, 77 ff.
Fisheries (Spain/Canada) case,
46 Kordic and Cerkez case, 137
Military and Paramilitary Activi- legal effect of decisions, 89-90
ties in and against Nicaragua legal nature, 80, 82-83
case, 68, 70, 71 Nikoliü case, 77 ff.
primacy over national courts, 86
International Covenant on Civil and
Political Rights, 103, 233, 234 Statute, 81, 82, 83, 86, 136, 138
Tadic case, 138
International Covenant on Economic,
Social and Cultural Rights, 103, International Labour Organization,
112-113, 118 103, 128
International Criminal Court (ICC), International Law Commission

88, 90, 91
diplomatic protection, 173-177,
compensation for unlawful arrest, 266-267
88, 91, 92 Draft Articles on State Respon-
European Union position, 279 sibility, 3, 9-10, 66-67, 79,
171, 172
Statute, 137, 138
Draft Code of Crimes Against the
International Criminal Tribunal for Peace and Security of Man-
Rwanda (ICTR), 88, 89 see also kind, 136
Italy fifty-fifth session, 171 ff.
Barayagwiza case, 80, 87 fragmentation of international
law, 187-188
Statute, 138
international liability for injurious
consequences arising out of
International Criminal Tribunal for the
acts not prohibited by inter-
Former Yugoslavia (ICTY)
national law, 177-179, 186,
Aleksovski case, 89 270-271
appeals, rules on, 80-81 reservations, 181-186, 265-266
INDEX 391
responsibility of international Southern Bluefin Tuna cases, 158,

organizations, 171-173, 271- 160, 161
273
shared natural resources, 186-187 International watercourses, 187
unilateral acts, 179-181
Investments, 175
International Monetary Fund, Poverty
Bilateral Investment Treaties
Reduction and Growth Facility, 339
(BITs), 376-378
bilateral treaty between Argentina
International Network for Cultural Di- and Italy, 227
versity (INCD), Draft Convention
on Cultural Diversity, 97, 124, 125 International Centre for the Settle-
ment of Investment Disputes
(ICSID), 378, 379, 380
International organizations see also
International Law Commission Iran/US Claims Tribunal, 379
legal personality, 38-40, 148, 149,
172 Italy see also European Convention
Reparation for Injuries advisory on Human Rights; Investments;
opinion, 39 Municipal law, relation to interna-
tional law
sui generis nature of the European
Union, 272-273 Agreement with the United Na-
tions on the enforcement of
International Telecommunication Un- judgments of the Internation-
ion (ITU), World Summit on the al Criminal Tribunal for the
Information Society, 97 Former Yugoslavia, 253
asylum law, 268-269
International Tribunal for the Law of committees of Italian citizens re-
the Sea, 157 ff. siding abroad, 328-329
Land Reclamation by Singapore entry quotas for immigrants, 331-
in and around the Straits of 333
Johor case, 158-166, 169 environment, allocation of com-
Mox Plant case, 159, 160, 162, petences between the State
163, 164, 166-169 and the Regions, 324-325
provisional measures, 161-162, illegal immigration by sea, 334
168-169 International Criminal Tribunal
Saiga No. 2 case, 158 for Rwanda, co-operation
with, 254-255
392 INDEX
Italy (cont.) Mercosur, 379

international missions, participa-
tion, 341-343 Montevideo Convention on the Rights
and Duties of States, 18-19
Italian Space Agency, 326-327
Lateran Treaty between Italy and
the Holy See, 228-229 Multilateral Investment Guarantee
Agency (MIGA), 379
participation to the Multinational
Force in Iraq, 290-292
Municipal law, relation to interna-
right to vote of Italian citizens re-
tional law
siding abroad, 329-330
slavery, 337 European Convention on Human
Rights, 216, 236, 237, 239-
structure of the Ministry of For-
241
eign Affairs, 323
priority of international law, 258-
treaty-making power of Regions,
259
260-263
self-executing rules, 236, 237,
Jurisdiction see also European Con- 247
vention on Human Rights; Inter- treaties and the Italian legal order,
national Criminal Tribunal for the 239-240
Former Yugoslavia (ICTY); United UN sanctions, implementation in
Nations Convention on the Law of Italy, 312
the Sea (UNCLOS)
acts of war, 215 NATO Stabilisation Force (SFOR),
78, 81, 82
Jus cogens, 50, 188
North American Free Trade Agree-
Law of the sea, 46-48 see also Euro- ment (NAFTA), 379
pean Union (EU)/European Com- cultural industries exception, 120
munity (EC)
freedom of the high seas, 47 North Atlantic Fishing Organization
(NAFO), 46
Straddling Stocks and Highly
Migratory Fish Stocks Agree-
ment, 51 North Atlantic Treaty Organization
(NATO), 60, 266, 287, 288, 313 see
Lex specialis, 175, 187, 188 also Sovereignty
bombings in Yugoslavia, 215
INDEX 393
North Atlantic Council, 287 causation/causality, principle of,

transformation, 293-294 4, 8-10
countermeasures, 70
Nuremberg Military Tribunal, 135 Diplomatic and Consular Staff in
Tehran case, 67
Organization for Economic Co-op- erga omnes obligations, 144, 188
eration and Development (OECD), Military and Paramilitary Activi-
Guidelines for Multinational Enter- ties in and against Nicaragua
prises, 379 case, 67
peace-keeping forces, 272
Organisation Internationale de la
primary and secondary rules, dis-
Francophonie, 97
tinction, 10
reparation, 9, 83
Organization of American States
(OAS), 60 restitutio in integrum, 86
Rogatory letters, 257-259

Organization of the Islamic Confer-
ence, 21
Secretary-General of the United Na-
tions, 17, 24, 26, 27, 279, 280, 284,
Outer Space, 178 291
position on the Iraqi crisis, 292-
Peace-keeping, 26
293
Multinational Force and Observ- report on the follow-up to the Mil-
ers, 317-318 lennium Declaration, 282
Permanent Court of International Jus- Sectoral Advisory Group on Interna-

tice see Sovereignty tional Trade (SAGIT), Report on
Cultural Diversity, 97, 124, 125,
Precautionary principle, 162, 164 127
Responsibility, 77, 177, 179, 218 see Security Council of the United Na-
also Cultural property, international tions, 17, 70, 80, 82, 83, 279, 280,
protection; European Union (EU)/ 290, 291, 317, 342 see also Self-
European Community (EC); Inter- defence
national Law Commission ad hoc criminal tribunals, 31, 253
attribution, 10, 61-69, 79-80, 81, collective security, 33, 73-74
82, 172, 272
394 INDEX
Security Council of the United Nations NATO military bases, 266

(cont.) seizure of criminals, 78, 80, 81,
Iraqi crisis, resolutions, 288-293 82-86, 211
reform, 282-284 temporary suspension, 33
relationship with non-members, theoretical foundation, 36-38
281
Special Court for Sierra Leone, 88,
relationship with other organs of
90, 138
the UN, 282
relationship with regional organi-
zations, 281-282 Statehood
Somalia, 24, 25, 26, 28, 31 elements, 18-21, 37
extinction, 19-21
Self-defence
failed States, 11 ff.
armed attack under Article 51 of recognition, 15-16, 22, 30, 179-
UN Charter, notion, 61, 66, 180
68, 69-71
Sambiaggio case, 19
pre-emptive self-defence, 74
State succession, 44
Security Council resolutions, 59-
suspended animation, 28 ff.
60, 62-63, 70, 72
September 11 attacks, 59 ff. Sustainable development, 99, 107,
time factor, 73-74 108
Self-determination, right to, 32 Terrorism, 61, 70, 73, 213, 274-275,

344
Sovereignty, 61, 229, 230, 231, 285,
290 Treaties, 271 see also European Union
Antarctica, 153 (EU)/European Community (EC);
Italy; Vienna Convention(s) on the
Austria-Germany Customs Re- Law of Treaties
gime case, 37
divided sovereignty, 40-43
Treaty on the total ban of nuclear ex-
exercise of, 20, 22, 23, 24 periments, 344
inviolability, 92
Island of Palmas case, 37 UN Commission on Human Rights,
monitoring of elections, 286-287 128, 270
INDEX 395
UN Human Rights Committee, 87 Universal Declaration on Cultural

Diversity, 97, 102, 103, 104,
108, 113, 125, 133
United Nations, 21, 23, 24, 29, 30, 40,
77, 92, 123, 293
Universal Declaration of Human
Financial Regulations, 158 Rights, 103, 104
intervention in Somalia, 17-18,
26, 27 UN Trusteeship system, 12
post-conflict peace operations,
279-280 Use of force/war, 177 see also Gener-
sanctions, 282, 312 al Assembly of the United Nations;
Sanctions Committees, 282 Self-defence; United Nations
aggression, 68
United Nations Compensation Com-
indirect aggression, 69 ff.
mission (UNCC), 380
Iraq, intervention, 287-294
United Nations Convention on the
Vienna Convention(s) on the Law of
Law of the Sea (UNCLOS), 267
Treaties, 126, 182, 183, 184, 186,
dispute settlement, 157-158 262, 265, 272 see also International
Law Commission
jurisdiction of the Annex VII tri-
bunal, 159-161 interpretation, 230, 255, 257, 259
provisional application of treaties,
United Nations Educational, Sci- 318
entific and Cultural Organization
(UNESCO), 99, 104, 110, 111,
World Health Organization, SARS
115, 124, 126, 127, 128, 135 see
emergency, 340-341
also Cultural property, international
protection
World Intellectual Property Organiza-
Convention for the Safeguarding tion (WIPO), 101, 115, 125
of the Intangible Cultural
Heritage, 107, 114 Intergovernmental Commit-
Declaration concerning the Inten- tee on Genetic Resources,
tional Destruction of Cultural Traditional Knowledge and
Heritage, 131 ff. Folklore/Traditional Cultural
Expressions, 101
Director-General, 131
396 INDEX
World Trade Organization (WTO), Anti-dumping Agreement, 192-

101, 102, 106, 108, 124, 125, 128, 193, 194
273 Apples case, 196-199
access to essential medicines/ Canada – Periodicals case, 113
Decision on the implemen- Decision on Differential and More
tation of paragraph 6 of the Favourable Treatment, Reci-
Doha Declaration on the procity and Fuller Participa-
TRIPs Agreement and public tion of Developing Countries,
health, 199-205 126
Agreement Establishing the WTO dispute settlement, 103, 189 ff.
(WTO Agreement), 100, 192
Dispute Settlement Body, 126,
Agreement on Agriculture, 191- 127
192
Doha Round, 107
Agreement on Safeguards, 194-
195 Fifth Ministerial Conference, 189
Agreement on Subsidies and General Agreement on Tariffs and
Countervailing Measures, Trade, 112, 192, 194, 195
191, 192 General Agreement on Trade in
Agreement on the Application of Services, 379
Sanitary and Phytosanitary TRIPs Agreement, 115, 126, 199
Measures, 196-199 ff.
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THE ITALIAN YEARBOOK OF INTERNATIONAL LAW

THE ITALIAN YEARBOOK OF INTERNATIONAL LAW

BENEDETTO CONFORTI, University of Napoli “Federico II”

Assistant Editor: RICCARDO PAVONI, University of Siena

MARTINUS NIJHOFF PUBLISHERS

Printed on acid-free paper.

© Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands

Authorization to photocopy items for internal or personal use is granted by Brill

Printed and bound in The Netherlands.

ROBERTO ADAM PASQUALE PAONE

GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF

FRAGMENTED SOVEREIGNTY? THE EUROPEAN UNION AND ITS

WAR IN AFGHANISTAN, SELF-DEFENCE AND QUESTIONS OF

THE ICTY APPEALS CHAMBER’S NIKOLIû DECISION ON LEGALITY

NOTES AND COMMENTS

THE UNESCO DECLARATION CONCERNING THE INTENTIONAL

THE ESTABLISHMENT OF THE SECRETARIAT OF THE ANTARCTIC

THE ACTIVITY OF THE INTERNATIONAL LAW COMMISSION DURING ITS

THE ACTIVITY OF THE WORLD TRADE ORGANIZATION (2003) 189

REVIEW OF JUDGMENTS AND DECISIONS DELIVERED IN 2003 BY THE

ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW

Classiﬁcations Scheme 223

II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW 225

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS

limitation to State sovereignty should be restrictively interpreted - Article 31 of

XI. HUMAN RIGHTS

Article 6 paragraph 2 of the Treaty on European Union - Preliminary ruling of

Right of Property - “Occupation-expropriation” rule - Article 1 of the First

Article 6 paragraph 1 of the European Convention on Human Rights and Fun-

XII. INTERNATIONAL CRIMINAL LAW 252

XIII. INTERNATIONAL RESPONSIBILITY 252

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

Execution of letters rogatory - Whether copies require ofﬁcial authentication

XVIII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW

DIPLOMATIC AND PARLIAMENTARY PRACTICE

II. LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

III. STATES AND OTHER INTERNATIONAL LAW SUBJECTS

X. TREATMENT OF ALIENS AND NATIONALITY

XI. HUMAN RIGHTS

XIII. INTERNATIONAL RESPONSIBILITY

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

XVII. INTERNATIONAL ORGANIZATIONS

XX. WAR, NEUTRALITY, AND DISARMAMENT

C. The Multinational Intervention in Iraq 288

AGREEMENTS TO WHICH ITALY IS A PARTY

A) AGREEMENTS SIGNED BY ITALY, PUBLISHED IN THE GAZZETTA

IV. DIPLOMATIC AND CONSULAR RELATIONS 295

VI. LAW OF THE SEA 296

VII. ENVIRONMENT 298

X. TREATMENT OF ALIENS AND NATIONALITY

XI. HUMAN RIGHTS 298

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

XVII. INTERNATIONAL ORGANIZATIONS

XIX. USE OF FORCE SHORT OF WAR AND PEACE-KEEPING 317

XX. WAR, NEUTRALITY, AND DISARMAMENT 319

B) AGREEMENTS SIGNED BY ITALY, PUBLISHED BEFORE 2003, THE ENTRY INTO

XV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-

XVII. INTERNATIONAL ORGANIZATIONS

XX. WAR, NEUTRALITY, AND DISARMAMENT 322

IV. DIPLOMATIC AND CONSULAR RELATIONS 323

VII. ENVIRONMENT 324

IX. AIR AND SPACE LAW 326

X. TREATMENT OF ALIENS AND NATIONALITY