Italian Yearbook of International Law 26 (2016)

Erscheinungsjahr 2017
ISBN: 978-90-04-36025-9
Verlag: Brill

Buch, Englisch, Band 26, 730 Seiten, Format (B × H): 160 mm x 236 mm, Gewicht: 1179 g

Reihe: Italian Yearbook of Internatio

Volume XXVI of the Italian Yearbook of International Law opens with a Focus on international law in regional and domestic legal systems, edited in cooperation with the Interest Group on “International Law in Domestic Legal Orders” of the Italian Society of International and European Union Law (SIDI). The volume further contains articles on the controversy over Istria’s cultural heritage, on the role played by human rights courts in countering abuses of power, and on the need to adopt a new regulatory approach to environmental law, as well as timely contributions on the judgment by the ECtHR’s Grand Chamber in Khlaifia v. Italy, on the Security Council’s reaction to the nuclear tests conducted by the Democratic People’s Republic of Korea, and on the Iraq (Chilcot) Inquiry Report. As in every volume the following sections, each containing a wealth of new information, are added: ‘Practice of International Courts and Tribunals’ and ‘Italian Practice Relating to International Law’.
The remaining part of the Volume contains a bibliographical index of Italian contributions to international law scholarship published in 2016, a book review section, and an analytical index for easy consultation and reference to materials cited in the Yearbook.

Published with the contributions of ENI and Tenaris.

Autoren/Hrsg.

Francioni, Francesco

Ronzitti, Natalino

Sacerdoti, Giorgio

Pavoni, Riccardo

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Öffentliches Recht, Völkerrecht, Internationale Organisationen

Inhaltsverzeichnis

LIST OF ABBREVIATIONS

Focus: INTERNATIONAL LAW IN REGIONAL AND DOMESTIC LEGAL SYSTEMS

INTRODUCTION, Massimo Iovane and Daniele Amoroso

A RUSSIAN APPROACH TO INTERNATIONAL LAW IN THE DOMESTIC LEGAL ORDER: BASICS, DEVELOPMENT AND PERSPECTIVES, Sergei Yu. Marochkin

INTERNATIONAL LAW IN THE TURKISH LEGAL ORDER: TRANSNATIONAL JUDICIAL DIALOGUE AND THE TURKISH CONSTITUTIONAL COURT, Ikboljon Qoraboyev and Emre Turkut

INTERNATIONAL TREATIES AND THE INDIAN LEGAL SYSTEM: NEW WAYS AHEAD, Vinai Kumar Singh

THE INTERFERENCE OF ICSID PROVISIONAL MEASURES WITH NATIONAL CRIMINAL PROCEEDINGS, Giovanni Zarra

REVOCATION OF ENDURING AMNESTIES VS. PRINCIPLE OF LEGALITY: JURISPRUDENTIAL CONTESTATIONS BETWEEN THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND DOMESTIC COURTS, Michail Vagias

BETWEEN VÖLKERRECHTSFREUNDLICHKEIT AND REALPOLITIK: THE EU AND TRADE AGREEMENTS COVERING OCCUPIED TERRITORIES, Eva Kassoti

THE LOAN OF ORGANS BETWEEN INTERNATIONAL ORGANIZATIONS AS A “NORMATIVE BRIDGE”: INSIGHTS FROM RECENT EU PRACTICE, Andrea Spagnolo

ON THE UNBEARABLE LIGHTNESS OF THE EFFECTS OF PUBLIC INTERNATIONAL LAW WITHIN THE ANDEAN LEGAL SYSTEM, Francesco Seatzu

ARTICLES

ISTRIA’S ARTISTIC AND SPIRITUAL HERITAGE IN ABEYANCE: INTERNATIONAL COOPERATION AND CULTURAL COMMUNITY RIGHTS, Francesca Fiorentini and Andrzej Jakubowski

CONVENTIONALITY CONTROL OF DOMESTIC “ABUSE OF POWER”: MAINTAINING HUMAN RIGHTS AND DEMOCRACY, Yota Negishi

THE DOUBLE FAILURE OF ENVIRONMENTAL REGULATION AND DEREGULATION AND THE NEED FOR ECOLOGICAL LAW, Massimiliano Montini

NOTES AND COMMENTS

A STEP BACK IN THE PROTECTION OF MIGRANTS’ RIGHTS: THE GRAND CHAMBER’S JUDGMENT IN KHLAIFIA V. ITALY, Maria Rosaria Mauro

THE NORTH KOREA’S GAUNTLET, INTERNATIONAL LAW AND THE NEW SANCTIONS IMPOSED BY THE SECURITY COUNCIL, Leonardo Borlini

THE UNITED KINGDOM’S INVOLVEMENT IN THE 2003 IRAQI WAR: JUS AD BELLUM AND JUS IN BELLO ISSUES BEFORE THE IRAQ (CHILCOT) INQUIRY, Stefano Silingardi

PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS

THE JUDICIAL ACTIVITY OF THE INTERNATIONAL COURT OF JUSTICE IN 2016, Serena Forlati

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA AND OTHER LAW OF THE SEA JURISDICTIONS (2016), Tullio Treves

INTERNATIONAL CRIMINAL JUSTICE (2016), Raffaella Nigro

THE WTO IN 2016: SYSTEMIC DEVELOPMENTS, DISPUTES AND REVIEW OF THE APPELLATE BODY’S REPORTS, edited by Giorgio Sacerdoti

THE RELEVANCE OF STATE INTERESTS IN RECENT ICSID PRACTICE, Giovanni Zarra

ITALIAN PRACTICE RELATING TO INTERNATIONAL LAW

Classification Scheme

JUDICIAL DECISIONS (edited by Daniele Amoroso and Andrea Caligiuri)

II. INTERNATIONAL CUSTOM, LAW OF TREATIES AND OTHER SOURCES OF INTERNATIONAL LAW

Articles 31-33 of the 1969 Vienna Convention on the Law of Treaties (VCLT) – Double taxation treaties – Article 17 of the 1989 Convention against Double Taxation between Italy and France – Determination of the exclusive or shared character of States’ taxing rights – Textual interpretation – Normative value of the OECD Commentary

Corte di Cassazione (Sez. tributaria civile), 24 November 2016, No. 23984

note by Loris Marotti

V. IMMUNITIES

Immunity of foreign States from jurisdiction – Article 2(2) of the Convention on Jurisdictional Immunities of States and Their Property – Commercial nature – Article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards – United Nations Security Council Resolutions 661 (1990) and 678 (1990)

Corte di Cassazione (Sezioni Unite Civili), 24 November 2015, No. 23893

Corte di Cassazione (Sezione I Civile), 27 May 2016, No. 11027

Government of the Republic of Iraq v. Armamenti e Aerospazio S.p.A. and others

note by Andrea Spagnolo

Immunity of consuls from civil jurisdiction – Articles 43 and 71 of the 1963 Vienna Convention on Consular Relations (VCCR) – Immunity of foreign States from jurisdiction

Corte di Cassazione (Sezioni Unite Civili), 4 February 2016, No. 2200

Angelo Tedeschi v. Maria Pullano

note by Pierfrancesco Rossi

Immunity of foreign States from jurisdiction – Vienna Convention on Diplomatic Relations of 18 April 1961 (VCDR) – Correspondence between Article 11 of the UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI) and customary international law – Article 10 of the Italian Constitution – Restrictive immunity

Corte di Cassazione (Sezioni Unite Civili), 9 June 2016, No. 11848

Ranasinghe Arachchige Neil Rohitha v. Embassy of the Republic of Korea to the Holy See

note by Pierfrancesco Rossi

XI. TREATMENT OF ALIENS AND NATIONALITY

International protection – Transfer of asylum seeker to Hungary – Systemic flaws – Article 3 of European Union (EU) Regulation 604/2013 – Article 4 Charter of Fundamental Rights of the EU (EU Charter) – Sovereignty clause

Consiglio di Stato (Sez. III), 27 September 2016, No. 4004

Omissis v. Ministero dell’Interno

note by Denise Venturi

XII. HUMAN RIGHTS

Ne bis in idem – Double prosecution regime (criminal/administrative) – Market abuse and tax legislation – Article 649 of the Italian Code of Criminal Procedure – Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR) – Article 117(1) of the Italian Constitution

Corte Costituzionale, 8 March 2016, No. 102

Garlsson srl in liquidazione and others v. Commissione nazionale per le società e la borsa (CONSOB)

Corte Costituzionale, 31 May 2016, No. 200

Criminal proceedings against Stephan Ernest Schmidheiny

Corte Costituzionale, 24 October 2016, No. 229 (order)

Criminal proceedings against Massimo Bianchi

note by Federica Musso

Surrogacy – Best interest of the child – Public policy – New York Convention on the Rights of the Child – Article 8 of the European Convention on Human Rights (ECHR)

Corte di Cassazione (Sez. I), 30 September 2016, No. 19599

Procuratore Generale della Repubblica presso la Corte di Appello di Torino v. B.L.I.M. and R.V.M.

note by Sara Tonolo

XIII. INTERNATIONAL CRIMINAL LAW

Crimes against humanity – Crime of massacre under Article 422 of the Italian Criminal Code – Inapplicability of statutory limitations – Article 7 of the European Convention on Human Rights (ECHR) – Radbruch’s Formula

Corte di Cassazione (Sez. II penale), 11 February 2016, No. 15107

Criminal proceedings against Giuseppe Esposito, Giuseppe Sarno, Luciano Sarno, Pasquale Sarno and Vincenzo Sarno

note by Francesca Capone

XVII. RELATIONSHIP BETWEEN MUNICIPAL AND INTERNATIONAL LAW

United Nations Convention on the Rights of Persons with Disabilities – Individual autonomy of the disabled person – Article 4(1) of the Special Statute for Trentino-Alto Adige – Obligation of result – Non self-executing treaties

Corte Costituzionale, 14 January 2016, No. 2

C.G. v. Comune di Tione di Trento

note by Daniele Amoroso

Consistent interpretation – Articles 3, 33, 34 and 56 of the Convention on Preventing and Combating Violence Against Women and Domestic Violence – Directive 2012/29/EU on the rights of the victims of crime – Interpretation of violent crimes as also encompassing psychological violence and stalking – Article 117(1) of the Italian Constitution – Article 408(3-bis) of the Italian Code of Criminal Procedure

Corte di Cassazione (Sezioni Unite Penali), 16 March 2016, No. 10959 559

Criminal proceedings against C.A.

note by Fulvia Staiano

XX. INTERNATIONAL RESPONSIBILITY

Execution of judgments of the European Court of Human Rights (ECtHR) – Financial liability for the payment of the just satisfaction afforded by the ECtHR to the injured party – Right of redress of the State against the local authority liable for breaches of the European Convention on Human Rights (ECHR) – Law No. 11/2005 – Attribution of the breach to the local authority – Scope and exercise of the right of redress

Corte Costituzionale, 21 September 2016, No. 219

Comune di San Ferdinando di Puglia v. Presidenza del Consiglio dei ministri and Ministero dell’economia e delle finanze

note by Alessandro Mario Amoroso

DIPLOMATIC AND PARLIAMENTARY PRACTICE (edited by Pietro Gargiulo, Marco Pertile and Paolo Turrini)

VII. LAW OF THE SEA

1. Negotiation and Signature of the Caen Agreement on the Delimitation of Territorial Waters and Maritime Jurisdiction between Italy and France (note by Alice Ruzza)

XI. TREATMENT OF ALIENS AND NATIONALITY

1. The Position of Italy on Large-Scale Migration: From the Migration Compact to the Principle of Shared Responsibility (note by Marco Pertile)

XII. HUMAN RIGHTS

1. The Promotion of Human Rights in the Italian Parliamentary Practice of 2016 (note by Chiara Tea Antoniazzi)

A. The Failed Military Coup and the Protection of Human Rights in Turkey

B. The Human Rights Situation in Burundi

C. The Human Rights Situation in Somalia

D. The Human Rights Situation in Saudi Arabia

E. The Human Rights Situation in the Russian Federation

F. The Human Rights Situation in Egypt

2. On the Inchoate Right to Human Dignity under International Law (note by Paolo Turrini)

XIV. CO-OPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-ECONOMIC MATTERS

1. The Government’s Position vis-à-vis Egypt on the Killing of the Italian National Giulio Regeni (note by Paolo Turrini)

2. The Italian Government’s Position on the Negotiation and Approval of CETA (note by Bianca Maganza)

XVI. INTERNATIONAL ORGANIZATIONS

1. The Position of Italy on the UNESCO’s Executive Board Decision on Occupied Palestine (note by Chiara Tea Antoniazzi and Marco Pertile)

XVIII. USE OF FORCE AND PEACE-KEEPING

1.The Legal Requirements for Military Intervention and for Humanitarian Assistance in Libya (note by Iotam Lerer)

XIX. ARMED CONFLICT, NEUTRALITY, AND DISARMAMENT

1. Italy’s Position on Sanctions against the Russian Federation (note by Marco Pertile)

2. The Parliamentary Practice of Italy on Arms Exports: The Cases of Libya, Somalia, Saudi Arabia, Qatar, Ukraine and Egypt (note by Riccardo Labianco)

A. The Case of Libya

B. The Case of Somalia

C. The Cases of Saudi Arabia and Qatar

D. The Cases of Egypt and Ukraine

XXI. INTERNATIONAL DISPUTE SETTLEMENT

1. Italy’s Initiatives in the Enrica Lexie Case Following the Order of ITLOS to Suspend National Court Proceedings Pending Arbitration (note by Alessio Gracis)

TREATY PRACTICE (edited by Marina Mancini)

VII. LAW OF THE SEA

The Agreement between France and Italy on the Delimitation of Maritime Frontiers (note by Natalino Ronzitti)

IX. CULTURAL HERITAGE

The Memorandum of Understanding between Italy and UNESCO on the Italian “Unite4Heritage” Task Force (note by Marina Mancini)

LEGISLATION (edited by Pia Acconci)

XI. TREATMENT OF ALIENS AND NATIONALITY

Legislative Decree No. 203 of 29 October 2016

New rules on entry and stay of non-EU seasonal workers (note by Gianluca Rubagotti)

XII. HUMAN RIGHTS

Law No. 115 of 16 June 2016

Criminalization of Holocaust denial (note by Giorgio Sacerdoti)

Law No. 76 of 11 May 2016

Regulation of civil unions between same-sex persons (note by Alessandro Perfetti)

XIV. COOPERATION IN JUDICIAL, LEGAL, SECURITY, AND SOCIO-ECONOMIC MATTERS

Law No. 153 of 28 July 2016

Italian implementation of international counter-terrorism treaties (note by Chiara Cipolletti)

BIBLIOGRAPHIES

ITALIAN BIBLIOGRAPHICAL INDEX OF INTERNATIONAL LAW 2016 (edited by Giulio Bartolini and Alessandro Chechi)

REVIEW OF BOOKS (edited by Marco Gestri)

Francesca Capone, Reparations for Child Victims of Armed Conflict: State of the Field and Current Challenges, Cambridge, Intersentia, 2017 (Christine Bakker); Andrea Spagnolo, L’attribuzione delle condotte illecite nelle operazioni militari dell’Unione europea, Napoli, Editoriale Scientifica, 2016 (Federico Casolari); Robert Kolb, Theory of International Law, Oxford/Portland, Hart Publishing, 2016 (Lorenzo Gradoni); Attila M. Tanzi, International Law. A Concise Introduction, Bologna, Bonomo Editore, 2017 (Iotam Lerer); Vladyslav Lanovoy, Complicity and Its Limits in the Law of International Responsibility, Oxford, Hart Publishing, 2016 (Eduardo Savarese).

INDEX