Pub Date : 2022-09-30DOI: 10.1163/27725650-02010007
P. Franzina
This note examines a ruling by the Corte di Cassazione concerning procedural public policy as a ground for non-recognition of foreign judgments. The Corte di Cassazione held that a foreign judgment may not be denied recognition in Italy on the sole ground that the court of origin previously granted an in personam interim measure restraining the respondent from dealing with its assets, whereas, under Italian law, asset preservation measures necessarily operate in rem. According to the Court, the public policy defence can only succeed if the proceedings before the court of origin, considered as a whole, were tainted by a serious violation of fundamental procedural rights. Having found no evidence of such a violation in the circumstances, the Court concluded that the foreign judgment concerned was eligible for recognition. The ruling of the Corte di Cassazione confirms of the restrictive approach to public policy which the Court itself developed throughout its previous case law, and will plausibly serve as a model for future decisions regarding procedural public policy.
{"title":"Violation of Public Policy as a Ground for Non-Recognition of Foreign Judgments – The Case of Judgments Preceded by a Mareva-Type Freezing Order","authors":"P. Franzina","doi":"10.1163/27725650-02010007","DOIUrl":"https://doi.org/10.1163/27725650-02010007","url":null,"abstract":"\u0000 This note examines a ruling by the Corte di Cassazione concerning procedural public policy as a ground for non-recognition of foreign judgments. The Corte di Cassazione held that a foreign judgment may not be denied recognition in Italy on the sole ground that the court of origin previously granted an in personam interim measure restraining the respondent from dealing with its assets, whereas, under Italian law, asset preservation measures necessarily operate in rem. According to the Court, the public policy defence can only succeed if the proceedings before the court of origin, considered as a whole, were tainted by a serious violation of fundamental procedural rights. Having found no evidence of such a violation in the circumstances, the Court concluded that the foreign judgment concerned was eligible for recognition. The ruling of the Corte di Cassazione confirms of the restrictive approach to public policy which the Court itself developed throughout its previous case law, and will plausibly serve as a model for future decisions regarding procedural public policy.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"136 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":"116321169","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: 10.1163/27725650-02010002
R. Virzo
For some coastal States, the rise in sea levels may cause the baselines and national maritime spaces to regress towards the coast. From a legal point of view, the question arises as to whether, in the event of such phenomenon occurring, the States concerned would be able to maintain their current baselines and outer limits of national maritime spaces. According to some authors, this would be prohibited by the existing rules of the international law of the sea. If this were the case, one would nevertheless still have to consider whether the States affected by sea-level rise could invoke a state of necessity in order not to apply, without committing an internationally wrongful act, any rules of international law stipulating that baselines are ambulatory. In order to answer that question, this essay examines and applies to the present case all the cumulative conditions laid down in Article 25 of the Draft Articles on State Responsibility adopted in 2001 by the International Law Commission.
{"title":"Sea-Level Rise and State of Necessity: Maintaining Current Baselines and Outer Limits of National Maritime Zones","authors":"R. Virzo","doi":"10.1163/27725650-02010002","DOIUrl":"https://doi.org/10.1163/27725650-02010002","url":null,"abstract":"\u0000 For some coastal States, the rise in sea levels may cause the baselines and national maritime spaces to regress towards the coast. From a legal point of view, the question arises as to whether, in the event of such phenomenon occurring, the States concerned would be able to maintain their current baselines and outer limits of national maritime spaces. According to some authors, this would be prohibited by the existing rules of the international law of the sea. If this were the case, one would nevertheless still have to consider whether the States affected by sea-level rise could invoke a state of necessity in order not to apply, without committing an internationally wrongful act, any rules of international law stipulating that baselines are ambulatory. In order to answer that question, this essay examines and applies to the present case all the cumulative conditions laid down in Article 25 of the Draft Articles on State Responsibility adopted in 2001 by the International Law Commission.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"19 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":"127056638","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: 10.1163/27725650-02010013
Francesca Capone
The present review essay discusses Antonio Cassese’s book Il diritto internazionale in Italia, which was written in the late 1980s and saw the light only in 2021. Each part of this short and very dense volume contains and triggers significant reflections on various topics that are still extremely relevant to this day, and perhaps now more than ever. The starting point of Professor Cassese’s inquiry is a straightforward question: how is the work of the Italian international lawyers perceived abroad? More in detail, he wonders if and to what extent it is true that the Italian doctrine, which is characterized by unparalleled scientific rigor and in-depth theoretical disquisitions, pays scant or no attention to practical problems and political, economic, and social implications at large. Professor Cassese’s analysis revolves around this initial question but at the same time departs from it in order to offer a wider and extremely accurate overview of its ramifications. In particular, Antonio Cassese helps the reader to better understand the role of international lawyers and the tools at their disposal to contribute to enhancing the society they live and operate in.
本文讨论的是安东尼奥·卡塞塞(Antonio Cassese)的《意大利的国际日》(Il diritto internazionale)一书，该书写于20世纪80年代末，直到2021年才问世。这本短小精悍的书的每一部分都包含并引发了对各种主题的重要反思，这些主题与今天仍然非常相关，也许现在比以往任何时候都更重要。卡塞塞教授调查的出发点是一个直截了当的问题:国外如何看待意大利国际律师的工作?更详细地说，他想知道，以无与伦比的科学严谨性和深入的理论研究为特征的意大利主义，是否以及在多大程度上对实际问题以及政治、经济和社会影响很少或根本没有关注。卡塞斯教授的分析围绕着这个最初的问题展开，但同时又离开了这个问题，以便对其后果提供一个更广泛、极其准确的概述。特别是，安东尼奥·卡塞塞帮助读者更好地理解国际律师的作用，以及他们可以使用的工具，以促进他们生活和工作的社会。
{"title":"The Development of the Italian Doctrine in the Words of Antonio Cassese","authors":"Francesca Capone","doi":"10.1163/27725650-02010013","DOIUrl":"https://doi.org/10.1163/27725650-02010013","url":null,"abstract":"\u0000 The present review essay discusses Antonio Cassese’s book Il diritto internazionale in Italia, which was written in the late 1980s and saw the light only in 2021. Each part of this short and very dense volume contains and triggers significant reflections on various topics that are still extremely relevant to this day, and perhaps now more than ever. The starting point of Professor Cassese’s inquiry is a straightforward question: how is the work of the Italian international lawyers perceived abroad? More in detail, he wonders if and to what extent it is true that the Italian doctrine, which is characterized by unparalleled scientific rigor and in-depth theoretical disquisitions, pays scant or no attention to practical problems and political, economic, and social implications at large. Professor Cassese’s analysis revolves around this initial question but at the same time departs from it in order to offer a wider and extremely accurate overview of its ramifications. In particular, Antonio Cassese helps the reader to better understand the role of international lawyers and the tools at their disposal to contribute to enhancing the society they live and operate in.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"6 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":"117147745","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: 10.1163/27725650-02010012
Luigi Prosperi
Through the adoption of Law No. 202/2021 on the ratification of the amendments to the Statute of the International Criminal Court, among other things Italy accepted the icc’s jurisdiction over the crime of aggression. This comment argues that with respect to proprio motu investigations and States Parties’ referrals, the scope of such jurisdiction depends on the interpretation of Articles 15bis(4) and 15bis(5) of the Statute. The ratification has two additional implications. First, conducts committed by Italian nationals in the context of international military operations may be scrutinized by the icc. Second, the Italian legislator should enact domestic legislation criminalizing the crime of aggression in order not to incur the violation of an obligation to cooperate with the Court pursuant to Part 9 of the Statute.
{"title":"Legal Effects of the Ratification by Italy of the Amendments to the icc Statute on Aggression","authors":"Luigi Prosperi","doi":"10.1163/27725650-02010012","DOIUrl":"https://doi.org/10.1163/27725650-02010012","url":null,"abstract":"\u0000 Through the adoption of Law No. 202/2021 on the ratification of the amendments to the Statute of the International Criminal Court, among other things Italy accepted the icc’s jurisdiction over the crime of aggression. This comment argues that with respect to proprio motu investigations and States Parties’ referrals, the scope of such jurisdiction depends on the interpretation of Articles 15bis(4) and 15bis(5) of the Statute. The ratification has two additional implications. First, conducts committed by Italian nationals in the context of international military operations may be scrutinized by the icc. Second, the Italian legislator should enact domestic legislation criminalizing the crime of aggression in order not to incur the violation of an obligation to cooperate with the Court pursuant to Part 9 of the Statute.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"28 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":"121295369","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: 10.1163/27725650-02010014
M. Buscemi
This review essay discusses Lorenzo Gasbarri’s book which purports to examine an “existential” issue – the concept of an International Organization – with a theoretical approach that makes use of tools of analysis pertaining not only to the field of international law, but also to legal philosophy. After a cursory overview of existing legal research on the subject, the essay dwells on the author’s thesis – namely, the dual nature of International Organizations, based on the dual legal character of their legal systems – and highlights merits and possible drawbacks underlying the attempt to conceptualize International Organizations.
{"title":"What’s in a name?","authors":"M. Buscemi","doi":"10.1163/27725650-02010014","DOIUrl":"https://doi.org/10.1163/27725650-02010014","url":null,"abstract":"\u0000 This review essay discusses Lorenzo Gasbarri’s book which purports to examine an “existential” issue – the concept of an International Organization – with a theoretical approach that makes use of tools of analysis pertaining not only to the field of international law, but also to legal philosophy. After a cursory overview of existing legal research on the subject, the essay dwells on the author’s thesis – namely, the dual nature of International Organizations, based on the dual legal character of their legal systems – and highlights merits and possible drawbacks underlying the attempt to conceptualize International Organizations.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"244 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":"121875965","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: 10.1163/27725650-02010004
F. Casolari
During the last decades, the landscape of Chemical, Biological, Radiological and Nuclear (“cbrn”) threats has significantly evolved. In the light of this, it does not come as a surprise that several initiatives have recently been put in place both at universal and regional level to deal with such threats, trying to introduce a more robust legal framework for cbrn events. The present article provides a global assessment on the role played by Italy in identifying and/or strengthening international obligations related to cbrn events. In the light of the piecemeal cbrn legal landscape, the article will not discuss each and every initiative put in place by Italy; rather, the analysis will be focused on the contribution given by Italy to multilateral initiatives which are likely to produce cross-cutting or horizontal impacts on the discipline.
{"title":"Italy’s Contribution to a More Robust International Architecture for the cbrn Legal Landscape","authors":"F. Casolari","doi":"10.1163/27725650-02010004","DOIUrl":"https://doi.org/10.1163/27725650-02010004","url":null,"abstract":"\u0000 During the last decades, the landscape of Chemical, Biological, Radiological and Nuclear (“cbrn”) threats has significantly evolved. In the light of this, it does not come as a surprise that several initiatives have recently been put in place both at universal and regional level to deal with such threats, trying to introduce a more robust legal framework for cbrn events. The present article provides a global assessment on the role played by Italy in identifying and/or strengthening international obligations related to cbrn events. In the light of the piecemeal cbrn legal landscape, the article will not discuss each and every initiative put in place by Italy; rather, the analysis will be focused on the contribution given by Italy to multilateral initiatives which are likely to produce cross-cutting or horizontal impacts on the discipline.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"17 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":"115388456","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: 10.1163/27725650-02010003
Gabriele Asta
The present article is aimed at critically assessing the ECtHR’s decision to dismiss the first request submitted under Article 29 of the Convention on Human Rights and Biomedicine (“Oviedo Convention”) by the Council of Europe’s Committee on Bioethics, for the purpose of clarifying certain aspects of the interpretation of Article 7 of the Oviedo Convention. While the ECtHR ultimately decided not to render the advisory opinion on the grounds that it would be outside its competence, the decision is of interest because it nonetheless was an occasion for the Court to assert in general terms its jurisdiction under Article 29 of the Oviedo Convention and to define the contours of its advisory competence. Yet, it will be argued that the Court’s reasoning is rather unconvincing, if not mistaken, and that it ultimately results in an unclear definition of the boundaries of its jurisdiction. The lack of clarity is further exacerbated by the fact that the Court seems to have treated as questions of competence some issues that most likely would have had to be addressed within the framework of propriety. This aspect will appear rather distinctly if one compares the ECtHR’s approach to the solutions adopted by other international courts and tribunals. This comparison will also be useful in order to suggest an alternative path that the Court could have followed, and which would have not only represented a more correct and coherent reasoning but also avoided the likely outcome of its decision, that is putting its advisory competence under the Oviedo Convention back in the attic.
{"title":"The ECtHR’s Decision to Dismiss the First Request Submitted Under Article 29 of the Convention on Human Rights and Biomedicine","authors":"Gabriele Asta","doi":"10.1163/27725650-02010003","DOIUrl":"https://doi.org/10.1163/27725650-02010003","url":null,"abstract":"\u0000 The present article is aimed at critically assessing the ECtHR’s decision to dismiss the first request submitted under Article 29 of the Convention on Human Rights and Biomedicine (“Oviedo Convention”) by the Council of Europe’s Committee on Bioethics, for the purpose of clarifying certain aspects of the interpretation of Article 7 of the Oviedo Convention. While the ECtHR ultimately decided not to render the advisory opinion on the grounds that it would be outside its competence, the decision is of interest because it nonetheless was an occasion for the Court to assert in general terms its jurisdiction under Article 29 of the Oviedo Convention and to define the contours of its advisory competence. Yet, it will be argued that the Court’s reasoning is rather unconvincing, if not mistaken, and that it ultimately results in an unclear definition of the boundaries of its jurisdiction. The lack of clarity is further exacerbated by the fact that the Court seems to have treated as questions of competence some issues that most likely would have had to be addressed within the framework of propriety. This aspect will appear rather distinctly if one compares the ECtHR’s approach to the solutions adopted by other international courts and tribunals. This comparison will also be useful in order to suggest an alternative path that the Court could have followed, and which would have not only represented a more correct and coherent reasoning but also avoided the likely outcome of its decision, that is putting its advisory competence under the Oviedo Convention back in the attic.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"17 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":"114776340","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: 10.1163/27725650-02010010
Elettra Stradella
The paper focuses on the recent reelection of Sergio Mattarella as the President of the Republic in Italy. It basically analyzes the most important issues concerning presidential election and reelection, underlining constitutional perspectives and all the controversial aspects of parliamentary procedure. Within this framework it reflects on internal and external reasons determining this result, and it investigates the role of the Parliament, as well as the impact of the stabilization of the reelection practice on future presidential elections.
{"title":"The Last Presidential (Re)Election in Italy","authors":"Elettra Stradella","doi":"10.1163/27725650-02010010","DOIUrl":"https://doi.org/10.1163/27725650-02010010","url":null,"abstract":"\u0000 The paper focuses on the recent reelection of Sergio Mattarella as the President of the Republic in Italy. It basically analyzes the most important issues concerning presidential election and reelection, underlining constitutional perspectives and all the controversial aspects of parliamentary procedure. Within this framework it reflects on internal and external reasons determining this result, and it investigates the role of the Parliament, as well as the impact of the stabilization of the reelection practice on future presidential elections.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"11 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":"115298480","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: 10.1163/27725650-02010001
M. Iovane
This article comments upon two recent decisions of the Tribunal of Rome concerning the international legal status of Jerusalem. The issue before the court was whether rai, Italy’s public service broadcasting company, had aired false information by presenting the city as the capital of Israel. After summarizing the key aspects of the historical process which led to the current arrangement of Jerusalem, the article highlights that the international regulation of the city’s legal status mainly depends on the customary principle of non-recognition of territorial acquisitions by the use of armed force. It then analyses how the non-recognition regime affects the international legal status of Jerusalem. In this regard, it is argued that the position – taken by the Tribunal of Rome in the first of its two decisions – that Jerusalem is not recognized as the capital of Israel under international law seems excessive. The non-recognition regime only affects the status of East Jerusalem, while Israeli sovereignty over West Jerusalem appears largely uncontroversial. Therefore, defining Jerusalem as the “disputed” capital of Israel – as done by the tribunal’s second decision – is a more accurate depiction of the complexities surrounding Jerusalem’s status, which should eventually be defined through negotiations between the involved parties.
{"title":"Non-Recognition of Territorial Acquisitions by the Use of Armed Force: The Status of Jerusalem before Italian Courts","authors":"M. Iovane","doi":"10.1163/27725650-02010001","DOIUrl":"https://doi.org/10.1163/27725650-02010001","url":null,"abstract":"\u0000 This article comments upon two recent decisions of the Tribunal of Rome concerning the international legal status of Jerusalem. The issue before the court was whether rai, Italy’s public service broadcasting company, had aired false information by presenting the city as the capital of Israel. After summarizing the key aspects of the historical process which led to the current arrangement of Jerusalem, the article highlights that the international regulation of the city’s legal status mainly depends on the customary principle of non-recognition of territorial acquisitions by the use of armed force. It then analyses how the non-recognition regime affects the international legal status of Jerusalem. In this regard, it is argued that the position – taken by the Tribunal of Rome in the first of its two decisions – that Jerusalem is not recognized as the capital of Israel under international law seems excessive. The non-recognition regime only affects the status of East Jerusalem, while Israeli sovereignty over West Jerusalem appears largely uncontroversial. Therefore, defining Jerusalem as the “disputed” capital of Israel – as done by the tribunal’s second decision – is a more accurate depiction of the complexities surrounding Jerusalem’s status, which should eventually be defined through negotiations between the involved parties.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"38 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":"125080074","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: 10.1163/27725650-02010011
I. Queirolo
With its Decision of 29 November 2021 (No. 7918/21), the Supreme Court of Tel Aviv has ruled on the case of Eitan Biran, the child who survived the crash disaster of the “Mottarone” cable car in Italy. After the accident, the child was entrusted to his aunt, appointed as legal guardian. However, a few months later, the child was unexpectedly conducted to Israel by his paternal grandfather. The Israeli Family Court and District Court, appointed for the return of the child according to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, have ordered the immediate repatriation in Italy. The decision of the District Court was upheld by the Supreme Court, whose decision represents a good example of correct application of the 1980 Hague Convention. Acknowledging that the guiding principle of the Convention is “zero tolerance for child abductions”, the Court has established that the habitual residence of the child was in Italy and that the transfer to Israel was in breach of the custody rights of the legal guardian according to Articles 3 and 5 of the Convention: in fact, the institute of tutore legale in Italy attributes to a person the responsibility of a child, a circumstance that in this case derived from a judicial decision. Moreover, the Israeli Supreme Court has adhered to a strict interpretation of the exceptions stated in Articles 12(2), 13 and 20, none of which resulted applicable to the case at hand.
{"title":"International Child Abduction and the 1980 Hague Convention in Practice: The Biran Case","authors":"I. Queirolo","doi":"10.1163/27725650-02010011","DOIUrl":"https://doi.org/10.1163/27725650-02010011","url":null,"abstract":"\u0000 With its Decision of 29 November 2021 (No. 7918/21), the Supreme Court of Tel Aviv has ruled on the case of Eitan Biran, the child who survived the crash disaster of the “Mottarone” cable car in Italy. After the accident, the child was entrusted to his aunt, appointed as legal guardian. However, a few months later, the child was unexpectedly conducted to Israel by his paternal grandfather. The Israeli Family Court and District Court, appointed for the return of the child according to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, have ordered the immediate repatriation in Italy.\u0000 The decision of the District Court was upheld by the Supreme Court, whose decision represents a good example of correct application of the 1980 Hague Convention. Acknowledging that the guiding principle of the Convention is “zero tolerance for child abductions”, the Court has established that the habitual residence of the child was in Italy and that the transfer to Israel was in breach of the custody rights of the legal guardian according to Articles 3 and 5 of the Convention: in fact, the institute of tutore legale in Italy attributes to a person the responsibility of a child, a circumstance that in this case derived from a judicial decision. Moreover, the Israeli Supreme Court has adhered to a strict interpretation of the exceptions stated in Articles 12(2), 13 and 20, none of which resulted applicable to the case at hand.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"39 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":"130378161","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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