Pub Date : 2022-12-23DOI: 10.1163/27725650-02020010
Francesca Maoli
This contribution examines a recent ruling of the Italian Corte di Cassazione, concerning the recognition of parentage resulting from medically assisted procreation (“map”) techniques performed abroad by female same-sex couples. In cases where the birth of the child occurs in Italy, the Italian birth certificate usually contains the indication of the woman who gave birth, but does not mention the intentional mother, even when the latter has a biological relationship with the child. The Corte di Cassazione has confirmed its consolidated position in denying the amendment of the birth certificate, on the basis of a rigorous interpretation of the limits provided by the Law No. 40/2004. The Italian law prohibits the access of map techniques by same-sex couples, because their condition cannot be equated to a pathological infertility. The ruling under review overlooks the human rights implications possibly deriving from the recognition of intentional motherhood: in rejecting the allegations concerning the infringment of the fundamental rights enshrined by the European Convention on Human Rights (“echr”), the court has stated that the gaps in protection that may result from the application of Italian law may only be solved through an intervention of the lawmaker.
{"title":"Medically Assisted Procreation and Same-Sex Couples: The Italian Corte di Cassazione Stands its Ground","authors":"Francesca Maoli","doi":"10.1163/27725650-02020010","DOIUrl":"https://doi.org/10.1163/27725650-02020010","url":null,"abstract":"\u0000This contribution examines a recent ruling of the Italian Corte di Cassazione, concerning the recognition of parentage resulting from medically assisted procreation (“map”) techniques performed abroad by female same-sex couples. In cases where the birth of the child occurs in Italy, the Italian birth certificate usually contains the indication of the woman who gave birth, but does not mention the intentional mother, even when the latter has a biological relationship with the child. The Corte di Cassazione has confirmed its consolidated position in denying the amendment of the birth certificate, on the basis of a rigorous interpretation of the limits provided by the Law No. 40/2004. The Italian law prohibits the access of map techniques by same-sex couples, because their condition cannot be equated to a pathological infertility. The ruling under review overlooks the human rights implications possibly deriving from the recognition of intentional motherhood: in rejecting the allegations concerning the infringment of the fundamental rights enshrined by the European Convention on Human Rights (“echr”), the court has stated that the gaps in protection that may result from the application of Italian law may only be solved through an intervention of the lawmaker.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129767476","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-21DOI: 10.1163/27725650-02020013
M. La Manna
The review examines a recent publication on the International and EU law regimes governing environmental criminality. Following the structure of the book, the review accounts for both regimes, first by examining the main multilateral environmental agreements (“mea s”) accounted for in the first part of the publication, i.e. the Cites, Basel, and Marpol Conventions, then moving onto the relevant pieces of legislation under EU law, i.e. the Environmental Crime Directive and the Pollution from Ships Directive, only to acknowledge, consistently with the authors of the publication under review, the need for clearer and more stringent criminal provisions, coupled with enhanced forms of international cooperation, involving States, agencies, and international organizations alike.
{"title":"Poachers, Smugglers, Polluters and Other Environmental Criminals.","authors":"M. La Manna","doi":"10.1163/27725650-02020013","DOIUrl":"https://doi.org/10.1163/27725650-02020013","url":null,"abstract":"\u0000The review examines a recent publication on the International and EU law regimes governing environmental criminality. Following the structure of the book, the review accounts for both regimes, first by examining the main multilateral environmental agreements (“mea s”) accounted for in the first part of the publication, i.e. the Cites, Basel, and Marpol Conventions, then moving onto the relevant pieces of legislation under EU law, i.e. the Environmental Crime Directive and the Pollution from Ships Directive, only to acknowledge, consistently with the authors of the publication under review, the need for clearer and more stringent criminal provisions, coupled with enhanced forms of international cooperation, involving States, agencies, and international organizations alike.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131293297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-19DOI: 10.1163/27725650-02020002
A. Pin
Drawing mainly from the common law tradition, the article identifies the notion and the normative value of precedent, summarizes its historical development, and distinguishes between its application in the fields of case law, constitutional law, and statutory legislation. It then ponders the pros and cons of precedent-based adjudication and the institutional and ethical requisites for its application. It finally considers the recent phenomena of arbitration courts and para-judicial institutions that patrol the web, which seem to resist the logic and ramifications of precedent-bound adjudication.
{"title":"The (In)evitability of Precedent","authors":"A. Pin","doi":"10.1163/27725650-02020002","DOIUrl":"https://doi.org/10.1163/27725650-02020002","url":null,"abstract":"\u0000Drawing mainly from the common law tradition, the article identifies the notion and the normative value of precedent, summarizes its historical development, and distinguishes between its application in the fields of case law, constitutional law, and statutory legislation. It then ponders the pros and cons of precedent-based adjudication and the institutional and ethical requisites for its application. It finally considers the recent phenomena of arbitration courts and para-judicial institutions that patrol the web, which seem to resist the logic and ramifications of precedent-bound adjudication.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125013919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-19DOI: 10.1163/27725650-02020005
Niccolò Lanzoni
The role played by precedents in international law is usually addressed with regard to their bearing on other judicial decisions and their contribution to the development of international law. Recently, the International Tribunal for the Law of the Sea (“itlos”) has offered a novel interpretation of the legal effects of the International Court of Justice’s (“icj”) advisory opinions as precedents. In Mauritius/Maldives, the itlos rejected two of the Maldives’ preliminary objections – based on the existence of a dispute between Mauritius and the United Kingdom over the sovereignty of the Chagos Islands – , arguing that the 2019 icj advisory opinion on the separation of the Chagos Archipelago from Mauritius had resolved the dispute in favour of the latter. In light of the itlos’s decision, the present contribution is aimed to provide some reflections on the authority of icj advisory opinions as precedents and on their legal effects in international law.
{"title":"The Authority of icj Advisory Opinions as Precedents: The Mauritius/Maldives Case","authors":"Niccolò Lanzoni","doi":"10.1163/27725650-02020005","DOIUrl":"https://doi.org/10.1163/27725650-02020005","url":null,"abstract":"\u0000The role played by precedents in international law is usually addressed with regard to their bearing on other judicial decisions and their contribution to the development of international law. Recently, the International Tribunal for the Law of the Sea (“itlos”) has offered a novel interpretation of the legal effects of the International Court of Justice’s (“icj”) advisory opinions as precedents. In Mauritius/Maldives, the itlos rejected two of the Maldives’ preliminary objections – based on the existence of a dispute between Mauritius and the United Kingdom over the sovereignty of the Chagos Islands – , arguing that the 2019 icj advisory opinion on the separation of the Chagos Archipelago from Mauritius had resolved the dispute in favour of the latter. In light of the itlos’s decision, the present contribution is aimed to provide some reflections on the authority of icj advisory opinions as precedents and on their legal effects in international law.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131031917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-19DOI: 10.1163/27725650-02020004
Khrystyna Gavrysh
The recent practice of the European Court of Human Rights to follow, in its case law, legal statements made in the exercise of its new advisory competence pursuant to Additional Protocol No. 16 raises some considerable issues. The most important of such issues regards the possibility for principles of law established by the Strasbourg Court to be recognized as judicial precedents within the European Convention of Human Rights system, which is the object of this paper. For this purpose, the analysis will focus not only on the approach of the European Court of Human Rights, but also on that of the Italian judicial authorities, which developed a particularly innovative case law at this regard. Finally, it will also consider the experience of other international judicial bodies, in order to draw some general conclusions on the contribution of advisory opinions to the development of international law.
{"title":"Establishing Judicial Precedents Through Advisory Opinions of the European Court of Human Rights","authors":"Khrystyna Gavrysh","doi":"10.1163/27725650-02020004","DOIUrl":"https://doi.org/10.1163/27725650-02020004","url":null,"abstract":"\u0000The recent practice of the European Court of Human Rights to follow, in its case law, legal statements made in the exercise of its new advisory competence pursuant to Additional Protocol No. 16 raises some considerable issues. The most important of such issues regards the possibility for principles of law established by the Strasbourg Court to be recognized as judicial precedents within the European Convention of Human Rights system, which is the object of this paper. For this purpose, the analysis will focus not only on the approach of the European Court of Human Rights, but also on that of the Italian judicial authorities, which developed a particularly innovative case law at this regard. Finally, it will also consider the experience of other international judicial bodies, in order to draw some general conclusions on the contribution of advisory opinions to the development of international law.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117310136","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-19DOI: 10.1163/27725650-02020008
Niccolò Zugliani
The present article enquires whether arbitral “precedent” plays any part in the identification of the applicable standard of review by arbitral tribunals. It does so by surveying a selected sample of arbitral awards that displayed a remarkable degree of uniformity and that might have encouraged arbitral tribunals to resort to previous case law when applying a specific standard of review. This sample consists of regulatory disputes initiated against Spain for alleged violations of the fair and equitable standard provided by Article 10(1) of the Energy Charter Treaty. The article initially gives an account of the relevance of the standard of review doctrine and of the role of precedent in international investment arbitration. It then moves to investigate the possibility that previous case law has served as the legal basis for determining the appropriate standard of review in the regulatory disputes against Spain. Based on the analysis of the Spanish cases, the article finally elaborates on the role of precedent in the identification of the applicable standard of review in general terms.
{"title":"A Role for Precedent in the Determination of the Standard of Review Applicable by Investment Arbitral Tribunals? A Case Study of ect-based Energy Disputes Against Spain","authors":"Niccolò Zugliani","doi":"10.1163/27725650-02020008","DOIUrl":"https://doi.org/10.1163/27725650-02020008","url":null,"abstract":"\u0000The present article enquires whether arbitral “precedent” plays any part in the identification of the applicable standard of review by arbitral tribunals. It does so by surveying a selected sample of arbitral awards that displayed a remarkable degree of uniformity and that might have encouraged arbitral tribunals to resort to previous case law when applying a specific standard of review. This sample consists of regulatory disputes initiated against Spain for alleged violations of the fair and equitable standard provided by Article 10(1) of the Energy Charter Treaty. The article initially gives an account of the relevance of the standard of review doctrine and of the role of precedent in international investment arbitration. It then moves to investigate the possibility that previous case law has served as the legal basis for determining the appropriate standard of review in the regulatory disputes against Spain. Based on the analysis of the Spanish cases, the article finally elaborates on the role of precedent in the identification of the applicable standard of review in general terms.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124914493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-19DOI: 10.1163/27725650-02020003
Gian Maria Farnelli, F. Ferri, M. Gatti, S. Villani
{"title":"Introduction: Judicial Precedent in International and European Law","authors":"Gian Maria Farnelli, F. Ferri, M. Gatti, S. Villani","doi":"10.1163/27725650-02020003","DOIUrl":"https://doi.org/10.1163/27725650-02020003","url":null,"abstract":"","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128882409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-16DOI: 10.1163/27725650-02020009
Martina Di Gaetano
The article analyses the strategic use of the reference to its caselaw by the Court of Justice as a tool to innovate EU law. It compares such use in two areas of EU law, both recently at the heart of a number of important cases: on the one hand, the European Arrest Warrant (eaw), particularly the balance between national judges’ powers to refuse the execution of the eaw and the principle of mutual trust; on the other, the recent developments in the caselaw concerning judicial independence in the context of the worsening rule of law backsliding in Poland. It shows that, while in both cases the Court makes consistently relies upon its ‘settled caselaw’, it does so in different ways. Specifically, in the case of judicial independence, the Court refers to its previous caselaw to expand and consolidate the power of EU institutions vis-à-vis Member States’ national autonomy.
{"title":"The Use of Judicial Precedent as a Form of Activism by the Court of Justice: Strengthening the Union’s Powers to Protect the Rule of Law","authors":"Martina Di Gaetano","doi":"10.1163/27725650-02020009","DOIUrl":"https://doi.org/10.1163/27725650-02020009","url":null,"abstract":"\u0000The article analyses the strategic use of the reference to its caselaw by the Court of Justice as a tool to innovate EU law. It compares such use in two areas of EU law, both recently at the heart of a number of important cases: on the one hand, the European Arrest Warrant (eaw), particularly the balance between national judges’ powers to refuse the execution of the eaw and the principle of mutual trust; on the other, the recent developments in the caselaw concerning judicial independence in the context of the worsening rule of law backsliding in Poland. It shows that, while in both cases the Court makes consistently relies upon its ‘settled caselaw’, it does so in different ways. Specifically, in the case of judicial independence, the Court refers to its previous caselaw to expand and consolidate the power of EU institutions vis-à-vis Member States’ national autonomy.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122037816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-12DOI: 10.1163/27725650-02020007
Roberto Ruoppo
The use of the case-law of the European Court of Human Rights (“ECtHR”) by arbitral tribunals represents a very common practice in investment arbitration. In particular guarantees provided for by Article 1 of Protocol 1 to the European Convention on Human Rights (“echr”) are often referred to in arbitral proceedings in order to clarify bilateral investment treaties’ (“bit s”) provisions because of their broad meaning, such as, for example, the expropriation and the fair and equitable treatment standards. Although this cross-reference is widespread, the legal grounds that allow the application of echr provisions in arbitral proceedings seem to be quite unexplored in the scholarly debate. The aim of this work is to analyze the different tools that have been used to this purpose, namely the systemic interpretation and analogical reasoning, explaining why the latter seems to be the most meaningful one. Since its application naturally implies the existence of common features between the different legal rules at stake, its employment represents a clear evidence of the similarities shared by the right to property and international investments. Patrimonial rights in international law share the same demand of protection, because of the power imbalance suffered by the owner or the investor in respect of State authorities. This acknowledgment can be useful in order to encourage ECtHR case-law application by arbitral tribunals, implementing investors’ protection and reducing the uncertainty of bit s’ provisions.
{"title":"Common Features of the Right to Property and International Investments: Evidence from the use of ECtHR Case-law in Investment Tribunals’ Decisions","authors":"Roberto Ruoppo","doi":"10.1163/27725650-02020007","DOIUrl":"https://doi.org/10.1163/27725650-02020007","url":null,"abstract":"\u0000 The use of the case-law of the European Court of Human Rights (“ECtHR”) by arbitral tribunals represents a very common practice in investment arbitration. In particular guarantees provided for by Article 1 of Protocol 1 to the European Convention on Human Rights (“echr”) are often referred to in arbitral proceedings in order to clarify bilateral investment treaties’ (“bit s”) provisions because of their broad meaning, such as, for example, the expropriation and the fair and equitable treatment standards. Although this cross-reference is widespread, the legal grounds that allow the application of echr provisions in arbitral proceedings seem to be quite unexplored in the scholarly debate. The aim of this work is to analyze the different tools that have been used to this purpose, namely the systemic interpretation and analogical reasoning, explaining why the latter seems to be the most meaningful one. Since its application naturally implies the existence of common features between the different legal rules at stake, its employment represents a clear evidence of the similarities shared by the right to property and international investments. Patrimonial rights in international law share the same demand of protection, because of the power imbalance suffered by the owner or the investor in respect of State authorities. This acknowledgment can be useful in order to encourage ECtHR case-law application by arbitral tribunals, implementing investors’ protection and reducing the uncertainty of bit s’ provisions.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129286452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-30DOI: 10.1163/27725650-02010009
Filippo Venturi
In two judgments issued on 18 November 2021, the Italian Constitutional Court requested the Court of Justice to give a preliminary ruling on the compatibility of the discipline of the European arrest warrant with respect to the fundamental rights of the requested persons as protected by the Italian Constitution and the Charter of the Fundamental Rights of the European Union. This comment expounds the fundamental points of the legal reasoning of the two decisions. In doing so, it underlines the constructive and loyal (but not neutral) attitude of the Italian Constitutional Court, highlighting in particular its use of (legislative and judicial) arguments of European law. After that, the note, sets out the reasons why the common judges raised the question of constitutionality instead of the preliminary reference. In this perspective, Judgment No. 269 of 2017 of the Constitutional Court and the Taricco saga are recalled. In the end, the note emphasizes the value of the two decisions in the current architecture of the multilevel legal system of protection of fundamental rights in criminal matters; however, it also underlines the frailty of the appreciable balance that they strike.
{"title":"War and Peace in the Context of the Multilevel Legal Order for the Protection of the Fundamental Rights of the Persons Requested for the Execution of a European Arrest Warrant","authors":"Filippo Venturi","doi":"10.1163/27725650-02010009","DOIUrl":"https://doi.org/10.1163/27725650-02010009","url":null,"abstract":"\u0000 In two judgments issued on 18 November 2021, the Italian Constitutional Court requested the Court of Justice to give a preliminary ruling on the compatibility of the discipline of the European arrest warrant with respect to the fundamental rights of the requested persons as protected by the Italian Constitution and the Charter of the Fundamental Rights of the European Union. This comment expounds the fundamental points of the legal reasoning of the two decisions. In doing so, it underlines the constructive and loyal (but not neutral) attitude of the Italian Constitutional Court, highlighting in particular its use of (legislative and judicial) arguments of European law. After that, the note, sets out the reasons why the common judges raised the question of constitutionality instead of the preliminary reference. In this perspective, Judgment No. 269 of 2017 of the Constitutional Court and the Taricco saga are recalled. In the end, the note emphasizes the value of the two decisions in the current architecture of the multilevel legal system of protection of fundamental rights in criminal matters; however, it also underlines the frailty of the appreciable balance that they strike.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"251 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123273759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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