Pub Date : 2022-09-30DOI: 10.1163/27725650-02010008
Simone Marinai
In this judgment the Corte di Cassazione addresses the issue of the prohibition on the expulsion of stateless persons guaranteed by Article 31 of the New York Convention of 1954 Relating to the Status of Stateless Persons and affirms that it represents an exception to the general rule under international law according to which every State has, in principle, the right to expel at any moment an alien from its territory. The decision is particularly interesting because it allows a reflection on the vulnerable condition of stateless persons, on the distinction between de jure and de facto statelessness, and on the burden and standard of proof in establishing statelessness.
{"title":"Stateless Status and Expulsion from Italian Territory","authors":"Simone Marinai","doi":"10.1163/27725650-02010008","DOIUrl":"https://doi.org/10.1163/27725650-02010008","url":null,"abstract":"\u0000 In this judgment the Corte di Cassazione addresses the issue of the prohibition on the expulsion of stateless persons guaranteed by Article 31 of the New York Convention of 1954 Relating to the Status of Stateless Persons and affirms that it represents an exception to the general rule under international law according to which every State has, in principle, the right to expel at any moment an alien from its territory. The decision is particularly interesting because it allows a reflection on the vulnerable condition of stateless persons, on the distinction between de jure and de facto statelessness, and on the burden and standard of proof in establishing statelessness.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"26 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":"124883987","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: 10.1163/27725650-02010006
D. Greco
The present comment deals with the much-debated issue of the denial of foreign States’ jurisdictional immunity for acta iure imperii resulting in serious violations of human rights. This question came to the fore in Italy in the early 2000s and has since led to a stark contrast between the International Court of Justice, on the one hand, and Italian courts, in particular the Constitutional Court, on the other. Against this backdrop, these pages are aimed at analysing Order No. 39391/2021 of the Italian Corte di Cassazione, which concerns a proceeding for the enforcement of a US judgment condemning Iran to pay damages to the victims of the 9/11 terrorist attacks. Based on the reasoning of the decision, this comment argues that Italian courts, while praiseworthy for attempting to protect fundamental human rights, seem to have renounced speaking the language of international law.
本评论涉及一个备受争议的问题，即否认外国对帝国行为的管辖豁免导致严重侵犯人权。这个问题在21世纪初出现在意大利，并导致国际法院(International Court of Justice)与意大利法院(尤其是宪法法院)之间形成鲜明对比。在此背景下，本文旨在分析意大利法院第39391/2021号命令，该命令涉及执行美国判决的程序，该判决谴责伊朗向9/11恐怖袭击的受害者支付赔偿金。根据该决定的推理，这一评论认为，意大利法院虽然在试图保护基本人权方面值得赞扬，但似乎已经放弃使用国际法的语言。
{"title":"Italy and the Enforcement of Foreign Judgments on Third States’ Tort Liability for Sponsoring Terrorism","authors":"D. Greco","doi":"10.1163/27725650-02010006","DOIUrl":"https://doi.org/10.1163/27725650-02010006","url":null,"abstract":"\u0000 The present comment deals with the much-debated issue of the denial of foreign States’ jurisdictional immunity for acta iure imperii resulting in serious violations of human rights. This question came to the fore in Italy in the early 2000s and has since led to a stark contrast between the International Court of Justice, on the one hand, and Italian courts, in particular the Constitutional Court, on the other. Against this backdrop, these pages are aimed at analysing Order No. 39391/2021 of the Italian Corte di Cassazione, which concerns a proceeding for the enforcement of a US judgment condemning Iran to pay damages to the victims of the 9/11 terrorist attacks. Based on the reasoning of the decision, this comment argues that Italian courts, while praiseworthy for attempting to protect fundamental human rights, seem to have renounced speaking the language of international law.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 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":"131251318","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: 10.1163/27725650-02010005
Paolo Passaglia
The paper analyzes the use of comparative and foreign law by the Italian Constitutional Court. The author carries out an empirical study mainly with two purposes: measuring the impact of comparative law on the activity of the Court and classifying the functions of comparative law in the Court’s decision-making process. It is impossible to identify all the cases where the Court considers comparative law. Nevertheless, references to comparative or foreign law in rulings can be regarded as significant hints. The Court’s case-law between 2000 and 2021 is examined, and 74 rulings with comparative references are identified. This data is the starting point of the analysis, which shows the increasing use of comparative law by the Constitutional Court. Moreover, the classification of these references shows the growing importance that comparative law has in the Court’s legal reasoning.
{"title":"The Italian Constitutional Court and the Use of Comparative Law: An Empirical Analysis","authors":"Paolo Passaglia","doi":"10.1163/27725650-02010005","DOIUrl":"https://doi.org/10.1163/27725650-02010005","url":null,"abstract":"\u0000 The paper analyzes the use of comparative and foreign law by the Italian Constitutional Court. The author carries out an empirical study mainly with two purposes: measuring the impact of comparative law on the activity of the Court and classifying the functions of comparative law in the Court’s decision-making process.\u0000 It is impossible to identify all the cases where the Court considers comparative law. Nevertheless, references to comparative or foreign law in rulings can be regarded as significant hints. The Court’s case-law between 2000 and 2021 is examined, and 74 rulings with comparative references are identified. This data is the starting point of the analysis, which shows the increasing use of comparative law by the Constitutional Court. Moreover, the classification of these references shows the growing importance that comparative law has in the Court’s legal reasoning.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"13 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":"126674745","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 : 2022-07-19DOI: 10.1163/27725650-02010015
Pasquale Annicchino
The Middle East and North Africa region is diverse and large, and it is therefore difficult to make broad arguments and generalizations on the impact of the Arab Spring on human rights protection. In this context, Egypt and Tunisia are important case studies for the assessment of constitutional transitions and human rights protection in a post-Arab Spring context. After the 2011 uprisings and the fall of the ruling authoritarian regimes, activists, scholars, and civil society organizations raised hopes about improvements in the protection of human rights. However, many forces (security services, the military, religious actors) worked against the hopes of the Revolution. The counter-reaction did not happen only because of national political struggles. Institutional factors also played against structural improvements in human rights promotion and protection. Changes in human rights practices need stable institutional frameworks which facilitate the improvement of human rights practices and constitutional transitions. Tommaso Virgili, with his contribution, focuses on the protection of sexual minorities and freethinkers.
{"title":"The Fragmentation of Human Rights. Case Studies from a Post-Arab Spring Context","authors":"Pasquale Annicchino","doi":"10.1163/27725650-02010015","DOIUrl":"https://doi.org/10.1163/27725650-02010015","url":null,"abstract":"\u0000The Middle East and North Africa region is diverse and large, and it is therefore difficult to make broad arguments and generalizations on the impact of the Arab Spring on human rights protection. In this context, Egypt and Tunisia are important case studies for the assessment of constitutional transitions and human rights protection in a post-Arab Spring context. After the 2011 uprisings and the fall of the ruling authoritarian regimes, activists, scholars, and civil society organizations raised hopes about improvements in the protection of human rights. However, many forces (security services, the military, religious actors) worked against the hopes of the Revolution. The counter-reaction did not happen only because of national political struggles. Institutional factors also played against structural improvements in human rights promotion and protection. Changes in human rights practices need stable institutional frameworks which facilitate the improvement of human rights practices and constitutional transitions. Tommaso Virgili, with his contribution, focuses on the protection of sexual minorities and freethinkers.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127497563","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 : 2022-03-15DOI: 10.1163/27725650-01020009
S. Dominelli
The contribution examines a recent decision by the Italian Corte di Cassazione rendered in matters of recognition and enforcement of foreign judgments issued in other European Union Member States. By analysing the reasoning of the Italian Corte di Cassazione in the application of the public policy test as a ground to refuse enforcement in Italy of a Polish ruling, the Corte di Cassazione’s methodological approaches are scrutinised against the background of the founding principles of mutual trust and free movement of decisions in the European judicial space. The conclusions of the Italian Corte di Cassazione are supported as it emerges from the commented decision that the public policy exception is applied in such a way to avoid an application that would go beyond its scope and purpose. More specifically, the circumstance a foreign decision has been adopted without an evidence being taken has not been considered to be in violation of a general substantive “right to evidence,” whilst it has been deemed that, in relevant fields of life, the lack of taking of an evidence already admitted to trial by the court of origin does constitute a breach of a (constitutionally protected) procedural fair trial in Italy.
这篇文章审查了意大利卡萨齐奥尼法院最近就承认和执行在其他欧洲联盟成员国作出的外国判决的事项作出的一项决定。通过分析意大利法院将公共政策测试作为拒绝在意大利执行波兰裁决的理由的推理，在欧洲司法空间中相互信任和决定自由流动的基本原则的背景下，对意大利法院的方法方法进行了仔细审查。意大利Corte di Cassazione的结论得到了支持，因为它从评论决定中脱颖而出，即公共政策例外的适用方式是为了避免超出其范围和目的的应用。更具体地说，在没有采取证据的情况下通过外国决定的情况，不被认为违反了一般的实质性“证据权”，而在生活的相关领域，没有采取原审法院已经接受审判的证据，在意大利确实构成违反(受宪法保护的)程序性公正审判。
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Pub Date : 2022-03-15DOI: 10.1163/27725650-01020013
G. Minervini
In July 2021, the Italian Chamber of Deputies passed a motion concerning certain actions to be taken in favor of Mr Zaki, an Egyptian activist and a student at the University of Bologna, who – until December 2021 – was arbitrarily detained in inhuman conditions in Egypt. Notably, the motion urged the Government to take all the necessary measures to naturalize the activist. Against this background, the present comment aims at analyzing the consequences of a possible attribution of citizenship, assessing its feasibility under international law as well as what Italy could do to uphold Mr Zaki’s human rights.
{"title":"Italian Citizenship Attribution to Patrick Zaki","authors":"G. Minervini","doi":"10.1163/27725650-01020013","DOIUrl":"https://doi.org/10.1163/27725650-01020013","url":null,"abstract":"\u0000In July 2021, the Italian Chamber of Deputies passed a motion concerning certain actions to be taken in favor of Mr Zaki, an Egyptian activist and a student at the University of Bologna, who – until December 2021 – was arbitrarily detained in inhuman conditions in Egypt. Notably, the motion urged the Government to take all the necessary measures to naturalize the activist. Against this background, the present comment aims at analyzing the consequences of a possible attribution of citizenship, assessing its feasibility under international law as well as what Italy could do to uphold Mr Zaki’s human rights.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114202953","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 : 2022-03-15DOI: 10.1163/27725650-01020007
D. Mauri
In this much-awaited ruling (Order No. 97 of 15 April 2021), the Corte Costituzionale had to decide on the constitutionality of the existing prohibition on release on parole for life prisoners convicted for Mafia-related crimes, in the absence of any cooperation with justice (ergastolo ostativo). This form of life imprisonment without prospect of release had already been deemed in contrast with Article 3 of the European Convention of Human Rights (echr) in the judgment rendered by the Strasbourg Court in Viola v. Italy (No. 2): on that occasion, the ECtHR invoked a legislative reform of the ergastolo ostativo. In the order at hand, the Corte Costituzionale, instead of formally declaring the unconstitutionality of relevant provisions, resorted to a recently crafted technique to postpone the hearing (until 10 May 2022) so as to give the Houses time to pass new legislation and fix the “systemic problems” outlined by the Strasbourg Court. This contribution aims at offering initial reflections on the use of such technique as an instrument for ensuring the proper implementation of ECtHR judgments in the domestic legal order. For this purpose, after an overview of the ECtHR case law in the field of ergastolo ostativo, it will provide an analysis of relevant proceedings before the Committee of Ministers qua monitoring body of the execution of ECtHR judgments. Finally, a critical appraisal of the reasons militating in favor of and against this technique, from the standpoint of the respect of human rights, will ensue.
{"title":"A New Technique for Implementing ECtHR Judgments: Will It Work?","authors":"D. Mauri","doi":"10.1163/27725650-01020007","DOIUrl":"https://doi.org/10.1163/27725650-01020007","url":null,"abstract":"\u0000In this much-awaited ruling (Order No. 97 of 15 April 2021), the Corte Costituzionale had to decide on the constitutionality of the existing prohibition on release on parole for life prisoners convicted for Mafia-related crimes, in the absence of any cooperation with justice (ergastolo ostativo). This form of life imprisonment without prospect of release had already been deemed in contrast with Article 3 of the European Convention of Human Rights (echr) in the judgment rendered by the Strasbourg Court in Viola v. Italy (No. 2): on that occasion, the ECtHR invoked a legislative reform of the ergastolo ostativo. In the order at hand, the Corte Costituzionale, instead of formally declaring the unconstitutionality of relevant provisions, resorted to a recently crafted technique to postpone the hearing (until 10 May 2022) so as to give the Houses time to pass new legislation and fix the “systemic problems” outlined by the Strasbourg Court. This contribution aims at offering initial reflections on the use of such technique as an instrument for ensuring the proper implementation of ECtHR judgments in the domestic legal order. For this purpose, after an overview of the ECtHR case law in the field of ergastolo ostativo, it will provide an analysis of relevant proceedings before the Committee of Ministers qua monitoring body of the execution of ECtHR judgments. Finally, a critical appraisal of the reasons militating in favor of and against this technique, from the standpoint of the respect of human rights, will ensue.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127736703","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 : 2022-03-15DOI: 10.1163/27725650-01020004
O. Pollicino
This article underlines the role of courts in ensuring the protection of fundamental rights in the digital environment. In particular, the focus will be on the European and the US judicial dimension, looking at the right of freedom of expression and data protection. Section 2 underlines how judges rely on metaphors to address digital matters. Sections 3 and 4 respectively look at the role of courts in shaping the protection of freedom of expression and of privacy and personal data across the Atlantic. Section 5 provides two examples of the role of European courts in extending values across the Atlantic.
{"title":"The Transatlantic Dimension of the Judicial Protection of Fundamental Rights Online","authors":"O. Pollicino","doi":"10.1163/27725650-01020004","DOIUrl":"https://doi.org/10.1163/27725650-01020004","url":null,"abstract":"\u0000This article underlines the role of courts in ensuring the protection of fundamental rights in the digital environment. In particular, the focus will be on the European and the US judicial dimension, looking at the right of freedom of expression and data protection. Section 2 underlines how judges rely on metaphors to address digital matters. Sections 3 and 4 respectively look at the role of courts in shaping the protection of freedom of expression and of privacy and personal data across the Atlantic. Section 5 provides two examples of the role of European courts in extending values across the Atlantic.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"196 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116355127","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 : 2022-03-15DOI: 10.1163/27725650-01020012
Giuliana Lampo
In March 2021, Italy vetoed the acquisition of an Italian company operating in the field of semiconductors by a Chinese group. It did so by using its so-called golden power, meaning the power to interfere with the management of companies to protect strategic economic sectors, introduced in 2012 and substantially revised in 2019 and 2020. The present comment offers an evaluation of the compatibility of Italy’s inward investment screening powers with international law norms on the promotion and protection of foreign investments by trying to outline the limits posed by the latter on domestic foreign investment screening mechanisms.
{"title":"Italy’s Exercise of Foreign Investment Screening Power against Chinese Takeover","authors":"Giuliana Lampo","doi":"10.1163/27725650-01020012","DOIUrl":"https://doi.org/10.1163/27725650-01020012","url":null,"abstract":"\u0000In March 2021, Italy vetoed the acquisition of an Italian company operating in the field of semiconductors by a Chinese group. It did so by using its so-called golden power, meaning the power to interfere with the management of companies to protect strategic economic sectors, introduced in 2012 and substantially revised in 2019 and 2020. The present comment offers an evaluation of the compatibility of Italy’s inward investment screening powers with international law norms on the promotion and protection of foreign investments by trying to outline the limits posed by the latter on domestic foreign investment screening mechanisms.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133830085","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 : 2022-03-15DOI: 10.1163/27725650-01020016
Gabriele Asta
This review essay discusses Loris Marotti’s “Il doppio grado di giudizio nel processo internazionale”. The book represents an important contribution to the study not only of the specific topic of double degree of jurisdiction in the international legal order but also of international adjudication at large. The purpose of the present essay is to highlight some of the most valuable aspects of the book, namely, the conceptual model adopted, the “functional” approach chosen to compare a variety of mechanisms of double degree of jurisdiction and the unveiling of the multi-layered tensions stemming from their establishment. The essay will conclude with some reflections on the current and prospective relevance of the theorised conceptual framework.
这篇评论文章讨论了洛里斯·马洛蒂(Loris Marotti)的“Il doppio grado di giudizio nel process international”。这本书不仅对研究国际法律秩序中双重管辖权这一具体问题，而且对研究整个国际审判作出了重要贡献。本文的目的是强调本书中一些最有价值的方面，即所采用的概念模型，选择的“功能”方法来比较双重管辖权的各种机制，以及揭示源于其建立的多层次紧张关系。最后，本文将对理论化的概念框架的当前和未来的相关性进行一些反思。
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